GOVERNMENT
EMPLOYEES, APPELLEE
V.
CITY
OF
210
Filed
March 12, 1982, No. 43615
1. Commission of Industrial Relations: Appeal
and Error. The standard of review by the Supreme Court of orders and decisions
of the Commission of Industrial Relations is generally restricted to considering
whether the commission's order is supported by substantial evidence, whether the
commission acted within the scope of its statutory authority, and whether its
action was arbitrary, capricious, or unreasonable.
2. _____: _____. Absent a sufficient showing
in the record of the dependence upon one another or the lack of freedom and
independence in formulating their own policies and setting their own course of
action, this court will not find a direct or indirect affiliation between two
local unions. The mere fact that each local union can be traced back to a common
international union will not be enough to show that the locals are affiliated
with each other. There must be a positive showing that the national has
authority and power to exercise control over both locals and that it is actually
exercising that control.
Appeal from the
Dana W. Roper, Assistant City Attorney, and
William A. Harding of Nelson & Harding for appellants.
J. Murry Shaeffer for appellee.
Heard before BOSLAUGH, MCCOWN, CLINTON,
BRODKEY, and HASTINGS, JJ.
PER CURIAM.
The appellee,
Lincoln City Employees Union, National Association of Government Employees
(hereafter NAGE), petitioned the Nebraska Commission of Industrial Relations
(hereafter CIR) to conduct an election and to certify NAGE as the exclusive
bargaining agent of certain employees of the City of Lincoln classified as
"labor, labor supervision, and trades."
The appellant
City of Lincoln, Nebraska (hereafter City), interposed objections, more
specifically (1) that a contract already existed between the City and the
employees sought to be represented, and the contract constituted a bar to an
election, and (2) that the proposed bargaining unit would consist of civilian
employees and police officers since the existing police union was a local of
International Brotherhood of Police Officers (hereafter IBPO), a division of
NAGE. A few background facts are in order.
Prior to the
time the petition was filed, the City's employees were represented by the
American Federation of State, County, and Municipal Employees (hereafter AFSCME),
IBPO, Amalgamated Transportation Union, and the International Association of
Firefighters. In addition to these unions, the City also voluntarily recognized
Lincoln City Employees Association (hereafter LCEA) as a labor organization
representing employees not officially represented by the unions previously
mentioned.
LCEA employees
negotiated wages, hours, and fringe benefits with the City and also enjoyed
checkoff privileges, bulletin board privileges, and the right to process
grievances. In June 1978 the City and LCEA reached a 2-year agreement which was
to expire on August 31, 1980. The terms of the agreement covered wages, health
insurance, retirement, and sick leave.
Subsequent to
this agreement AFSCME, which served as the exclusive bargaining agent of the
employees described in the NAGE petition, was decertified in CIR case No. 261 on
November 20, 1978. With the decertification of AFSCME, LCEA sent the City
personnel director a letter asking the City if LCEA could be recognized as the
bargaining agent for the former AFSCME employees. The City notified LCEA that
the former AFSCME employees would be eligible for membership in LCEA. The City
agreed to "meet and confer" with LCEA on behalf of all employees not
represented by one of the other officially recognized bargaining agents, as long
as the arrangement was acceptable to the affected employees. The conditions of
employment extended to LCEA members were also extended to former AFSCME members.
NAGE filed its
petition for election on July 31, 1979. After determining that LCEA was a
necessary party to the action, a hearing was held on September 27, 1979, to
determine if a contract bar existed. On October 30, 1979, the CIR ruled that:
"1. A contract bar does not exist as to those employees previously
represented by AFSCME and decertified on November 20, 1978, by CIR Case No. 261.
The evidence adduced by the petitioner does not support a finding that these
employees were bound by the contract in question or that the City Employees
Association actually had any authority to represent them. 2. There does exist a
contract bar as to any employees sought to be represented by the petitioner who
were represented by the City Employees Association and not represented by AFSCME
on September 1, 1978."
Thereafter,
the City filed a motion to dismiss based on the answers to certain
interrogatories the City had served on NAGE. The City's basic contention was
that the Lincoln Police Union was a local of IBPO which, in turn, was a division
of NAGE. The City argued that the direct or indirect affiliation of the police
union with NAGE prevents NAGE from representing former AFSCME members since this
might result in guard and nonguard employees being represented by the same
union.
The CIR held a
hearing on November 20, 1979, and entered its order on November 21, 1979,
overruling the City's motion.
By joint
stipulation of the parties, a representation election was held on February 22,
1980, which resulted in the election of NAGE as the exclusive bargaining
representative. The City filed an objection to the election, stating that
employees other than members of the bargaining unit acted as observers for NAGE.
The CIR overruled the City's motion. Thereafter, the City filed a motion for new
trial, which was overruled. The City then filed a notice of appeal to this
court. After the bill of exceptions and transcript were docketed in this court,
the City filed another motion for new trial based on newly discovered evidence.
The CIR found that it was without jurisdiction and the City filed a supplemental
praecipe to have the motion filed with this court.
The standard
of review by the Supreme Court of orders and decisions of the CIR is generally
restricted to considering whether the CIR's order is supported by substantial
evidence, whether the CIR acted within the scope of its statutory authority, and
whether its action was arbitrary, capricious, or unreasonable. AFSCME Local 2088
v.
