1 CIR 22 (1968). Case #22 appealed on May 23, 1968. Appeal dismissed October 8, 1968, upon the motion of appellant.

IN THE COURT OF INDUSTRIAL RELATIONS

OF THE STATE OF NEBRASKA

OPINION IN SUPPORT OF ORDER

OVERRULING DEMURRER

January 17, 1968

BAYLOR, P.J.

I. JURISDICTION AND SUFFICIENCY OF

PLEADING OF CLAIM

The defendant by general demurrer has urged that the Court of Industrial Relations does not have jurisdiction over the defendant or the subject matter of the action and that the plaintiffs have not stated sufficient facts to constitute a cause of action because of four major propositions which are designated (A), (B), (C), and(D), quoted, and discussed below.

(A) This action was brought under Chapter 48 of the Revised Statutes of Nebraska, 1943, Reissue of 1952, which are not in effect, and under these statutes failure to discuss did not constitute a labor dispute;

Counsel for plaintiffs conceded that the references to "Reissue of 1952" were inaccurate and upon his oral motion plaintiffs have been granted leave to amend the pleadings by interlineation to delete the erroneous references. As amended, the petition is interpreted to refer to the Revised Statutes of Nebraska in their present form, including the 1967 legislative amendments.

(B) That the plaintiffs have not made a demand to discuss terms and conditions of employment since the effective date of L.B. 583 and L.B. 298, October 23, 1967;

This argument of the defendant was premised upon an assumption that the sole industrial dispute alleged in the petition was a "refusal to discuss terms or conditions of employment." Since the "refusal" phrase in the amended definition of "industrial dispute" in Section 48-801 (8) did not become effective until October 23, 1967, defendant contends that plaintiffs' petition fails to state a cause of action in that it does not allege that plaintiffs made a demand for discussion after October 23, 1967. We conclude that defendant's position is incorrect for the following reasons:

(1) The petition does literally contain alleged facts which, when tested by demurrer, would constitute a "refusal to discuss terms or conditions of employment" after October 23, 1967. Paragraph V of the petition alleges that on September 20, 1967, the board of directors of the defendant passed a resolution that "on and after October 23, 1967, the above recognition of the Utilities Employee and Management Co-operative Council would continue and that the defendant passed a resolution that "on and after October 23, 1967, the above recognition of the Utilities Employee and Management Co-operative Council would continue and that the defendant would only discuss terms and conditions of employment with the said Utilities Employee and Management Co-operative Council." This would plainly seem to constitute a refusal by defendant to discuss terms and conditions of employment with the plaintiffs subsequent to the effective date of L.B. 583 and L.B. 298. Furthermore, the facts alleged in the petition would appear, when tested by demurrer, to show a proper excuse for a failure to make an actual demand after October 23, 1967, if such a requirement does technically exist.

As stated in AM.JUR.2d 613-614, Actions §85:

Although a demand may be a condition precedent to bringing an action upon a given cause of action, the necessity of making an actual demand before commencing suit is obviated where it is shown that a demand would be useless or unavailing, as where ...by word or conduct the defendant has denied the plaintiff's right...Demand is not necessary when it is clear that it would be refused...

Demand is not necessary where a defendant by his conduct has waived the making of demand. Prior dealing between the parties may also amount to a waiver of demand.

By analogy, the Supreme Court of Nebraska applied a similar concept in Selig v. Wunderlich Contracting Co., 160 Neb. 215, 69 N.W.2d 860 (1955), in holding that, "Where a party bound by an executory contract repudiates his obligation before the time for performance, the promisee has an option to treat the contract as ended so far as further performance is concerned, and to maintain an action at once for the damages occasioned by such anticipatory breach."

(2) For the reasons discussed in subsequent portions of this Opinion, the facts alleged in the petition, when tested by demurrer, state two additional items of "industrial dispute" under portions of Section 48-801(8) which remained unchanged by the 1967 legislative amendments:

(a) A "controversy concerning terms, tenure or conditions of employment" in that there was a request for "an increase in wages, hours and conditions of employment" for employees of the defendant.

(b) A controversy "concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment," in that the plaintiffs seek to represent persons for the statutory purposes relating to terms and conditions of employment for employees of the defendant.

(c) That L.B. 583 has effectively repealed L.B. 298, thereby removing the power of this Court to order the defendant to bargain collectively;

Section 2 of L.B. 583 provides that:

Notwithstanding any other provision of law, the State of Nebraska and any political or governmental subdivision thereof cannot be compelled to enter into any contract or agreement, written or otherwise, with any labor organization concerning grievances, labor disputes, rates of pay, hours of employment or conditions of work.

Section 48-816 of the Revised Statutes of Nebraska was amended by section 2 of L.B. 298, the "Final Reading" copy of which shows the new and deleted matter:

That section 48-816, Reissue Revised Statutes of Nebraska, 1943, be amended to read as follows:

48-816. After a petition has been filed under the provisions of section 48-811, the clerk shall immediately notify the members of the Court of Industrial Relations, which court shall promptly convene at its office to take such preliminary proceedings as may be necessary to insure a prompt hearing and speedy adjudication of the industrial dispute. The court shall have power and authority upon its own initiative to make such temporary findings and orders as may be necessary to preserve and protect the status of the parties, property and public interest involved, pending final determination of the issues. In the event of an industrial dispute between employer and employees of a privately-owned public utility not operated by government in its proprietary capacity or any public utility which is owned, managed, or operated by any political or governmental subdivision of the State of Nebraska, any public corporation, or any public power and irrigation district, when acting in a proprietary capacity as defined in section 48-801, where such employer and employees have failed or refused to bargain in good faith concerning the matters in dispute, the court may order such bargaining to be begun or resumed, as the case may be, and may make any such order or orders as may be appropriate to govern the situation pending such bargaining.

The crux of the defendant's argument in support of its proposition designated (C) is that the power to compel contract or agreement, expressly denied the Court by L.B. 583 is the equivalent of or is inextricably bound up with, the power to order bargaining expressly granted the Court by L.B. 298. For this reason, it is contended that L.B. 583, the later of the two enactments, effectively repealed the amendment of section 48-816 in L.B. 298. That argument appears to us incorrect on each of several grounds as follows:

(1) The words of the prohibition of section 2 of L.B. 583 have plain meaning, refer only to "compelled to enter into any contract or agreement," and do not include the phrase "bargain in good faith." The latter phrase has been in Section 48-816 since 1947; has been the subject of debate in several legislative sessions since then; was extensively analyzed in the opinion of the Supreme Court in International Brotherhood of Electrical Workers v. City of Hastings, 179 Neb. 455, 138 N.W.2d 822 (1965); and was comprehensively considered by the 1967 Legislature in connection with L.B. 298. The omission of such a phrase from L.B. 583 was not the result of oversight or ignorance. See: Shandy v. City of Omaha, 127 Neb. 406, 255 N.W. 477 (1934).

(2) It is not merely an exercise in semantics to say that the power to compel bargaining or discussion is not equivalent to the power to compel agreement. The bargaining empowered by §48-816 as amended by L.B. 298 involves at least a process of discovery through discussions of areas in which no disagreement exists; such bargaining, appropriately limited by the Court though compelled by it, could not possibly, in view of plain meaning of words and normal understanding of actions, be equivalent to, included in, or inevitably leading to a compelled contract. Juries are under the strongest, most restrictive, legal compulsion to discuss in good faith, but it is fundamental that they may not be compelled to agree. Even in the context of the N.L.R.A., wholly different in concept from the Nebraska Act but upon which the defendant relies in part as discussed, infra "the mutual obligation...to meet...and confer in good faith with respect to wages, hours, and other terms and conditions of employment...does not compel either party to agree to a proposal or require the making of a concession." In the business world, a principal frequently-doubtless MUD itself often-gives to agents or attorneys the power to negotiate or bargain, but withholds the power to bind the principal by contract.

(3) The stated purpose of L.B. 583 was "to amend section 48-801, Reissue, Revised Statutes of Nebraska, 1943, as amended by Section 1, Legislative Bill 298." Neither title nor the text of L.B. 583 referred to section 48-816, as amended by section 2 of L.B. 298. The intent not to amend section 48-816 by L.B. 583 seems clear. Furthermore, Article III, Section 14, of the Nebraska Constitution provides that "no law shall be amended unless the new act contain the section or sections as amended and the section or sections so amended shall be repealed."

(4) If discussing or bargaining (the Hastings case equates them) are to be, as the defendant contends, equated with "contract or agreement", then the next equation becomes, as suggested by MUD's counsel during the recent hearings, that of "Court order concerning rates of pay etc." with "compelled contract concerning rates of pay etc." The reasoning of MUD's counsel through these equations would effectively lead to a complete repeal of all the Court of Industrial Relations Act, save the prohibition against strikes. And this repeal would be accomplished by Section 2 of an act of which Section 1 purports to expand the jurisdiction of the Court.

L.B. 583 itself provided in Section 1 thereof a new statement of law (not therefore expressed in any statute) as follows:

Industrial dispute shall include any controversy concerning...refusal to discuss terms or conditions of employment.

Section 48-810, unchanged in these respects since its passage in 1947, provides:

All industrial disputes...shall be settled by invoking the jurisdiction of the Court of Industrial Relations.

Whatever else may be said about the legislature's intention to modify previous legislation by Section 2 of L.B. 583, we cannot find an intention to say in effect:

An employer's refusal to discuss is an industrial dispute which must be settled by the Court, but the Court has no power under any circumstances whatsoever to order discussions or to establish rates of pay, etc., and to make such a statement all in one legislative bill.

