1 CIR 18 (1964)

IN THE COURT OF INDUSTRIAL RELATIONS

OF THE STATE OF NEBRASKA

SAFEWAY CABS, INC. | CASE NO. 18
a Corporation, |
|
Plaintiff, |
|
v. | TEMPORARY ORDER
|
TAXI CAB DRIVERS UNION |
LOCAL 762, affiliated with the |
International Brotherhood of Teamsters, |
Chauffeurs, Warehousemen and |
Helpers of America, LOWELL C. |
WILES, President of TAXI |
CAB DRIVERS UNION Local 762; |
EDWIN ROWELETTE, Vice-President of |
TAXI CAB DRIVERS UNION Local 762; |
EVERETT LEWIS, Recording Secretary |
of TAXI CAB DRIVERS UNION |
Local 762; JOHN C. CAMPBELL, |
Secretary-Treasurer of TAXI CAB |
DRIVERS UNION Local 762; |
LEONARD FINKOVITZ, Officer |
of TAXI CAB DRIVERS UNION LOCAL 762; |
and GERALD MOLLER, Officer of TAXI |
CAB DRIVERS UNION Local 762. |
|
Defendants. |

February 21, 1964

NOTE: SOME PUBLISHED ORDERS HAVE BEEN DEEMED TO BE NOT HELPFUL AND HAVE, THEREFORE, BEEN OMITTED FROM THIS FILE.

BAYLOR, P.J.

Now on this 21st day of February, 1964, this matter came on for consideration by the Court on the positively verified Petition of the plaintiff praying for a Temporary Order restraining the defendants from certain activities in connection with a proposed strike and the Court having read the Petition and being fully advised in the premises finds:

(1) That a strike of the employees of the plaintiff and against the property of the plaintiff has been called by the defendants and is to become effective at 12:01 A.M. February 22, 1964; and

(2) That said strike is contrary to law; and

(3) That the public service rendered by plaintiff will be interrupted and interfered with by said strike.

The Court further finds that plaintiff is a public utility,and that the business carried on by the plaintiff is the transportation of passengers by taxicab for hire in Omaha, Nebraska, and is an intrastate business in this state over which the government of the United States has not assumed exclusive regulation and control, and that this Court has jurisdiction of the parties, and of the subject matter of this action; and that a Temporary Order should be entered as prayed for in said Application.

IT IS, THEREFORE, ORDERED, pending the final determination of the issues in this case, that the defendants and officers, members and representatives of defendant Local Union 762 and all other persons having knowledge or notice of this Order or to whose attention it may come or be delivered, should be and hereby are restrained and enjoined from going out on strike, or striking the property of the plaintiff, or rendering the called strike effective, or from in any manner conspiring or acting in concert or by combinations or by agreement to effect a strike or stoppage of work on plaintiff's property and are restrained from in any manner, actively or passively, inducing influencing, inciting, directing or encouraging the committing of any violence or threats of violence or other acts of intimidation to persons or property or breaches of the peace and are directed that the efficiency and continuity of plaintiff's service as a public utility shall continue unimpaired and without interruption pending further Order of this Court.

OPINION

March 6, 1964

GRADWOHL, J.:

Safeway Cabs brought this suit under the Nebraska Court of Industrial Relations Act and the no-strike clause of a collective bargaining agreement to enjoin a threatened strike by its drivers. We conclude that under the evidence the suit cannot be sustained either under the Nebraska statutes as limited by the Constitution and statutes of the United States or under the non-strike clause.

FACTS

A collective bargaining agreement was entered into by Safeway Cabs, Inc., and Checker Cab Company, Inc., with Taxi Cab Drivers Union, Local 762, effective July 1, 1961. Execution of this agreement was the product of multi-employer bargaining by Safeway and Checker. The agreement provides that it continues until June 30, 1963, and

shall continue in full force and effect from year to year thereafter unless either party serves upon the other party 60 days notice prior to the expiration date of this Agreement of their desire to negotiate changes, modifications, or terminate this Agreement.

