July 12, 1985, No. 84-238
1. Counties: Political Subdivisions: Public
Officers and Employees. A county board is without authority, in the absence of a
grant, to perform the duties which are part of the official duties of other
officials or boards.
2. Labor and Labor Relations: Public Officers
and Employees. Absent the existence of a labor organization as defined by the
provisions of Neb. Rev. Stat. § 48-801(6) (Reissue 1984), the statutes make it
relatively clear that in most instances the elected officials are authorized in
the first instance to hire their own employees, set their salaries, and
prescribe their terms and conditions of employment.
3. Counties: Political Subdivisions: Public
Officers and Employees. Although the county board is given the right to approve
the salary set by the elected official, the county board may not act arbitrarily
4. Statutes: Courts: Legislature. A statute
will not be considered repealed by implication unless the repugnancy between the
new provision and the former statute is plain and unavoidable. A construction of
a statute which, in effect, repeals another statute, will not be adopted unless
such construction is made necessary by the evident intent of the Legislature.
5. Counties: Political Subdivisions: Public
Officers and Employees: Labor and Labor Relations. Except for the county
assessor, whose authority regarding the setting of wages, and therefore the
terms and conditions of employment, has been transferred to the county board,
the elected county official is the proper person to represent the county in
connection with negotiations involving employees of the elected official's
office and the employees' bargaining representatives pursuant to Neb. Rev. Stat.
§§ 48-801 et seq. (Reissue 1984).
Appeal from the
Richard J. Dinsmore of Dowd, Fahey, Dinsmore
& Hoffman, for appellant.
George C. Rozmarin of Swarr, May, Smith &
Andersen, P.C., for appellee
Allen E. Daubman and Verne Moore, Jr., of
McGill, Koley, Parsonage & Lanphier, P.C., for appellees Hibbeler et al.
KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS,
CAPORALE, SHANAHAN, and GRANT, JJ.
This is an
appeal from an order entered by the Commission of Industrial Relations (CIR) and
appears to be a case of first impression. As presented by the parties, the
question, first presented to the CIR, is, "Who among the defendants is the
employer of the plaintiff's members?" The defendants are the
hearing, the CIR concluded that both the county board of
argue that the main issue to be decided by this court is who the
"employer" is. We believe that the answer to that question is
relatively easy, though not dispositive of the issues presented by this case.
Section 48-801(4) clearly and unequivocally defines "employer." It
provides: "Employer shall mean the State of
Both the labor
organization and the county argue that only the county board can speak on behalf
of the county and therefore, by implication, is the proper body to represent the
county in its labor negotiations. In support of their position they argue that
when § 48-801(4) is read together with Neb. Rev. Stat.
§ 23-103 (Reissue 1983), no other conclusion can be reached. The argument has
some initial merit and appeal. As we have noted, § 48-801(4) defines an
"employer" for purposes of collective bargaining as "any
political or governmental subdivision of the State of
If this was
all of the law on the subject, the answer to the question might easily be
resolved as both the county and the employees association contend.
Unfortunately, such is not the case, and an examination of all of the applicable
statutes as well as our previous decisions makes the resolution of this question
In addition to
the provisions of §§ 48-801(4) and 23-103, we are further required to consider
Stat. § 23-1111 (Reissue 1983),
which reads as follows: "The county officers in all counties shall have the
necessary clerks and assistants for such periods and at such salaries as they
may determine with the approval of the county board, whose salaries shall be
paid out of the general fund of the county." (Emphasis supplied.)
It has long
been the recognized rule in this jurisdiction that a county board is without
authority, in the absence of a grant, to perform the duties which are part of
the official duties of other officials or boards. See Speer v. Kratzenstein,
the county board is specifically given authority to act for and on behalf of the
various elected officials, it is without authority to do so. Therein lies the
conflict which we must resolve. We believe that an analysis of the various
statutes as previously interpreted by this court compels us to resolve the
conflict by holding that the authority in this case lies with the various
elected officials except as to the county assessor, who is controlled by a
specific statute. See Neb. Rev.
Stat. § 77-401.01 (Reissue 1981).
existence of a labor organization as defined by the provisions of § 48-801(6),
the statutes make it relatively clear that in most instances the elected
officials are authorized in the first instance to hire their own employees, set
their salaries, and prescribe their terms and conditions of employment. See §
23-1111. While § 23-1111 speaks only about salary, it seems obvious that the
body or official authorized to set the salary has, by necessary implication, the
authority to prescribe the manner in which the work must be done in order to
entitle the employee to the salary set by the county official. To hold
otherwise, in the absence of a specific statute, would permit the employee to
set his or her own terms of employment while requiring the elected official to
set the salary. Such a result would be untenable.
county board is given the right to approve the salary set by the elected
official, the county board may not act arbitrarily or capriciously. In Meyer v.
Colin, 204 Neb. 96, 102, 281 N.W.2d 737, 741 (1979), we said: "It is clear that
section 23-1111, R.R.S. 1943, requiring the approval of salaries by the County
Board, does not allow the Board to arbitrarily reduce the salaries recommended
by the elected officer." Further, in Meyer, supra at 102, 281 N.W.2d at
741, we said: "The question presented is actually distinct from mere
budgeting procedures and relates, instead, to the independence and discretion
which are to be afforded an elected officer."
decided a similar case in Bass v.
absent a specific statute to the contrary, and absent the provisions of §§
48-801 et seq., elected officials are free to set the salaries and, by
implication, the working conditions for their respective employees, subject only
to the approval by the county board, which may not act arbitrarily or
is whether the adoption of § 48-801(4), when read together with § 23-103,
repeals by implication the authority granted public officials by § 23-1111. We
think not. To begin with, repeal by implication is not favored.
