|KRAMER POWER STATION|||||CASE NO. 16|
|LOUP RIVER PUBLIC POWER||||
|DISTRICT, and PLATTE VALLEY||||
|PUBLIC POWER AND IRRIGATION||||
This case came on for hearing upon the defendants' motion to make the petition more definite and certain. We overrule the motion. Since, however, several questions involving the extent of the court's jurisdiction are involved with respect to the order to be subsequently entered herein, which appear to be without precedent in this Court, it was deemed advisable to file this Memorandum Opinion setting forth the Court's reasoning in connection therewith.
The plaintiff alleges that it is a committee, in the nature of a labor organization, of employees of the defendants at Kramer Power Station, Bellevue, Nebraska, duly authorized to conduct negotiations with the defendants, and to bring this action for paid vacations, holiday pay, time-and-a-half and double-time pay for Saturday and Sunday work and a change in working conditions, and to request the Court to make any order, or orders, as may be appropriate to settle the industrial dispute between the parties. The petition does not set forth the names of the individuals composing the labor organization.
The defendants moved that the petition be made more definite and certain by stating the names of the employees, who had authorized the plaintiff committee to represent them in this action, showing the means of such authorization, stating whether the plaintiff represents a majority of the Employees at Kramer Power Station, and otherwise identifying the employees on whose behalf this action was instituted. Defendants' motion does not attack the legal sufficiency of the petition but seeks merely the identification of those employees against whose claim the employers must defend. Defendants' principal contention appears to be that the Court can take affirmative action only with respect to the grievances of those individuals who have authorized the bringing of this action by plaintiff.
The authority for the committee's, rather than the employees',being the party plaintiff herein, is found in Section 48-811, R.S. 1943:
Any ... employee, or labor organization....when any industrial dispute exists...may file a petition with the Court of Industrial Relations invoking its jurisdiction.
Section 48-801 (7) defines a labor organization as follows, to-wit:
The term "labor organization" means any organization of any kind, or any...employee representation committee...in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
The allegations of the petition indicate that the plaintiff exists for the purpose required by statute. Nowhere in the petition, however, is there an allegation or inference that the plaintiff is an organization in which employees participate. Nevertheless, there is the allegation, "that it (the plaintiff) is a labor organization as that term is defined in Section 48-801. R.S. 1943". Reissue of 1960. Since the last-quoted general conclusion of the pleader is not attacked by the defendants' motion, it must be assumed that the plaintiff has sufficiently alleged its capacity to institute this action. The defendants are governmental subdivisions of the State of Nebraska, serving in a proprietary capacity. The settlement of the alleged industrial dispute with the defendants, therefore, is properly within the jurisdiction of this Court. 48-810 R.S> Reissue of 1960.
The defendants required the setting forth of the names and other information respecting the employees "whom the plaintiff committee alleges have authorized the said plaintiff to represent them in this action," and by incorporating in the petition a copy of the writing from which the plaintiff's authority to institute this action is derived. The defendants contend that since the Court may act with respect to the pay and grievances of only those individuals who have authorized the bringing of this action, and since Section 48-818 R.S. 1943, Reissue of 1960, requires the comparison of conditions of employment maintained for workers exhibiting similar skills in the same labor market area or in adjoining labor market areas, such comparison cannot be made, or the defendants' contention in regard thereto pleaded, until the plaintiff will have pleaded the names of the workers, their respective skills and conditions, which necessarily would be the starting point for such comparison. Of course, if defendants' premise be granted, their argument is sound and the motion, accordingly would have to be sustained.
The basic question here involved is the extent of the Court's jurisdiction when only a portion of the employees in an industrial unit, petition this Court for relief. Is this Court's jurisdiction limited to the granting of relief only to those employees whom the plaintiff states, or whom the evidence ultimately establishes, that the plaintiff represents? Is this Court clothed with jurisdiction to enter an order which will affect employees who do not participate in the plaintiff as a labor organization? These questions apparently have not previously been decided.
At this stage of the proceedings, we have knowledge of the existence of an industrial dispute. Section 48-810 R.S. 1943, Reissue of 1960, provides:
All industrial disputes involving governmental service in a proprietary capacity...shall be settled by invoking the jurisdiction of the Court of Industrial Relations.
The Legislature, in this mandate, apparently intended that the Court's jurisdiction be broad enough to settle fully industrial disputes, so as to avoid work interruptions or other public inconveniences. Of course, if we were to sustain the defendants' motion, this would constitute, at the very outset, a limitation on the issues involved in reaching a settlement as well as a decision arbitrarily setting the outer limits of the Court's jurisdiction. We feel that if defendants' motion were sustained, this would amount to a premature restriction of the potential outer limits of the Court's jurisdiction and we, therefore, decline to make such a limitation or arrive at such an important jurisdictional decision without a thorough marshalling of the evidence and an exhaustive consideration of the legal principles involved.
