16 CIR 589 (2011)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Entered January 14, 2011

APPEARANCES:

MCGINN, C. 

Before: Commissioners McGinn, Orr, and Burger.

 NATURE OF THE PROCEEDINGS:

This matter comes before the Commission upon the Respondent’s Motion to Dismiss. A hearing on the Respondent’s Motion to Dismiss was held before the Honorable Bernard J. McGinn at 9:00 a.m. on Tuesday, January 4, 2011.   The Petitioner Bill Oberg represented himself, electing to proceed pro se.  The Respondent was represented by its attorney, A. Stevenson Bogue. The Respondent argued in support of its Motion to Dismiss and the Petitioner elected to submit a written response to said argument and to the Respondent’s brief in support of its Motion to Dismiss. The Petitioner submitted his written response to the Respondent’s Motion to Dismiss and a written response to the Respondent’s Brief in support of its Motion to Dismiss on January 6, 2011. The Respondent elected to not respond to the Petitioner’s written response and the matter was submitted to the Commission on January 6, 2011.

STANDARD FOR DECISION:

The Commission has in the past granted a motion to dismiss. See Fraternal Order of Police Lodge 43 v. The City of Sidney, 13 CIR 329 (2000). In considering a motion to dismiss under Neb. Rev. Stat. § 48-812, the Commission shall conform to the Code of Civil Procedure applicable to the district courts of the state. The district courts consider motions to dismiss under Neb. Ct. R. Pldg. §§ 6-112(b)(6) and 6-1109(b). In entertaining Motions to Dismiss, the Commission determines whether the Petition states a factual basis for invoking the Commission's jurisdiction. Without an appropriate invocation of the Commission's jurisdiction, the Commission is left with no relief requested in the petition. Therefore, the Commission must determine if its jurisdiction has been properly invoked in the instant case.

LEGAL ANALYSIS:

The Respondent argues that the Petitioner is requesting the Commission to make a determination on a purely individual claim regarding a single term of employment (not overall compensation) which is unrelated to any collective or concerted employee activity or agreement. The Petitioner argues that this case is not an “individual dispute” because it is a condition of employment applicable to all state employees.

After a careful review of the Industrial Relations Act, we find the Petitioner presents an individual dispute not related to collective or concerted activity under the Industrial Relations Act. The Commission of Industrial Relations does not have subject matter jurisdiction with respect to “uniquely personal” matters. See Nebraska Dept. of Roads Employees Ass’n v. Department of Roads, 189 Neb. 754, 205 N.W.2d 110 (1973). See also, Schmieding v. City of Lincoln and Lincoln General Hospital, 2 CIR 60 (1972). Schmieding very clearly held that uniquely personal matters are not within the legislative policy behind the Industrial Relations Act. The Petitioner must allege an industrial dispute and has failed to do so under the Act. Therefore, we find that we do not have subject matter jurisdiction over this dispute.

The Respondent also argues that the Petitioner lacks standing to bring this action on behalf of any others because he is not, nor does he expressly allege to be, an agent or representative of the other state employees. The Petitioner suggests that Neb. Rev. Stat. § 48-838 allows him in a legal action to have a choice of a representative including himself.

 A review of Neb. Rev. Stat. § 48-816, reveals that the Petitioner lacks standing to assert an industrial dispute. Without having the status as a bargaining agent or representative of other state employees the Petitioner cannot properly allege an industrial dispute as defined by Neb. Rev. Stat. § 48-801(7). See International Brotherhood of Electrical Workers, Local Union No. 2185 v. The Central Nebraska Public Power and Irrigation Dist., 1 CIR 30 (1971). The pleadings in this case confirm that the Petitioner is not an agent or a certified representative with standing to bring this dispute before the Commission. The Commission finds the Petitioner lacks standing to bring this action in front of the Commission.

