6 CIR 205 (1982)


1536, AFL-CIO, and |
Petitioner, |
Respondent. |


For the Petitioner: Brian L. Campbell

Thomas C. Lansworth

Bauer, Galter & Geier

811 South 13th Street

Lincoln, Nebraska

For the Respondent: Louis Thrasher

Mattson, Ricketts, Davies

Stewart, Calkins & Duxbury

1811 First National Bank Building

Lincoln, Nebraska

Before: Judges Gradwohl, Berkheimer, and Davis


The only issue for determination at this time is whether the Amended Petition filed June 15, 1982, alleges a claim within the subject matter jurisdiction of the Commission of Industrial Relations.

The Amended Petition states that Randall Lobner is an employee of the City of Fairbury and President of the Union which is the exclusive bargaining representative of the City's electrical generation and distribution non-supervisory employees. It states that Lobner applied for the position of line foreman; that the City did not appoint him to the position; and that he filed a written grievance alleging that the City had violated the written collective bargaining agreement between the Union and the City. Next, the Amended Petition alleges that Lobner was suspended for a period of 60 days without pay by the City on February 11, 1982, and 30 days without pay on April 13, 1982; that Lobner's filing, administering and prosecuting the grievance are protected activities within Section 48-837, R.R.S. 1943, and Article XV, Section 13, of the Nebraska Constitution; and that "Both the 60days suspension and the 30-day suspension of Randall Lobner by the Respondent, City of Fairbury, were motivated by a desire and constituted attempts to discourage Mr. Lobner and other employees of the Respondent from: a. Initiating, prosecuting and administering grievances regarding terms and conditions of employment. b. Joining and/or remaining members of Local 1536 of the International Brotherhood of Electrical Workers." The prayer is that Lobner be reinstated as a lineman for the City and that the City be ordered to pay Lobner wages and fringe benefits for the periods of his two suspensions.

Paragraph 2 of the City's Responsive Pleading filed June 29, 1982, contains a Demurrer on the grounds that the Commission has no jurisdiction over the subject of this action and that the Amended Petition does not state facts sufficient to constitute a cause of action against the City.

It is a settled principle that the Commission of Industrial Relations does not have subject matter jurisdiction with respect to "uniquely personal" matters. Nebraska Department of Roads Employees Assn. v. Department of Roads , 189 Neb. 754, 205 N.W.2d 110 (1973). It is also a settled principle that the Commission of Industrial Relations does not have subject matter jurisdiction to adjudicate an alleged breach of a collective bargaining agreement. Transport Workers of America v. Transit Authority of the City of Omaha , 205 Neb. 26, 286 N.W.2d 102 (1979).

It has been clear since the Supreme Court's opinion in the Department of Roads case, affirming the Commission's (then Court's) decision, that certain allegations of a violation of Section 48-837 and Article XV, Section 13, of the Nebraska Constitution do properly fall within the subject matter jurisdiction of the Commission of Industrial Relations. The Department of roads opinion states (189 Neb. at 761-763; 205 N.W.2d at 114-115):

We again briefly review the pertinent evidence with relation to whether the determination of the Court of Industrial Relations is supported by evidence. The evidence does disclose something more than the simple discharge of an employee by his superior. Of course, it is true, that there is no allegation that Kiernan's performance prior to the time he became involved in union activities was anything less than superior. But, as the court below noted in its findings and order, and as the evidence we have reviewed clearly demonstrates, there developed a substantial and apparently irreconcilable personality conflict between Doyle and Kiernan. The court below said: 'We do not analyze this evidence in detail nor reach a conclusion as to 'fault,' because interpreted most favorably to Mr. Kiernan it could only support further inference that 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.' (Emphasis supplied.)

We agree. We hold, as did the court below, that the discharge of Richard Kiernan from his employment from the State of Nebraska, Department of Roads, constituted a uniquely personal termination of employment and not an industrial dispute. The plaintiffs simply fail adequately to show reasons for the discharge other than the direct insubordination and a clear personality conflict between Doyle and Kiernan. Accordingly, the Court of Industrial Relations was correct in finding that it lacked jurisdiction over the subject matter of this action under section 48-810, R.S. Supp. 1972.

The same argument disposes of the plaintiffs' contention that Doyle's action in dismissing Kiernan violated rights guaranteed to Kiernan under Article XV, section 13, of the Constitution of the State of Nebraska, and section 48-837, R.S. Supp., 1972. The former provides: 'No person shall be denied employment because of membership in or affiliation with, or resignation or expulsion from a labor organization ***.' The latter provides: 'Public employees shall have the right to form, join and participate in*** any employee organization of their own choosing.' The finding by the Court of Industrial Relations that no antiunion animus was shown to have prompted Kiernan's dismissal dictated a finding that Kiernan had not been denied rights under either of these provisions. The two findings rest on the same factual base, and were necessary to determine the jurisdictional issue.

The Amended Petition alleges "antiunion animus" and a denial of rights under Section 48-837 and Article XV, Section 13, of the Nebraska constitution. Accordingly, it presents a claim potentially within the subject matter jurisdiction of the Commission. As in the Department of Roads case, a final determination as to subject matter jurisdiction must await an evidentiary trial.

All Judges assigned to the Panel in this matter join in the entry of this Order.

Entered July 8, 1982.