Nebraska Dept. of Health v. Struss
| Decision Date | 23 March 2001 |
| Docket Number | No. S-99-1088.,S-99-1088. |
| Parties | NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES, Appellee, v. Michael STRUSS, Appellant. |
| Court | Nebraska Supreme Court |
Lynnette Z. Boyle, of Tietjen, Simon & Boyle, Omaha, for appellant.
Don Stenberg, Attorney General, Donald J.B. Miller, Douglas D. Dexter, and Terri M. Weeks for appellee.
Michael Struss was employed by the Nebraska Department of Health and Human Services (the Department) at the Hastings Regional Center. His employment was governed by a collective bargaining agreement which provided a grievance procedure for employment disputes. Struss was put on probation, and later, his employment was terminated. He filed two grievances, a probation grievance and a termination grievance, both of which proceeded through arbitration and eventually were considered by the district court for Lancaster County.
The district court made separate rulings regarding the probation grievance and the termination grievance. Struss appeals that portion of the order of the district court with respect to the termination grievance, which order vacated the award of the arbitrator and directed a rehearing of the termination grievance before a new arbitrator. Neither party appeals the portion of the district court's order which confirmed the award with respect to the probation grievance. In response to Struss' appeal, the Department argues, inter alia, that this court does not have jurisdiction over this appeal under Neb. Rev.Stat. § 25-2620 (Reissue 1995). For the reasons recited below, we dismiss Struss' appeal for lack of appellate jurisdiction.
Struss was employed by the Department at the Hastings Regional Center. The terms and conditions of Struss' employment were governed by a collective bargaining agreement (the Contract) which had been negotiated between the Department and the Nebraska Association of Public Employees, American Federation of State, County, and Municipal Employees Local 61, which was the exclusive bargaining agent for the bargaining unit of which Struss was a member. The Contract governed, inter alia, the procedure to be utilized in grievance matters. The arbitrator in this case determined that the 1997-99 collective bargaining agreement governed procedural grievance matters. The 1997-99 collective bargaining agreement became effective July 1, 1997, and covered the period from July 1, 1997, through June 30, 1999, which was subsequent to the June 11, 1997, effective date of Neb.Rev.Stat. § 25-2602.01 (Cum.Supp.2000). Compare Millennium Solutions v. Davis, 258 Neb. 293, 603 N.W.2d 406 (1999).
On June 2, 1997, the Department placed Struss on disciplinary probation for a period of 6 months. On June 4, Struss filed a grievance with respect to the probation. On October 8, while the grievance process with respect to the probation grievance was underway, the Department terminated Struss' employment. Struss filed a separate grievance with respect to the termination of employment.
The grievance procedure under the Contract consisted of a multistep process, the third step of which allowed the parties to mutually agree to submit the dispute to voluntary binding arbitration as an alternative to submitting the dispute to the State Personnel Board. The Contract provided that "[w]ithin fifteen workdays of receipt of the decision in Step 2 the grievant [in this case, Struss] may appeal said decision through the Chief Negotiator, DAS—Employee Relations Division."
Struss' probation grievance was denied at step two. The step two denial of the probation grievance was appealed to the step three level, and the dispute was submitted to arbitration on November 2, 1997. Struss' termination grievance was also denied at step two. The step two decision in the termination grievance, dated November 25, 1997, was received by Struss on December 3 and was appealed on February 19, 1998.
On February 6, 1998, in connection with the probation grievance appeal, the Department filed a motion to dismiss the probation grievance on the basis that Struss had failed to appeal the step two decision in his termination grievance, thereby rendering moot the remedies Struss sought in the probation grievance. The parties subsequently selected an arbitrator, and the motion was submitted to him. As noted, on February 19, Struss filed an appeal of the step two denial of the termination grievance. The Department filed a motion to dismiss the appeal of the termination grievance on the basis that it had been filed late. Following a telephone hearing, the arbitrator overruled both of the Department's motions to dismiss.
The arbitrator granted a motion for a consolidated hearing of both the probation grievance and the termination grievance. The Department renewed both motions to dismiss and continued to renew the motions throughout the arbitration proceedings, which included four hearings conducted between October 17 and December 3, 1998. The arbitrator decided that he had jurisdiction over both grievances, agreed with Struss on the merits, and ultimately upheld both of Struss' grievances in a decision issued on April 13, 1999, and supplemented on April 17. As an award, the arbitrator ordered that the Department reinstate Struss to his former position with backpay, but because of misconduct on Struss' part in connection with the disciplinary action, the arbitrator ordered that Struss be placed on probation for a period of 6 months from the date of reinstatement.