(5) The defendant contends that a prayer for the compelling of bargaining is the equivalent of a prayer for compelling a contract prohibited by Section 2 of L.B. 583 at least where such prayer is supported by no allegation of the details of the controversy concerning rates of pay, hours of employment, and conditions of employment. This contention assumes improperly that the plaintiff's petition, claim and prayer, are concerned solely with an order that bargaining be begun or resumed, as the final resolution of an industrial dispute rather than as merely one possible intermediate step in the resolution of the entire controversy.

Paragraph IV of the petition alleges that on August 7, 1967,plaintiff requested an opportunity to represent some employees in Construction Division Departments 52 and 54 "for purposes of discussing with the management of defendant an increase in wages, hours and conditions of employment for these employees." Paragraph V alleges that on September 20, 1967, the board of directors of defendant declined this request, purported to recognize the "Utilities Employee and Management Co-operative Council" as a representative of defendant's employees, and resolved that "on and after October 23, 1967, the above recognition of the Utilities Employee and Management Co-operative Council would continue and that the Defendant would only discuss terms and conditions of employment with the said Utilities Employee and Management Co-operative Council." We interpret this petition to allege three types of controversy constituting an "industrial dispute," as that term is presently defined by section 48-801 (8): (1) a "controversy concerning terms, tenure or conditions of employment;" (2) a controversy "concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment;" and (3) a controversy concerning a "refusal to discuss terms or conditions of employment." The prayer of the petition asks this Court to invoke its jurisdiction to settle the entire industrial dispute. It requests the Court to settle the industrial dispute concerning terms and conditions of employment, to order bargaining, and to settle all other items of industrial dispute between the parties.

The same question arose in the Hastings litigation even before the 1967 amendments under section 48-801 (8) defining industrial dispute, and this Court said:

Sec. 48-801 (8) R.R.S. Neb. 1943 is as follows:

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.

We hold that the first three controversies, expressed in paragraphs (a), (b), and (c) above, are controversies concerning the representation of persons in negotiating or seeking to arrange terms or conditions of employment, and that the last four, expressed in paragraphs (d), (e), (f) and (g) above, are controversies concerning terms, tenure, and conditions of employment. We need not decide whether a justiciable industrial dispute, which, under the mandate of Sec. 48-810, the Court must settle, is raised by a controversy concerning solely the representation of persons. Under the evidence in this case all types of controversies defined in the statute exist, and accordingly there exists an industrial dispute which the Court must settle. International Brotherhood of Electrical Workers v. City of Hastings, Case #17, p. 4 of Opinion of 10-5-64, reversed on other grounds, 179 Neb. 455, 138 N.W.2d 822 (1965).

Here, however, the preliminary question arises as to sufficiency of the pleadings rather than as to sufficiency of evidence as in the Hastings case. Again we do not determine whether a justiciable industrial dispute, or now a prohibited prayer for a Court compelled contract, is raised by a controversy concerning solely the representation of persons or by a controversy concerning solely the refusal to discuss. We hold that the petition sufficiently alleges three types of controversy constituting an industrial dispute and therefore is not subject to demurrer.

On page 5 of our opinion in the Hastings case, supra we held:

Under Sec. 48-823 and 48-816 R.R.S. 1943, the Court has broad powers to formulate its own rules of pleadings and practice. It would be unwise for this Court to promulgate rules which would require in all industrial cases either employees or employers to set down publicly in pleadings or even in letters to each other all the possible extreme demands that ingenuity of their counsel might imagine. Our experience as lawyers is that setting down such extremes is the necessary result of the usual rules of pleadings in the District courts of this State. On the other hand, in appropriate cases in an industrial setting, harmony may be promoted and settlement of disputes achieved or at least facilitated by requiring no more of a petition than the bare allegations of a controversy . . .

In addition to the statutory sections cited in the last quotation, our authority over rules and sufficiency of pleadings in this Court is found in sections 48-812 and 48-809. The Code of Civil Procedure applicable to the District Courts is applicable in the Court of Industrial Relations only to the extent that such code is not modified by this Court. As we interpret the decision of the Supreme Court, the reversal of our order in the Hastings case was solely on the ground or our error in attempting to distinguish "discussion" and "bargaining," and did not reflect directly or indirectly upon our other reasoning and conclusions including those with respect to sufficiency of the pleadings. Accordingly, we affirm our prior opinion quoted above (see also our opinion of June 26, 1964, on demurrer in the Hastings case) with reference to the sufficiency of pleadings and hold that the petition sufficiently, for the purpose of testing on demurrer, alleges several controversies constituting an industrial dispute of which this Court has jurisdiction and mandate to make settlement.

(6) Because of the substantial differences in legislative provisions, purposes, and history between the National Labor Relations Act and the Nebraska Court of Industrial Relations Act, we do not regard an analogy to federal law as being particularly helpful in resolving the present issues. We do believe, however, that the defendant's reliance on N.L.R.B. v. Darlington Venner Co., 236 F.2d 85, 88 (CA 4, 1956) on page 6 of its brief is additionally inappropriate. Section 8(d) of the National Labor Relations Act provides:

For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours,and other terms and conditions of employment, or the negotiations of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession... Emphasis supplied.)

Furthermore, the quotation in defendant's brief is apparently from West's headnote 5 which does not fully set out the substance of the material quoted on page 88 of the opinion. The opinion clearly recognizes that the National Labor Relations Act does not require the parties to agree or enter into a contract, but only that they bargain in good faith. The sentence following the language paraphrased in the headnote is:

The act, it is true, does not require that the parties agree; but it does require that they negotiate in good faith with the view of reaching an agreement if possible; and mere discussion with the representatives of employees, with a fixed resolve on the part of the employer not to enter into any agreement with them, even as to matters as to which there is no disagreement, does not satisfy its provisions.

(D) That the defendant does not have the express statutory authority to bargain collectively as required by the Hastings case.

The defendant contends that since Metropolitan Utilities District lacks express statutory authority to bargain with a union, the plaintiffs have not stated a cause of action for which the jurisdiction of the Court can be invoked. In this regard, defendants rely principally on the statements in International Brotherhood of Electrical Workers v. City of Hastings, 179 Neb. 455, 138 N.W.2d 822, (1965) that:

The generally accepted rule established in other jurisdictions on the issue, which we adopt, is that a public agency or governmental employer has no legal authority to bargain with a labor union in the absence of express statutory authority.

Nowhere in the statutes governing the Court of Industrial Relations is the Court given any power to compel a public utility, operated by government in a proprietary capacity, to bargain, negotiate, or otherwise communicate with its employees or any representative of them. It has long been accepted in this state that the enumeration of certain powers in a statute implies the exclusion of all others not fairly incidental to those enumerated, and that an affirmative description of specific circumstances in which certain powers may be exercised implies a negative as to the exercise of such power in circumstances not enumerated.

As amended by L.B. 298 in 1967, Section 48-816 both grants to the Court authority to order bargaining in good faith in some circumstances (which circumstances we do not presently determine)and grants to the governmental subdivision subject to such an order specific authority to bargain in good faith in compliance with that order.

A complete revolution and anarchy in other fields as well as that of employer-employee industrial disputes would result from a holding that grant of power to a Court to enter an order is ineffective without an express corollary grant of power to obey on the part of one subject to the order. The defendant cites no authority whatsoever for such a holding. Chapter 48 Article 1 expressly authorizes the Workmen's Compensation Court to enter many types of orders against governmental employers. In Austine v. State, 137 Neb. 148, 288 N.W. 525 (1939), we find the Supreme Court's rejection of a contention somewhat analogous to the defendant's here:

Appellee (State of Nebraska) contends further that even though liability is created on the part of the state... there must be in each case a special or general statute waiving the immunity of the state, in addition to the statute creating the liability, if none existed at common law...

The language recited in the act (Workmen's Compensation Act) incorporating the state and every governmental agency thereof within the provision of the act, is clear and unambiguous, and the legislative intent is adequately expressed to warrant this Court in declaring the state intended to waive it's sovereignty and give it's consent to be sued in actions arising under the compensation law.

In Metropolitan Utilities District v. City of Omaha, 171 Neb., 609, 107 N.W.2d (1961), an action for declaratory judgment, it was contended by MUD that while L.B. 295, 1959 Legislature, gives to a metropolitan city the power to "enter into a contract with the metropolitan water or metropolitan utilities district," such contract might not be valid because the authority was not expressly granted to the district. The Supreme Court held that the statute gave power to contract to both the district and the city because the legislative intent was clear.

Admittedly, MUD is an "employer" providing "government service in a proprietary capacity" as those terms are defined in section 48-801(3) and (5). As such, it is expressly made subject to suits in this Court under sections 48-810 and 48-811, and is expressly authorized to instigate suits in this Court as a party plaintiff. In addition, the legislature has expressly authorized the bringing of suits against MUD under Sec. 14-1101 R.R.S. Neb. 1943. The latter authorization has been held to support the incidental or implied power to hire counsel, 37 AM.JUR. 738, Municipal Corporation §125, Meeske v. Bauman, 122 Neb. 786, 241 N.W. 550, 83 A.L.R. 131 (1932). It would be useless to authorize a municipal corporation to expend public funds in defending an action if the corporation would not have to obey the Court's order even if adverse. It must be that an incident to the power to sue and be sued and to defend suit in the Nebraska Court of Industrial Relations is the power to obey an order which the Court issuing it was authorized expressly by statute to issue against the very party to whom it was issued. This conclusion is very strongly supported by the holding in Nelson-Johnson & Doudma v. Metropolitan Utilities, 137 Neb. 871, 291 N.W. 558 (1940), that the express authority of MUD to engage in the gas business implied the authority to engage in the sale of gas appliances because, "until the district is equipped with gas appliances, there could be no gas business."