The Respondent also argues the Petitioner is precluded from proceeding by the provisions of the State Employees Collective Bargaining Act. The Petitioner argues that the State Employees Collective Bargaining Act is “cumulative” to the Industrial Relations Act and that the Petitioner may be precluded from membership in a collective bargaining unit, but he is not precluded from invoking his Neb. Rev. Stat. § 48-811 rights.

The State Employees Collective Bargaining Act, Neb. Rev. Stat. § 81-1369 et seq. and the provisions of Neb. Rev. Stat. § 81-1373(l) states that the Petitioner is precluded from membership in a collective bargaining unit or taking part in collective bargaining because he is an employee of the Department of Personnel. The State Employees Collective Bargaining Act was created to set forth a process to determine wages, hours, and working conditions for state employees, replacing Neb. Rev. Stat. § 48-818 that covers all other government employees. The Petitioner is an employee of the State of Nebraska subject to the provisions of the Collective Bargaining Act, and thus the Commission finds is precluded from bringing this action.

Furthermore, the Respondent argues that the Petitioner does not plead and describe the nature of the overall compensation presently received by those employees whose employment is allegedly covered by the Petition. The Petitioner argues that Neb. Rev. Stat. § 48-818 envisions a case on only one condition of employment.

Neb. Rev. Stat. § 48-818 clearly states the Commission shall take into consideration the “overall compensations”. The Petition does not plead and describe the nature of the overall compensation presently received by those employees whose employment is allegedly covered by the Petition. The Petitioner affirmatively alleges that “this is not a wage case” but he seeks to invoke the Commission’s jurisdiction under Neb. Rev. Stat. § 48-818 without pleading overall compensation as required by said statute. Nothing in Neb. Rev. Stat. § 48-818 allows the Commission to “make piecemeal benefit determinations, one component of overall compensation at a time.” See Respondent’s Brief in support of its Motion to Dismiss, p.13.

The Petitioner’s reliance on Neb. Rev. Stat. § 48-811’s language which Petitioner contends allows him to bring this law suit because it includes “employee” among those who can bring a case, is misplaced. Neb. Rev. Stat. § 48-811states:

Except as provided in the State Employees Collective Bargaining Act, any employer, employee, or labor organization, or the Attorney General of Nebraska on his or her own initiative or by order of the Governor, when any industrial dispute exists between parties as set forth in section 48-810, may file a petition with the Commission of Industrial Relations invoking its jurisdiction. No adverse action by threat or harassment shall be taken against any employee because of any petition filing by such employee, and the employment status of such employee shall not be altered in any way pending disposition of the petition by the commission.

It is the Petitioner’s failure to comply with the other requirements of jurisdiction referred to in the proceeding paragraphs that is fatal to his position. It is presumed that a statute will be interpreted so as to be internally consistent. A particular section of the statute shall not be divorced from the rest of the act.  Components of a series or collection of statutes pertaining to a certain subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, harmonious, and sensible. See Kosmicki v. State, 264 Neb. 887, 652 N.W.2d 883 (2002). See, also, Placek v. Edstrom, 148 Neb. 79, 26 N.W.2d 489 (1947). Therefore, it is the order of the Nebraska Commission of Industrial Relations the Petition as amended is dismissed in its entirety.

REMEDIAL AUTHORITY: 

            The Respondent also request costs and fees be awarded to the Respondent based upon the frivolous nature of the Petition. The Petitioner suggests such a threat is contrary to the Industrial Relations Act.

            The Commission finds that the parties are to pay their own costs and fees. The Respondent’s request for an award of costs and fees is denied because although the Petitioner’s position is untenable when examined in the light of the Respondent’s Motion to Dismiss, it is not clearly frivolous and it does appear to have been brought in good faith.

THE COMMISSION HEREBY FINDS that the Petition does not seek proper relief and does not invoke the Commission's jurisdiction. The Motion to Dismiss should be granted and the Petition is hereby dismissed.

IT IS THEREFORE ORDERED that the Motion to Dismiss is sustained. The defects contained within the Petition cannot be cured by further amendment. This order of dismissal is a final appealable order.

All panel Commissioners join in the entry of this Order.