We considered also several other matters in overruling defendants' motion. Section 25-313 R.S. 1943, Reissue of 1956, does not require the setting forth of the names of the individuals composing the labor organization, instituting the action. Rule 3, Section 3 of the Rules of this Court provide that "The petition shall clearly set forth...a clear and concise statement of the facts constituting the industrial dispute..." And Section 6 provides that "The Court may require such parts of any pleadings as are not sufficiently specific, as to be readily understood, to be made more specific and certain." We feel that the facts constituting the industrial dispute are clearly set forth in the petition and are readily understood. It is only the EXTENT of the relief, appropriate for the settlement of this industrial dispute, which now is unclear, for, of course, as in all litigation of any kind in any Court, the extent of appropriate relief to be granted, must NOT be prematurely determined. "Whether a more specific statement of a claim or defense will be required is, in general, discretionary with the Trial Court, and its discretion will not be disturbed in the absence of abuse...The motion is properly denied where there is no uncertainty, or indefiniteness, in respect to the nature of the charge made against the defendant..." 41 Am. Jur. 537, Pleading, Section 360. In the exercise of our discretion, we overrule the defendants' motion (including the amendment thereto), contemplating thereby that the defendants' answer need not be limited merely to relief for employees, who have authorized the plaintiff to represent them in this action. We, therefore, are treating this action, at this stage of the proceeding, as possibly affecting all of defendants' employees at Kramer Power Station. However, we do not now irrevocably conclude that this action is in the nature of a class suit involving the status of all employees at the Kramer Power Station, whether or not they are identified with the plaintiff. Conceivably, in entering orders or judgments in an industrial setting, it may frequently be necessary to affect the relationships of employees, who not only are not formally identified with any labor organization but who actually may be openly adverse to the position taken by the labor organization or other employees.
Accordingly, it becomes necessary for the Court, on its own motion, to consider the rights, if any, of all employees at the Kramer Power Station and the question of due process of law with respect to them. We feel that those employees, who may not be identified with the plaintiff, are legally entitled to notice of the pendency of this action and an opportunity to plead and otherwise appear before the Court at the hearing. Section 48-813 R.S. 1943, Reissue of 1960, provides:
Whenever this jurisdiction of the Court of Industrial Relations is invoked, notice of the pendency of the proceedings shall be given either by summons issued and served...or...by publication...Such notice shall fix the time and place for hearing and in general terms set forth the matters to be heard and determined...The Court may in its discretion use such additional means of publication as the Court may deem advisable." (Emphasis supplied.)
It appears, therefore, that the Legislature has given this Court broad power to protect all persons interested, to give them notice of the proceedings, and to afford each of them an opportunity to be heard.
In order that this purpose may be accomplished, we have concluded that the Court should order that the following steps be taken, viz:
(1) The defendants shall file their answer, or answers, on or before August 15, 1963.
(2) Defendants shall, from August 19, 1963 to August 28, 1963, inclusive, post in a conspicuous place, or places, in its Kramer Power Station and distribute to each of its employees at such station, a notice, which will be drafted by this Court, of the pendency of these proceedings and, in general terms from the petition and answers, of the matters to be heard and determined and further, of each employee's right to enter his appearance in the action by informal writing, or otherwise, to be received by the Clerk of this Court on or before September 10, 1963.
(3) Defendant, or defendants, shall file a return, specifying the action taken by them in compliance with this order of the Court.
(4) The trial of all issues in this case will be commenced on September 16, 1963, at 10:00 o'clock A.M., unless continued upon application for good cause shown by one, or more, of the present parties or by an intervenor, or intervenors.
(5) Appropriate orders will be entered by this Court overruling the motion of defendants, ordering the issuance and publication and service of notice, as aforesaid, and setting the case for trial on its merits.
Now on this 16th day of August, 1963, the Court having heretofore filed its MEMORANDUM OPINION herein, does hereby, on its own motion, pursuant to the reasons set forth therein and to its inherent and statutory authority, ORDER AND DECREE:
1. That the defendants shall forthwith post in conspicuous places, a copy of the "NOTICE TO ALL EMPLOYEES", ATTACHED HERETO AND MARKED "Appendix" at the Kramer Power Station, Bellevue, Nebraska, for a period of not less than ten (10) consecutive days, and take the necessary action to insure that such posted notices shall not be altered, defaced, or covered by any other material.
2. That, in addition thereto, the defendants shall, within ten (10) days of this ORDER, deliver or mail a copy of the "NOTICE TO ALL EMPLOYEES", attached hereto and marked "Appendix". to each employee of the Kramer Power Station, Bellevue, Nebraska.
3. That the defendants shall, on or before September 9, 1963, make due return, in writing, of the action taken by them in compliance with the requirements of this ORDER.
You and each of you, are hereby notified that, on June 21, 1963, a petition was filed in the Nebraska Court of Industrial Relations by the Kramer Power Station Employees Committee, as plaintiff, against the Loup River Public Power District and the Platte Valley Public Power and Irrigation District, as defendants, which petition was duly verified by Don A. Neely, Lloyd R. Holman and William E. Culver and the prayer of which is that the Nebraska Court of Industrial Relations conduct a hearing, and order a change in working conditions relating to vacations, holiday pay, time and one-half and double time for Saturday and Sunday work, and make an order, or enter such orders, as may be appropriate to settle the industrial dispute existing between or among the parties.
You are hereby further notified that, on August 15th, 1963, the defendants filed an answer in this Court to the petition of plaintiff and the prayer of which is the dismissal of the petition of plaintiff and the denial of the prayer therein contained and requesting that, in the event any relief is granted its employees in response to the petition, that this Court enter an order leaving defendants free to adjust their present conditions of employment in respect to fringe benefits as to such employees affected by the Court's decision, except as required by the relief granted to such employees, OR, adjusting the defendants' present conditions of employment in respect to fringe benefits as to such employees so that, where presently more liberal and in excess of the prevalent such conditions of employment, they will be made comparable to the prevalent such conditions of employment for appropriate work and workers in the appropriate labor market area or areas.
