2 CIR 60 (1972)


Plaintiff, |
Defendants. |

March 7, 1972


On February 29, 1972, this matter came on for hearing on Defendants' Special Demurrer to the Petition of the Plaintiff. The Demurrer hereby is sustained for the reasons that it appears on the face of the Petition that the Court has no jurisdiction of the subject matter and that the Petition does not state facts sufficient to constitute a cause of action in this Court.

The Petition alleges that Plaintiff was asked to resign as Director of Nursing Services for Lincoln General Hospital "as a result of problems with the medical staff." It also states that she refused to resign, received a letter of termination, requested a hearing before the Hospital Board of Trustees, and was given a hearing in an "Executive Session" of the Hospital Board. The Plaintiff complains that the Hospital's actions with respect to her termination were unlawful because of a failure to follow the Personnel Policies promulgated by the Hospital, the absence of "cause" as required by a Lincoln City Ordinance, and several violations of the state "open meeting" statutes.

Section 48-810 provides that "All industrial disputes involving governmental service.....shall be settled by invoking the jurisdiction of the Court of Industrial Relations...." Under section 48-811, "Any.....employee..., when any industrial dispute exists between parties as set forth in section 48-810, may file a petition with the Court of Industrial Relations invoking its jurisdiction."

The pivotal issue at this time involves the definition of "industrial dispute" under section 48-801(7):

"Industrial dispute shall include any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, or refusal to discuss terms or conditions of employment;".

The question presented is whether a purely individual termination of employment, entirely unrelated to any collective or concerted employee activity or agreement, constitutes an "industrial dispute" within these sections.

The tenor of the development of Chapter 48, Article 8, is that it is directed toward collective or concerted employee activities and agreements. Article XV, Section 9, of the Nebraska Constitution was apparently prompted by a speech to the 1920 Constitutional Convention by Governor Allen of Kansas dealing with strikes in Kansas. The statutory provisions did not appear until 1947 and were then rushed into enactment in the face of a threatened telephone company strike. The 1969 revisions of LB 15 were intended to allow for organization of public employees and collective bargaining between governmental employers and employees. There is nothing in the legislative history which indicates that an individual termination by a governmental employer, unrelated to any collective or concerted employee activity or agreement, was intended to be covered by these statutes.

Section 48-823 directs that "The provisions of sections 48-801 to 48-823 and all grants of power, authority and jurisdiction herein made to the Court of Industrial Relations shall be liberally construed to effectuate the public policy enunciated in section 48-801." To the extent the language of section 48-802 can be related to the present issue, it would also appear to have been written with reference to collective or concerted employee activities or agreements.

The definition in section 48-801(7) appears to be patterned after the definition of "labor dispute" in section 2(9) of the National Labor Relations Act. 29 U.S.C.A. §152(9). In an analogous situation, the Nebraska Supreme Court relied upon the definition of "supervisor" contained in section 2(11) of the National Labor Relations Act, stating that decisions under the federal law are "helpful but not controlling." City of Grand Island v. American Federation of State, County and Municipal Employees , 186 Neb. 711, 714, 185 N.W.2d 860, 863 (1971). Under the federal statutes, some form of collective or concerted activities is required by the provisions of sections 7 and 8(a). 29 U.S.C.A. §§ 157, 158(a). See NLRB v. Washington Aluminum Co. , 370 U.S. 9, 82 S. Ct. 1099, 8 L.Ed.2d 298 (1962).

There are strong policy reasons why this Court should not interpret the term "industrial dispute" to include a purely individual termination of employment entirely unrelated to any collective or concerted employee activity or agreement. This Court is the only body given statutory authority to enforce the organizational and bargaining law relating to government employee labor relations in Nebraska. There are, however, other existing tribunals for dealing with individual personnel matters. In the present situation, for example, there is an appellate review by the District Court from the determinations of any department or board of a city of the primary class. Section 15-1201 and 25-1901. The organizational and bargaining law applies to the State of Nebraska, all political and governmental subdivisions of the State, municipal corporations, and public power and irrigation districts. The statutory scheme for the creation and operation of this Court suggests a legislative intention that this Court is not an appropriate forum to litigate the validity of purely individual employment terminations. The duty of enforcement of the organizational and bargaining statutes resulting from LB 15, enforceable only in this Court and in no other tribunal, is demanding and comprehensive. Although the administrative law doctrines of "exhaustion of remedies" and "primary jurisdiction"may not technically apply as such, the public policies underlying their application are equally present in this situation.

It should be emphasized that this decision arises from the filing of a Demurrer. The Petition alleges merely that Plaintiff was requested to resign "as a result of problems with the medical staff," and that upon her refusal to do so, she was terminated by an unlawful procedure. There is no allegation that the situation is anything other than a purely individual termination of the plaintiff, entirely unrelated to any collective or concerted employee activity or agreement. We hold merely that such a uniquely personal termination of employment does not constitute an "industrial dispute" under Chapter 48, Article 8. On this record, it would be inappropriate to speculate as to what sort of "nexus" is required between the specific action complained of and the sort of collective or concerted employee activity or agreement intended by the term "industrial dispute." See Mid-Plains Education Association v. Mid-Plains Nebraska Technical College , order entered August 9, 1971, appeal to Supreme Court pending.

The present decision is also limited to a situation involving an individual termination of employment. We expressly reserve ruling with respect to potential issues as to bargaining status, orders pursuant to section 48-818, and any other subjects not directly involved in this case.

Now, therefore, it is ordered, adjudged and decreed that the Special Demurrer of the Defendants be, and it hereby is, sustained. Plaintiff is given 14 days to file and serve an Amended Petition in this matter or to request additional time, if needed, in which to file an Amended Petition herein. If Plaintiff neither files an Amended Petition nor requests additional time therefor within 14 days, the Court will treat the Plaintiff as having elected to stand on her Petition as originally filed and will enter judgment accordingly.

Entered and filed this 7th day of March, 1972. Judges Henatsch and Nielsen did not participate in the consideration or entry of this Order.