3 CIR 296 (1977)


Plaintiff, |
CITY OF OMAHA, a Municipal |
Corporation, and OMAHA CITY |
Defendants. |

September 19, 1977


For the Plaintiff: William J. Riedmann

For the Defendant, City of Omaha: Kent N. Whinnery

Before: Wall, P.J.; Kratz & Green, J.J.


This case brings before us the question of the proper interpretation and application of Section 10, Article XII of the Agreement between the Defendant City of Omaha and the defendant Local 251, AFSCME. The defendant Local is in default and default was entered against them on August 29, 1977, upon opening of trial.

Defendant City objects to the jurisdiction of this Court under the doctrine of Nebraska Dept. of Roads Employees Assn. v. State , 2 CIR 57-1, aff'd. 189 Neb. 754, 205 N.W. 2d 110 (1973).

We find that we have jurisdiction of the parties and of the subject matter of the dispute. As we pointed out in Bickford v. School District , 3 CIR Adv. 195, 3 CIR 180-1 (1976), this Court has jurisdiction in single-plaintiff cases in all instances involving the interpretation or application of a collective bargaining agreement or involving concerted activity.

The contract between the defendants provides in pertinent part:

"SECTION 10-Where an employee works a full shift in a classification higher than that to which he has been appointed in excess of three (3) work days in a payroll period, he shall be compensated at the rate of pay provided for such higher classification for all hours worked in such higher classification. Each payroll period shall be considered separately"

The plaintiff has been working as the person in charge of the City of Omaha's Martin Luther King Recreation Center since 1971.[1] In 1974, after a complaint and evaluation of plaintiff's work assignment, she was promoted to Recreation Leader II from Recreation Leader I.[2] On or about June 1, 1975, she was made a full time employee [3] and thus became a member, for the first time, of the bargaining unit.[4]

Plaintiff contends that she has worked in a classification higher than that to which she was appointed since June 1, 1975, and that thus, under the Contract, is entitled to the difference in pay between the appointed classification of Recreation Leader II and the next higher grade of Recreation Supervisor. The evidence is clear that plaintiff performs all of the duties of the next higher classification,[5] except that of supervising employees holding positions above entry level. Defendant City's expert testified also that plaintiff did not supervise a "phase" of the City's recreation program, as required by Recreation Supervisors.

Since plaintiff was not, in fact, working above her classification, she is not entitled to the benefits of Article XII, Section 10 of the contract. Plaintiff may not recover against the defendant City of Omaha.

After entering default against the defendant Local, we granted plaintiff an opportunity to prove damages against the defendant Local for failure properly to represent her. See Vaca v. Sipes , 386 U.S. 171, 190 (1967). Plaintiff was less than positive in her testimony that she had requested union assistance in processing her case in this Court, or that she had been refused such assistance. She, likewise, testified to a purely contingent contractual arrangement with her attorney. She thus suffers no additional damages by way of an obligation to pay fees after losing the case. We, therefore, decline to enter judgment against the Local.

IT IS, THEREFORE, ORDERED that plaintiff's Petition is dismissed with prejudice.

NOTE: Footnotes deleted.