Taxi Cab Drivers notified Safeway on April 27, 1963, that

Local 762 is desirous of continuing this Agreement, but desires to negotiate changes in said Agreement, and as soon as our proposed changes in said Agreement are prepared, we will forward a copy to you for your consideration.

Since July 1, 1963, Safeway has paid the compensation provided for by the agreement and Safeway and Taxi Cab Drivers have followed other terms of the agreement, including the provision for withholding union dues. The parties have attempted to bargain with respect to changes in the agreement, but without success. Since July 1, 1963, Safeway and Checker have filed a charge with the National Labor Relations Board of refusal to bargain in good faith by Taxi Cab Drivers. Taxi Cab Drivers has filed a charge with the National Labor Relations Board of refusal to bargain in good faith by Safeway and Checker. No complaint has been issued by the National Labor Relations Board on these charges, although an appeal is now pending on the Regional Director's refusal to issue a complaint on Taxi Cab Drivers' charges.

In an unrelated matter, a National Labor Relations Board Trial Examiner ruled that Safeway interfered with, coerced and restrained its employees in violation of section 8(a)(1) of the National Labor Relations Act by conduct taking place before July 1, 1963. Checker was not a party to the proceeding. In the course of this litigation, Safeway admitted judicially that it was an employer subject to the jurisdiction of the National Labor Relations Board. The Trial Examiner held Safeway to be covered by the federal law. The basis for the Trial Examiner's decision was that, although Safeway alone does less than the $500,000 gross annual volume of business required under the National Labor Relations Board jurisdictional yardstick applicable to taxicab companies. Safeway was aligned with Checker in a multi-employer bargaining unit. Checker does a gross annual volume of business in excess of $500,000. Where several companies engage in multi-employer bargaining, the combined amount of business done by all members is used in applying the jurisdictional yardsticks. N.L.R.B. v. Sightseeing Guides & Lectures Union Local 20076, 310 F.2d 40 (2nd Cir. 1962). Emil Volcheck, President of Safeway, testified that as of the date of the hearing, no notice of abandonment of multi-employer bargaining had been given by Safeway to Checker or to Taxi Cab Drivers. Safeway has appealed the Trial Examiner's decision to the National Labor Relations Board, which appeal is now pending.

During February, 1964, negotiations between the parties concerning changes in the agreement reached a point of impasse. When Taxi Cab Drivers threatened to strike, Safeway initiated suit to enjoin the strike under both the Nebraska statutes and the no-strike clause of the agreement.

Constitutional Status of the Court

Taxi Cab Drivers attacked the constitutionality of this Court under the First, Thirteenth and Fourteenth Amendments, and Article I, Section 8, and Article VI of the Constitution of the United States. The crux of this argument is that there is a right to strike guaranteed by the United States Constitution. These contentions have been consistently rejected by the United States Supreme Court, International Union v. Wisconsin Employment Relations Board, 336 U.S. 245, 69 S. Ct. 516, 93 L.Ed. 651 (1949); Dorchy v. Kansas, 272 U.S. 306, 47 S. Ct. 86, 71 L.Ed. 248 (1926). See Lincoln Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 69 S. Ct. 251, 93 L.Ed. 212 (1949), affirming 149 Neb. 507, 31 N.W.2d 477 (1948); International Brotherhood of Teamsters, Local 685 v. Vogt, 354 U.S. 284 77 S.Ct. 1166, 1 L.Ed.2d 347 (1957).

The Nebraska Court of Industrial Relations statutes became effective May 31, 1947, Laws of Nebraska, 1947, p. 585. On June 23, 1947, Congress enacted the Labor-Management Relations Act of 1947, 61 Stat. 136 (1947). The National Labor Relations Act and Labor-Management Relations Act have been held to be a Congressional preemption of the field of peaceful strikes by privately-owned public utilities engaged in interstate commerce, even though the strike may involve a local emergency, Street, Electric Railway & Motor Coach Employees v. Wisconsin Employment Relations Board, 340 U.S. 383, 71 S. Ct. 359, 95 L.Ed. 364 (1951); Street, Electric Railway & Motor Coach Employees v. Missouri, 374 U.S. 74, 83 S. Ct. 1657, 10 L.Ed. 2d 763 (1963). The effect of these federal laws has not been to render the Nebraska Court of Industrial Relations statutes unconstitutional but merely to make the Nebraska statutes inapplicable insofar as the public utility industrial dispute has become subject to the provisions of federal law.