A statute will not be
considered repealed by implication unless the repugnancy between the new
provision and the former statute is plain and unavoidable. A construction of a
statute which, in effect, repeals another statute, will not be adopted unless
such construction is made necessary by the evident intent of the Legislature.
American Fed. S., C. & M. Emp. v.
we would be required to hold that § 23-1111 was impliedly repealed only in
those counties which have recognized bargaining units and only in those offices
in which the employees are represented. Section 23-1111 would still grant the
authority to set salaries to the elected officials where the provisions of §§
48-801 et seq. did not apply. We do not believe that we can create such a
confused situation by implication and only in some cases. Rather, we believe we
must employ some basic statutory rules of construction to aid us in finding our
way through this legislative jungle.
was first adopted in 1879 and was in effect when § 23-1111 was adopted in 1943.
We must therefore presume that the Legislature knew of the existence of §
23-103 and intended § 23-1111 to be an exception to the general rule. By the
same token, when §§ 48-801 et seq. were adopted in 1947, the provisions of §
23-1111 were known to the Legislature. Yet, with that knowledge, the Legislature
made no attempt to take away from the elected officials their authority to fix
salaries given to them under § 23-1111. We therefore believe that the
Legislature intended the specific provisions of § 23-1111 to take precedent
over the general provisions of § 23-103. Such a conclusion is not so difficult
to reach. See Bass v.
All that §§
48-801 et seq. have done is provide that if the employees elect to organize and
have someone speak on their behalf, the county official may not exercise his or
her authority under § 23-1111 without first consulting the representatives of
the bargaining unit. Should the elected official and the labor organization
reach an impasse, the matter is submitted to the CIR for resolution. There is
nothing about the adoption of §§ 48-801 et seq. which requires the removal of
the elected official from the process of setting salaries and conditions of
employment. Absent a bargaining unit, the elected official may act unilaterally,
so long as his or her actions are reasonable. Where a bargaining unit exists,
the official must act in concert with it. This does not in any manner, however,
require the presence of the county board any more than the presence of the
Legislature is required when the various agencies of state government engage in
labor negotiations with bargaining units, even though the Legislature must
ultimately approve the agreement to recognize a bargaining unit or approve a
budget sufficient to pay the wages.
is called to our earlier decisions in American Fed. S., C., & M. Emp.,
It appears that under the state merit system, the state department is empowered
to control most of the important facets of labor management relations. The
state's involvement in the areas traditionally subject to collective bargaining
is apparent. Since the state and the counties are treated as one unit for
personnel management purposes by the statute and applicable regulations, it
follows that the two must be considered a functionally integrated unit for the
purpose of collective bargaining with the plaintiff.
The state practically controls grievance procedures under the state merit
system. Salary matters under the state pay plan are effectively under its
control. The employees of county public welfare are paid according to the state
merit plan, with funds provided by the state. Section 68-708, R.R.S. 1943,
mandates compliance with the state merit system on matters relevant to personnel
policies. This includes holidays, sick leave, and other fringe benefits.
To hold on this record that county is the sole employer of the employees
concerned is to ignore reality. County actually has no effective control over
the areas usually embraced in labor agreements. To force it into bargaining as
the sole employer will be either a futile or a disastrous act.
The record in the instant case, however, does
not evidence an integrated personnel unit. Although the parties stipulated that
at varying times and to varying degrees both the county board and the elected
officials made decisions involving personnel, no statute or regulation is
directed to our attention such as was involved in American Fed. I.
We do not
believe that the stipulation entered into in the instant case in any manner
discloses that the county board exercises exclusive control over the employment
conditions of the employees of the various elected officials, and in view of the
language of § 23-1111 and our earlier decisions in Meyer v. Colin, 204
Neb. 96, 281 N.W.2d 737 (1979), and Bass v. County of Saline, 171 Neb.
538, 106 N.W.2d 860 (1960), it could not. There is therefore no basis
to hold that our decision in American Fed. I requires us to hold that the county
board is a joint employer as ordered by the CIR.
found in American Fed. II is likewise instructive. In that case we said at 304,
263 N.W.2d at 473: "The effect of the civil service act is to transfer the
control of county employees from the various independent county officers to the
board of county commissioners." That is to say that if a county such as
It is further
argued to us that should we find that each elected official is a proper party to
speak on behalf of the county with regard to his or her individual employees,
great fragmentation will occur. While we have generally said that fragmentation
to the extent it can be avoided should be avoided, see American Assn. of
University Professors v. Board of Regents, 203 Neb. 628, 279 N.W.2d 621 (1979), and
Sheldon Station Employees Assn. v.
Nebraska P.P. Dist., 202 Neb. 391, 275 N.W.2d 816 (1979), we have never held and could not hold that
artificial units must be created solely to reduce the number of appropriate
units. We are simply not at liberty to disregard the meaning of the statute in
order to more efficiently administer labor negotiations. While that may be a
desirable end, it is for the Legislature to make that decision, and not for the
hold that except for the county assessor, whose authority regarding the setting
of wages has been transferred to the Sarpy County board, each of the other
elected county officials is the appropriate person to represent the County of
Sarpy in negotiating with the plaintiff labor union in connection with the
specific employees in each of the respective offices, after it is determined
that the plaintiff labor organization represents the particular employee unit in
each office. If this is not a desirable result, it is for the Legislature to say
REVERSED AND REMANDED WITH DIRECTIONS.
concurs in the result.
I concur in
the holding that the
fragmentation is a consideration in determining what is an appropriate
bargaining unit. This principle should not be disregarded in resolving the issue
presented in this case.
joins in this dissent.