19
CIR 142 (2015)
NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS
STATE
TROOPERS ASSOCIATION of NEBRASKA, INC, AND TODD STECKELBERG, Petitioner,
v. THE
NEBRASKA STATE PATROL,
Respondent. |
) ) ) ) ) ) ) ) ) ) ) |
|
Case
No. 1396 ORDER
ON MOTION TO DISMISS |
September
29, 2015
APPEARANCES:
For Petitioner: Joy
Shiffermiller
Shiffermiller
Law Office PC, LLO
1002
G Street
Lincoln,
NE 68508
For
Respondent: Douglas
J. Peterson
Attorney
General of Nebraska
David
A. Lopez
Assistant
Attorney General
Office
of the Attorney General
2115
State Capitol
Lincoln,
NE 68509
Before
Commissioners Carlson, Pillen, Blake
CARLSON,
Commissioner
NATURE
OF THE PROCEEDINGS:
This
matter comes before the Commission upon Respondent’s Motion to Dismiss Petition
for Lack of Jurisdiction and for Attorney’s Fees filed on July 2, 2015. The
original operative Prohibited Practices Petition was filed on June 26, 2015. On
July 17, 2015, a hearing was held before Commissioner Joel E. Carlson.
Petitioner was represented by its attorney, Joy Shiffermiller, and Respondent
was represented by its attorney, David A. Lopez. On July 31, 2015, the
Petitioner filed a Motion to Supplement and Amend with a proposed Amended and
Supplemental Prohibited Practices Petition.
STANDARD FOR DECISION:
In
considering both the Motion to Dismiss and the Motion to Supplement and Amend
the Commission shall conform to the Code of Civil Procedure applicable to the
district courts of the state pursuant to Neb. Rev. Stat. § 48-812.
The
Commission has in the past considered a motion to dismiss. See Oberg v. State of Nebraska,
16 CIR 509 (2011); Fraternal Order of
Police Lodge 43 v. The City of Sidney, 13 CIR 329 (2000). In entertaining
motions to dismiss, the Commission determines whether the Petition states a
factual basis for invoking the Commission's jurisdiction. Without an
appropriate invocation of the Commission's jurisdiction, the Commission is left
with no relief requested in the petition. Therefore, the Commission must
determine if its jurisdiction has been properly invoked in the instant case.
CIR Rule 20(B) provides the standard
for motions before the Commission. CIR Rule 20(B) states:
Written briefs in support of the motion shall be filed with each motion,
containing concise statements of the reasons and citations to the authorities
relied upon. All motions and briefs shall be served as provided in Rule 5A. In
a like manner, each adverse party may file and serve within five (5) business
days after service of the motion, a written brief in opposition to the motion.
Briefs shall not be required, however, when all parties have assented to the
motion, as declared in the motion itself, or when the motion is for an
extension of time.
Neb. Ct. R. Pldg. § 6-1115(a) provides that leave to amend a
pleading "shall be freely
given when justice so requires." However, leave to amend may be denied in
certain circumstances.
(D)enial
of leave to amend pleadings is appropriate only in those limited circumstances
in which undue delay, bad faith on the part of the moving party, futility of
the amendment, or unfair prejudice to the nonmoving party can be demonstrated. ...
And more specifically, it is an
abuse of discretion for the district court to dismiss a suit on the basis of
the original complaint without first considering and ruling on a pending motion
to amend.
Gonzalez
v. Union Pac. R.R. Co., 282 Neb. 47, 63
(Neb. 2011)
Petitioner’s Motion to Supplement and Amend, while not
properly filed for consideration, must be ruled on in addition to Respondent’s
Motion to Dismiss Petition.
LEGAL
ANALYSIS
In
its Motion, Respondent alleges that Petitioner has failed to invoke this
Commission’s jurisdiction. See Neb.
Ct. R. Pldg. § 6-1112(b)(1) and (6). Specifically, Respondent argues that the
Petition, on its face, involves a uniquely personal matter and fails to allege
an industrial dispute under Neb. Rev.
Stat. § 48-810. Second, Respondent argues that the Petitioner alleges
violations that amount to breach of contract claims over which the Commission
lacks subject matter jurisdiction. Finally, Respondent argues that the Petition
alleges violations that are, at least in part, time-barred pursuant to Neb. Rev. Stat. § 48-825(1). Respondent
additionally requests the Commission assess attorney fees and litigation costs
against Petitioner.
The
Petition is comprised of allegations by a state trooper that he was unfairly
treated, managed, disciplined and passed over by his superiors at the Nebraska
State Patrol. Further, the Petition
appears to allege failures in the arbitration between the state trooper and the
Nebraska State Patrol. The proposed
Amended and Supplemental Petition retains the allegations in the original
operative Petition and adds further allegations with regard to an internal
affairs complaint and the arbitration hearing.
The
Petition and the proposed Amended and Supplemental Petition do not contain
factual allegations constituting an industrial dispute within the statutory
jurisdiction of the Commission of Industrial Relations. After a careful review
of the Industrial Relations Act, we find the Petitioner presents an individual
dispute not related to collective or concerted activity under the Industrial
Relations Act. The Commission of Industrial Relations does not have subject matter
jurisdiction with respect to “uniquely personal” matters. See Nebraska Dept. of Roads Employees Ass’n v. Department of Roads,
189 Neb. 754, 205 N.W.2d 110 (1973). See
also, Schmieding v. City of Lincoln and Lincoln General Hospital, 2 CIR 60
(1972). Schmieding very clearly held
that uniquely personal matters are not within the legislative policy behind the
Industrial Relations Act. The Petitioner must allege an industrial dispute and
has failed to do so under the Act. Therefore, the Commission finds that it does
not have subject matter jurisdiction over this dispute. Therefore, the
Commission need not address the breach of contract and timing issues also
alleged by the Respondent in its Motion to Dismiss.
The Commission has reviewed the Motion to Supplement and
Amend and the proposed Amended and Supplemental Prohibited Practices Petition.
The Commission finds the filing of the Motion to Supplement and Amend was
procedurally improper under CIR Rule 20(B). Additionally, even if properly filed, the additional allegations in
the proposed Amended and Supplemental Prohibited Practices Petition would not
bring the matter into the jurisdiction of the Commission.
REMEDIAL
AUTHORITY:
The Respondent also requests costs
and fees be awarded to the Respondent. The Commission finds that the parties
are to pay their own costs and fees. The Respondent’s request for an award of
costs and fees is denied. Although the Petitioner’s position is untenable when
examined in the light of the Respondent’s Motion to Dismiss, it is not clearly
frivolous and it does not appear to have been brought in bad faith.
THE
COMMISSION HEREBY FINDS
that the Petition does not invoke the Commission's jurisdiction. The
Petitioner’s Motion to Supplement and Amend was not properly filed pursuant to
Rule 20. The
Petitioner’s Motion to Supplement and Amend
should be denied. The
Respondent’s Motion to Dismiss should be granted and the Petition dismissed.
IT IS THEREFORE ORDERED:
1. Petitioner’s Motion to Supplement and Amend is hereby denied.
2. Respondent’s Motion to Dismiss is hereby
granted and the Petition is dismissed.
3. The defects contained within the
Petition cannot be cured by further amendment.
4. This order on dismissal is a final
and appealable order.
All panel
Commissioners join in the entry of this Order.