AMERICAN
FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES,
AFL-CIO,
APPELLEE
V.
STATE
OF
V.
STATE
OF
200
Filed
March 1, 1978,
1. Courts: Constitutional Law. The courts of
this state decide controversies and are not empowered to render advisory
opinions.
2. Constitutional Law. The Constitution of
Nebraska is a limitation of power and not a grant.
3. Legislature: Constitutional Law: Court of
Industrial Relations. Since the recognition and creation of bargaining units
within the executive departments are not prohibited by any Article of the
Constitution of Nebraska, the Legislature possesses the authority to grant such
powers to the Court of Industrial Relations.
4. Administrative Law: Labor and Labor
Relations. Decisions under the National Labor Relations Act are helpful, but not
controlling upon the courts of this state.
5. Labor and Labor Relations: Court of
Industrial Relations: Elections. A run-off election is a continuation of an
original election and is designed to carry out the purposes of the original
election.
6. ______: ______: ______. The determination
that a run-off election should be held is appropriate where a majority of
workers in a unit desire representation but where a unit fails to get the
required majority of votes.
7. Governmental Subdivisions: Labor and Labor
Relations: Elections. It shall be presumed, in the case of governmental
subdivisions such as municipalities, counties, power districts, or utility
districts with no previous history of collective bargaining, that units of
employees of less than departmental size shall not be appropriate.
8. Labor and Labor Relations: Statutes:
Elections. The policy of section 48-838, R. R. S. 1943, is opposition to undue
fragmentation of bargaining units.
9. Governmental Subdivisions: Statutes:
Elections. Section 48-838, R. R. S. 1943, is not limited in applicability only
to those governmental subdivisions enumerated.
10. Court of Industrial Relations: Labor and
Labor Relations: Appeal and Error. Review by this court of an order or decision
of the Court of Industrial Relations is restricted to considering whether the
order of that court is supported by substantial evidence justifying the order
made, whether it acted within the scope of its statutory authority, and whether
its action was arbitrary, capricious, or unreasonable.
Appeal from the
Paul L. Douglas, Attorney General, Warren D.
Lichty, Jr., and Robert G. Avey, for appellant.
John B. Ashford of Bradford & Coenen, for appellee American Fed. S., C.
& M. Emp., AFL-CIO.
Steven D. Burns, for appellee and intervener-appellee Nebraska Assn. of Pub. Emp.
Heard before WHITE, C. J., SPENCER, BOSLAUGH,
MCCOWN, CLINTON, BRODKEY, and WHITE, JJ.
WHITE, C. THOMAS, J.
This is an
appeal from a Court of Industrial Relations' determination that the Department
of Roads is subject to the jurisdiction of the Court of Industrial Relations;
that the department should be divided into two separate units for bargaining
purposes, namely, a construction unit and a maintenance unit; and, finally, that
the Court of Industrial Relations has authority to order a run-off election when
neither of the two organizations seeking to represent the units received a
majority of the votes cast, although a majority voted to be represented.
The State
argues that sections 48-801 et seq., R. R. S. 1943, are unconstitutional insofar
as they might apply to the Department of Roads.
The Department
of Roads is not one of the executive departments named in Article IV, section 1,
of the Nebraska Constitution. It was created by the Legislature, sections
81-701.01 et seq., R. R. S. 1943, and designated as an executive department
pursuant to Article IV, section 1, and Article IV, section 27, of the Nebraska
Constitution.
The State
directs our attention to three related provisions of the Nebraska Constitution.
Article II, section 1, reads: "The powers of the government of this state
are divided into three distinct departments, the legislative, executive and
judicial, and no person * * * shall exercise any power properly belonging to
either of the others, * * *."
Article IV,
section 1, states: "Subject to the provisions of this Constitution, the
heads of the various executive * * * departments shall have power to appoint and
remove all subordinate employees * * *."
Article IV,
section 6, provides: "The supreme executive power shall be vested in the
Governor, who shall take care that the laws be faithfully executed and the
affairs of the state efficiently and economically administered."
The State
argues that the exercise of the executive power will be hampered by the action
of the Court of Industrial Relations because the decisions of the court will
infringe on the right of the various departments to hire and fire subordinates.
We shall discuss this contention later.
The
constitutional justification for the creation of the Court of Industrial
Relations and its jurisdiction over governmental bodies and their employees has
been the subject of litigation before this court on a number of occasions.