Safeway operates under the jurisdiction of the Nebraska Railway Commission. It is a public utility as defined in section 48-801 (4), R.R.S. 1943, over which the government of the United States has not assumed exclusive regulation and control. Nevertheless, to the extent the federal government has exercised partial jurisdiction in matters of labor-management relations, the Nebraska statutes are ineffective or can be applied only in accordance with the provisions of the federal statutes.

Extent of Federal Preemption:

National Labor Relations Board

Section 14 (c) (2) of the National Labor Relations Act permits States to take jurisdiction over labor disputes between parties involved in interstate commerce if the National Labor Relations Board declines to assert jurisdiction because of its jurisdictional standards. These standards are set by the Board. The Board declines jurisdiction of disputes involving taxicab companies if the gross annual volume of business is less than $500,000. If a taxicab company is a member of a multi-employer bargaining unit, the jurisdictional dollar volume of business is the total gross annual volume of all members of the unit.

Safeway alone has less than $500,000 gross annual volume of business, but Checker and Safeway together have more than $500,000. While the evidence indicates that a breakup of the bargaining unit was suggested within a month of the filing of this suit, the suggestion has not been acted upon by the employers or communicated to the union. Moreover, the National Labor Relations Board has asserted jurisdiction over disputes between Safeway and Taxi Cab Drivers and has not declined jurisdiction under its standards.

Safeway also contends that the threatened strike of Taxi Cab Drivers is neither a protected nor prohibited activity under the National Labor Relations Act, so that, therefore, this Court is free to act. This argument requires an assumption that the threatened strike of Taxi Cab Drivers is in violation of a contract between the parties. For the reasons discussed below, we find that the no-strike clause of the agreement between the parties is not now in effect, so that the threatened strike is not a breach thereof.

The rule is that where an activity is "arguably" subject to the jurisdiction of the National Labor Relations Board, state law is inapplicable. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S. Ct. 773, 3 L.Ed. 2d 775 (1959). Despite the statutory amendment by section 14 (c) (2) concerning state exercise of jurisdiction where the National Labor Relations Board's jurisdictional standards are not met, the Garmon decision remains controlling on the issues involved in determining whether the activities are arguably subject to the jurisdiction of the National Labor Relations Board.

At times it has not been clear whether the particular activity regulated by the States was governed by §7 or §8 or was, perhaps, outside both these sections. But courts are not primarily tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board.

It follows that the failure of the Board to define the legal significance under the Act of a particular activity does not give the States the power to act. In the absence of the Board's clear determination that an activity is neither protected nor prohibited or of compelling precedent applied to essentially undisputed facts, it is not for this Court to decide whether such activities are subject to state jurisdiction....The governing consideration is that to allow the States to control activities that are potentially subject to federal regulation involves too great a danger of conflict with national labor policy.

On the present record, the matters involved in this case are subject to the jurisdiction of the National Labor Relations Board both on the questions concerning the status and effect of the multi-employer bargaining unit of Safeway and Checker and the question of whether the threatened strike constitutes a protected or prohibited activity under the National Labor Relations Act.

The record contains no indication of violence or threatened violence which, if present, would constitute an area in which the State might act to protect its own safety.

Extent of Federal Preemption:

The Collective Bargaining Agreement

At the time the agreement between Safeway and Checker and Taxi Cab Drivers was entered into, the parties were subject to the provisions of the National Labor Relations Act and Labor-Management Relations Act. Under section 301, as construed by the Supreme Court of the United States, state courts have concurrent jurisdiction with federal district courts in suits involving the construction and enforcement of collective bargaining agreements. This state court contract jurisdiction exists even though the activities involved in the matter could or do also constitute an unfair labor practice subject to the jurisdiction of the National Labor Relations Board. Smith v. Evening News Association, 371 U.S. 195, 83 S. Ct. 267, 9 L.Ed.2d 246 (1962). But in construing collective bargaining agreements, states must apply federal substantive labor-contract law rather than the substantive contract law of the state. Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S. Ct. 571, 7 L.Ed. 2d 483 (1962).

