1 CIR 28 (1970)



In the Matter of: | CASE NO. 28
Employer, |
AFL-CIO, Local 1525, | DOCKET
Petitioner. |


September 16, 1970


On August 25th the Board of Public Works of North Platte and the IBEW filed a joint "Motion to Authorize Election Notice Forms, Election Ballot Forms, and to Appoint an Agent to Conduct an Election," of which the prayer is:

"WHEREFORE, the parties in this matter respectfully urge this Court to promptly notify the parties if there is any reason why the attached notice of election forms may not be used to inform the employees of the upcoming election, and of any reason why the attached secret ballot forms may not be used in the secret ballot election on September 22, 1970. In addition, the parties in this matter respectfully urge this Court to designate an official agent to aid and assist the parties in the supervision of the September 22, 1970, election and in the official tallying of ballots from that election."

It seems to us probable that if the legislature has authorized the Court of Industrial Relations to proceed as "urged" by the joint motion of the parties, then such legislative action is constitutional. The Constitution of the State of Nebraska, Article V, Sec. 1, and Article XV, Sec. 9; City of Mitchell vs. Western Public Service Co., 124 Neb. 248, 246 NW484; State vs. McHugh, 120 Neb. 356, 233 NW 1; State vs. Turner, 141 Neb. 556, 4 NW 2d 302; Compare Horbach vs. Tyrrell, 48 Neb. 514, 67 NW 485; and May vs. City of Kearney, 145 Neb. 475, 17 NW 2d 448.

In IBEW vs. City of Hastings, 179 Neb. 455, 138 NW 2d 822,(1965), the court held that, "in the absence of express statutory authority,...the Court of Industrial Relations has no power to compel...government...to bargain or negotiate with a labor union...and (no) power to require the parties, by 'communication' in good faith, to eliminate or define their controversies....However desirable...a court encouraged voluntary settlement might seem in effectuating the policies of the statutes, the statutory grant of power does not extend to the order here." Of course subsequently the Legislature did give express statutory authority to compel bargaining and to encourage voluntary settlements. But it appears to us that the Supreme Court has directed us pretty clearly to examine the statutes strictly to determine whether we have been granted by the legislature the power to act as the parties now in this different setting urge us to do.

Sec. 48-801 R.R.S. Neb. 1943 as amended by Laws 1969, c. 407 §1, effective December 25, 1969: "(7) Industrial disputes shall include any controversy...concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment..."

Sec. 48-810 "All industrial disputes involving governmental service, service of a public utility, or other disputes as the Legislature may provide shall be settled by invoking the jurisdiction of the Court of Industrial Relations;..."

Sec. 48-811 "Any employer, employee, or labor organization, or the Attorney General of Nebraska on his own initiative or by order of the Governor, when any industrial dispute exists between parties as set forth in Sec. 48-810, may file a petition with the court of Industrial Relations invoking its jurisdiction..."

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

Sec. 48-814 "The Court of Industrial Relations may employ such expert accountants, engineers, stenographers, attorneys, and other employees as the court finds necessary. Officers and employees of the Court, whose salaries are not fixed by law, shall be paid such compensation as may be fixed by the court with the approval of the Governor..."

Sec. 48-815 "The Court...shall have the power and authority...to make any and all investigations necessary to ascertain the truth in regard to the matters before the court."

Sec. 48-816 before December 25, 1969, provided for certain actions that the court must take upon the filing of a petition and other actions which the court in its discretion might take; these provisions of 48-816, with exception not here relevant, are still in effect, but 48-816 by virtue of the 1969 amendment contains subsequent paragraphs (unnumbered by the Revisor of Statutes but numbered by us) as follows:

2. "Before an industrial dispute with respect to representation is recognized as such, the parties may mutually agree to a secret ballot procedure to determine questions of representation for purposes of collective bargaining, for and on behalf of employees. The Court of Industrial Relations shall be immediately informed of the results, and the Court shall inform the parties that the employees have designated a bargaining agent, and so shall certify the proper bargaining agent.

4. "...Where an employee organization has been certified...pursuant to the provisions of this act, the appropriate public employer shall be and is hereby authorized to negotiate collectively with such employee organization in the settlement of grievances...and to negotiate and enter into written agreements with such an employee organization...