II. JOINDER OF PLAINTIFFS AND CAUSES OF ACTION

The defendant by special demurrer raises the questions of whether five different labor organizations representing employees can join in a petition for relief (assuming that such relief is within the court's jurisdiction) and of whether from such fact of different plaintiffs it can be presumed that each does or may have different entitlement, so that each should proceed in separate action. This would appear to be an important matter of first impression with respect to the procedure in this Court. Even broader issues may eventually be raised in this case and in the separate pending case of United Association of Journeymen and Apprentices of Plumbing and Pipefitting v. Metropolitan Utilities District, Case #22, as to the necessary or proper parties (parties defendants as well as plaintiff) for settlement of industrial disputes under the Nebraska statutes. For these reasons, we detail at length the various factors in the pleadings, statutes, and other relevant authorities which have influenced our decision that the petition does not improperly join either plaintiffs or causes of action.

The relevant pleadings are as follows:

Demurrer filed 11-24-67:"...the defendant...demurs to the petition... for the following reasons:...III. That there is a defect of the parties plaintiff for the reason that all the parties plaintiff do not have an interest in obtaining the relief demanded. IV. That several causes of action are improperly joined for the reason that the causes of action do not affect all the parties to the action."

Petition filed 10-26-67: "I. Plaintiffs are labor organizations representing employees and dealing with employers concerning ...; they are labor organizations as that term is defined in §48-801...; plaintiffs are authorized to discuss terms and conditions of employment for and on behalf of employees in Departments 52 and 54 of the defendant;...III...it(sic) is authorized by certain employees in those departments to represent them in this action. IV. On August 7, 1967, plaintiff (sic) represented some of the employees in Construction Division Departments 52 and 54 for purposes of discussing with the management of defendant an increase in wages, hours and conditions of employment for these employees. Plaintiffs requested...defendant to meet with them for the purpose of discussing an increase in the terms...of employees represented by the plaintiffs. V. On September 20, 1967,... the defendant passed a resolution that...denied the request of plaintiffs to discuss for and on behalf of employees represented by them...(and) recognized Utilities Employee and Management Cooperative Council as representative of all the employees of the defendant for purposes of presenting...and discussing...requests of employees as to terms and conditions of work,...(and that) on and after October 23, 1967,...the defendant would only discuss terms and conditions of employment with said Utilities Employee Management Cooperative Council. VI. An industrial dispute exists between the plaintiffs and the defendant concerning wages, hours, and conditions of employment of employees in Construction Division Departments 52 and 54 of the defendant as that term is defined in §48-801.8...in that a controversy exists between plaintiffs and defendant as that term is defined in §48-801.8...in that a controversy exists between plaintiffs and defendant as that term is defined in §48-801.8...in that a controversy exists between plaintiffs and defendant and each of them concerning the discussion of terms and conditions of employment....WHEREFORE, Plaintiffs pray... that the Court order the Defendant to appear before it and settle the industrial dispute between the parties concerning terms and conditions of employment; that the Court order the Defendant to discuss terms and conditions of employment for employees represented by the Plaintiff; that the Court settle all other items of industrial dispute between the Plaintiffs and the Defendant...and make any order or orders as may be appropriate to settle all industrial disputes between Plaintiffs and Defendant."

The relevant authorities are as follows:

48-801 as amended by L.B. 583: "(1) Persons shall include...any...organized group of persons. (7) Labor organization shall mean any organization of any kind....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; (8) Industrial dispute shall include 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, or refusal to discuss terms or conditions of employment."

48-809: "The Court of Industrial Relations is hereby granted full power to adopt all reasonable and proper regulations to govern its proceedings, the filing of pleadings,...and to regulate the mode and manner of all its investigations, inspections, hearings, and trials..."

48-810: "All employer, employee, or labor organization...when an industrial dispute exists between parties,...may file a petition with the Court of Industrial Relations invoking its jurisdiction."

48-812: "Except as modified by the Court of Industrial Relations under the provisions of §48-809 or other provisions of §48-801 to 48-823, proceedings before the court shall conform to the code of civil procedure applicable to the district court of the state..."

48-816: "After a petition has been filed...the Court of Industrial Relations...shall...take such preliminary proceedings as may be necessary to insure a prompt hearing and speedy adjudication of the industrial dispute. The court shall have power and authority upon its own initiative to make such temporary findings and orders as may be necessary to preserve and protect the status of the parties...(and) the public interest involved, pending final determination of the issues. In the event of a (sic) industrial dispute between employer and employees of...any public utility which is...operated by any political or governmental subdivision of the State of Nebraska...where such employer and employees have failed or refused to bargain in good faith concerning the matters in dispute, the court may order such bargaining to be begun...and may make any such order or orders as may be appropriate to govern the situation pending such bargaining." (As amended by L.B. 298)

48-818: "The findings and order or orders may establish or alter the scale of wages, hours of labor, or conditions of employment, or any one or more of the same...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 worked but also to...all benefits received...by the employees." 48-822: "No provision of §48-801 to 48-823 shall be construed...to make illegal the...withdrawal from his place of employment unless done in concert or by agreement with others."

48-823: "The provision of §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 ennuniciated in §48-802. All incidental powers necessary to carry into effect the provisions of §48-801 to 48-823 are hereby granted to and conferred upon the court herein created."

Archer v. Musick, 147 Neb. 1018, 25 N.W.2d 908 (1947): "Plaintiff brought the action against the former employer...His petition, as amended and supplemented,...sought to recover unpaid over-time compensation...for himself and...39...other employees of defendant, engaged in similar employment, on account of services performed by each in excess of 40 hours per week, under similar contracts of employment...controlled by...the Fair Labor Standards Act of 1938.

"Defendant demurred...upon the grounds that there was: (1) a defect of parties plaintiff; (2) a misjoinder of causes of action;.... The demurrer was sustained upon the first two grounds, whereupon...the trial court dismissed the 39 causes of action assigned to plaintiff....

"...The first question presented, then, is whether there was a defect of parties plaintiff.

"The authority to maintain such an action...is contained in...(The Fair Labor Standards Act) which provides: '...action to recover such liability may be maintained...by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated...'

"...The action is governed by the (Nebraska) state rules of practice and procedure as to all manners pertaining to the remedy.

"...Applicable statutes which not only permit plaintiff to maintain the action but also to unite all the causes of action in one action...are sections 25-301, 25-303, 25-304, 25-701, and 25-702, R.R.S. 1943....Section 25-304 provides: '...a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted...and assignees of choses in action assigned for the purpose of collection, may sue on any claim assigned in writing...' (Italics by the Court.)

"It will be noted that there are two applicable exceptions to Section 25-301 contained in Section 25-304 which permits plaintiff to maintain the action. Concededly, he was an assignee in writing of the 39 choses in action...On the other hand, it is apparent that plaintiff was also a person expressly authorized by statute to maintain the action by virtue of Section 25-304, the very statute which created his right to maintain it as assignee for the purpose of collection.

"Since, as heretofore observed, plaintiff without doubt was a proper party and had authority to separately maintain his own cause of action and as ...a person expressly authorized by statute, was a proper party and has authority to separately maintain each of the other 39 causes of action, there was of necessity no defect of parties plaintiff...We have remaining only the question of whether there was a misjoinder of causes of action when plaintiff united all of them...in one action.

"To determine that question, we turn again to applicable statutes. Plaintiff claims the right to unite all of the causes of action in one action by virtue of Section 25-701,which provides: 'the plaintiff may unite several causes of action in the same petition, whether they be such as have heretofore been denominated legal or equitable, or both, when they are included in any of the following classes: (1) the same transaction or transactions connected with the same subject of action; (2) contracts, express or implied;...'...(the next eight paragraphs dispose of a contention of the defendant based upon real-party-in-interest, and accordingly are not applicable here.)

"...They (the causes of action) all involve express employment contracts of the same character. The contracts were each and all alleged to have been made and violated by the same defendant, with employees who were required to perform similar duties for defendant at the same place at or about the same time. It would seem clear to us, therefore, that this action comes squarely within Section 25-701 R.R.S. 1943, which permits plaintiff to unite several causes of action in the same petition when they are included in the classification of contracts, express or implied.

"Further, without doubt, plaintiff's several causes of action were also 'transactions connected with the same subject of action.' Therefore, they may be united in one action for that reason, as specifically provided in Section 25-701, R. R. S. 1943. They involved a primary right of recovery solely by reason of the alleged violation by one defendant of a federal statute, which if the employees came within the purview of the act, was an integral part of each of the similar contracts involved....they may be joined if they arose out of different transactions connected with the same subject of action.' A 'transaction' is whatever may be done by one person which affects another's rights, and out of which a cause of action may arise. 'Subject to action' (sic) is not synonomous with but broader than the term 'cause of action'....While concededly the authorities are somewhat at variance concerning the proper means and application of the words for particular purposes, they generally concede that any definition to be both accurate and sufficiently general for all purposes must contain as its basic and fundamental element plaintiff's primary right which has been invaded (italics by the Court) and that in cases where tangible property is not involved, such element is the whole 'subject of action.' In the light thereof, we find that the whole 'subject of action' in cases similar to the one at bar, is the plaintiff-employees' alleged primary right to recover...compensation...by reason of...the federal statute.