Contract Jurisdiction of the Court of Industrial Relations

The Nebraska Court of Industrial Relations is a statutory court, and is not a court of general jurisdiction. The statutes do not specifically mention contractual matters. Interpreting the statutes as a whole, we conclude that the Court has subject matter jurisdiction to construe and enforce labor contracts in suits between parties properly before the Court.

The statutes were enacted to "make operative" the provisions of Article XV, Section 9, of the Constitution of Nebraska, Section 48-802, R.R.S. 1943. The Constitution states broadly,

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....

Section 48-801 (8), R.R.S. 1943, defines the term "industrial dispute" as used throughout the statutes:

The term industrial dispute includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment.

Section 48-810, R.R.S. 1943, requires that all industrial disputes involving service of a public utility "shall be settled by invoking the jurisdiction of the Court of Industrial Relations." We recognize that disputes between employers and employees commonly arise under or with respect to some sort of existing contractual arrangement between the parties.

Section 48-818, R.R.S. 1943, detailing the Court's power to fix rates of pay and other conditions of employment, does not contain the only methods by which this Court can settle industrial disputes. The Court has jurisdiction to make decisions and settle disputes between parties properly before the Court in order to prevent an interruption of service by a public utility or government service in a proprietary capacity. The statutes have a purpose and intent, as stated in Section 48-802 (1), R.R.S. 1943, that the State of Nebraska, through the Court of Industrial Relations, "exercise all available means and every power at its command," to act lawfully to prevent the interruption of service. Provision was added that the jurisdiction, power and authority of the Court should be liberally construed to effectuate the statutes and that the Court should have all necessary and incidental powers. Section 48-823, R.R.S. 1943, states:

The provisions of sections 48-801 to 48-823 and all grants of power, authority and jurisdiction herein made to the Court of Industrial Relations shall be liberally construed to effectuate the public policy enunciated in section 48-802. All incidental powers necessary to carry into effect the provisions of section 48-801 to 48-823 are hereby granted to and conferred upon the court herein created.

One of the means by which the interruption of service by a public utility in Nebraska can be prevented is to interpret and enforce a contract made between parties subject to the statutes. In the present case, the Court is being asked to specifically enforce a no-strike clause to prevent a threatened strike. The Court of Industrial Relations, therefore, has subject matter jurisdiction to hear and determine the contratual issues in this suit.

Effect of the No-Strike Clause

The no-strike provision applies "during the whole period this agreement is in effect."

Article XXIV, entitled "Termination of Agreement," states:

This Agreement shall be in full force and effect from July 1, 1961 to and including June 30, 1963 and shall continue in full force and effect from year to year thereafter unless either party serves upon the other party 60 days notice prior to the expiration date of this Agreement of their desire to negotiate changes, modifications, or terminate this Agreement.

On April 27, 1963, Taxi Cab Drivers notified Safeway and Checker:

This is to advise you that as in accordance with Article XXIV of our joint Agreement with your Companies, Local 762 is desirous of continuing this Agreement, but desires to negotiate changes in said Agreement, and as soon as our proposed changes in said Agreement are prepared, we will forward a copy to you for your consideration.

We conclude that the result of this notice was that the agreement did not "continue in full force and effect from year to year thereafter." Since July 1, 1963 the parties have continued to act in accordance with some terms of the agreement. This does not mean that the agreement automatically was continued to June 30, 1964. We also do not interpret the expression by Taxi Cab Drivers in its letter of April 27, 1963, of a desire to continue the agreement as being legally sufficient by itself to extend the duration of the agreement to June 30, 1964. This expression was limited by the desire for changes. The notice by Taxi CabDrivers did not contain the proposed contract changes. The evidence does not reflect what changes have subsequently been sought by Taxi Cab Drivers, or what responses have been made thereto by Safeway.

