1 CIR 49 (1972)



In the Matter of the OMAHA | CASE NO. 49
112 of the INTERNATIONAL |
and |
Plaintiffs, |
CITY OF OMAHA, a Municipal |
Corporation, |
and |
Chief of Police, City of Omaha, |
Defendants. |

April 5, 1972


Plaintiff, Gary Pavel, was a probationary police employee of the City of Omaha and a member of plaintiff Omaha Police Union, Local No. 112, of the International Brotherhood of Police Officers, hereinafter called Union. On July 14, 1971, two days prior to the end of his probationary period, Pavel was dismissed. On August 5, 1971, Pavel and the Union filed suit in this Court, alleging that the Court of Industrial Relations had jurisdiction and that Pavel could not be dismissed without first having recourse to the "grievance procedure" contained in the collective bargaining agreement between the City of Omaha and the Union. The plaintiffs also prayed for such other relief as this Court may deem just and equitable, and in their brief and oral argument, plaintiffs claimed that this discharge without benefit of a hearing was a violation of Pavel's basic constitutional rights.

The defendant contends that the employer has an absolute right to discharge probationary employees at any time prior to the expiration of the probationary period, and, inasmuch as the grievance clause of the collective bargaining agreement specifically excludes probationary employees, the discharge may be effected without a hearing. Defendant also argues that this Court does not have contract jurisdiction and that there has been no exhaustion of administrative remedies.

Hearing was held on September 8, 1971. The case was submitted on stipulated facts as follows:

1. The Union is a labor organization within the definition of Section 48-801(6) R.R.S. Nebraska Statutes, 1943, as amended.

2. The City of Omaha, a municipal corporation, is an employer within the definition of Section 48-801(4) R.R.S. Nebraska Statutes, 1943, as amended.

3. Richard R. Andersen is the Chief of Police of the City of Omaha, and Gary Pavel, plaintiff, was appointed a probationary police patrolman for the City of Omaha, effective January 16, 1971.

4. Gary Pavel is a member in good standing of the Union. The City of Omaha and the Union have a collective bargaining agreement which was in effect at all times involved in this hearing.

5. On or about the 7th day of July, 1971, Gary Pavel received a P-19 Form notifying him that his status as a probationary police patrolman would expire and that he would become a regular police patrolman effective July 16, 1971.

6. On or about the 14th day of July, Gary Pavel received a communication from Richard R. Andersen, Chief of Police, approved by Alfred P. Pattavina, Jr., Public Safety Director, advising him that his employment with the City of Omaha was terminated effective July 14, 1971. Also, on the 14th day of July, 1971, a Division Personnel Order was issued by Richard R. Andersen terminating the employment of Gary Pavel.

7. On or about the 16th day of July, 1971, Gary Pavel received a P-19 Form from the City of Omaha advising him of his dismissal as an employee of the City of Omaha.

8. On or about the 20th day of July, 1971, Richard R. Andersen received a communication from Gary Pavel requesting that his discharge be processed through the collective bargaining agreement grievance procedure.

9. On or about the 22nd day of July, 1971, Police Chief Andersen responded to Pavel's request by returning Pavel's letter and advising him that under the terms of the collective bargaining agreement, he, as a probationary employee, was not entitled to file a grievance.

The following documents were admitted into evidence by stipulation:

1. The July 7 P-19 Form which notified Pavel that he would become a regular patrolman on July 16, 1971.

2. The July 14 notice of termination and the July 14 order of termination.

3. The July 16 P-19 Form advising Pavel of his dismissal.

4. Pavel's July 20 request for submittal of his discharge to the procedures of the grievance clause.

5. Police Chief Andersen's July 22 letter refusing the Pavel request for arbitration of his grievance.

6. A copy of the collective bargaining agreement between the Union and the City of Omaha.

We reject defendant's arguments concerning lack of contract jurisdiction and failure of plaintiff to exhaust administrative remedies. In Safeway Cabs, Inc. vs. Drivers Union, Case No. 18 (March 6, 1964), this Court determined that it had "subject matter jurisdiction to construe and enforce labor contracts in suits between parties properly before the court" (see also, International Brotherhood of Electrical Workers, Local No. 1525 and City of Beatrice, Case No. 27, October 10, 1970). In Poppert vs. Brotherhood of Railroad Trainmen, 187 Neb. 297, 189 N.W.2d 469 (1971), the Nebraska Supreme Court held "that under Nebraska law in an action by an employee for wrongful discharge under a collective bargaining agreement prior exhaustion of administrative remedies is not required."

We agree, however, with defendant's interpretation and application of the collective bargaining agreement and conclude that the parties intended that the procedures of the grievance clause should not be available to probationary employees, and that Gary Pavel was still a probationary employee on the date of his discharge.

Article IX, Section 1, provides that the probationary period for patrolmen shall consist of "six (6) months of actual employment." Plaintiff's suggested interpretation would reduce this period to one week less than six months.

Article IX, Section 3, says specifically that a probationary employee may be removed "at any time during the probationary period" (emphasis supplied). If the probationary period ends on July 16, this would clearly seem to cover the July 14 removal.

The afore-described sections do not conflict with Section 5 of Article IX, which provides for the seven day notice. These sections can be read together. Regarding the seven day notification Section 5 says that "upon receipt by the Personnel Director of a favorable report, the appointment of the employee shall be made regular at the expiration of the probationary period" (emphasis supplied).

It is clear that the seven day notice requirement of Section 5 was inserted for the purpose of establishing an orderly procedure for the employees transformation from temporary to permanent status. It was not intended to deprive the employer of his management right to discharge an employee for an act committed during that short period from the date of the issuance of the seven day notice to the date when the probationary period ends.

Regarding plaintiff's argument that Pavel has been denied certain constitutional rights because of his dismissal without a hearing, we conclude that this Court does not have subject matter jurisdiction over an independent cause of action for breach of constitutional rights unrelated to any collective or concerted employee activity or agreement. Pavel had no right to a hearing pursuant to the collective agreement and this Court is not an appropriate forum in which to present the issue whether Pavel may have had an independent constitutional right of procedural due process apart from the collective agreement.

In Schmieding vs. City of Lincoln and Lincoln General Hospital, Case No. 60 (Order filed March 7, 1972), the issue concerned the discharge of the Director of Nursing Services for Lincoln General Hospital. The plaintiff petitioned this Court for reinstatement and the defendant filed a special demurrer. We sustained the demurrer and determined that "a uniquely personal termination of employment" did not constitute an "industrial dispute" under Chapter 48, Article 8.

The Schmieding ruling was limited to "individual termination by a governmental employer unrelated to any collective or concerted employee activity or agreement." While a collective bargaining agreement is involved in the instant case, it is not a part of plaintiff's constitutional argument. We therefore conclude that this Court's reasoning in Schmieding is equally applicable to plaintiff's constitutional argument in the instant case and that the term "industrial dispute" was not intended to directly involve this Court in constitutional claims as to the discharge of individual employees.

If plaintiff considers that his constitutional rights have been violated, there is a remedy in another court, the availability and scope of which may be clarified shortly. Two cases dealing with teacher nonreappointments, State College Board of Regents, v. Roth, 446 F.2d 806 (7th Circuit, 1971) and Perry v. Sinderman, 430 F.2d 939 (5th Circuit, 1970), were argued in the United State Supreme Court on January 18, 1972, 40 U.S. Law Week 3348.

NOW THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that judgment be and it hereby is entered in favor of the Defendants and against the Plaintiffs.

Entered and filed this 5th day of April, 1972. Judge Henatsch did not participate in the consideration or entry of this Order.