You are hereby further notified that you, and each of you, may, on or before September 9, 1963, present in writing to the Nebraska Court of Industrial Relations, by having the same filed with the Clerk of said Court in his office in Room 2413 State Capitol Building, Lincoln 9, Nebraska, any demands, claims, petitions or defenses pertaining to this matter, which you may have, and desire to have considered in said action.
Notice is hereby given that the hearing in this matter has been set to commence on Monday, September 16, 1963, at 10:00 o'clock A.M., in the Court Room of said Court at the State Capitol Building, Lincoln, Nebraska, at which you may appear and abe heard, if you so desire.
Trial of this action having been had November 4 and 5, now from the pleadings, the stipulations of the parties, and the evidence adduced, the court makes findings as follows:
1. Jurisdiction of the Plaintiff. The plaintiff is a committee of which the members are as follows:
Don A. Neely Carl A. Heydorn
Lloyd R. Holman Ronald L. Langheine
William E. Culver Frank Kelling
Max A. Holman Marvin Alley
Alfred R. Smith James J. Vannornam
Arthur Nelson Darrell L. Winther
Lloyd B. Hansen Earl R. Miller
Edwin C. Nunnally Edward M. Umshler
Norman Neil Robinson Wilbur Pellisero
Earl M. Johnson Merrill Bramow
Samuel Jr. Thomas Levord C. Richmond
Joe L. Cetta Larry Dressen
Frank H. Zutz Duane Monrose
Joseph M. Acamo Edwin A. Miller
Durward M. Welch Floyd Gusteau
Herbert Thiles Roy L. Bay
Gloyd A. Harnish Gerald E. Craft
George Russell Paul Holthusen
Harold L. Marsh Charles Obert
Merland E. McDowell Alfred H. Rase
John L. Culver F.G. Schlosser
R.O. Slagle Floyd W. Adkins
Roy A. Fry
all of whom have been employees of the defendants at the latters' Kramer Power station in Bellevue, Nebraska; all but two or three of the named persons were still employees of the defendants at time of trial. The committee's purpose is to negotiate with the employers for better working conditions and pay. Questions of interest, including the questions of pay for vacations, holiday pay, and extra pay for Saturday and Sunday work, were presented to the entire membership of the committee at various meetings during the last year or more, and each member either had discussed or had an opportunity to participate in the discussion of such questions. Sections 48-811 and 48-801 (7)R.R.S. Neb. 1943 are as follows:
Any ... labor organization....may file a petition with the Court of Industrial Relations invoking its jurisdiction.
The term "labor organization" means...any employee representation committee...in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
We hold that in order to confer jurisdiction on this Court, a plaintiff labor organization or committee must not only prove that it exists for the purpose prescribed by the Statute, but also that it is an organization in which employees participate. We further hold that the foregoing evidence, both as to the organization's purpose and as to the participation of the employees in the decisions and actions of the organization, is sufficient to establish this Court's jurisdiction of the plaintiff.
2. Jurisdiction of the Defendant. IT is admitted that the defendants by agreement jointly operate the Kramer Power Station, and that both of them are units of the state government engaged in the manufacture and transmission of electrical power, render governmental service in a proprietary capacity, and also are public utilities. Section 48-810 R.R.S. Neb. 1943 is as follows:
All industrial disputes involving governmental service in a proprietary capacity or service of a public utility shall be settled by invoking the jurisdiction of the Court of Industrial Relations...
3. Existence of an Industrial Dispute. Plaintiff adduced evidence of its presentation, prior to the bringing of this action, of its demands upon the defendants and the defendants' refusal to grant any part of the demands. The plaintiff also attempted to adduce evidence that if the demands will not be fulfilled, in some part at least, a strike will ensue, resulting in a hinderance, delay, limitation, or suspension of the defendants' service. The evidence as to both probability of strike and interruption of service is unconvincing. Nevertheless, we hold that such failure of proof on the part of the plaintiff is not jurisdictional and does not prejudice its claim. The phrase in Section 48-810, supra, "disputes involving governmental service" does not mean that the involvement must be shown affirmatively to be so deep that a very substantial interruption of service will result from a failure to settle the dispute. We are convinced that such a meaning could not have been the intention of the legislature. The public policy expressed in Section 48-802 R.R.S. Neb. can best be served by settling disputes while they are still relatively minor. This cannot be done if the act is construed so that this Court has no jurisdiction until the plaintiff can affirmatively and convincingly prove that a failure of service will result from an inability to settle a dispute. We hold that where the plaintiff and the defendant are properly with the jurisdiction of this Court, and the pleadings themselves present a demand by or on behalf of employees and the employer's denial of relief, nothing further need be shown to invoke and maintain the jurisdiction of the Court to settle the dispute.
