3 CIR 173 (1976)


LOCAL 223, |
Plaintiff, |
Defendants. |

APPEARANCES: For Plaintiff: Robert E. O'Connor, Robert E. O'Connor, Jr., and John P. Grant.

For Defendant: Thomas J. Young.

BEFORE: Judges Wall, Kratz, and Green


This case arises out of an illegal work stoppage by employees of the Metropolitan Area Transit Authority, who were members of the plaintiff union. The work stoppage was not sanctioned by the plaintiff union. It took place on July 1st and the morning of July 2nd, 1975. As a result of the work stoppage, seven members of plaintiff union were discharged. The plaintiff union upon their behalf challenges the legality of the discharge and seeks to have it overturned.

At the start, we are met by a jurisdictional challenge from the defendant. In Nebraska Department of Roads Employees Association v. Department of Roads , 189 Neb. 754, 205 N.W. 110 (1973), the Supreme Court had construed Section 48-810, which gives this court jurisdiction over industrial disputes as defined in Section 48-801(7) as not reaching a uniquely personal termination of the employment of a particular employee. The defendant argues that since each of the seven individual disciplinary decisions arose out of the particular conduct of the individual employee disciplined, this case comes within the ambit of the Department of Roads case, and, therefore, this court has no jurisdiction.

We reject the defendant's jurisdictional argument. In this case, the employer and the union had entered into a collective bargaining agreement which provided that, "the employer shall not discharge or suspend any employee without just cause..." The gravamen of plaintiff's petition is that this clause of the agreement has been violated in the discharge here. The presence of the collective bargaining agreement alters this case substantially from the fact pattern involved in the Department of Roads case. Thus, in Spring-Plattview-LaPlatt Education Association v. Schooldistrict No. 46 of Sarpy County , 2 CIR 105 (1974) we held that a controversy was within our jurisdiction, though it involved the rights of specific individuals because it arose out of a collective bargaining agreement and the resolution of the dispute would effect the rights of other members of the bargaining unit who performed services under the same agreement.

At least some of the questions the plaintiff raises, the right of the employer to select only some of a larger group of employees, who have engaged in identical conduct, and discipline the smaller group, and the right of the employer to take disciplinary action without regard to the notice requirement of the contract are the type of generalized questions affecting the rights of all members of the unit covered by our decision in the Springfield-Plattview-LaPlatt Education Association , case. Moreover, the holding of that case has been substantially broadened by our decision in Kot v. The School District of Omaha , 3 CIR 130 (1975). In Kot , we held that a dispute between an individual employee and a public employer over the construction of a leave policy on a very unique set of facts came within our jurisdiction. We followed that holding in Minshull v. The School District of Southerland , 3 CIR 166 (1976).

Whenever a dispute arises out of a collective bargaining agreement, its resolution will have at least the possibility of precedential impact on the rights of others under that same agreement. Because of this fact, the characteristic of uniqueness present in the Department of Roads case will never be present when a case arises under a collective bargaining agreement. Therefore, the holding in Department of Roads can have no application to our jurisdiction, where the dispute arises under a collective bargaining agreement. We reject defendant's claim that this case is not within our jurisdiction.

Plaintiff concedes that the seven members upon whose behalf it sues all engaged in or abetted a strike which was illegal under Section 48-802. However, the plaintiff contends, and the evidence shows, that all of the individual members of the plaintiff union, approximately 250 members, participated in the work stoppage. Plaintiff then contends that the decision to single out the seven employees upon whose behalf it sues was improper under the "good cause" provision of Article VI of the contract between the plaintiff and defendant, Exhibit 2, effective from July 1, 1975 to June 30, 1977.

In answer to the claim of discrimination, the defendant attempted to show that the seven employees, who were selected for discharge, had been the ringleaders of the strike. A large number of employees, perhaps as many as 100, gathered around defendant's premises during the course of the strike. Various officers of the defendant attempted to determine which members of this group appeared to be the ringleaders. They did this by observing the members of the group who were the most vocal or the most active in maintaining picket lines. Discussion among defendant's managerial personnel reached a consensus that the seven discharged employees most fully met these criteria.

The method used by defendant was not particularly well calculated to isolate the ringleaders in the wild cat strike. However, since managerial personnel are obviously not consulted in the planning stages of a wild cat strike, they are not well situated to determine who is leading such a strike. The only alternatives defendant had to the technique which it adopted were to either select employees for discipline at random or to discipline all employees. Random selection seems no fairer than the method defendant pursued. Discipline of all employees would have involved an interruption of service, which would have been highly unfair to the customers defendant served. It would be ironic to hold that the appropriate discipline for an unlawful disruption of public service entails another disruption of that service.

Plaintiff argues that the selection of seven employees out of the group of all employees who engaged in similar conduct constitutes discrimination in violation of Article XXIV of the agreement. That provision bars discrimination on the basis of "race, color, creed, sex, age, or national origin..." There is no claim that any discrimination, that based upon "race, color, creed, sex, age, or national origin," is involved in this case. As a public employer, the defendant is barred from invidious or irrational discrimination against selected employees by the provisions of the federal and state constitutions. However, these bars reach only the invidious or the irrational, and any discrimination involved in this case has a rational basis.

An unlawful strike had taken place. Disciplinary action was needed to assure that the unlawful conduct did not recur. Disciplinary action could not be taken against all the involved employees. A reasonable method was utilized to select the employees disciplined. No more can be required of an employer.