"It is now recognized that the leading principle in a modern system of procedure is the avoidance of a multiplicity of suits, and the settlement in one action of all the respective claims of all parties when they are of such nature as to admit of adjustment in that mode. The courts, when confronted with permissive joinder of causes of action, now recognize that they must exercise a wise judicial discretion and construe such statutory provisions liberally, remembering that they are remedial in nature, the dominant idea being that courts should permit the joinder of causes of action where there is some substantial unity between them. In so doing, courts should endeavor to make such statutes as effectual as possible to promote and expedite the administration of justice, thereby preserving economy and efficiency in courts whenever it is possible to do so without prejudice to the rights of litigants. 1 C.J.S. Actions §239, p. 1082; 1 C.J.S. Actions, §77 p. 1222; 1 AM.JUR., Actions, §77, p. 465, §84, p. 470.

"The procedural statutes of this state do not require this court to hold that there should be forty different trials in cases like the one at bar. Applicable questions of law are primarily identical, and one trial can lawfully dispose of all the causes of action with dispatch, economy, efficiency, and justice for the parties involved.

"For the reasons heretofore stated, we conclude that defendant's demurrer should have been overruled. Therefore, the judgment of the trial court...is reversed and remanded with directions to try all of the plaintiff's causes of action in one action, in conformity with this opinion."

The defendant MUD's argument here closely parallels that of the lone dissenting Justice in Archer v. Musick:

The majority opinion fails to give effect to the clear meaning of §25-702, R.R.S. 1943, as follows: "the causes of action so united must affect all the parties to the action...."

Who can deny that the real parties to the assigned causes of action are the assignors thereof for collection? I would like to know how anyone of the causes of action affects the holder of any other cause. I fail to see how such a showing can be made. In the absence of such a showing, I submit that under the provisions of this statute there has been a misjoinder of causes of action and that the first opinion in this case should be adhered to.

In Sedlak v. Duda; 144 Neb. 567, 13 N.W.2d 892 (1944) the Court, though ruling on a motion to require the plaintiff to separately state and number his causes of action, stated in its syllabus:

All facts which taken together are necessary to fix the responsibility for the injury complained of constitute but one cause of action although the prayer of the petition is for more than one kind of relief.

In addition to the statutes quoted and construed in Archer v. Musick, the following sections of the Code of Civil Procedure may be of some relevancy in the present case:

25-703 "Whenever two or more actions are pending in the same court which might have been joined, the defendant may, upon motion and notice to the adverse party, require him to show cause why the same shall not be consolidated, and if no such cause be shown, the said several actions shall be consolidated."

25-809 "When a demurrer is sustained on the ground of misjoinder of several causes of action, the court, on motion of the plaintiff, shall allow him, with or without costs, in its discretion, to file several petitions, each including such of the causes of action as might have been joined; and an action shall be docketed for each of said petitions, and the same shall be proceeded in without further service."

The following general authorities also appear to be relevant:

1 AM.JUR.2d, Actions §102, p. 627: "In determining whether a pleading is open to attack on the ground of misjoinder of causes of action, one must first determine whether more than one cause of action is stated;........One test of whether there is more than one cause of action stated or attempted to be stated is whether there is more than one distinct primary right which the plaintiff seeks to enforce or more than one subject of controversy presented for adjudication. A single cause of action may consist of a series of several connected acts or of several injuries, and distinct elements of damage may be set out in the statement of a single cause of action....

A party may, because of the particular nature of the wrong, have different remedies for the enforcement of his rights, but that does not mean that there are several causes of action, and the rules governing joinder of causes of action do not preclude him from presenting in the same pleading distinct grounds for recovery upon a single primary right, especially if he is uncertain which ground can be established... (citing State ex rel. Beck v. Associates Discount Corp., 162 Neb. 683, 77 N.W.2d 215).

AM.JUR.2d, Actions §104, p. 629:

The modern statutes and rules of practice governing joinder of causes of action are designed to promote convenient administration of justice and the statutes are liberally construed to carry out their wholesome purpose to promote the efficient administration of justice whenever this can be done without prejudice to the rights of litigants. (Citing among other cases Archer v. Musick, 147 Neb. 1018, 25 N.W.2d 900, 168 A.L.R. 1164...).

Section 122, p. 643: "While joinder of causes of action presents a question distinct from that of joinder of parties, the distinctions between the two questions are sometimes lost sight of in cases which involve several causes of action and the rights and liabilities of several persons. Under the code practice, as well as at common law, it is generally a prerequisite to joinder of causes of action, when more than one party plaintiff or defendant is affected, that all causes should affect all parties to the action, both parties defendant and parties plaintiff....In equity it is not indispensable to a joinder of causes of action that all the parties should have an interest in all the matters contained in the suit; it is sufficient if each party has an interest in some material matter in the suit, and it is connected with the others....

Section 123, p. 644: "However, it is not necessary that all the parties should be affected equally or alike, it being enough that they are all affected."

We hold, under both the Code of Civil Procedure as construed in Archer v. Musick, supra, and our power to modify that procedural code, that the special demurrer should be overruled.

Under 48-811 and 48-801 (7), supra, any employee and any organization of any kind in which employees participate and which exists in part for the purpose of dealing with employers may petition the Court for settlement of an industrial dispute. Certainly express authority to commence an action must include authority to maintain it. Probably if semantics were the only guide, it could be argued with equal persuasiveness pro and con that "any organization of any kind" includes "a joinder by mutual consent for one purpose of five organizations otherwise separate for other purposes." But the affirmative is the required interpretation under 48-816's mandate of speedy adjudication and protection of the public interest until it shall affirmatively and clearly appear by evidence that such speed and protection or the manifest legitimate interests of a party will be served by separate pleadings, separate hearings, or separate judgments.

Moreover, in the absence of a construction in this very context of Article 8, Chapter 48, it is impossible to imagine a closer analogy to the question here presented than Archer v. Musick, supra. Both cases involve claims under statutes of employees' alleged rights; both statutes authorize the maintenance of one action for the benefit of many employees; in neither case is there any hint at the demurrer stage of any prejudice to the employer by consolidation other than that of depriving the employer of the illegitimate advantage of requiring its employees to multiplicate evidence and attendance at trials. The Supreme Court's decision permitting joinder was grounded not only on assignment, not present here, but also on authority to maintain the action, which is present here.

III. ADDITIONAL PRELIMINARY MATTERS

(A) This Court's order entered November 30, 1967, directed the parties to consider during the December argument whether this case should be consolidated with Case No. 22 for further proceedings, whether additional notice of the pendency of this proceeding should be given, whether an investigator or other expert should be employed, and whether subpoena and summons should be issued in accordance with section 48-815 and notice given under that section. Counsel for neither party requested the Court to take action in any of these matters, and the Court does not at this time determine to do so on its own motion. In addition, it was determined during the oral argument that the Court would not compel a pre-trial conference with respect to the next hearing scheduled in this case.

(B) The next hearing will be an evidentiary hearing held for the purpose of obtaining ultimately a definition of the nature and extent of the alleged industrial dispute between the parties and of enabling the Court to determine now whether an order for the commencement of bargaining (or for any other appropriate preliminary relief) would facilitate that ultimate definition and further the ultimate settlement of the industrial dispute between the parties concerning terms, tenure and conditions of employment. In order to facilitate a consideration of these matters, counsel is directed to submit written briefs which must include, but need not be limited to, the relevant legal authorities (including such legislative history concerning the enactment of L.B. 298 and L.B. 593 as may be relevant) and arguments on the following items:

(1) the circumstances in which it is appropriate for the Court to order bargaining to be begun or resumed under the statutes which presently have been determined in this opinion to be applicable to this case;

(2) the specific itemized factors relevant to a determination that bargaining should be ordered and the specific itemized factors relevant to a determination that bargaining should not be ordered;

(3) the necessary or proper parties to such a determination with respect to bargaining;

(4) the conditions, rules, limitations, or supervision necessary or appropriate to carry out any such order with respect to bargaining;

(5) the defenses alleged by paragraph VI of defendant's answer filed on November 24, 1967.

We believe that a full consideration of these items in advance of the next scheduled hearing will greatly facilitate and expedite both the hearing and the Court's determination of the issues. For those reasons, we intend to be most hesitant in granting any extensions of the brief times specified in the order entered herewith.

OPINION IN SUPPORT

OF ORDER OVERRULING DEMURRER

January 17, 1968

Baylor, P.J.

We have overruled defendant's demurrer filed December 15, 1967, for the same reasons as those set out in our opinion in support of order overruling demurrer filed today in Case No. 21. The plaintiff's petition does not allege the facts as extensively as the allegations set forth in the petition in Case No. 21, although reference is made to "terms, tenure, or conditions of employment," "representation of said employees in negotiating" etc., and "refuse to discuss." Similarly, the prayer does not contain as high a degree of specificity as that in Case No. 21, although it does request that the Court, in addition to ordering bargaining, grant "such other and further relief as equity may require." While we have applied to this petition an interpretation comparable to that in Case No. 21, our ruling should not necessarily reflect that we would so conclude in the absence of simultaneous litigation involving the same employer and possibly even some of the same employees.

FINDINGS AND ORDERS WITH

RESPECT TO ORDERING BARGAINING

May 13, 1968

GRADWOHL, J.