4. Effect of Order of this Court in Case No. 14. This Court is required to take judicial notice of its own records. Section 48-817 R.R.S. Neb. 1943; see Nebraska cases cited 15 N.W.D. Cum Supp 19, Evidence 43(3); Glissmann et al v Orchard et al, 152 Neb. 500, 41 N.W.2d 756 (1950). Accordingly the Court notes that on September 29, 1960, this Court entered an order establishing basic wage rates in an action, Case No. 14, in which the defendants were the same as the defendants here and the plaintiff at least had the same name as the plaintiff here. The evidence in this case discloses that the membership of the committee has changed to some extent, the extent not being disclosed, since the commencement of, and entry of order in, the former action. We hold that despite the change of membership, the parties in the present and former actions are the same. Then arises the question of the effect, under the statute, and the general principles of res judicata, of the former action. Section 48-818 in material part is as follows:
In establishing wage rates the Court shall take into consideration the overall compensation presently received by the employees, having regard not only to wages for time actually worked but also to wages for time not worked, including vacations, holidays, and other excused time, and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees. Any order or orders entered may be modified on the Court's own motion or on application by any of the parties affected, but only upon a showing of a change in the conditions from those prevailing at the time the original order was entered.
Section 48-819 in material part is as follows:
Orders, temporary or final, entered by the Court of Industrial Relations shall be binding on all parties involved therein and shall be deemed to be of the same force and effect as like orders entered by a District Court...
In the former action this Court:
a. Found the appropriate or same labor market area to be that of Douglas and Sarpy Counties, Nebraska;
b. Found that the Jones Street Power Station of the Omaha Public Power District was the only place in the labor market area where there was the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions as those of the plaintiff's members;
c. Established the basic wage rates for certain named employees, but made no mention whatsoever as to wages for time not worked, other benefits received, or the continuity and stability of employment.
There is no problem here concerning the application of the principles of res judicata to this Court's prior finding of the appropriate labor market area, for there is no evidence in this case concerning labor market areas other than that of Douglas and Sarpy Counties, Nebraska. But the Court must resolve the questions of the effect of the Court's prior holdings in the other two respects, (b) and (c) above, under the statute and the principles of res judicata.
In Case No. 14 this Court found that only in one of the plants of the Omaha Public Power District in Douglas County were conditions of employment maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions as the employees at the Kramer Power Station. Here the defendants at least contend that they adduced evidence of the work, working conditions, and employees' skills at Northwestern Bell Telephone Company, at Metropolitan Utilities District of Omaha, and at Allied Chemical Company; both parties adduced evidence with respect to working conditions at Omaha Public Power District plants other than the Jones Street Plant. Can the Court consider such contention and evidence of the defendants in the absence of a preliminary showing of changed circumstances, and, if not, to what extent must or does the evidence disclose changed circumstances within the meaning of Section 48-818 and the general intent of the act?
In this action neither of the parties pleaded res judicata and neither party pleaded, argued, or attempted to prove any change in condition from those prevailing at the time the order in Case No. 14 was entered. We hold that the parties have not raised the issue of res judicata. Schroeder & Harrop v. Homestead Corp., 163 Neb. 43, 77 N.W.2d 678 (1956). We do not now decide whether this Court can, on its own motion, raise the issue of res judicata in an appropriate case. cf, however, Loup County v. Rumbaugh, 151 Neb. 563, 38 N.W.2d 745 (1949) and Glissmann v. Orchard, 152 Neb. 500, 41 N.W.2d 756 (1950). We do find, however, that, if this Court has authority to raise the issue of res judicata on its own motion, the facts and circumstances of this case are not appropriate for the exercise of such authority. Under the circumstances of this case, we conclude and hold that this Court is not bound by its previous orders or its findings of fact expressly stated, or necessarily inferred, as a basis for such order.
5. Effect of this Order on Employees not Represented by the Plaintiff. We find here no indication that it is either necessary or desirable, in settling this dispute, to affect in any way the compensation or working conditions of employees other than those named in paragraph numbered 1 above. The order in this action will affect the benefits extended by the defendants to only those of the defendants' employees named in paragraph numbered 1 above. We adhere to our opinion entered August 1, 1963, with respect to our jurisdiction and the power to affect compensation benefits, and working conditions of other employees, but find as matters of fact and law that this is not a proper case for exercising such power and jurisdiction.
6. Effect of this Order on Wage Rates and Working Conditions not Raised by the Pleadings. The plaintiff by appropriate pleading prays for action of this Court with respect to paid vacations,holiday pay, and time-and-a-half and double-time pay for Saturday and Sunday work. The defendants by appropriate pleading pray a denial of the plaintiff's prayer and by cross-petition for the Court's consideration of the present policies and practices of the defendants with respect to sick leave, accumulation of vacation pay, and employee choice as to the time of vacation. Although Section 48-818 provides:
In establishing wage rates the Court shall take into consideration the overall compensation presently received by the employees, having regard not only to wages for time actually worked but also to wages for time not worked, including vacations, holidays, and other excused time and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees.
The parties have not pleaded expressly, or offered proof manifestly relevant to, any issue respecting wages for time actually worked, insurance, pensions, or continuity and stability of employment. Although the Court clearly has jurisdiction to consider matters of compensation other than those expressly stated by the parties in their pleadings, if such consideration is necessary to settle the industrial dispute, it is not appropriate in this case to consider such matters.
7. Sufficiency of Evidence of Prevalence, Similarity, and Comparable Relationship. Section 48-818 provides:
In making such findings and order or orders, the Court of Industrial Relations shall establish rates of pay and conditions of employment which are comparable to the prevalent wage rates paid and the conditions of employment maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions in the same labor market area...