There is
substantial evidence in the record that a contract bar did not exist. The
following testimony of Walter J. Mitchell, personnel director for the City,
strongly supported the CIR decision. The following questions and answers were
elicited at the September 27, 1979, hearing: "Q In your agreements which
you reached with formal labor unions, that agreement flows to only certain
employees of the City of Lincoln designated in that contract. A That's right. Q
When this agreement was reached with City Employees Association in June of 1978,
to whom did those benefits accruing under that agreement flow? A Everybody who
wasn't represented by one of the formal agreements that you're talking about,
other than the unclassified employees. Q Those benefits did not flow, at that
time, to members of the AFSCME bargaining unit? A No, because -- That's right.
The answer is no. Q At the time that these ordinances were passed which were
introduced in September or October of 1978, the benefits agreed to with CEA also
were not ratified as benefits for the AFSCME employees? A Not at that time. Q
Since that time, since the ordinances were passed, there have been no
negotiations between CEA and the City of
It is not
disputed that at the time LCEA was negotiating the June 1978 contract it was not
representing any of the AFSCME members. An agreement was reached and the
contract was ratified before AFSCME was decertified. At the time the contract
was negotiated, it was never the intention of LCEA or the City that AFSCME
members would be covered by the contract. Under these facts and circumstances,
we cannot say that a contract bar exists. Therefore, the CIR order of October
30, 1979, is correct.
The City
contends that the new Lincoln City Employees Union and the Lincoln Police Union
are directly or indirectly affiliated with each other. The City contends that
this affiliation violates well-established Nebraska law that bargaining units
may not include both guard and nonguard employees, nor may unions admitting
guards into membership also represent for purposes of collective bargaining
nonguard employees, citing University Police Officers Union v. University of
Nebraska, 203 Neb. 4, 277 N.W.2d 529 (1979).
The City
alleges that NAGE exercised pervasive control of its local union. However, the
City offers no evidence that the Lincoln Police Union is being controlled by
NAGE. In fact, the record contains evidence which conflicts with this
contention. Dennis A. Duckworth, president of the Lincoln Police Union, gave the
following testimony: "Q In conjunction with your job as a police officer,
do you hold another position associated with that job? A Yes, I do. Q What is
that? A I am president of the union for the police officers. Q Have you held
other offices or performed other functions for the Lincoln Police Union during
your membership in the union? A Yes, I have. Q What were those? A I was on the
negotiating team that negotiated the contract that we are now operating under
with the City. Q Would you explain to the Commission how the initial requests of
the union were prepared, and any help that you might have had in preparing the
request for contract negotiations? A The negotiations, what we want in the
contract is just what each of the officers might come up with. They are
presented to the negotiating team by the officers. We go over them then, and the
negotiating team presents these offers to the City. Q The Lincoln Police Union
is associated with the International Brotherhood of Police Officers, is it not?
A Yes, it is. Q And it is a local of the International Brotherhood of Police
Officers? A Yes, it is. Q The International Brotherhood of Police Officers is a
division of an organization known as the National Association of Government
Employees? A That's correct. Q During the process of negotiations and
preparations for negotiations by the Lincoln Police Union, were the terms or
conditions, or were suggestions made, by International Brotherhood of Police
Officers, as to what had or should be in your contract? A No, it wasn't. Q Did
the terms to be negotiated in the contract deal with anything other than the
local situation within the Lincoln Police Department? A No. It was strictly with
the local. Q You are aware that the National Association of Government Employees
are attempting to represent a group of civilian employees of the City of
This testimony
indicates the separateness of the two local unions. The argument by the City
that the NAGE constitution would obligate the Lincoln Police Union to honor a
picket line by the Lincoln City Employees Union is not convincing. Neb. Rev.
Stat. § 48-821 (Reissue 1978) specifically prohibits government employees from
striking.
In light of
this, absent a sufficient showing in the record of the dependence upon one
another or the lack of freedom and independence in formulating their own
policies and deciding their own course of action, this court will not find a
direct or indirect affiliation between the two unions. The mere fact that each
local union can be traced back to a common international union will not be
enough to show that the locals are affiliated with each other. There must be a
positive showing that the national has authority and power to exercise control
over both locals and that it is actually exercising that control. Here, there is
evidence that the locals are controlling their own activities. The international
union was used only in the formative stages of the locals. Also, no civilian
employees are allowed to become members of either IBPO or the Lincoln Police
Union. Although not controlling on us, we find support for our position in
Bally's Park Place, [1980-81] 5 Lab. Rel. Rep. (CCH) ¶ 18,314 at 29, 627-28,
107 L.R.R.M. 1580, 1581, wherein it was stated: "The Board has consistently
ruled that a guard union is 'affiliated indirectly' with a nonguard union within
the meaning of Section 9(b)(3) of the Act, where 'the extent and duration of
[the guard union's] dependence upon [the nonguard union],' or vice versa,
'indicates a lack of freedom and independence in formulating its own policies
and deciding its own course of action.' Thus, the Board has permitted
substantial latitude when a guard union is assisted by a nonguard union merely
during the former's formative stages. However, where the assistance rendered
continues beyond the formative stages, the Board has found an indirect
affiliation between guard and nonguard organizations."
The record
does not reflect sufficient evidence that NAGE is controlling either local or
that the locals were not acting independently. This is not to say that the
Lincoln City Employees Union cannot be decertified in the future if it is shown
later that NAGE is actually controlling it or that the Lincoln City Employees
Union and the Lincoln Police Union are not acting independently. The evidence
supports the decision of the CIR and it is therefore affirmed. We find no merit
in the other assignments and therefore we do not discuss them.
AFFIRMED.
KRIVOSHA, C.J., disqualified.
WHITE, J., participating on briefs.