5. "The court shall have the authority (1) to make studies and analyses of...conditions of employment of public employees...; (2) to request from any government, and such governments are authorized to provide, such assistance, services and data as will enable the board properly to carry out its function and powers; (3) to conduct studies of problems...; (4) to make available...(to government employers and employee units) statistical data...to assist them to resolve complex issues in negotiation; and (5) to establish...panels of qualified persons...available to serve as mediators or members of fact-finding boards.

Sec. 48-817 "After the hearing and investigation the Court shall make its findings and enter its order or orders in writing, which decision and order or orders shall be entered of record...in the making of any findings or orders in connection with any such industrial dispute, the court shall give no consideration to any evidence or information which it may obtain or receive, except matters of which the district court might take judicial notice, unless such evidence or information is made a part of the record in said hearing and opportunity is given, after reasonable notice to all parties to the controversy, to rebut such evidence or information either by cross-examination or testimony.

Sec. 48-837 R.S. Supp. 1969 "Public employees shall have the right to form, join and participate in, or to refrain from forming, joining or participating in, any employee organization of their own choosing."

Sec. 48-819 "Orders, temporary or final, entered by the Court of Industrial Relations shall be binding on all parties involved therein and shall be deemed to be of the same force and effect as like orders entered by a district court and shall be enforceable in appropriate proceedings in the courts of this state."

It is noted that the 1969 legislature repealed Section 48-820 which provided for submission of "any industrial dispute not within the jurisdiction of the Court of Industrial Relations...by mutual agreement in writing...to the Court of Industrial Relations for arbitration."

Here there is no allegation of controversy, and by writing submitted September 1, 1970, the City alone expressly disclaims the existence at this time of an industrial dispute. To date at least the parties are in agreement. Accordingly there is no industrial dispute of which the court has jurisdiction under 48-810 and no petition filed under 48-811. Careful reading of the 5th paragraph of 48-816 as amended by LB 15 indicates to us that the actions which the parties here urge us to take do not come within any of the five numbered grants of authority there extended to the court. It seems to us that it would be an exercise in semantics such as that condemned by the Supreme Court in the Hastings case if we were to call these actions requested of us (1) a study or analysis of conditions of employment, (2) a request of any government for assistance, services, or data "as will enable the board (sic) properly to carry out its functions and powers," (3) a study of problems, (4) the making available of statistical data, or (5) the establishment of panels of qualified persons to serve as mediators.

By argument presented to the court in writing September 1, 1970, the attorneys of the City of North Platte state:

"the motion filed by the employer in the instant case does not concern an industrial dispute, but rather is filed pursuant to the following portion of LB 15:

'Before an industrial dispute with respect to representation is recognized as such, the parties may mutually agree to a secret ballot procedure to determine questions of representation for purposes of collective bargaining, for and on behalf of employees.

The Court of Industrial Relations shall be immediately informed of the results, and the court shall inform the parties that the employees have designated a bargaining agent, and so shall certify the proper bargaining agent.' See Sec. 48-816 Neb. Rev. Stat. Reported at 1 Neb. Size. Laws 1405, 1408-1409 (Ch. 407, §5 1969)."

The so-called 'motion" "urges" the court to do two things: (a) approve the ballots, notice, and other election procedures, and (b) to appoint a supervisor of election.

It seems to us that under the last-quoted portion of LB 15, the court has no duty, power, or authority to do anything until it is informed of results of an election. The city's argument as we construe it is that the setting by the court of formal rules of election and ballot procedures will be helpful to governmental units and employees thereof in this and future cases thus avoiding the arising of an industrial dispute or controversy. It seems to us that the legislature quite reasonably might have provided such authority to make state-wide rules which the parties could easily follow, but that the legislature did not do so, preferring to leave each and every detail of the balloting "procedure" free for resolution by mutual agreement of the parties, so that such procedures could vary from place to place and time to time as the parties would mutually agree was most expedient and convenient for them. Only when a detail could not be agreed upon would a controversy or industrial dispute arise. Compare Case No. 24, City of Grand Island vs. IBEW et al.

With respect to the appointment of a supervisor of the election the city's attorney's argument is:

"The National Labor Relations Board has been embroiled in constant and continuing controversy and litigation over the years in the certification of the results of elections that have been carefully supervised...It is still reasonable to assume that unsupervised elections provide more opportunity for irregularity and potential litigation that those elections that are supervised. Thus, as a general rule, it would certainly appear to be more desirable to have elections conducted pursuant to LB 15 supervised by an agent of the Court of Industrial Relations."