Public Service Employees Council et al., Plaintiffs, v. Metropolitan Utilities District, Defendant, Case No. 21, came on for hearing with respect to only the appropriateness in that action of ordering bargaining on February 22, 1968 [the Transcript of Proceedings incorrectly states the date as Wednesday, February 21, 1968], February 23, 1968, and March 5, 1968, evidence was adduced, and briefs were filed by the parties thereafter.

United Association of Journeyman, etc., Plaintiffs, v. Metropolitan Utilities District, Defendant, Case No. 22, came on for hearing with respect to only the appropriateness in that action of ordering bargaining on February 22, 1968, and February 23, 1968, evidence was adduced, and oral arguments were made by counsel.

From the pleadings, evidence adduced at the respective hearings (including those matters of which the Court can properly take judicial notice as provided in Section 48-817), and the briefs and arguments of counsel, the Court makes the following findings:

I. CONCLUSIONS

These cases were ordered for hearings for the sole purpose of determining the appropriateness of ordering bargaining under Section 48-816, as amended by L.B. 298. Section 48-816 is the exclusive authority for the Court to enter such an order. The record is barren of facts which would warrant an exercise of the Court's discretion to order the Defendant to bargain with the Plaintiff in either Case No. 21 or Case No. 22. The primary industrial dispute at this time, if there be any industrial dispute as defined in Section 48-801 (8) as amended by L.B. 583, is a controversy "concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment." This is at least a three-cornered fight between the Plaintiffs in Case No. 21, the Plaintiff in Case No. 22, and the "Utilities Employee and Management Cooperative Council" and/or Defendant Metropolitan Utilities District. If there is any present industrial dispute concerning either a "refusal to discuss" or "terms, tenure or conditions of employment" as those terms are defined in the statute, it is currently very secondary to the real contest over who will represent the large number of MUD employees in dealing with the District. On the present evidence, it would be completely inappropriate to order bargaining in either Case No. 21 or Case No. 22 as a means of settling the real industrial dispute as to representation of any or all of the Defendant's employees. Neither Plaintiff in Case No. 21 or Case No. 22 has advanced any argument (or introduced any specific evidence) as to why it might be appropriate for the Court to exercise its discretion to compel bargaining; this, despite the Order of the Court entered January 17, 1968, that the Court be advised on these issues.

There have been a number of additional, important matters suggested during the present proceeding. But the most fundamentally clear and decisive conclusion is that regardless of anything else, ordering bargaining in these circumstances would be wholly inappropriate. Resolution of the other issues should await any subsequent proceedings in these or other cases.

II. PURPOSE OF THE PRESENT PROCEEDINGS

The present hearings were held for the single purpose of determining whether an order should be entered under Section 48-816 to compel bargaining. Paragraph III(B) of the Court's "Opinion In Support Of Order Overruling Demurrer" filed January 17, 1968, stated:

The next hearing will be an evidentiary hearing held for the purposes of obtaining ultimately a definition of the nature and extent of the alleged industrial dispute between the parties and of enabling the Court to determine now whether an order for the commencement of bargaining (or for any other appropriate preliminary relief) would facilitate that ultimate definition and further the ultimate settlement of the industrial dispute between the parties concerning terms, tenure and conditions of employment. In order to facilitate a consideration of these matters, counsel are directed to submit written briefs which must include, but need not be limited to the relevant legal authorities (including such legislative history concerning the enactment of L.B. 298 and L.B. 583 as may be relevant) and arguments on the following items:

(2) The specific itemized factors relevant to a determination that bargaining should be ordered and the specific itemized factors relevant to a determination that bargaining should not be ordered;

(3) the necessary or proper parties to such a determination with respect to bargaining;

(4) the conditions, rules, limitations, or supervision necessary or appropriate to carry out any such order with respect to bargaining;...(Page 17 of Opinion.)

The Orders entered January 17, 1968, in both Cases No. 21 and No. 22 provided:

3. That on or before February 5, 1968, counsel for each party shall mail to opposing counsel and to each Judge of the Court a copy of his brief which shall include the counsel's contentions, and the arguments and authorities in support of the matters contained in III (B) of the opinion filed this day in Case No. 21.

* * *

5. That on February 15, 1968, at 9:00 a.m. shall commence the trial or hearing of the issues made by the pleadings with respect to only the appropriateness in this action of ordering bargaining.

III. POSITIONS OF THE PLAINTIFFS

The positions of the Plaintiffs in these cases with respect to the authority of the Court to order bargaining is unclear. The Plaintiffs seem to assume that whenever an employer refuses to discuss employment matters with any employee representative, the Court can or should automatically enter an order compelling bargaining. No authorities or reasoning in support of this position have been presented by counsel. Unless it is axiomatic that an employer must discuss terms and conditions of employment with anyone claiming to represent its employees, we fail to see how the Court might in either of the pending cases grant Plaintiffs' requests for bargaining.

Neither Plaintiff complied with the Court's Order of January 17, 1968, set out above, to submit written briefs in advance of the hearing. It should also be noted that these same issues had been inquired into during the day-long arguments on Demurrers and other matters held on December 27, 1967. No oral argument in either case was directed to these aspects of Court-ordered bargaining during the present hearings. Post-hearing briefs were not called for in Case No. 22. In Case No. 21, Plaintiffs requested time to submit written briefs (184:3) and were given an opportunity to submit a brief and reply brief (187:2-10). The Plaintiffs' brief in Case No. 21 does not consider the appropriateness of ordering bargaining, and no reply brief was filed within the allotted time or prior to issuance of this Order.

IV. THE STATUTORY AUTHORITY

TO ORDER BARGAINING

Section 48-816, as amended by L.B. 298, is a permissive grant of discretion to the Court of Industrial Relations. It provides that the Court "may" order bargaining to be begun or resumed and "may" enter other appropriate orders to govern the situation pending bargaining:

* * * In the event of an industrial dispute between employer and employees of a privately-owned public utility or any public utility which is owned, managed, or operated by any political or governmental subdivision of the State of Nebraska, any public corporation, or any public power and irrigation district, when acting in a proprietary capacity as defined in section 48-801, where such employer and employees have failed or refused to bargain in good faith concerning the matters in dispute, the court may order such bargaining to be begun or resumed, as the case may be, and may make any such order or orders as may be appropriate to govern the situation pending such bargaining.

The word "may" intends discretionary rather than mandatory action. Section 49-802 provides:

Unless such construction would be inconsistent with the manifest intent of the Legislature, rules for construction of the statutes of Nebraska hereafter enacted shall be as follows:

(1) When the word may appears, permissive or discretionary action is presumed. When the word shall appears, mandatory or ministerial action is presumed.

This is precisely the interpretation given L.B. 298 by its leading proponents on the floor of the 1967 Legislature. Senator Donald Elrod, its primary introducer, stated in his initial description of the bill on February 13, 1967:

It only gives the Court the power and its own discretion to order a discussion and this does not say that they must bargain for minor issue. (Transcript of Floor Proceedings, p. 381).

The following day, Senator Marvel from Hastings made a specific inquiry of Senator Carstens, Chairman of the Judiciary Committee to which L.B. 298 has been referred:

Senator Marvel: as I read the law down here about line 25 [referring to line 25, Section 1, of L.B. 298 as originally introduced], it says the Court may order bargaining to be resumed, this is not necessarily mandatory in the Court even with this language.

Senator Carstens: This is decided on the merits of the case whether it is desirable or not. (Transcript of Floor Proceedings, p. 394.)

Later on February 14, 1967, Senator Elrod again repeated:

All L.B. 298 does is to give the Court o Industrial Relations the right in its discretion to order the discussions between the parties and create a settlement. That's all it does. (Transcript of Floor Proceedings, p. 397.)

And in explaining the bill after amendments had been made on March 7, 1967, Senator Elrod stated:

It does about the same thing as it originally set out to do and that was strictly to state that-only give the Court the power at its own discretion to, say order discussions. (Transcript of Floor Proceedings, pp. 737-8.)

The clearest present statement of the nature of the elements involved in exercising or refusing to exercise discretion under the last sentence of section 48-816 can be found in Judge McCown's description of the order reversed in the Hastings case:

The plaintiff's position, and apparently that of a majority of the members of the Court of Industrial Relations, is that the Court has jurisdiction and power to eliminate, define, and simplify controversies and thereby implement settlement of an industrial dispute. ... However desirable extrajudicial discussion between the parties or a Court encouraged voluntary settlement might seem in effectuating the statutes, the statutory grant of power does not extend to the order here. 179 Neb. at 460, 138 N.W.2d at 826.

The order reversed in the Hastings case had been entered as a preliminary proceeding for the policy reasons stated in that portion of the Supreme Court's opinion. The Committee Statement on L.B. 298 (February 1, 1967) by the 1967 Judiciary Committee of the Nebraska Legislature stated that the purpose of the bill was to supply the statutory grant found missing in the Hastings case:

The purpose of this bill is to extend the jurisdiction of the Court of Industrial Relations to governmental service in a proprietary capacity.

The Supreme Court in the Hastings case held that the Court of Industrial Relations was without power to order nonjudicial bargaining. If such authority currently exists, it would seem to lie exclusively in Section 48-816 as amended in 1967 by L.B. 298. Nothing else has occurred since the Hastings decision which might supply the substantive authority found lacking in that case. Judge McCown's statement in the Hastings opinion set out above accurately expresses the assumption upon which the Court of Industrial Relations acted in the Hastings case; and it would also appear to be the policy which the 1967 Nebraska Legislature was attempting to effectuate through L.B. 298.