In School Dist. of Seward Education Assn. v. School Dist. of Seward, 188
Neb. 772, 199 N. W. 2d 752, the major issue was whether the Court of
Industrial Relations violated the separation of powers provision of Article II,
section 1, Constitution of Nebraska. A divided court determined that it did not,
and affirmed. The rationale of the majority was that Article XV, section 9,
providing: "Laws may be enacted providing for the investigation, submission
and determination of controversies between employers and employees in any
business or vocation affected with a public interest, * * *. An Industrial
Commission may be created for the purpose of administering such laws, and
appeals shall lie to the Supreme Court * * *," was intended to be an
exception to Article II of the Constitution of Nebraska. (Emphasis supplied.) By
implication the majority suggested that the phrase "employees in any * * *
vocation affected with a public interest" included employees of the State
of
In Orleans
Education Assn. v. School Dist. of Orleans, 193 Neb. 675, 229 N. W. 2d 172, this court again passed on the constitutionality
of the Court of Industrial Relations against the assertions that sections 48-818
et seq., R. R. S. 1943, delegated judicial powers to an administrative body in
violation of Article II, section 1, and Article V, section 1, of the Nebraska
Constitution, and that the act further delegated legislative authority in
violation of Article III, section 1. Judge Clinton, writing for the majority,
held that the jurisdiction of the Court of Industrial Relations is limited to
clearly legislative concerns and the power to establish rates and conditions of
employment in accordance with the standards prescribed by the act are not
unconstitutional as violative of the last above-cited Articles of the Nebraska
Constitution.
The majority
opinion in Orleans Education Assn. v. School Dist. of Orleans, supra, proceeding
from the rationale set out in Judge Clinton's dissent in School Dist. of Seward
Education Assn. v. School Dist. of Seward, supra, declined to base its holding
on Article XV, section 9. Relying on Dwyer v. Omaha-Douglas Public Building
Commission, 188 Neb. 30, 195 N. W. 2d 236, the court held: "The Legislature has plenary
legislative authority except as limited by the state and federal
Constitutions." Finding no barriers in the state and federal Constitutions
subjecting the employees of the
Judge Newton
dissented, in
In American
Fed. of S., C. & M. Emp. v. Department of Public Institutions, 195 Neb.
253, 237 N. W. 2d 841, the court, in a Per Curiam plurality opinion,
again upheld the constitutionality of sections 48-801 et seq., R. R. S. 1943,
against an assertion that Article II, section 1, and Article IV, section 1,
Constitution of Nebraska, prohibited the exercise of the power, granted to the
Court of Industrial Relations, to certify a bargaining agent within the
department. The Per Curiam opinion found that the words at the beginning of
Article IV, section 1, " 'Subject to the provisions of this Constitution *
* *,' " qualified the power of the executive department in light of Article
IV, section 19, which provides: " 'The general management, control and
government of all state charitable, mental, reformatory, and penal institutions
shall be vested as determined by the Legislature.' " (Emphasis supplied.)
This court further said: "By delegating the actual day-by-day
administration to the Department of Public Institutions, the Legislature did not
lose its constitutionally mandated power to control all state charitable,
mental, reformatory, and penal institutions. * * * It follows that if the
Legislature in the exercise of its continuing control of the department wants to
subject the Department of Public Institutions to the jurisdiction of the Court
of Industrial Relations, it has the power under Article IV, section 19, of the
Constitution of the State of Nebraska."
The Per Curiam
opinion notes the argument that the provisions of Article XV, section 9, do not
cover all public employees was "* * * correct in its interpretation."
Two judges
concurred in that result and two judges dissented. As pointed out in the
dissent, the Department of Public Institutions is an executive department. §
81-101, R. R. S. 1943.
This court has
again been invited to base its judgment on the interpretation placed on Article
XV, section 9, by School Dist. of Seward Education Assn. v. School Dist. of
Seward, supra, and, if not on that basis, then on an alleged distinction between
executive departments created by the Legislature and those specifically created
by the Constitution. It is suggested that the creation by the Legislature
somehow changes the character of control by the executive branch which is not
possible with departments created by the Constitution. We decline the
invitation.
While we have
no doubt that a specific order of the Court of Industrial Relations might
infringe on the separate powers of the executive and judicial branches of
government, the State does not here point out how the recognition of bargaining
units infringes on the executive power. The courts of this state decide
controversies and are not empowered to render advisory opinions. On a
case-by-case basis, should the need arise in the future, this court will examine
orders of the Court of Industrial Relations and determine if authority of the
executive has been infringed upon and, conversely, determine if the Court of
Industrial Relations has exceeded its power.
The
Constitution of Nebraska is a limitation of power and not a grant. Orleans
Education Assn. v. School Dist. of Orleans, supra. Therefore, since the
recognition and creation of bargaining units within executive departments are
not prohibited by any Article of the Constitution of Nebraska, the Legislature
possesses the authority to grant such power to the Court of Industrial
Relations.
Does the Court
of Industrial Relations have the authority to order a run-off election where, as
here, a majority has clearly voted for inclusion in a bargaining unit, but
neither of the proposed bargaining agents has received a majority of the votes
cast? We hold that it does.
Section
48-838, R. R. S. 1943, provides: "(1) The court shall certify the exclusive
collective bargaining agent for employees * * * following an election by secret
ballot, * * *. (3) * * * No election shall be ordered in one unit more than once
a year." (Emphasis supplied.)
This court
held in City of Grand Island v. American Federation of S. C. & M.
Employees, 186 Neb. 711, 185 N. W. 2d 860: "In reaching its decision the Court of
Industrial Relations found that decisions under the National Labor Relations Act
were helpful but not controlling upon the court. We think this is a correct
statement as to the consideration to be given to the decision under the federal
law."
