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03/25/2016 09:05 AM CDT




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                                          Nebraska A dvance Sheets
                                           293 Nebraska R eports
                             LAMB v. FRATERNAL ORDER OF POLICE LODGE NO. 36
                                            Cite as 293 Neb. 138




                           Thomas Lamb, appellant, v. Fraternal Order of
                             Police Lodge No. 36 and Michael Robinson,
                                     Washington County Sheriff,
                                      an individual, appellees.
                                                  ___ N.W.2d ___

                                        Filed March 25, 2016.    No. S-15-361.

                1.	 Motions to Dismiss: Appeal and Error. A district court’s grant of a
                    motion to dismiss is reviewed de novo.
                2.	 Motions to Dismiss: Pleadings: Appeal and Error. When reviewing
                    an order dismissing a complaint, an appellate court accepts as true all
                    facts which are well pled and the proper and reasonable inferences of
                    law and fact which may be drawn therefrom, but not the plaintiff’s
                    conclusion.
                3.	 Motions to Dismiss: Pleadings. To prevail against a motion to dis-
                    miss for failure to state a claim, a plaintiff must allege sufficient facts,
                    accepted as true, to state a claim to relief that is plausible on its face.
                    In cases in which a plaintiff does not or cannot allege specific facts
                    showing a necessary element, the factual allegations, taken as true, are
                    nonetheless plausible if they suggest the existence of the element and
                    raise a reasonable expectation that discovery will reveal evidence of the
                    element or claim.
                4.	 Labor and Labor Relations: Contracts. Generally, individual
                    employees seeking to assert contract grievances attempt to use the
                    grievance procedure agreed to by a union and an employer as a mode
                    of redress.
                5.	 Commission of Industrial Relations: Jurisdiction: Breach of
                    Contract. The Commission of Industrial Relations has no jurisdiction
                    over breach of contract claims.
                6.	 Constitutional Law: Immunity: Waiver. Under the 11th Amendment,
                    a nonconsenting state is generally immune from suit unless the state has
                    waived its immunity.
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                      Nebraska A dvance Sheets
                       293 Nebraska R eports
          LAMB v. FRATERNAL ORDER OF POLICE LODGE NO. 36
                         Cite as 293 Neb. 138

 7.	 Political Subdivisions: Counties: Legislature. A county is a political
     subdivision of the state and has subordinate powers of sovereignty con-
     ferred by the Legislature.
 8.	 Constitutional Law: Legislature: Actions. Neb. Const. art. V, § 22,
     provides that the State may sue and be sued and that the Legislature
     shall provide by law in what manner and in what courts suits shall
     be brought.
 9.	 Tort Claims Act: Legislature: Immunity: Waiver. The Legislature has
     waived the State’s immunity through the State Tort Claims Act.
10.	 Political Subdivisions Tort Claims Act: Legislature: Immunity:
     Waiver. The Legislature has waived immunity belonging to politi-
     cal subdivisions, like counties, through the Political Subdivisions Tort
     Claims Act.
11.	 Statutes: Immunity: Waiver. Statutes that purport to waive the protec-
     tion of sovereign immunity of the State or its subdivisions are strictly
     construed in favor of the sovereign and against the waiver. A waiver
     of sovereign immunity is found only where stated by the most express
     language of a statute or by such overwhelming implication from the text
     as will allow no other reasonable construction.
12.	 Political Subdivisions Tort Claims Act: Immunity: Waiver. An appel-
     late court strictly construes the Political Subdivisions Tort Claims Act
     in favor of the political subdivision and against the waiver of sover-
     eign immunity.
13.	 Political Subdivisions Tort Claims Act: Tort Claims Act. Generally,
     provisions of the Political Subdivisions Tort Claims Act should be con-
     strued in harmony with similar provisions in the State Tort Claims Act.

   Appeal from the District Court for Washington County: John
E. Samson, Judge. Affirmed.

   Thomas M. White, C. Thomas White, and Amy S. Jorgensen,
of White & Jorgensen, for appellant.

  Michael P. Dowd, of Dowd, Howard & Corrigan, L.L.C., for
appellee Fraternal Order of Police Lodge No. 36.

  Charles W. Campbell, of Angle, Murphy & Campbell, P.C.,
L.L.O., for appellee Michael Robinson.

