13 CIR 394 (2001)




















CASE NO. 1004





For the Petitioner: Mark A. Fahleson
Rembolt Ludtke & Berger LLP
1201 Lincoln Mall, Suite 102
Lincoln, NE  68508
For the Respondent: John P. Fahey
Law Office of John P. Fahey, P.C.
1623 Farnam Street, Suite 850
Omaha, NE  68102


The Petition alleges that Respondent has engaged in prohibited practices in violation of Neb. Rev. Stat. '' 48-824 and 48-825. Petitioner alleges that Respondent's violations include:

a. Refusing to execute the agreement reached by the parties through the collective bargaining process, and

b. Refusing to bargain collectively by reason of failure to respond to requests by Petitioner regarding such agreement.

Respondent has filed its Answer, denying the existence of the agreement and denying the alleged failure or refusal to bargain collectively. Respondent has filed a Motion to Dismiss, citing Neb. Rev. Stat. ' 48-825 regarding the Commission's authority to dismiss a complaint if the Commission determines that the complaint has no basis in fact. The matter has been briefed by the parties, and hearing on the motion was not requested by either party.

Both parties have included a substantial amount of evidentiary materials in the pleadings in this case, and they rely on such matters in their arguments on the pending motion. Respondent also relies on additional statements of fact in it's brief in support of the Motion.

Petitioner has treated the Motion as a Motion for Summary Judgment. However, there is no evidence by affidavit or discovery to supplement the admitted allegations of the pleadings, and further, the Nebraska Supreme Court has ruled that this Commission does not have statutory authority to entertain a Motion for Summary Judgment. see Jolly v. State, 252 Neb. 289, 562 N.W.2d 61 (1997). It is noted, however, that Neb. Rev. Stat. ' 48-825 provides that the Commission is to make a preliminary determination as to whether a complaint has a basis in fact and that the Commission is to either dismiss the complaint or set it for hearing. It is noted as well that Neb. Rev. Stat. ' 48-812 provides that generally the proceedings before the Commission shall conform to the Code of Civil Procedure applicable to the District Courts of the State. The Nebraska Supreme Court has held that a Motion to Dismiss is an inappropriate pleading, but that it may be appropriate where it can be treated as a demurrer. Anderson v. Matthis, 246 Neb. 215, 518 N.W.2d 94 (1994). However, this Commission has entertained such Motions as a proper method of questioning whether the Petition states a factual basis for invoking the Commission's jurisdiction. This would also be true when treating the Motion as a Motion on the Pleadings to challenge whether there is a factual basis.

When a Motion to Dismiss is appropriate, it is considered by the Courts on standards substantially similar applied to a Motion on the Pleadings or Motion for Summary Judgment. Every controverted fact is viewed in the non-moving party's favor, and that party is given the benefit of every reasonable inference to be draw therefrom. R.J. Miller, Inc. v. Harrington, 260 Neb. 471, 618 N.W.2d 460 (2000).

In determining the questions presented by the Respondent's Motion, it will be treated as a Motion on the Pleadings, wherein the moving party is viewed as having admitted all well pleaded facts in the opposing party's pleadings, together with all reasonable inferences to be drawn from such facts, and also is treated as having admitted the untruth of his own allegations in-so-far as they have been controverted. Nelson v. City of Omaha, 256 Neb. 303, 589 N.W.2d 522 (1969).

Respondent, in its argument in support of its Motion to Dismiss, has relied upon the allegations or fact contained in its Answer which have not been admitted. These alleged facts, as well as the allegation of fact contained in Respondent's Brief, may or may not be true and accurate, but we cannot at this time decide. By viewing all controverted allegations of fact in the pleadings most favorably for the Petitioner, we find that the allegations of the Petition sufficiently allege a factual basis to support the claims that the Respondent has entered into the alleged prohibited practice of refusing to negotiate collectively and/or refusing to negotiate in good faith. It is immaterial that the Motion to Dismiss is treated as a Motion on the Pleadings rather than a Demurrer, as the result after application of the proper test is the same. A demurrer for failure to state facts sufficient to constitute a cause of action admits all well pleaded facts of the Petition. Hallstead v. Perrigo, 87 Neb. 128, 126 N.W.10th (1910).

IT IS THEREFORE ORDERED that the Motion to Dismiss is denied. This matter shall be scheduled by the Clerk for a preliminary proceeding at the earliest available date in accordance with Rule 21, for the purpose of scheduling for Pretrial Conference and Trial.

Entered: May 11, 2001.