What this reasoning clearly demonstrates is that the Court of Industrial Relations can order bargaining to effectuate the purposes of the statutes by implementing a settlement of an industrial dispute. Bargaining can implement settlement of an industrial dispute in two types of situations contemplated in Judge McCown's opinion:

(1) to eliminate, define and simplify controversies; or

(2) to encourage a voluntary settlement of an industrial dispute.

Perhaps there are additional circumstances in which ordering bargaining might effectuate the purposes of the statutes, but, if so, they have not been presented by counsel and would not appear to be involved in the two pending cases.

V. THE PENDING CONTROVERSIES

The pending controversies in both Case No. 21 and Case No. 22 currently involve primarily, if not exclusively, attempts by organized Unions to represent some or all of Defendant's employees in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment. While the 1967 Nebraska Legislature which enacted L.B. 298 and L.B. 583 was still in session, Plaintiffs in both Case No. 21 and Case No. 22 were beginning to contest for the opportunity of representing Defendant's employees.

Public Service Employees Council (PSEC), one of the Plaintiffs in Case No. 21, was organized by representatives of the other four plaintiff Unions in the afternoon of May 8, 1967. Agents of the other four plaintiff Unions adopted the PSEC Constitution and By-Laws and elected the officers of PSEC. The stated objectives and purposes of PSEC are to represent employees of political subdivisions of the State of Nebraska in dealing with their employers, to promote educational activities, to conduct research and statistical functions, to engage in public relations activities, and to secure favorable legislation. None of Defendant's employees was, in May, 1967, or is now, a member of any plaintiff organizations. PSEC held meetings with employees of Defendant the evening of May 8, 1967, and on May 24, and June 7, 1967, PSEC sent letters to Defendant on May 11, 1967, and August 7, 1967. The first letter informed Defendant that PSEC intended to have a series of meetings with Defendant's employees. The second letter requested a meeting between PSEC and Defendant's management to discuss an increase in wages and terms and conditions of employment for Defendant's employees whom PSEC claimed to represent.

There was testimony that as many as 160 of Defendant's employees attended at least one of the meetings held by PSEC. Fewer than 20 employees have paid any dues to PSEC and no employee has paid more than one month's dues. Seventy-five of Defendant's employees signed cards entitled "Application for Membership and Authorization." These cards state that the signer applies for membership in one of General Drivers and Helpers Local Union No. 554, Public Service Employees Local No. 1052 or International Union of Operating Engineers, Local No. 571 and authorizes such Union to act as the signer's representative. The cards contain a blank to be filled in later, by which the employee would be assigned to one of the three unions on the basis of the employee's work duties. Since none of the Defendant's employees were scheduled for membership in Operating Engineers Local Union No. 38, Defendant moved to dismiss Case No. 21 as to that Plaintiff.

The actual membership in any of the plaintiff organizations will be completed only if PSEC can somehow secure "bargaining rights." Other than matters relating to the maintenance of this litigation, PSEC has not been active. Between May 8, 1967, and August 17, 1967, the Plaintiffs (other than Local No. 38) secured approximately 122 signatures on documents entitled "Authorization" which relate to filing suit in this Court to compel Defendant to provide better wages, hours and conditions of employment.

The United Association (UA), Plaintiff in Case No. 22, is an international labor union which will issue a local charter for a union if it can represent employees of the Defendant in bargaining with the District. On June 29, 1967, UA requested an opportunity to represent hourly employees in bargaining with the District, although on that date it could actually claim to have had the authorization of only a few employees. Since June, 1967, 143 employees of the Defendant have signed an application for membership in the United Association, but there will be a local union established for them only if such a local union can bargain with the Defendant on their behalf.

At least 56 of Defendant's employees have at one time or another signed applications for membership with the Plaintiffs in both Case No. 21 and Case No. 22. There has been no bargaining by either the Plaintiffs in Case No. 21 or the Plaintiff in Case No. 22 with the Defendant concerning terms, tenure or conditions of employment. Defendant's Board of Directors formally rejected are quest of PSEC to discuss these matters on September 20, 1967. We do not determine in the present proceedings whether there has in fact been a "refusal to discuss terms or conditions of employment" as that language appears in Section 48-801(8), as amended by L.B. 583.

The 1967 legislation became effective on October 23, 1967, and both cases were filed in this Court shortly thereafter. UA made an additional request on December 2, 1967, which was declined by the Defendant because of the pendency of this litigation.

The Defendant has continued to recognize the "Utilities Employee and Management Co-operative Council" as the spokesman for all of its employees. An election of representatives to the Co-operative Council was held in February 1968, at which most of the District's employees voted, including most of the employees signing applications for membership in PSEC or UA, and in which some of the signers of applications for membership in PSEC or UA ran for office. All of Defendant's employees are automatically members of the Co-operative Council when they begin their employment with the Defendant. The Co-operative Council is not a party in either Case No. 21 or Case No. 22.

The work force of Defendant consists of approximately 900 employees. Of these, approximately 540 to 600 are "hourly employees" whose representation UA is seeking. More than 200 of the "hourly employees" are employed in the Construction and Transportation Divisions, the group PSEC is seeking to represent. The specific nature of any requests by either PSEC or UA, or by the employees, themselves, relating to terms, tenure or conditions of employment does not appear in the evidence in either case. There is no evidence that either PSEC or UA is presently or continuously active as a labor union except to pursue this litigation. The evidence establishes that the organization of PSEC or UA will be perfected only if and when PSEC or UA is successful in securing a bargaining opportunity.

It is impossible to view the records in these cases as involving more at the present time than an attempt by competing unions to organize Defendant's employees. The rules of evidence applicable to civil cases in Nebraska are applied by this Court under Section 48-809. Section 48-817 authorizes this Court to take judicial notice of matters of which a district court might take judicial notice. The Court must take judicial notice in each case of the pendency of the other case. In addition, the Court can properly note the assertion of conflicting claims in the other case and note uncontroverted facts contained in the record of the other case where the litigation is intertwined as in the present circumstances. The facts set out in these Findings fall within the proper rules of judicial notice. See Hubbard v. Loewenstein, 181 Neb. 96, 147 N.W.2d 164 (1966); NEBRASKA BAR EVIDENCE HANDBOOK, pages 3-4 and 3-5 and cases cited therein; 31 CJS, Evidence § 50(3), pages 1028 to 1038 (and the cumulative pocket part).

VI. THE RULINGS

These circumstances do not warrant an order to compel the Defendant to bargain with either PSEC or UA. Such an order could not eliminate, define or simplify the controversies-at least insofar as anyone other than that particular plaintiff is concerned-and it would not encourage a voluntary settlement of an industrial dispute. At this time, in this proceeding, we determine no more than that (1) section 48-816 does not mandatorily require the Court to order bargaining and (2) the evidence does not warrant an exercise of the Court's discretion. These were the matters ordered for consideration in the present hearings. All of the Judges agree that as a matter of relief under Section 48-816, Plaintiffs' requests for an order compelling bargaining should be denied.

Because the orders giving notice of the present proceedings were limited to the appropriateness of ordering bargaining, these being the first cases filed in this Court attempting to invoke the 1967 statutory amendments relating to bargaining, and all Judges agree that bargaining should not be ordered in either case, Judges Gradwohl and Dolan would overrule Defendant's pending motions to dismiss at this time. This ruling is without prejudice to any other pleading or motion by which Defendant has raised or may raise the same issues. The Court has previously interpreted the Plaintiffs' petitions, when tested by Defendant's Demurrers, to allege additional matters of industrial dispute and pray for relief settling all industrial disputes. For that reason, the present Order cannot be considered as a final order in either Case. Overruling Defendant's motions to dismiss at this time is for the reason that, in the present circumstances, they are not properly within the limited nature of the proceedings to determine the appropriateness of ordering bargaining. Presiding Judge Baylor would sustain Defendant's motions to dismiss for the reasons stated in his separate opinion.

ORDERS

NOW THEREFORE IT IS ORDERED, ADJUDGED, AND DECREED in Public Service Employees Council et al., Plaintiffs, v. Metropolitan Utilities District, Defendant, Case No. 21, that:

1. The prayer of the Plaintiffs that the Court order the Defendant to discuss terms and conditions of employment for employees represented by the Plaintiffs be, and hereby is, denied;

2. The motions of Defendant to dismiss the action with reference to the plaintiff International Union of Operating Engineers Local No. 38 (179:20 and 183:19) be, and hereby are, overruled;

3. The motions of Defendant to dismiss the action with respect to each and every plaintiff (181:11 and 183:19) be, and hereby are, overruled; and

4. This order is not a final order in this Case except with respect to the appropriateness of ordering bargaining.

NOW THEREFORE IT IS ORDERED, ADJUDGED, AND DECREED in United Association of Journeymen etc., Plaintiff, v. Metropolitan Utilities District, Defendant, Case No. 22, that:

1. The prayer of the Plaintiff that the Court enter an order directing Defendant to negotiate and bargain, in good faith, with Plaintiff be, and hereby is, denied;

2. The motions of Defendant to dismiss the action of the Plaintiff (Vol. II, 159:9 and 160:2) be, and hereby are, overruled;and

3. This order is not a final order in this Case except with respect to the appropriateness of ordering bargaining.

Entered this 13th day of May, 1968.