   Heavican, C.J., Wright, Connolly, Cassel, and Stacy, JJ.
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                   Nebraska A dvance Sheets
                    293 Nebraska R eports
        LAMB v. FRATERNAL ORDER OF POLICE LODGE NO. 36
                       Cite as 293 Neb. 138

  Heavican, C.J.
                      I. INTRODUCTION
   Thomas Lamb filed suit against the Fraternal Order of
Police Lodge No. 36 (Lodge No. 36) and Michael Robinson,
Washington County Sheriff, alleging breach of contract and
intentional interference with a business relationship. The dis-
trict court dismissed Lamb’s suit. Lamb appeals. We affirm.
                II. FACTUAL BACKGROUND
   Lamb was employed as a captain in the Washington County,
Nebraska, sheriff’s office. Lamb was a member of Lodge No.
36, a labor union representing employees of the Washington
County sheriff’s office. Lodge No. 36 and Washington County
entered into a labor agreement on June 28, 2005. Robinson is
the sheriff of Washington County.
   On April 4, 2013, Robinson informed Lamb that he was
under investigation. The reason for this investigation is not
in our record. Robinson appointed two sergeants within his
office to conduct the investigation into Lamb. Lamb main-
tained that as officers holding a lesser rank, the appointed
officers were not permitted by the labor contract to investigate
him; despite this, Lamb was questioned in connection with
the investigation. Lamb also requested, from Lodge No. 36,
representation during the questioning, but alleged that he did
not receive it.
   On April 13, 2013, apparently at the instigation of the inves-
tigating officers, Robinson took over the investigation into
Lamb. On April 19, Lamb’s employment was terminated.
   On September 2, 2014, Lamb filed suit against Lodge No.
36 and Robinson. He subsequently filed an amended com-
plaint. That complaint sets forth two causes of action.
   The first, against Lodge No. 36, alleges breach of contract.
Lamb alleges that Lodge No. 36’s refusal to provide represen-
tation after he requested it was a breach of the labor contract
and of Lodge No. 36’s duty of fair representation. Lamb fur-
ther alleges that there was no grievance procedure set forth in
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                        Nebraska A dvance Sheets
                         293 Nebraska R eports
            LAMB v. FRATERNAL ORDER OF POLICE LODGE NO. 36
                           Cite as 293 Neb. 138

the labor contract for grievance against Lodge No. 36 and that
therefore, he had no obligation to file one.
   The second cause of action is against Robinson for tortious
interference with a business relationship. Lamb alleges that
Robinson obstructed Lodge No. 36’s ability to fulfill its duty
of fair representation. Lamb further alleges that Robinson is a
member of Lodge No. 36, despite the fact that he is the super-
visor and thus prohibited by Neb. Rev. Stat. § 48-816 (Cum.
Supp. 2014) from being a member of the same bargaining unit
as nonsupervisors.
   Lamb sought general and special damages and past and pres-
ent lost income.
   Both Lodge No. 36 and Robinson filed motions to dis-
miss. Lodge No. 36 argued that the Commission of Industrial
Relations (CIR), not the district court, had jurisdiction to
decide this dispute, and that Lamb waived his cause of action
by failing to file a grievance. Robinson argued that the action
against him was barred by sovereign immunity.
   The district court granted both motions to dismiss. Lamb
appeals.

              III. ASSIGNMENTS OF ERROR
  Lamb assigns, restated and consolidated, that the district
court erred in dismissing his causes of action against Lodge
No. 36 and against Robinson.

                IV. STANDARD OF REVIEW
   [1-3] A district court’s grant of a motion to dismiss is
reviewed de novo.1 When reviewing an order dismissing a
complaint, an appellate court accepts as true all facts which
are well pled and the proper and reasonable inferences of law
and fact which may be drawn therefrom, but not the plain-
tiff’s conclusion.2 To prevail against a motion to dismiss for

 1	
      SID No. 1 v. Adamy, 289 Neb. 913, 858 N.W.2d 168 (2015).
 2	
      Id.
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                         Nebraska A dvance Sheets
                          293 Nebraska R eports
             LAMB v. FRATERNAL ORDER OF POLICE LODGE NO. 36
                            Cite as 293 Neb. 138

failure to state a claim, a plaintiff must allege sufficient facts,
accepted as true, to state a claim to relief that is plausible
on its face.3 In cases in which a plaintiff does not or cannot
allege specific facts showing a necessary element, the factual
allegations, taken as true, are nonetheless plausible if they
suggest the existence of the element and raise a reasonable
expectation that discovery will reveal evidence of the element
or claim.4
                         V. ANALYSIS
                1. Action Against Lodge No. 36
   Lamb argues that the district court erred in finding that he
needed to file a grievance and that his action should have been
filed with the CIR and not with the district court.
                  (a) Failure to File Grievance
   The district court concluded that Lamb’s amended complaint
should be dismissed because he failed to file a grievance in
accordance with the labor contract. On this fact, we disagree.
   [4] It is true that generally, individual employees seeking
to assert contract grievances attempt to use the grievance pro-
cedure agreed to by a union and an employer as a mode of
redress.5 And it is true that Lamb did not file such a grievance
in this case.
   Lamb’s failure to file a grievance does not necessitate dis-
missal of his complaint. Lamb, while no doubt upset over
the termination of his employment, did not sue Lodge No.
36 over that termination. Rather, Lamb asserted that Lodge
No. 36 breached the labor contract, and further alleged that
Robinson tortiously interfered with Lamb’s relationship with
Lodge No. 36.