Accordingly the Court must find:
a. A quality of prevalence respecting rates or conditions of employment contended for,
b. A similarity of work,
c. A similarity of skills,
d. A similarity of working conditions.
With respect to such prevalence and similarity the plaintiff's evidence is as follows:
That the Jones Street plant of the Omaha Public Power District and the Kramer Power Station are the only two plants which combine the production, transmittal, and sale of electric power; that both plants are operated by steam; that all three of the Omaha Public Power District plants and Kramer use an operational system in which there is no boiler between the turbines; that all four plants use the same type or similar equipment in that each turbine produces the same number of kilowatts, requires pressure at the throttle, and is manufactured by General Electric; that (without further elaboration) the operations of OPPD and Kramer are similar;that the Jones Street Station and the Kramer Station exchange power when one has a surplus and the other a deficit thereof; and that (as the conclusion of an expert witness but without elaboration by him) employees in industrial plants have different duties and skills from those in public utilities, the duties and skills of employees in industrial plants cannot be compared with the duties and skills of employees in public utilities, but the duties and skills of the employees at OPPD can be compared with the duties and skills of the employees at Kramer.
With respect to such prevalence and similarity the defendants' evidence is as follows:
Re Allied Chemical Company; that three former Kramer employees went to work for Allied Chemical Company; that shift workers work around the clock at Allied; that at the two plants welders' skills are similar in that they weld under pressure, and work on compressors and pumps which are "generally similar in basic principle and operation;" that at both Allied and Kramer the boiler workers, maintenance mechanics, and electricians do similar work involving similar skills.
Re Northwestern Bell Telephone Company: that Bell works around the clock as does Kramer; that mechanics and electricians at Bell do work somewhat similar to that done by similarly named trades at Kramer; that the work at Bell which is similar to work in Kramer is done at Bell only occasionally or on a "stand-by basis;" and that a worker at Bell does not have the same responsibility for his machines as a worker at Kramer has.
Re Metropolitan Utilities District: that MUD is a public utility and has men on shift work with skills similar to those of Kramer employees; that the classifications of workers at MUD are similar to the classifications of workers at Kramer; that pipe fitting done at MUD routinely is very similar to that done routinely at Kramer; that MUD employs welders; that the MUD water plant pumping operation is similar to Kramer's "so far as maintenance is concerned."
Re Omaha Public Power District: that the North Omaha plant is semi-automated whereas Kramer is not and the North Omaha plant has a different division of work; that the Jones Street Station is much larger in size and output than Kramer, has some equipment similar to Kramer and some not similar; (it is noted that the witness failed to testify as to whether the work or working conditions on such machines are similar or dissimilar to the work or working conditions on such machines at Kramer); that the south Omaha plant uses a different method of operation and control of its turbines from that method used by Kramer on its turbine.
All witnesses agree that at Kramer the non-shift workers, who all are on monthly salary, receive pay for holidays not worked, whereas the shift workers, who all are on an hourly wage, do not receive pay for holidays not worked; and that all the other employers pay hourly-wage workers as well as monthly-salaried workers for holidays not worked.
Whether the relationship between a conclusion and the evidence can be termed "a reasonable inference" as distinguished from "pure speculation" must be determined in the light of what is reasonable in view of the purposes of the act. The public interest, as set forth in Section 48-802 requires that the burden and expense of litigation in this Court be within the means of the working man, and that the public purse be not greatly strained by the expense of governmental unit's and public utility's defense. Cost of litigation in this Court would become excessive if this Court were to adopt a rule requiring detailed evidence of technical processes and operations to support a conclusion of similarity of work and skills.
This Court must assume the attitude which a reasonable and prudent employee would have in making demands under all the economic pressures of the marketplace including those pressures which conceivably would be present but for the prohibitions of Article 8, Chapter 48. Then must the Court assume the attitude which a reasonable and prudent employer would have in considering his employees' compensation under all the economic pressures on him, including again pressures which conceivably would be present but for the statutory prohibition. And finally the Court must balance the attitudes and reach the decision as to prevalence, similarity, and relationship required by Section 48-818. The average, reasonable, and prudent employer, in considering employee compensation, doubtless makes some inquiry as to prevalence of wage rates and similarity of work, skill, and conditions. Under unusual circumstances he may make much more intensive investigation than the evidence indicates has been made here by counsel and these defendants, but under the normal, usual circumstances he would do no more than has been done here. Therefore, we hold that no more is required here so far as meeting any burden of proof is concerned. Thus the conclusions set forth in the following paragraphs are reached by us as triers of fact and are not conclusions of law based in any respect upon a legal insufficiency of evidence to sustain a finding for a party having the burden of proof.