True, 48-814 authorizes us to "employ such expert ...other employees as the court finds necessary...(and to fix their compensation) with the approval of the Governor." But 48-817 requires findings to be made after hearing and investigation, and here we have nothing, not even allegations of pleadings, or of information communications, upon which to base the finding of necessity required by 48-814. True 48-815 gives us power and authority "to make any and all investigations necessary to ascertain the truth in regard to the matters before the court," but as explained above, under the last-quoted portion of LB 15, i.e. the second paragraph of 48-816 R.S. Supp. 1969, there is no "matter before the court" until the court will have been informed of the results of the election, and there is nothing before the court under other sections of the Court of Industrial Relations Act until an industrial dispute or controversy shall have been pleaded by petition.

We do not reach either under 48-814 the question as to what allegations or investigation will support a finding of necessity for the court's employment of an expert to supervise an election or, under 48-815 and all the provisions of the Act other than the 2nd and 5th paragraphs of 48-816 R.S. Supp. 1969 the question as to whether detailed allegations in a petition of elements of a controversy concerning the association and representation of persons of such significance that an election (even though procedures therefor were agreed to) would be necessary or desirable to resolve it would constitute an industrial dispute. See the two opinions of this court in IBEW v. Hastings, Case No. 18 as to the pleading of an industrial dispute.

In summary we reach our decision not only through our interpretation of the Supreme Court of Nebraska's opinion in IBEW vs. Hastings, supra, as to how statutory grants of power should be construed and applied, but also through the conviction that the legislative system of leaving balloting procedure to the imagination and convenience of the parties by agreement rather than strait-jacketing every single case into a uniform rule should be given a chance to work. Already said system has worked apparently perfectly as was disclosed by the record in Firefighters vs. Fremont, Case No. 25, and consistently with the foregoing analysis in IBEW vs. Grand Island, Case No. 24.

Accordingly the clerk of this court is instructed to dismiss case No. 28 from the Docket of Industrial Disputes, and to file the motion and written argument of September 1, 1970, and a copy of this opinion as folder numbered 1 in a new docket to be called the Certification and Recognition Docket. The original of this opinion and order shall be the sole remaining filing in the folder numbered 28 in the Docket of Industrial Disputes.

By way of dictum or any extra-judicial duty we may have by virtue of 48-823 to effectuate the public policy enunciated in section 48-802, we make the following observations. We have examined the forms attached to the pleading filed August 25th setting forth the form of notice of election and the form of ballot and find therein no plain error not argued by the parties. Furthermore there does not appear to us any reason why the parties, by mutual agreement, may not obtain the services of an observer, umpire, or preserver of the record in the election or why, since each person who holds appointment as a judge of this court serves only part time in such office, one of such persons, again by mutual agreement, could not in his private capacity serve as such umpire and observer. Compare the discussion in Horbach vs. Tyrrell, 48 Neb. 514, 67 NW 485, with respect to a district judge's serving as a notary public. Furthermore, it appears to us that if the parties desire to continue to proceed in accordance only with the last-quoted paragraph of LB 15, then the form by which "the Court of Industrial Relations shall be immediately informed of the results" of the election must disclose (probably by the signature of an authorized representative of each party) that the parties are in mutual agreement as to the correctness of these results and as to their responsiveness to the procedures mutually agreed upon prior to the election. An ex parte informing of the court of results would seem to be a nullity requiring that neither the court nor its clerk take any action with respect to certification. On the other hand an affirmative challenge to results or compliance with agreed procedures would be by petition filed under 48-811.


The finding by the Court herein that there is no industrial dispute is based on the Employer's admission to this effect and the fact that nothing contained in the pleading (Motion) either alleges or clearly shows the existence of an industrial dispute. Nevertheless, the opinion heretofore filed does not foreclose this court's jurisdiction in controversies where the interested parties (employer and employee organization) have agreed to conduct a representation election. The statute authorizes public employers to recognize employee organizations for the purpose of negotiating collectively...(third paragraph, Section 48-816, R.S. Supp. 1969). If an employee organization asks an employer to recognize it for the purpose of negotiating a collective bargaining agreement and the employer refuses to negotiate but agrees to a representation election, we could have an industrial dispute, as defined in Section 48-801 (7), R.R.S. 1943, and the Court of Industrial Relations would then have jurisdiction to exercise its discretion to the end that appropriate supervision of an election would be ordered if such supervision would contribute to the settlement of the industrial dispute as required by 48-810.