 3	
      Id.
 4	
      Id.
 5	
      Republic Steel v. Maddox, 379 U.S. 650, 85 S. Ct. 614, 13 L. Ed. 2d 580
      (1965).
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                         Nebraska A dvance Sheets
                          293 Nebraska R eports
             LAMB v. FRATERNAL ORDER OF POLICE LODGE NO. 36
                            Cite as 293 Neb. 138

   When the grievance process set forth in the labor contract is
examined, it is clear that it would have been futile for Lamb
to file a grievance under that procedure. The procedure deals
with a grievance against the county. It does not provide a
mechanism for Lamb to complain about Lodge No. 36. There
would have been no point in Lamb’s filing a grievance with
Washington County when his grievance was really with Lodge
No. 36.
   The district court erred in dismissing Lamb’s amended com-
plaint for failure to file a grievance.
                 (b) District Court Jurisdiction
   Lamb also assigns that the district court erred when it con-
cluded that it lacked subject matter jurisdiction and that this
action should have been filed before the CIR. Lamb argues that
the district court has jurisdiction, because breach of contract
claims must be decided by that court and cannot be decided by
the CIR.
   [5] We agree with Lamb that the CIR has no jurisdiction
over breach of contract claims.6 But Lamb does not allege only
a claim for a breach of contract. He also alleges that Lodge No.
36 breached its duty of fair representation.
   A duty of fair representation claim is implicitly authorized
by Neb. Rev. Stat. § 48-824 (Cum. Supp. 2014).7 That sec-
tion identifies a variety of “prohibited practices” actionable
against not only a public employer, but also a public employee,
a public employee organization, or a collective bargaining
agent; the CIR has the power to find that any of these par-
ties committed such a prohibited practice. But the jurisdiction
for such an action does not lie with the district court; rather,

 6	
      See Transport Workers of America v. Transit Auth. of City of Omaha, 205
      Neb. 26, 286 N.W.2d 102 (1979) (superseded by statute as stated in South
      Sioux City Ed. Assn. v. Dakota Cty. Sch. Dist., 278 Neb. 572, 772 N.W.2d
      564 (2009)).
 7	
      See Davis v. Fraternal Order of Police, 15 Neb. App. 470, 731 N.W.2d
      901 (2007).
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                         Nebraska A dvance Sheets
                          293 Nebraska R eports
             LAMB v. FRATERNAL ORDER OF POLICE LODGE NO. 36
                            Cite as 293 Neb. 138

because it involves the determination of a prohibited practice
under Nebraska’s Industrial Relations Act, jurisdiction lies with
the CIR.8
   Lamb attempts to characterize his claim against Lodge No.
36 as a breach of contract claim. Lamb’s amended complaint
alleges that “[Lodge No.] 36 leaders were aware of the interro-
gation and . . . Lamb’s request for representation but failed and
refused to provide such representation. This failure and refusal
by [Lodge No.] 36 was a material breach of [the labor contract]
and the duty of fair representation.” But, in our view, Lamb is
simply restating his breach of the duty of fair representation
claim as one for breach of contract. We can only surmise that
Lamb attempts this in order to invoke the jurisdiction of the
district court and avoid the CIR. But in this case, the proper
place for Lamb to bring his complaint against Lodge No. 36
is the CIR.
   And while the CIR’s power is limited, we are not persuaded
that it lacks the ability to provide relief for a breach of the duty
of fair representation. While the CIR lacks the authority to
grant declaratory or injunctive relief, it is not powerless. Neb.
Rev. Stat. § 48-819.01 (Reissue 2010) provides:
      [T]he [CIR] shall have the power and authority to make
      such findings and to enter such temporary or permanent
      orders as the [CIR] may find necessary to provide ade-
      quate remedies to the injured party or parties, to effectu-
      ate the public policy enunciated in section 48-802, and to
      resolve the dispute.
   Moreover, even if Lamb had successfully pled a breach
of contract claim, we must conclude that Lamb cannot sue
for such claim, because he is not a party to the labor con-
tract. Although Lamb generally alleged that he and Lodge
No. 36 were in a “business relationship,” he did not allege or