Article VI of the agreement between the parties provided that:

"...but in respect to discharge or suspension shall be given at least one warning notice of the complaint against such employee to the employee, in writing, and a copy of the same to the union, except that no warning notice need to be given to an employee before employee is discharged if the cause of such discharge is dishonesty, drunkenness, or unauthorized use on controlled substance..."

The plaintiff contends that the disciplinary action taken in this case violates Article VI, since the employees involved had not been given a previous warning and the union was not given notice of the discharge.

On its face, the article would appear to require notice prior to any discharge, except for the stipulated causes. The misconduct involved in this case does not come within the stipulated causes. However, we are dealing with an employer, which is a governmental entity. As such, it has no right to enter into a collective bargaining agreement which would deprive it of its power "to maintain order and efficiency..." School District of Seward Education Association v. School District of Seward , 188 Neb. 772, 199 N.W.2d 752, 759 (1972). A construction of collective bargaining agreement which would grant to employees the privilege of one unlawful strike before they could be disciplined would render the validity of the agreement questionable.

However, we do not believe that we need address the validity of the agreement. While ordinarily the expression of specific exemptions from a contractual provision would bar the implication of other exemptions, that rule is not absolute. Here, given the employers status as a public entity with statutory duties to perform, we do not believe that the parties intended to bar the employer from taking disciplinary act in without regard to prior notice, where the misconduct involved seriously threatened the employers ability to perform its statutory obligations.

The failure to give notice of the discharges to the union, while a matter for justifiable complaint, does not affect the validity of the discharges.

From what we have said heretofore, it is apparent that we find the action taken by defendant against the seven employees to be proper and not in violation of Article VI of the contract. However, with regard to the employees Trueblood and Gonzalaus additional comments are appropriate.

At the time of the strike Trueblood was on temporary disability leave. He thus had no obligation to report to work. Since he had no obligation to work, his failure to work would not be improper. However, Trueblood went to the defendant's premises and participated in picketing activity. He thus associated himself with and abetted the unlawful activities. Since his conduct went beyond mere failure to work, his disability to leave is no defense. The statute specifically makes it unlawful to aid and abet an unlawful strike. Section 48-821(2)(3).

With regard to Gonzalaus, Exhibit 12, his notice of termination, is not solely based upon the unlawful work stoppage. He was also disciplined because of certain other acts. Thus, the discharge letter states:

"You were re-employed on June 22, 1975, and immediately picked a run working Monday through Friday; from June 22nd until July 10th, you worked your regular assignment nine of those days. Three days you were late, two of your late days you came in and worked other assignments; the other late day you called in sick..."

It is clear from the record that Gonzalaus was disciplined both for his tardiness and for participation in the strike (291:17-22). Ordinarily for tardiness independent of the contractual provision, the employer's practice was to give notice prior to discharge (490:10-13). While Gonzalaus had been warned with regard to his work habits prior to his re-employment after a period of military service, he was not given any formal warning after an infraction prior to this discharge (491:5-16; 493:20-25; 494:1-4). This prior to work warning does not appear to comply with the contractual provisions.

The misconduct charged to Gonzalaus occurred while a prior contract, Exhibit 1, was in effect. That agreement did not contain the provision with regard to discharge contained in Article VI of Exhibit 2. However, the disciplinary action itself took place under the new agreement, and there had been a prior practice of notice in tardiness cases. Thus, insofar as tardiness is the basis for the discharge for Gonzalaus, the discharge is invalid.

However, there is no question that Gonzalaus engaged in the illegal work stoppage. On his own testimony, he was a very active participant in the strike. He made the picket signs (115: 13-19). He walked the picket line for two fifteen minute periods (85:5-7; 87:21-25). He was at least indirectly involved in the efforts of another driver to get more pickets (89:1-9).

On his own testimony, Gonzalaus seems a prime candidate for discharge as an active participant in the unlawful work stoppage. His discharge for that participation was appropriate. The alternative grounds given, though invalid, do not infect the valid basis for the discharge, the participation in the unlawful strike. We, therefore, conclude that the discharge of Gonzalaus was also lawful.

Plaintiff challenges the validity of Sections 48-802 and 48-821, which outlaw strikes in the public sector. This court's jurisdiction to resolve industrial disputes is premises upon the unavailability of the strike as a remedy. Omaha Association of Fire Fighters, Local 385 v. City of Omaha , 2 CIR 117, p. 117-10 (1975). We do not believe that plaintiff may invoke the jurisdiction of this court, which is premises upon the unavailability of the strike remedy in the public sector, and at the same time attack the validity of the statutes which bar strikes. We, therefore, decline to pass upon plaintiff's attack upon the sentence.

Plaintiff had a contractual remedy in arbitration. Plaintiff failed to pursue it. There is no validity to plaintiff's claim that defendant refused to arbitrate. The availability of a hearing at arbitration obviates any due process attack upon defendant's action. Arnett v. Kennedy , 416 U.S. 134 (1974); cf. Bishop v. Wood , L. Wk. 4820 (1976).

The Plaintiff's other contentions have been examined and are rejected.

The court therefore, finds that the allegations of plaintiff petition are not sustained and hereby enters judgement for the defendant.

Entered September 20, 1976 .

See Concurring Opinion 3 CIR 180, Case No. 159