16 CIR 514 (2011)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Entered March 29, 2011

 APPEARANCES:

BURGER, C. 

Before:  Commissioners Burger, Lindahl, and McGinn.

     The International Brotherhood of Electrical Workers Local 1483, ("Union" or “IBEW”) filed a Petition on November 22, 2010 pursuant to Neb. Rev. Stat. § 48-824(2)(a) or (g), and § 48-837, claiming that the Omaha Public Power District ("Respondent" or “OPPD”) committed a prohibited practice when it refused to permit the Petitioner to strike a second Federal Mediation and Conciliation Service ( “FMCS”) panel of arbitrators after the Petitioner had already rejected the first FMCS panel.  The Petitioner seeks an order requiring the Respondent to comply with the collective bargaining agreement and agree to a new panel of arbitrators. The Respondent filed an Answer and Counterclaim, denying the Petitioner’s allegations and stating that the Commission lacks jurisdiction over this matter and that the Petitioner committed a prohibited practice.

    In lieu of a formal pretrial, each party submitted a witness list and both parties jointly submitted a statement of issues on February 8, 2011. The following issues were presented on the joint statement:

1.                  Whether, as alleged by IBEW in its Prohibited Practices Complaint, OPPD committed a prohibited practice under Neb. Rev. Stat. § 48-824(2)(a), Neb. Rev. Stat. § 48-824(2)(g), or Neb. Rev. Stat. § 48-837 when OPPD refused to permit IBEW to strike a second FMCS panel of arbitrators after IBEW had already rejected the first FMCS panel?

2.                  Whether, as alleged by OPPD in its Answer, the Commission of Industrial Relations lacks jurisdiction to hear and determine the instant case, as the same amounts to a breach of contract claim?

3.          Whether, as alleged by OPPD in its Answer, the Commission of Industrial Relations lacks jurisdiction to grant Plaintiff’s second prayer for relief; namely, ordering OPPD to agree to an arbitration selection process which modifies the “Arbitration” provision of Article III, Section 2 of the Collective Bargaining Agreement?

4.         In the alternative, whether as alleged by OPPD in its Answer, IBEW violated the Collective Bargaining Agreement and/or committed a prohibited practice when it rejected the first FMCS panel and refused to make strikes and select an arbitrator from the second FMCS panel after OPPD chose not to reject the second FMCS panel? 

FACTS:

            A grievance arose between Petitioner and the Respondent. As part of settling the grievance, the parties attempted to follow a process set forth in their collective bargaining agreement.

            The collective bargaining agreement states:

If arbitration is requested by either party, an impartial Arbitrator shall be selected in the following manner. The Federal Mediation and Conciliation Service shall be requested to furnish a listing of seven (7) available Arbitrators. From this listing, the Company and the Union shall alternatively strike names [three (3) names each]. The remaining Arbitrator on the listing shall be designated to act as Arbitrator in the dispute.

Collective Bargaining Agreement, Article III, Section 2 (A)- Exhibit 1.  

In using the process set forth above, the parties typically have selected an arbitrator from a single panel. However, increasingly over the past ten years, both parties have been displeased with the panels provided by the Federal Mediation and Conciliation Service. Previously, the Petitioner has rejected the first panel three times since September 7, 2010, with the Respondent rejecting a second panel in one instance. The parties’ past practice has been to allow the rejection of a panel.

In the instant case, a grievance occurred and the parties went to the Federal Mediation and Conciliation Service for a panel of arbitrators. The first panel was provided by the FMCS and rejected by the Union on September 7, 2010. A second panel was also provided by the FMCS and the Petitioner again sought to strike the second panel on September 20, 2010. The Respondent disagreed and stated that the Petitioner was only allowed to strike one panel according to past practice. The Petitioner alleges that it is allowed to strike the second FMCS panel. The Petitioner further alleges that the Respondent violated Neb. Rev. Stat. § 48-824(2)(a) or (g), and § 48-837 when it refused to allow the Petitioner to reject the second FMCS panel during the course of selecting an arbitrator per the collective bargaining agreement.

DISCUSSION:

            The Petitioner alleges a violation of Neb. Rev. Stat. § 48-824 (2)(a), (g), or Neb. Rev. Stat. § 48-837 when the Respondent refused to permit the Petitioner to strike a second FMCS panel of arbitrators.  The Respondent argues the Commission lacks the jurisdiction to hear and determine the instant case, as it is a breach of contract claim and in the alternative, if the Commission finds that this is not a breach of contract claim, that the Petitioner committed a prohibited practice when it rejected the first FMCS panel and refused to make strikes and select an arbitrator from the second FMCS panel.  

              Neb. Rev. Stat. §48-824(2)(a) declares that it is a prohibited labor practice for any employer to interfere with, restrain, or coerce employees in the exercise of rights granted by the Industrial Relations Act. Neb. Rev. Stat. § 48-824(2)(g), states that it is a prohibited practice for any employer to refuse to participate in good faith in any impasse procedures for employees as set forth in the Industrial Relations Act.

The Nebraska Supreme Court stated in Transport Workers of America v. Transport Authority of the City of Omaha, 205 Neb. 26, 286 N.W.2d 102 (1979), that:

The CIR performs an important and vital function in resolving impasses in the public sector. It is not, however, a substitute for the District Court with regard to existing and agreed terms, tenure, and conditions of employment. It has not been made a court by the Legislature. The proper forum to resolve this dispute is the courts.

The Transport Workers decision stands for a simple proposition – the Commission lacks jurisdiction to interpret and apply terms and conditions of a collective bargaining agreement. An action for a breach of contract must be brought in a court of general jurisdiction. The Petitioner seeks an interpretation of whether the contract allows the parties to strike multiple panels from the FMCS. The Commission cannot interpret the collective bargaining agreement between the parties and declare a remedy if the contract was in fact breached.

The essential cause of action here is identical to that raised in Transport Workers of America v. Transport Authority of the City of Omaha, 205 Neb. 26, 286 N.W.2d 102 (1979). The precedent established in the Transport Workers of America case, supra is controlling. The Commission does not have subject matter jurisdiction of the instant case.  It should be noted that the subsequent adoption of Neb. Rev. Stat. § 48-824 (after the Transport Workers case) has done nothing to expand the subject matter jurisdiction of the Commission in a way which would allow it to assume jurisdiction over this case. In Transport Workers of America, supra, it was the nature of the cause of action and not the remedy sought or its effect on employee rights which was determinative.

We are persuaded by the position of the Respondent that we lack jurisdiction to hear the Petitioner’s case.

The Transport Workers decision held:

It appears to us that the Act has not in any manner attempted to grant the CIR powers [in the sense of subject matter jurisdiction] to resolve breach of contract cases even if the breach concerns itself with terms, tenure, or conditions of employment. Once an agreement is reached and a subsequent breach is alleged to have occurred, the parties are required to litigate their dispute in a competent court having jurisdiction of the matter.

205 Neb. at 33-34.

This is not a situation in which the claim presents both an alleged breach of a collective bargaining agreement and the existence of an industrial dispute separately within the subject matter jurisdiction of the Commission. Similarly, this is not a situation in which it is necessary for the Commission to interpret the terms of a collective bargaining agreement in order to settle an industrial dispute otherwise within the subject matter jurisdiction of the Commission. We lack subject matter jurisdiction to determine this dispute between the parties.

THE COMMISSION HEREBY FINDS that the Commission lacks jurisdiction.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the Petitioner’s causes of action are ordered dismissed. 

All commissioners assigned to the panel in this case join in the entry of this Order.