 8	
      § 48-824. Cf. South Sioux City Ed. Assn. v. Dakota Cty. Sch. Dist., supra
      note 6.
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                         Nebraska A dvance Sheets
                          293 Nebraska R eports
            LAMB v. FRATERNAL ORDER OF POLICE LODGE NO. 36
                           Cite as 293 Neb. 138

o­ therwise argue that he was a third-party beneficiary to the
 labor contract.
     Because the CIR, and not the district court, is the appropri-
 ate body in which to file a breach of fair representation claim
 against a union, we conclude that the district court did not err
 in dismissing the action against Lodge No. 36.
                  2. Action Against Robinson
   The sole issue on appeal with respect to Robinson is
whether he is immune from suit under the doctrine of sover-
eign immunity.
   [6-8] Under the 11th Amendment, a nonconsenting state
is generally immune from suit unless the state has waived
its immunity.9 A county is a political subdivision of the state
and has subordinate powers of sovereignty conferred by the
Legislature.10 But Neb. Const. art. V, § 22, provides: “The state
may sue and be sued, and the Legislature shall provide by law
in what manner and in what courts suits shall be brought.”
Thus, the State may waive its sovereignty in whatever way it
sees fit.
   [9-13] The Legislature has waived the State’s immunity
through the State Tort Claims Act.11 It has similarly waived
immunity belonging to political subdivisions, like counties,
through the Political Subdivisions Tort Claims Act.12 It is well
settled that statutes that purport to waive the protection of
sovereign immunity of the state or its subdivisions are strictly
construed in favor of the sovereign and against the waiver.13
A waiver of sovereign immunity is found only where stated
by the most express language of a statute or by such over-
whelming implication from the text as will allow no other

 9	
      SID No. 1 v. Adamy, supra note 1.
10	
      Id.
11	
      Neb. Rev. Stat. § 81-8,209 et seq. (Reissue 2014).
12	
      Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012).
13	
      Stick v. City of Omaha, 289 Neb. 752, 857 N.W.2d 561 (2015).
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                        Nebraska A dvance Sheets
                         293 Nebraska R eports
            LAMB v. FRATERNAL ORDER OF POLICE LODGE NO. 36
                           Cite as 293 Neb. 138

reasonable construction.14 We have specifically stated that we
strictly construe the Political Subdivisions Tort Claims Act in
favor of the political subdivision and against the waiver of
sovereign immunity.15 And we have held that generally, provi-
sions of the Political Subdivisions Tort Claims Act should be
construed in harmony with similar provisions in the State Tort
Claims Act.16
   The issue presented here is whether Robinson, as the
sheriff, was acting in his official capacity as an agent of
Washington County, entitling him to the county’s immunity, or
if he was acting in his individual capacity and therefore was
not entitled to immunity. The parties generally agree that the
resolution of the question depends upon whether Robinson’s
actions were taken within the scope of his employment. Per
the caption to his amended complaint, Lamb purported to sue
Robinson in Robinson’s individual capacity. But Robinson
argued, and the district court agreed, that he was acting as
sheriff at all times relevant to the allegations made in that
amended complaint.
   We agree that Robinson was entitled to immunity. We
first note that Robinson investigated Lamb and eventually
terminated Lamb’s employment while acting as sheriff of
Washington County.
   And we find Lamb’s allegations regarding §§ 48-816(3)(a)
and 48-824 of little import here. Section 48-816(3) prohibits
a supervisor from being in a bargaining unit with nonsupervi-
sors. But Lamb does not allege that Robinson was in the same
bargaining unit as nonsupervisors. Lamb alleges only that
Robinson was a member of Lodge No. 36. But Lodge No. 36 is
a labor organization, not a bargaining unit, and § 48-816 refers
to the makeup of bargaining units.

14	
      Id.
15	
      Id.
16	
      Big Crow v. City of Rushville, 266 Neb. 750, 669 N.W.2d 63 (2003). See
      Jasa v. Douglas County, 244 Neb. 944, 510 N.W.2d 281 (1994).
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                  Nebraska A dvance Sheets
                   293 Nebraska R eports
        LAMB v. FRATERNAL ORDER OF POLICE LODGE NO. 36
                       Cite as 293 Neb. 138

   Of course, Lamb is correct that it is a prohibited practice
under § 48-824 to dominate or interfere with a labor organiza-
tion, as he alleged Robinson has done. But assuming, as we
must, that Lamb’s allegations regarding Robinson’s interfer-
ence are true, we find that Lamb’s allegations actually support
the conclusion that Robinson’s actions were within the scope
of his employment. As noted above, a prohibited practice can
be committed by a public employer, a public employee, a pub-
lic employee organization, or a collective bargaining agent. In
order to commit a prohibited practice in this case, Robinson
necessarily must be acting as a public employer. We further
note that as a public employer, any prohibited practice commit-
ted by Robinson is actionable before the CIR.
   As such, even if Robinson interfered with the workings of
Lodge No. 36, those actions, too, were made by Robinson
when he was acting in his capacity as Washington County
Sheriff and were within the scope of his employment.
   The decision of the district court finding that Robinson was
entitled to immunity was not error. Lamb’s final assignment of
error is without merit.
                     VI. CONCLUSION
  The decision of the district court is affirmed.
                                                    A ffirmed.
  Miller-Lerman, J., participating on briefs.