8. Determination of Questions of Vacation Pay and Other Fringe Benefits. Similarity of product has little or no probative value in determining the similarity of work, similarity of skills, or similarity of working conditions. The fact that Allied Chemical Company produces fertilizer whereas Kramer and OPPD produce electrical power was not shown to have any bearing on determination of whether a welder in the Allied plant must maintain skills similar to, and works under conditions similar to those of welders at Kramer, or whether the work, skills, or conditions at OPPD are similar to those at Kramer. The same is true for all the other trades. From the evidence as to matters other than the ultimate product, mainly in the form of expert conclusions unsupported by details, we find that workers in each trade at OPPD, Allied Chemical Company, Northwestern Bell Telephone Company, and Metropolitan Utilities District do the same or similar work, and exhibit like or similar skills under the same or similar working conditions as the workers in corresponding trades at Kramer Public Power Station. With reference to prevalence, pay for holidays not worked by workers on shift work or hourly wage is prevalent throughout the Douglas-Sarpy market area. Likewise twenty days of paid vacation after continuous employment of from twenty to twenty-five years is prevalent throughout the area. On the other hand there is a wide variance with respect to practices relating to scheduling and accumulation of vacation time, sick leave, and rates of pay for Saturday and Sunday work. Moreover, the granting of Veteran's Day as a holiday, as prayed for by the plaintiff is not prevalent in the labor market area. The practices of the defendants with respect to scheduling and accumulating vacation time, with respect to granting a bonus of one week paid vacation in the fifteenth year of continuous employment, and with respect to sick leave, are more liberal to the plaintiffs than are those practices in such respects which are prevalent in the labor market area. Nevertheless, the Court requires further enlightenment from defendants' counsel as to the extent, in the light of the foregoing findings, general conduct of the defendants' business, and employee morale, to which the defendants may desire changes in those practices to bring them into line with those prevailing. The practices of the defendants in those respects have some value to the plaintiffs and some cost to the defendants, although the amount thereof in dollars cannot be assessed from the evidence before us. The Court desires enlightenment from both counsel as to extent to which the value of liberality of the defendants' practices may be balanced against the value of less liberal practices of the defendants (as shown by the evidence and the foregoing findings), so that the total benefits to employees may be comparable to the prevalent totals of benefits in the area.
THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED:
A. That with respect to members of the plaintiff committee now in the employ of the defendants, the following working conditions shall apply to holiday pay, vacations, and overtime pay for Saturdays and Sundays:
1. Effective on the date of this order:
New Year's Day, Washington's Birthday, Decoration Day, July Fourth, Labor Day, Thanksgiving Day, and Christmas Day, or days celebrated as such, shall be recognized holidays. When a worker's day off falls on a holiday, as herein defined, his next regular working day shall be considered his day off, except, that, when his day off and the holiday both fall on a Saturday, the Friday preceding such Saturday shall be considered the employee's day off. Each worker shall receive eight (8) hours' pay at straight-time rates for each such holiday. Each worker shall be credited with an extra eight (8) hours' pay for each pay period in which a recognized holiday falls, provided such worker is available and in condition to work his regularly scheduled shift on such day.
2. Effective January 1, 1964:
An employee, who has completed twenty-two (22) years of continuous service with the company on April 1 of any year, or will have completed such twenty-two (22) years by the end of such year, shall be allowed a vacation with pay of four (4) regular work-weeks; provided, if necessary for the maintenance of efficient and satisfactory service to the Company's customers, such an employee may be required by the head of his division to take (2) weeks in a different month from that in which the other two (2) weeks are taken.
B. That the cross-petition be and it hereby is severed from the petition, and final judgment on sub-paragraph (b) of the prayer of said cross-petition be and it hereby is reserved; that at any time within sixty days of the entry of this order the defendants may submit to the Court by motion filed in this Court their proposals for an order affecting their practices relating to scheduling and accumulating vacation time and their practices relating to sick leave so that the defendants' practices in those respects will be in accord with such practices prevalent at Omaha Public Power District, Allied Chemical Company, Northwestern Bell Telephone Company and Metropolitan Utilities District in the Douglas and Sarpy Counties, Nebraska, labor market area; that at the same time a copy of such motion and proposed order shall be submitted to counsel of the plaintiff with suggested time for hearing thereon; and that the hearing on such order shall be limited to the terms of the proposal as made by the defendants and the extent to which the evidence now before the Court warrants relief under sub-paragraph (b) of the prayer of the defendant's cross-petition.
C. That the prayer of the petition is granted to the extent, and only to the extent, ordered by paragraph A above; that the prayer of the answer is denied; and that the prayer of the answer is denied; and that the prayer o sub-paragraph (a) of the cross-petition is denied.
D. That the plaintiff's oral motion to order collective bargaining, set out on page 336 of the Bill of Exceptions, is denied.
E. That the plaintiff's oral motion for the court to conduct an independent investigation, set out on pages 336 and 337 of the Bill of Exceptions, is denied.
F. That the foregoing paragraphs designated A, C, D, and E of this order are final.
This matter comes on for further hearing upon the motion of the defendants for a new trial and for the vacation of paragraphs A and C of the Order entered herein on December 16, 1963, and upon the "Motion of Defendants For Order Re Vacation and Sick Leave Practices" filed pursuant to paragraph B of said Order of December 16, 1963, oral argument, the brief of the defendants in support of said Motions, the pleadings, the stipulations of the parties, and the evidence adduced, whereupon the Court formulates further findings, in addition to those set forth in said Order of December 16, 1963, said further findings being as follows:
1. There is no proof in the record respecting the pay for holidays worked or not worked by salaried, supervisory shift workers, namely the shift engineers and relief shift engineers, of the plaintiff committee, and no proof or issue with respect to non-shift workers' holiday pay. There is no evidence of the prevailing conditions of employment for such workers in the Douglas-Sarpy County area. Therefore relief as to pay for holidays worked or not worked by salaried, supervisory employees of the plaintiff committee, namely the shift engineers and relief shift engineers, should be denied, and no Order should be made respecting non-shift workers.