CONCURRING OPINION

BAYLOR, P.J.

I concur in the result and in the findings of fact and conclusions of law. I would go one step farther by holding that those same findings require the legal conclusion that the Court has no jurisdiction because the plaintiffs do not fulfill the statutory requirements of a labor organization entitled to petition for settlement of the controversies concerning representation of this defendant's employees and concerning this defendant's refusal, if any, to discuss. In my opinion it is the employees on whose behalf relief is petitioned of whom the statute requires participation in the labor organization before that organization is entitled to file a petition invoking the jurisdiction of this Court. Here the evidence shows affirmatively and conclusively that none of MUD's employees has participated sufficiently in any plaintiff.

Retaining this case on the docket for any purpose constitutes an implied holding by this Court that any labor organization in which employees of employer Y participate can bring employer X into this Court regardless of the latter's employees' participation in the plaintiff. I think the legislature did not intend that result.

The language of the statute 48-801 (7) as amended is, "Labor organization shall mean any organization...in which employees participate and which exists for the purpose...of dealing with employers concerning grievances...." It is difficult to conceive of an organization with that purpose but yet one in which each and every participant is either self-or un-employed. Since the latter type of organization is completely or practically non-existent, the legislative requirement of employee participation is practically meaningless or ineffective, for every organization could fill the requirement if the word "employees" were not limited to "employees of the defendant." Moreover, an organization one hundred percent controlled, managed, and directed by its own full-time employees or by management employees of the employer would qualify. Avoidance of the latter result in my opinion is the principal purpose of the legislature's limiting an employee organization's right to file petition in this Court to organizations in which employees participate.

I note that in Case No. 22 the defendant's answer admits generally the allegation of paragraph II of the petition as follows:

That plaintiff is a Labor Union within the meaning of Section 48-801, sub-paragraph 7, of Revised Statutes of Nebraska, 1943, as amended by L.B. 583 of the Seventy-seventh Session of the Nebraska Legislature.

The defendant, however, did not admit that the plaintiff was the kind of labor organization which under Section 48-811 "may file a petition with the Court of Industrial Relations invoking its jurisdiction" with respect to "any industrial dispute...between parties as set forth in section 48-810" which refers to "all industrial disputes involving governmental service in a proprietary capacity." Thus I infer that the defendant admits the required purpose of the plaintiff and the participation of other employers' employees in the United Association of Journeymen...of the Plumbing...Industry of the U.S. and Canada, but does not admit the capacity of the UAJ to bring this action against the defendant. Nevertheless, jurisdiction of this Court may not be stipulated when in fact it does not exist.

OPINION AS TO GENERAL

CONSTITUTIONALITY OF COURT

OF INDUSTRIAL RELATIONS STATUTES

May 13, 1968

Gradwohl, J.

Defendant has attacked the underlying constitutionality of Chapter 48, Article 8, in both cases. Since any exercise of jurisdiction by this Court is premised on an assumption that the Court of Industrial Relations has been constitutionally established by the Legislature, we set out in this Opinion the very clear constitutional basis upon which the Legislature has created this Court.

Paragraph VII of Defendant's Amended Answer in Case No. 21 and Paragraph VIII of its Amended Answer in Case No. 22 state:

Defendant further alleges that Chapter 48, Article VIII, R.R.S. 1943, is illegal, unconstitutional and void for the following reasons:

1. That said chapter purports to create a Court with judicial powers under authority of Article XV, Section 9, of the Nebraska Constitution, which provides only for the creation of an administrative agency, namely, "industrial commission", and is therefore in violation of Article XV, Section 9, and Article V, Section I, of the Nebraska Constitution.

2. That said chapter violates Article II, Section 1, of the Nebraska Constitution, relating to separation of powers.

3. That said chapter is an unlawful delegation of legislative authority or power, in violation of Article II, Section 1, and Article III, Section 1, of the Nebraska Constitution.

4. That said chapter is vague, uncertain and lacks adequate standards, in violation of Article I, Section 3, Article II, Section 1, and Article III, Section 1, of the Nebraska Constitution.

Section 48-803, R.R.S. 1943, provides:

In order to carry out the public policy of the State of Nebraska as set forth in section 48-802, there is hereby created an industrial commission to be known as the court of Industrial Relations.

Section 48-802 states:

To make operative the provisions of section 9, Article XV, of the Constitution of Nebraska, the public policy of the State of Nebraska is hereby declared to be as follows:

(1) The continuous, uninterrupted and proper functioning and operation of the governmental service including governmental service in a proprietary capacity and of public utilities engaged in the business of furnishing transportation for hire, telephone service, telegraph service, electric light, heat or power service, gas for heating or illuminating, whether natural or artificial, or water service, or any one or more of them, to the people of Nebraska are hereby declared to be essential to their welfare, health and safety. It is contrary to the public policy of the state to permit any substantial impairment or suspension of the operation of governmental service, including governmental service in a proprietary capacity or any such utility by reason of industrial disputes therein. It is the duty of the State of Nebraska to exercise all available means and every power at its command to prevent the same so as to protect its citizens from any dangers, perils, calamities, or catastrophes which would result therefrom. It is therefore further declared that governmental service including governmental service in a proprietary capacity and the service of such public utilities are clothed with a vital public interest and to protect same it is necessary that the relations between the employers and employees in such industries be regulated by the State of Nebraska to the extent and in the manner hereinafter provided;

(2) No right shall exist in any natural or corporate person or group of persons to hinder, delay, limit, or suspend the continuity or efficiency of any governmental service or governmental service in a proprietary capacity of this State, either by strike, lockout, or other means; and

(3) No right shall exist in any natural or corporate person or group of persons to hinder, delay, limit, or suspend the continuity or efficiency of any public utility service, either by strike, lockout, or other means.

Article XV, Section 9, of the Nebraska Constitution, added by the Constitutional Convention in 1920, provides:

Laws may be enacted providing for the investigation, submission and determination of controversies between employers and employees in any business or vocation affected with a public interest, and for the prevention of unfair business practices and unconscionable gains in any business or vocation affecting the public welfare. An Industrial Commission may be created for the purpose of administering such laws, and appeals shall lie to the Supreme Court from the final orders and judgments of such Commission.

Article V, Section I, of the Nebraska Constitution provides:

The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted (Emphasis added.)

As shown more fully below, Article XV, Section 9, is an express exception to Article II, Section 1.

Article III, Section 1, of the Nebraska Constitution vests legislative authority in the Legislature and Article I, Section 3, is the Due Process Clause of the Nebraska Constitution.

From an examination of the proceedings of the 1920 Constitutional Convention, it is clear that the legislative implementation of Article XV, Section 9, was strictly in accord with both the letter and intention of the Constitution and its architects. Substantially all of the work on the Judicial Article had been completed before Proposal No. 333 which became Article XV, Section 9, was presented on the floor of the Convention. The Convention had altered the Judicial Article to allow the Legislature to create courts inferior to the Supreme Court. The Committee on Industrial Conditions reported a substitute proposal for the four proposals originally introduced at the Convention. The substitute proposal was considered on the floor of the Convention, and then ordered back to a joint committee of the Industrial Conditions Committee and the Miscellaneous Subjects Committee for combination with the trade regulation proposal. Proposal No. 333 was the product of the joint committee.

In the meantime, the Convention had given considerable attention to current industrial matters. C. Petrus Peterson, the principal proponent of an industrial court provision, had been sent to Kansas to view the newly created Kansas Industrial Court. Governor Allen of Kansas was invited to address the Nebraska Constitutional Convention on the subject of an industrial court. By the time the proposal for an industrial court was adopted by the Convention, it had become one of the most thoroughly considered proposals of the Constitutional Convention.

In submitting Proposal 333, the Report of the Joint Committee of The Committees on Miscellaneous Subjects and Industrial Conditions stated:

It is our judgment that a tribunal in the form of a commission with combined administrative, legislative and judicial powers, is the proper governmental agency to be entrusted with the powers and duties to be granted, and prescribed, the judicial power to extend to making findings and orders, leaving measures of enforcement by penalties or summary process with the judicial department of the state government. (2 Proceedings of the Constitutional Convention 1910-1011.)

Mr. Peterson outlined the purpose of the proposal as follows:

The real reason, gentlemen, for this entire proposition, is to establish a tribunal. Outside of that, these questions should be left to the Legislature, as has been suggested, but you cannot, by legislative act, establish a tribunal with these joint powers. That is the reason for the proposal. (Id. at 1975)

A co-chairman of the joint committee, Mr. Epperson, explained the proposal:

Mr. Chairman, it was the view of this Committee that at this time we should simply submit a proposal which would delegate the power to the legislature to confer the power upon the Commission to be created and leave it to the legislature to work out this matter as future developments may require. We found, by consulting the authorities, that while the legislature has power to delegate legislative authority, or legislative power to a commission, that it has no power to delegate judicial power. We thought that it was necessary in order for this commission to perform the duties required of it that this commission should have administrative, judicial and legislative power, so it was the thought of the Committee that in presenting this proposal that we should merely make provision so that the power would be delegated and then let the legislature work out the details by future acts. (Id. at 1937.)

Later, in answer to a question whether the Legislature would have power to create an industrial court under the Judiciary Article, Mr. Epperson replied:

It was the view of the Committee in considering that matter that the Legislature, under that proposed provision of the new article on judiciary, might not create a power [commission] having judicial power. It was also the opinion of the Committee that these men, in order to do the things it was desired for them to do must have judicial, legislative and executive or administrative powers. The courts have held that the legislature could not delegate judicial power to a Commission, and for that reason some provision of this character is necessary, in the estimation of the Committee, to perform the duties required of them. (Id. at 1940.)