The National
Labor Relations Act at 29
The National
Labor Relations Board has consistently held that a run-off election is a
continuation of an original election and is designed to carry out the purposes
of the original election. Fedders Manuf. Co., 7 N. L. R. B. 817.
The purpose of
sections 48-801 et seq., R. R. S. 1943, is the prevention of labor disputes. The
determination that a run-off election is appropriate, where a majority of
workers in a unit desire representation, is in accord with both the purpose of
the act and similar federal law. The Court of Industrial Relations did not act
in excess of its authority by ordering a run-off election.
The Court of
Industrial Relations determined that the appropriate bargaining units were a
unit consisting of maintenance personnel and one composed of engineers or road
construction personnel. The court noted there is little contact between the two
groups, little interchange of personnel, and each has differing working
conditions. The heavy-work schedule for the road construction employees is
during the construction season and is largely dictated by contractors. The
maintenance employees have a more regular work schedule the year round. As a
result of the elections, the common bargaining agent of the two units is the
Nebraska Association of Public Employees. The interesting factor is that the
proposal for two bargaining units originated in the application of American
Federation of State, County and Municipal Employees, AFL-CIO. N.A.P.E. proposed
a single bargaining unit for all employees of the department, except supervisory
personnel. Section 48-838, R. R. S. 1943, provides in part: "The court
shall also determine the appropriate unit for bargaining and for voting in the
election, and in making such determination the court shall consider established
bargaining units and established policies of the employer. It shall be presumed,
in the case of governmental subdivisions such as municipalities, counties, power
districts, or utility districts with no previous history of collective
bargaining, that units of employees of less than departmental size shall not be
appropriate."
The Department
of Roads is a governmental subdivision within the meaning of the presumption
described in the statute as "units of less than department size shall not
be appropriate." The policy of section 48-838, R. R. S. 1943, is opposition
to undue fragmentation of bargaining units. House Officers Assn. v. University
of
Review by this
court of an order or decision of the Court of Industrial Relations is restricted
to considering whether the order of that court is supported by substantial
evidence justifying the order made, whether it acted within the scope of its
statutory authority, and whether its action was arbitrary, capricious, or
unreasonable. American Assn. of University Professors v. Board of Regents,
198 Neb. 243, 253 N. W. 2d 1. While there is evidence to support the conclusion
of the Court of Industrial Relations, we do not agree that it is substantial in
view of the evidence, introduced on behalf of the elected bargaining agent, that
no conflict exists between the two categories which would prevent representation
by N.A.P.E. It is our conclusion that the presumption against fragmentation has
not been overcome and the appropriate bargaining unit shall consist of all
nonsupervisory employees of the Department of Roads. Since N.A.P.E. has been
elected singly to represent both units, no new election is necessary.
The decision
of the Court of Industrial Relations is affirmed as modified.
AFFIRMED AS MODIFIED.
BOSLAUGH, J.,
concurs in the result.
SPENCER, J.,
dissenting.
I respectfully
dissent from the majority opinion herein. The opinion cites American Fed. of S.,
C. & M. Emp. v. Department of Public Institutions, 195 Neb. 253, 237 N. W. 2d 841 (1976), a Per Curiam plurality opinion, to
support its opinion herein. I joined in the dissent to that opinion, and suggest
its applicability to the opinion herein.
The Department
of Roads has been designated as an executive department. In my judgment, the
Department of Roads is not embraced within the language of Article XV, section
9, of the Constitution of Nebraska, which provides: "Laws may be enacted
providing for the investigation, submission and determination of controversies
between employers and employees in any business or vocation affected with a
public interest, and for the prevention of unfair business practices and
unconscionable gains in any business or vocation affecting the public welfare.
An Industrial Commission may be created for the purpose of administering such
laws, and appeals shall lie to the Supreme Court from the final orders and
judgments of such commission."
I am now
convinced this constitutional provision was not intended to bear upon or affect
governmental units. In this respect, I am now in full agreement with the
conclusion set out in the dissent in School Dist. of Seward Education Assn. v.
School Dist. of Seward, 188 Neb. 772, 199 N. W. 2d 752 (1972). I authored that opinion. It was premised
on the plenary power of the Legislature over school districts, as suggested by
the following paragraph: "The Legislature has plenary power and control
over school districts, including provision for the appointment or election of
governing bodies thereof. Consequently, it may provide limitations on any
authority to be exercised by a school board. If the Legislature has such
complete control over public school districts, it follows, by the enactment of
L. B. 15, Laws 1969, chapter 407, page 1405, it was exercising that
control."
There is
nothing in that opinion to suggest, even by inference, that the Legislature has
the same power and control over executive departments. I am now convinced that
in adopting Article XV, section 9, Constitution of Nebraska, the Constitutional
Convention of 1920 clearly intended to exempt the state and its political
subdivisions from the operations of the Court of Industrial Relations. We have
opened a Pandora's box, by judicial construction, which can ultimately destroy
and nullify Article II, section 1, Constitution of Nebraska, which reads:
"The powers of the government of this state are divided into three distinct
departments, the legislative, executive and judicial, and no person * * * shall
exercise any power properly belonging to either of the others, * * *."
WHITE, C. J.,
joins in this dissent.