| HARVEY RICHARD McCORISON, | | | CASE NO. 90 |
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| Plaintiff, | | | |
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| v. | | | FINDINGS AND ORDER |
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| NEBRASKA PUBLIC | | | |
| POWER DISTRICT, | | | |
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| Defendant. | | |
Appearances: Harvey Richard McCorison, pro se
Wilson, Barlow & Watson and James J. DeMars
for Nebraska public Power District
Before: Judges Baylor, Kratz, Grant and Nielsen
BAYLOR, J.
The petition filed May 30, 1973, alleges that during his employment by the defendant, "....the plaintiff was disabled by an on-the-job injury and that during the course of said disability the defendant did dismiss the plaintiff from said employment," and prays for a money judgment in excess of $300,000. After the defendant's motion to dismiss and the Court's order called to the plaintiff's attention the opinion of the Supreme court of Nebraska in the case of Nebraska Department of Roads Employees Assn. & Richard Kiernan v. State of Nebraska Department of Roads , 189 Neb. 754, 205 N.W.2d 110 (March 1973) and the opinion of this Court in Schmieding v. City of Lincoln , Case No. 60, Order Sustaining Demurrer entered March 7, 1972, the plaintiff filed an amended petition alleging the conclusions, "That there is a dispute concerning the terms, tenure, and conditions of employment and....that general welfare is endangered by the unjust discrimination as incurred in said dispute," and prays "that the Court will grant such legal and equitable relief as the Court may deem appropriate, including judgments compelling employment, reinstatement, promotion...."
In Nebraska Department of Roads Employees Assn. v. Department of Roads , supra, the Supreme Court held:
"The basic controversy here is whether or not the dismissal of the plaintiff Kiernan....under the circumstances....involved an 'industrial dispute' within the meaning of §48-810 R.S. Supp. 1972, which gives jurisdiction to the Court of Industrial Relations only when such industrial dispute is involved. Section 48-810 R.S. Supp. 1972 provides: 'All industrial disputes involving....service of a public utility....shall be settled by invoking the jurisdiction of the Court of Industrial Relations.' (emphasis supplied by Court) From this language alone, it is clear that a uniquely personal termination of employment does not constitute an industrial dispute within the meaning of the statute....The evidence does disclose something more than the simple discharge of an employee by his superior....But....the evidence....clearly demonstrates there developed a substantial and apparently irreconcilable personality conflict between Doyle and Kiernan.... '.......Mr. Doyle's letter purporting to remove Mr. Kiernan from his employment was motivated by anti-Kiernan animus rather than by anti-labor-organization animus. It is clear that Mr. Kiernan gave no indication that he was acting or speaking for the Association when he did any of the things Mr. Doyle found offensive.' ...We hold, as did the court below, that the discharge of Richard Kiernan......constituted a uniquely personal termination of employment and not an industrial dispute....Accordingly, the Court of Industrial Relations was correct in finding that it lacked jurisdiction over the subject matter of this action under §48-810 R.S. Supp. 1972."
In our own opinion in the State Department of Roads case (Findings and Order entered May 31, 1972), we held in summary:
"The prayer of the amended petition....is summarized:
"a.....
"c. That the rights of the defendant's employees or at least of the plaintiff association's members with reference to controversial employment termination be declared.
"......
"All our findings herein constitute a declaration in accordance with that portion of the prayer paraphrased above as c. The 'strong public policy reasons' mentioned in Judge Gradwohl's reasoning in the Schmeiding case for requiring a controversy concerning 'a purely individual termination of employment entirely unrelated to any collective or concerted employee activity or agreement' to be litigated in 'other existing tribunals' are highlighted by the testimony in this case. The most emotional, perhaps in the minds of certain individuals the most important, issue here concerned the interpretation of certain remarks of Mr. Kiernan about the qualifications for holding the job of State Engineer. The respective interpretations contended for required detailed examination of conflicting testimony respecting minutiae of words, context, and tone of voice, and of practices in the engineering profession and in the State Department or Roads. The testimony covering these matters was first given four months after the occurrence. It seems clear to us that wherever a detailed evaluation and decision of such matters is desired, they most effectively and fairly can be recorded and considered initially in accordance with the appropriate personnel act with the appellate review provided by such act if the importance of the questions warrants."
In Schmieding v. City of Lincoln and Lincoln General Hospital , Case No. 60, Order Sustaining Demurrer entered March 7, 1972, we held:
"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 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, (affirmed 189 Neb. 37, 199 N.W.2d 747 (1972)."
Likewise here 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. In support of his resistance to the motion to dismiss, the plaintiff states that the evidence will show:
"That many other employees of the defendant have been denied rights, including but not limited to limitations on termination of employment arising from elevation to permanency after the three-month probationary employment, as the result of the defendant's breach of its contract to raise probationary employees to permanent employees after three-months employment; that the unilaterally promulgated rules of the defendant respecting advancement to permanent employment and respecting terminations of employees after more than three months should be interpreted judicially; that the general public and all employees of the defendant will benefit from such judicial determination; that the plaintiff alone attempted to discuss with the defendant such interpretaitons of such rules; but that no other employee joined in such attempts; and that there have been and now are no collective activities of employees with respect to the defendant so far as the plaintiff knows.
In the Washington Aluminum case, supra, there was no union, no separate bargaining unit, and a history of individual complaints about conditions, but the activities which resulted in the termination were collective and concerted, despite the fact that the collecting and concerting of the theretofore separate complaints occurred quite spontaneously within one hour of the consummation of the activity which resulted in the terminations. Here it appears that there is not even an issue of fact, i.e. it appears conclusively, that there was no collective or concerted employee activity however informal. We hold that the existence of a question of common interest to many is not the equivalent of collective or concerted employee activity or agreement.
NOW THEREFORE IT IS ORDERED, ADJUDGED, AND DECREED that the defendant's motion to dismiss be and it hereby is sustained, and that the action be and it hereby is dismissed without prejudice to an action in an appropriate tribunal.
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