Other proponents of the proposal diligently defended it as giving the legislature power to act. Mr. Flansburg stated:

The proposal will permit the legislature to work out an Industrial Relations Court with whatever power that it gives, but there is a right of appeal provided to the Supreme Court. And you might just as well assume that any court that is created will be unfair and a hardship on someone. Courts are not created for that purpose, nor will the Legislature, in my opinion, undertake to work out any hardship. This proposal simply gives to the legislature the authority to create the court. What has been the results where the courts have been created? Disputes have decreased, arbitrations have increased, wages have been raised and conditions of employees have been bettered, as to safety appliances for machinery, and health protection.

...While an Industrial Court or a Court of Industrial Relations could be created under the judiciary act, that court would have only judicial powers; but this board, which this Miscellaneous Committee has reported in favor of, a commission, if you please, will be endowed with legislative, executive and judicial power. That is why I favored it. You cannot do anything until the Legislature acts,-but it gives the Legislature the power. (Id. at 1949.)

The nature of the Legislature's power and discretion was also touched upon by others. Mr. Ferneau stated:

There is great industrial unrest and great industrial problems in this country, perhaps not so much in this state, but some in this state need solution. We need something, in this state, in my opinion, that will give the legislature power to create an industrial commission or a court, and I am not particular about the name you call it, but with powers sufficient to solve some of these problems as they should be solved.

...That tribunal, whatever you may call it, in order to be effective, in my opinion, must not necessarily have judicial, administrative or executive and legislative powers combined in one tribunal in order to be an effective tribunal. Under the Judicial Department proposal they can create courts inferior to the Supreme Court, but they could only have judicial powers. The legislature of course could delegate to a commission legislative powers, but it cannot delegate to them all these powers unless we give the legislature that authority.

...I take this position, gentlemen of the Convention, and there may be some doubt as it is now, as to whether the Legislature has power to create an industrial commission, or an industrial court with the powers that it should have, and I say that we should make it certain by placing in the Constitution something giving the legislature that powers. (Id. at 1977-1978.)

The opponents of the proposal recognized that the Constitution would authorize a body with mixed powers and fought against it on this basis. Mr. Votava, for one, urged this strongly:

I am opposed to this proposal and to any proposal in substance such as this, and I want to give my reasons why. I want to call your attention to the one thing in this proposal that I do not think any of the advocates of this proposition will deny. Insofar as enterprises affected with a public interest are concerned, the Legislature may pass rules regulating them. They will not deny that we may set up courts which will determine whether these rules were violated or not, or we may submit these matters to our regular district courts or courts of general jurisdiction. Neither will they deny that if these rules, laws or regulations, which the legislature may pass, are violated, that the executive power of this state may compel obedience to those rules. So then, gentlemen, it is not a question of determining whether these laws, rules or regulations were violated or a question of enforcing these rules. It is simply whether we want to create a body with combined legislative, judicial and executive powers. What is the theory upon which our government is founded? It is upon the theory of a divided form of government. We want one body which passes the laws, which determines what kind of rules shall govern our conduct. Then we have a separate distinct body which determines whether these rules were violated by certain people, and then we have a third distinct branch or separate body to enforce and execute these judgments of the court. We are opposed in our private lives to have a court which determines what acts shall constitute a crime. We are opposed to have that very same court determine whether a man is guilty of that crime and we are opposed to have that very same court be the executioner. Do we want to have a commission which will be the legislature, the court and the executioner of labor or capital? Do we want to do it in this Constitution? I do not think we want to give the legislature power which will permit creation of such a commission. That is the fundamental question at stake in this proposal, and I am opposed to it and I do not think that the Convention will be in favor of the creation of a commission with such powers. (Id. at 1981.)

Mr. Bryant also opposed the proposal for this reason. Id. at 1956-1958. He questioned Mr. TePoel, an Omaha attorney, as follows:

MR. BRYANT: I remember, you were on the Judicial Committee.

MR. TE POEL: I was.

MR. BRYANT: How far, in your judgement, could the Legislature go under the provision of that proposal for establishing courts along this line?

MR. TE POEL: My thought on that question is that provision in Proposal No. 313, known as the proposal of the Committee on Judicial Department, authorizes the creation of strictly judicial tribunals inferior to the Supreme Court. This I regard as not a strictly judicial tribunal, but a tribunal which might exercise powers other than those strictly judicial and might go out and, on its own initiative, investigate and ascertain facts by observation or otherwise in addition to the evidence submitted. In other words, this tribunal would exercise administrative powers in addition to the judicial powers, and insofar as at the determination of a case it might enter a finding as to what was a fair wage for employees engaged in the public service, or a public service affected with the public interest, when they fixed that wage they would in a sense be exercising legislative power; and this tribunal would exercise some executive, judicial, administrative and quasi judicial powers.

MR. BRYANT: This is a quasi judicial?

MR. TE POEL: Yes, sir, some of the powers of the government, using that term in the sense in which you use it. Legislative, executive and judicial. (Id. at 1967.)

Similarly, other attorneys advised the Convention:

MR. BIGELOW:....It has been said, and I think correctly, both by the gentleman from Lancaster County, Mr. Peterson, and by the gentleman from Douglas County, Mr. TePoel, that really the only necessity for the constitutional provision is to pave the way for a tribunal with mixed powers. There is nothing else in this proposal which could not be provided for under the general legislative powers of the legislature. (Id. at 1967.)

MR. ABBOTT:...In the first place, gentlemen, if you want to do anything of this kind it must be done in the Constitution. It cannot be left to the Legislature. Section 1 of Article II of our Constitution says: [reads section]....

With that language in mind, turn to the language of the judicial department where it says: "Other courts, inferior to the Supreme Court, may be established." You then have a Judicial Department with such judicial powers establishing certain courts inferior to the Supreme Court, and by implication having only judicial powers. With all due respect to Governor Allen, of Kansas, if his Industrial Court in that state has no foundation except a provision similar to that in our Constitution, it will fall when attacked in the proper tribunal in the proper way, so that if we are to have this kind of a tribunal we must provide for it. (Id. at 2001.)

There were a number of additional statements to the same effect during the consideration of Proposal 333 as well as during the floor consideration of the earlier proposals. There was a clear understanding of the interrelationship of the various constitutional provisions and the purpose and effect of Proposal 333. The Legislature was free to create a tribunal by whatever name designated-"commission" or "court" or, as was stated in section 48-803, "an industrial commission to be known as the Court of Industrial Relations." It is equally clear that Article XV, Section 9, is not limited by the normal Nebraska constitutional restrictions with respect to separation of powers and delegation of authority. The Nebraska Supreme Court decisions relied upon by the Defendant, such as the Grade-A milk case and the recent "compulsory" sterilization case, are distinguishable at the outset on the basis that they did not involve such an independent constitutional grant of authority.

This same reasoning would seem to apply to Defendant's attack on the basis of unconstitutional vagueness and uncertainty. The standards applicable to the present proceeding are considered and applied in the separate Findings and Orders With Respect to Ordering Bargaining entered this date. In addition, see State ex rel. Western Reference & Bond Ass'n v. Kinney, 138 Neb. 574, 293 N.W. 393 (1940), reversed on other grounds, 313 U.S. 236 (1941).

Filed this 13th day of May, 1968.

(On May 24, 1968, the plaintiffs in Case No. 21 filed a motion for new trial, which was overruled by the Court by order entered June 21, 1968. The case was set for trial, but on September 6, 1968, the parties filed a stipulation for dismissal, for the reason that the employees represented by the plaintiffs had revoked their authorizations to the plaintiffs to represent them. Case No. 21 was accordingly dismissed without prejudice by order of the court entered September 9, 1968.

(On May 23, 1968, the plaintiff in Case No. 22 filed a notice of intent to appeal, which appeal was dismissed by the Nebraska Supreme Court October 8, 1968, upon the motion of appellant. docketed No. 37045.)

_______________________________

PUBLIC SERVICE EMPLOYEES	\|	CASE NO. 21
COUNCIL; GENERAL DRIVERS	\|
UNION LOCAL NO. 554;	\|
PUBLIC SERVICE EMPLOYEES	\|
LOCAL NO. 1052; INTERNATIONAL	\|
UNION OF OPERATING ENGINEERS	\|
LOCAL NO. 571; and INTERNATIONAL	\|
UNION OF OPERATING ENGINEERS LOCAL	\|
NO. 38,	\|
	\|
Plaintiffs,	\|
	\|
v.	\|
	\|
METROPOLITAN UTILITIES	\|
DISTRICT OF OMAHA,	\|
	\|
Defendant.	\|
	\|
UNITED ASSOCIATION OF	\|	CASE NO. 22
JOURNEYMEN AND APPRENTICES	\|
OF THE PLUMBING AND PIPE-FITTING	\|
INDUSTRY OF THE UNITED STATES	\|
AND CANADA,	\|
	\|
Plaintiff,	\|
	\|
v.	\|	APPEAL TO NEBRASKA SUPREME
	\|	COURT DISMISSED, OCTOBER 8,
METROPOLITAN UTILITIES	\|	1968, DOCKET NO. 37045.
DISTRICT OF OMAHA, DOUGLAS	\|
COUNTY, NEBRASKA,	\|
	\|
Defendant.	\|