Notice having been given under Article XXIV of a desire to negotiate changes, the agreement on its face did not continue from year to year. We are not called upon to determine the nature and substance of the contractual arrangements between the parties from July 1, 1963 to February 19, 1964, when the notice to strike was given by Taxi Cab Drivers following an asserted impasse in negotiations.

The basis for our decision is that the petition and evidence do not establish that the no-strike clause upon which the cause of action is based continued until June 30, 1964, as alleged. A determination whether an asserted agreement is valid and binding upon the parties may properly be sought in state courts. Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S. Ct. 519, 7 L.Ed.2d 489 (1962). In determining whether the no-strike clause has remained in effect between the parties, the federal substantive labor-contract law, and not the contract law of Nebraska, must be applied, as compelled by the Lucas Flour and Evening News Association cases.

We interpret the holding in National Labor Relations Board v. Lion Oil Co., 352 U.S. 282, 77 S. Ct. 330, 1 L.Ed. 2d 331 (1957), to mean that in the absence of an express waiver of the right to strike during a period of collective bargaining negotiations concerning changes under an agreement, a limitation on the right to strike after an impasse in the negotiations will not be inferred. The opinion states:

Here the strike occurred at a time when the parties were bargaining over modifications after notice and in accordance with the terms of the contract. Where there has been no express waiver of the right to strike, a waiver of the right during such a period is not to be inferred. We do not believe that the two-phase provision for terminating this contract means that it was not within the contemplation of the parties that economic weapons might be used to support demands for modification before the notice to terminate was given.

Factually, the Lion Oil decision is distinguishable from the present case in that the contract involved did not contain a specific no-strike clause; in fact, a no-strike clause was one of the company's demands during negotiations. In considering the statutory no-strike aspects of section 8 (d) of the National Labor Relations Act, however, the opinion indicates that a prohibition against striking to enforce demands during negotiation of changes should not be imposed "to impose incongruous results." The crux of the holding was that ordinarily where the parties to a labor agreement act to negotiate changes to the agreement by collective bargaining, limitations on the economic weapons of the parties will not be imposed in the absence of a clearly expressed intention that they should be so enforced.

Prior to the Lion Oil decision, the Court in Mastro Plasticsv. National Labor Relations Board, 350 U.S. 270, 76 S. Ct. 349, 100 L.Ed 309 (1956), refused to find that an express contractual no-strike clause prevented a union strike in response to an employer unfair labor practice, in the absence of specific language in the no-strike clause that it apply in such a situation. As in the present case, the no-strike clause in Mastro Plastics applied "during the term of this agreement." The strike occurred before the expiration of the contract, but following an employer unfair labor practice. The company asserted that the words "any strike" in the no-strike clause left no room for interpretation. The Court held that, since interpreting the no-strike clause as an absolute prohibition against strikes in any situation would have the effect of undermining the bargaining status of the union in negotiations even where the union had been injured by the employer's unlawful conduct, the result would not be inferred without a more compelling expression than appeared in the general language of the no-strike clause itself. On the facts of the present case, we are equally hesitant to infer that the no-strike clause was meant to restrain economic pressure to enforce changes in this agreement in the absence of a compelling expression.

Holding the no-strike clause in this case to have continued beyond the point of impasse in bargaining negotiations for changes would produce an equally incongruous result, and is an equally unwarranted inference from the petition and evidence. In the absence of a showing to the contrary, it is unrealistic to assume that the parties to this agreement intended to be required to negotiate concerning subjects which might involve changes in the entire agreement, but would not be permitted to use economic pressures to secure their bargaining positions. In these circumstances, we interpret the federal substantive labor-contract law to be that the provisions of the no-strike clause are not effective to restrain a strike brought to secure collective bargaining demands for contract changes in the absence of express language.

Since the no-strike clause upon which the petition is based has not continued in effect to the present date, there is no existing contract upon which the relief prayed for can be granted. Having so concluded, it is unnecessary to determine whether the law preventing a federal district court from issuing an injunction to specifically enforce a no-strike clause also precludes this Court from issuing an injunction in the same situation.

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