2. On behalf of the defendants it is contended that existing provisions of the defendants' published "Employment Policy and Regulations", when read with paragraph A (1) of the Court's Order of December 16, 1963, even with the clarifying amendment required by the immediately preceding finding, may require the payment of triple-time contrary to the intention of said Order and the plaintiff's prayer and evidence. Thus the defendants pray for a judgment of this Court specifically deleting from said regulations an existing provision now reading:
Holidays will be paid at double the rate of regular pay.
and specifically ordering in place of such provision:
Holidays will be paid double the rate of regular pay (except supervisory personnel including shift engineers and relief shift engineers), and except work performed on such days by shift-workers when the same is included in his regular workweek.
There is no justification shown by the record for payment of triple-time, that is three times the basic wage for one hour worked, under any circumstances. So far as appears from the record in this case there is no contractual limitation on the defendants' freedom to amend existing provisions of their regulations so long as the amendments do not bring about a conflict with the Orders of this Court or with some rule of law not now before the Court. Accordingly, paragraph A (1) as amended by this Order is sufficient.
3. One condition of employment prevalent in the Douglas-Sarpy County labor market area is that a shift worker employee is entitled to a vacation with pay for a number of days determined in accordance with the number of years of continuous service for the employer prior to the year in which entitlement arises. A further prevalent condition is that entitled vacation time may not be accumulated but the right thereto must be exercised by the employee, i.e. the vacation must be taken, within the calendar year in which the entitlement arises. The defendants, contrary to the latter prevalent condition of employment, have permitted the plaintiffs to accumulate their vacation rights. The defendants have prayed for, and in accordance with the foregoing findings and section 48-818 R.S. Neb. have a right to, an Order of this Court excising the plaintiff's non-supervisory members' right, heretofore existing as a condition of employment, to accumulate vacation entitlement. But the defendants' counsel contends that because of business conditions not disclosed by the evidence or even now anticipated, the management of defendants conceivably may desire to continue to grant to the plaintiffs a right to accumulate vacation time. We grant the validity of that contention, but find that settlement of the disputes involved in this action will not be facilitated by our extending to the employer the power to grant and to withdraw at the employer's will from time to time the right to accumulate vacation time.
4. The defendants with notice to opposing counsel propose that the Order affecting accumulation of vacation time be as follows:
Beginning January 1, 1964, vacation time shall be taken during the calendar year or forfeited except that no employee shall forfeit vacation time which has accrued prior to January 1, 1964.
Neither counsel discussed the appropriateness of the date January 1, 1964. Nevertheless section 48-817 is in part as follows:
...The court shall make its findings and enter its order or orders in writing, which decision and order or orders shall be entered of record. Such order or orders shall be in effect from and after the date therein fixed by the court, but no such order or orders shall be retroactive....(Emphasis supplied.)
BLACK'S LAW DICTIONARY, 3rd Ed. 1933, says at p. 1551 "Retroactive has the same meaning as 'retrospective', (q.v.)" and:
Retrospective Law. A law which looks backward or contemplates the past; one which is made to affect...rights accruing before it came into force...
In Chicago Burlington & Quincy R.R. v. State ex rel City of Omaha, 47 Neb. 549, 66 N.W. 624, 627 (1896) the Court said:
A statute does not operate retroactively from the mere fact that it relates to antecedent events. A "retrospective law" has been defined as one intended to affect transactions which occurred or rights which accrued before it became operative as such, and which ascribes to them effects not inherent in their nature, in view of the law in force at the time of their occurrence. Bish. Writ. Law. §83; Black, Interp. Laws p. 247.
but held that a city ordinance which imposed a duty on a railroad to repair a city viaduct contrary to the previously formed contract between the city and the railroad was not retroactive, and was applicable to viaducts built before the passage of the ordinance.
In 37A WORDS AND PHRASES 222 under "Retroactive" appears the following:
Where, between seed time and harvest, the Agricultural Adjustment Act was amended so as to change the quota and penalty provisions, but the penalty provided by the amendment for farm marketing excess is incurred and becomes due only on threshing, and it did not appear that wheat grower was worse off for the aggregate of the legislation, but only that if he could get all that the government gives and do nothing that the government asks he would be better off than the Act allowed, such facts did not establish that the amendment was invalidly "retroactive" or that it denied "due process of law." Wickard v. Filburn, Ohio, 63 S.Ct. 82, 92 317 US 111, 87 L.Ed. 122.
As we construe the conditions of employment set forth heretofore in the defendant's "Employment Policy and Regulations" and the testimony of Howard Ericson, the right to paid vacation does not accrue until an employee requests a vacation. There is no indication that any member of the plaintiff has made such a request yet in 1964, this being February. Therefore, no right to accumulate 1964 vacation entitlement has accrued. Accordingly, an order entered in February, 1964, affecting all 1964 vacation accrual is not invalid by reason of the prohibition in Sec. 48-817 against retroactive orders.
5. One condition of employment prevalent in the Douglas-Sarpy County labor market area is that employees, subject to various exceptions, are not granted pay for the first day of time off because of sickness. The findings and conclusions set forth above in paragraphs numbered 3 and 4 are applicable. Both parties are in agreement that the provisions of the O.P.P.D. contract are acceptable.
THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED:
The Order entered herein on December 16, 1963 is modified and supplemented, so that the final judgment on both the petition and the cross-petition in this action is in its entirety as follows:
A. That with respect to members of the plaintiff committee now in the employ of the defendants the following working conditions shall apply to holiday pay, vacations, and overtime pay for Saturdays and Sundays:
1. Effective December 16, 1963:
New Year's Day, Washington's Birthday, Decoration Day, July Fourth, Labor Day, Thanksgiving Day, and Christmas Day, or days celebrated as such, shall be recognized holidays. Each shift-worker (except supervisory personnel including shift engineers and relief shift engineers) shall be credited with an extra hours' pay for each hour worked by him on such holiday.
2. Effective January 1, 1964:
An employee, who has completed twenty-two (22) years of continuous service with the System on April 1, of any year, or will have completed such twenty-two (22) years by the end of such year, shall be allowed a vacation with pay of four (4) regular work-weeks; provided, if necessary for the maintenance of efficient and satisfactory service, such an employee may be required to take two (2) weeks in a different month from that in which the other two (2) weeks are taken.
B. That with respect to members of the plaintiff committee now in the employ of the defendants the following working conditions shall apply to accumulation of vacation entitlement and to sick pay entitlement:
1.Vacation to which an employee may become entitled by reason of his employment in the calendar year 1964 or subsequent years shall be taken in the calendar year in which his entitlement thereto arises or shall be forfeited. Vacation entitlement still remaining to an employee by reason of employment in years prior to 1964 shall not be forfeited or otherwise affected by this order.
2.An employee's wage allowance for any sickness shall begin with the second regular work day lost, and shall cease when he returns to work; a sickness and any successive sickness shall be cumulative for the purposes of determining the time for which the employee shall receive a wage allowance; provided, however, that (1) no employee shall receive a wage allowance for the first day of a successive sickness, unless such sickness follows by five regular work days or less the previous period of sickness and that (2) if a sickness and such successive sicknesses shall extend over a period of two weeks or more, the wage allowance shall begin with the first day of such sickness or successive sickness.
3.That the defendants may waive the benefits extended to them by either or both of the immediately preceding paragraphs by declaring on or before April 15, 1964, such waiver in writing filed with the clerk of this Court, and mailed to counsel of the plaintiff.
C. That the prayer of the petition is granted to the extent, and only to the extent, ordered by paragraph A above; that the prayer of the answer is denied; that the prayers of subparagraphs (a) and (b) of the cross-petition are denied except to the extent ordered by paragraph B above.
D. That the plaintiff's oral motion to order collective bargaining, set out on page 336 of the Bill of Exceptions, is denied.
E. That the plaintiff's oral motion for the court to conduct an independent investigation, set out on pages 336 and 337 of the Bill of Exceptions, is denied.
F. That the defendant's motion for new trial, amended motion for new trial, and motion for order re vacation and sick-leave practices are granted to the extent, and only to the extent, ordered by paragraphs A and B above.
G. That this Order in its entirety is final.
This matter comes on for further hearing upon the plaintiff's motion filed March 3, 1964, with respect to paragraph B of the Court's order entered February 25, 1964.
Upon stipulation of the parties and their joint motion in open Court said motion of the plaintiff filed March 3, 1964, is amended, so that wherever it appears in said motion the phrase, "Part II" and "PART II" shall refer to said paragraph designated B of the Court's order of February 25, 1964.
By its petition the plaintiff prayed for an upward adjustment of the hourly wages to accord with the prevailing conditions in the labor market area. By counterclaim the defendants prayed for a downward adjustment of vacation and sickness benefits to accord with the prevalent conditions in the labor market area. By orders of December 16, 1963, and February 25, 1964, adjustments were made in accordance with the prayers of the petition and counterclaim. The plaintiff contends that the Court had no jurisdiction to enter an order with respect to vacation and sickness benefits, because the Court by statute has jurisdiction over only an "industrial dispute", which in turn is defined by statute as a "controversy", and here there is no evidence of the existence prior to the filing of the defendants' counterclaim of a "controversy" concerning vacation and sickness benefits. The plaintiff would have us formulate a rule of law which would require either party to plead and prove that prior to suit he demanded and was refused the exact relief for which the party's petition prays. Plaintiff's counsel puts his proposition succinctly as follows, "You can't raise industrial controversies by pleadings." For the reasons set forth in paragraph numbered 3 of our order of December 16, 1963, in this case and in paragraph numbered 2 of our findings in International Brotherhood of Electrical Workers, Local Union No. 507 v the City of Hastings, et al, Case No 17, we hold that any party, whether employer or employee, can raise by prayer for relief, resisted by the opposing party, an industrial dispute or controversy and thereby confer jurisdiction upon the Court. It is not an essential element of the Court's jurisdiction that there be proof of the existence prior to the filing of a pleading of a demand for and refusal of the relief prayed for by the petition.
In further answer to the plaintiff's contention we point out that under Sec. 48-810, R.R.S. Neb. 1943, this Court is required to settle an industrial dispute and by virtue of Sec. 48-823 has "all incidental powers necessary" to do so. Accordingly it would appear that if adjustment of vacation and sick benefits is necessary to settle the dispute concerning basic wage rate, then the Court has jurisdiction to make such adjustment regardless of whether a prayer therefor has been included in either a pleading or a pre-pleading communication.
NOW THEREFORE IT IS ORDERED that the motion filed March 3, 1964, by the plaintiff for a new trial be and it hereby is overruled.