On May 24, 1999, the Department filed a motion pursuant to Neb.Rev.Stat. § 25-2613 (Cum.Supp.2000) in the district court of Lancaster County to vacate the arbitrator's award. The Department alleged that pursuant to § 25-2613(a)(3), the arbitrator exceeded his power when he exercised jurisdiction over the appeal of the termination grievance which had been untimely filed. The Department requested that the arbitrator's award be vacated and that the district court order a rehearing before a new arbitrator pursuant to § 25-2613(c). On June 16, Struss objected to the Department's motion to vacate and filed a cross-motion requesting that the district court confirm the consolidated award of the arbitrator. Struss claimed that the Contract's language with respect to appealing a step two decision within 15 workdays was not mandatory.
On July 22, 1999, the district court entered an order specifically vacating the award with respect to the termination grievance and directing that the matter be remanded for a rehearing before a new arbitrator. The district court found that the step three appeal in the termination grievance was not timely filed, but nevertheless ordered the rehearing "to allow [Struss] to present evidence which may justify the failure to file the step 3 grievance in a timely manner" and thereby establish just cause to excuse the delay. The district court further taxed the costs of the proceedings to Struss.
On August 3, 1999, Struss moved the district court to clarify the July 22 order by (1) confirming the portion of the arbitrator's award which upheld his probation grievance and (2) clarifying whether, if the new arbitrator found evidence to justify the failure to timely appeal the termination grievance, the first arbitrator's award on the merits would then be confirmed or whether a new trial on the merits of the termination grievance would be conducted. In response to the motion to clarify, the district court entered an order on August 13 amending the July 22 order to include language confirming the award of the arbitrator with respect to the probation grievance.
On August 17, 1999, Struss filed notice of his intent to appeal the order dated July 22, 1999, and the supplemental order thereto dated August 13, 1999. On appeal, Struss assigns error only to that portion of the order pertaining to the termination grievance which vacated the arbitrator's award and directed a rehearing before a new arbitrator. Struss does not assign error to the order with respect to the probation grievance, and the Department did not cross-appeal such order.
Struss asserts, restated, that the district court erred in vacating rather than confirming the award of the arbitrator in the termination grievance and further erred in directing a rehearing before a new arbitrator. The Department has raised an issue regarding the jurisdiction of this court to hear the appeal.
The question of jurisdiction is a question of law. In re Appeal of Stoller, 261 Neb. 150, 622 N.W.2d 878 (2001). On questions of law, an appellate court has an obligation to reach its own independent conclusions. Id.
Statutory interpretation presents a question of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. Tilt-Up Concrete v. Star City/Federal, 261 Neb. 64, 621 N.W.2d 502 (2001).
Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. In re Appeal of Stoller, supra; State ex rel. Lamm v. Nebraska Bd. of Pardons, 260 Neb. 1000, 620 N.W.2d 763 (2001)
.
Jurisdiction is vested in an appellate court through the state Constitution and the Legislature. See, Neb. Const. art. V, §§ 2, and Neb.Rev.Stat. § 24-204 (Reissue 1995); State v. Campbell, 260 Neb. 1021, 620 N.W.2d 750 (2001).
To continue reading
Request your trial
-
East Texas Salt Water Disposal Co. v. Werline
...Missouri's version of 171.098(a)(5) "implicitly bars appeals from orders that direct a rehearing"); Neb. Dep't of Health and Human Servs. v. Struss, 261 Neb. 435, 623 N.W.2d 308, 314 (2001) (finding an order directing a rehearing premature for review); Boyce v. St. Paul Prop. & Liab. Ins. C......
-
Morgan Keegan & Co. v. Smythe
...Maine Dept. of Transp., 581 A.2d at 815; Kowler Assocs. v. Ross, 544 N.W.2d 800 (Minn. Ct. App. 1996); Neb. Dept. of Health & Hum. Serv's v. Struss, 623 N.W.2d 308 (Neb. 2001); Stolhandske v. Stern, 14 S.W.3d 810 (Tex. Ct. App. 2000); Prudential Secs., Inc. v. Vondergoltz, 14 S.W.3d 329 (Te......
-
State v. Thalken, S-16-830.
...346 N.W.2d 208 (1984).34 See, Neb. Const. art. V, § 2 ; Neb. Rev. Stat. § 24-204 (Reissue 2016) ; Nebraska Dept. of Health & Human Servs. v. Struss, 261 Neb. 435, 623 N.W.2d 308 (2001).35 See, e.g., Heckman v . Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).36 See id.37 Neb. Const. art. V, § ......
-
Karcher Firestopping v. Meadow Valley Cont.
...directed rehearing but discussing in dicta an approach to an order similar to the one at issue here); Nebraska Dept. of Health v. Struss, 261 Neb. 435, 623 N.W.2d 308, 313-14 (2001) (interpreting a statute that provides for appeals from orders "confirming or denying confirmation of an and o......