1 CIR 30 (1971)



Local Union No. 2185, |
Plaintiff, |
Defendant. |

August 17, 1971



By petition filed September 21, 1970, the International Brotherhood of Electrical Workers Local Union No. 2185 alleged that it "is authorized to represent employees employed by defendant;" that the appropriate bargaining unit is:

all operators, patrolmen, control room operators, auxiliary operators, power house employees, hydro operators, steam plant operators, and dragline operators, excluding office clerical employees and supervisory employees;

and prays;

"That the court order and conduct a secret ballot election among the employees of defendant for purposes of determining whether said employees desire the plaintiff to represent them in collective bargaining with the defendant, and whether or not the plaintiff shall be designated as exclusive representative for such employees for the purposes of collective bargaining;...(and) that, in the event a majority of the employees of defendant designate plaintiff as exclusive bargaining representative,...the court order the defendant to commence collective bargaining with the plaintiff as to wages, hours, and conditions of employment for employees of the defendant."

By answer filed October 26, 1970, the defendant alleges:

A. That no decision can be made in this case unless Tri-County Employees' Union is made a party;

B. That the defendant has no power voluntarily to recognize, and the court has no power to order the defendant to recognize, an exclusive bargaining agent, or, in the alternative even if such power exists, it should not be exercised under the facts of this case;

C. That appropriate units are the electrical employees and the hydraulic employees, and not a combination of the two;

D. That the representation of hydraulic employees is ultra vires the plaintiff;

and prays:

A. That the plaintiff be directed and ordered to make Tri-County Employees Union, a corporation, a party to these proceedings or in the alternative the petition be dismissed;

B. That it be declared by this court that the laws of Nebraska do not authorize or require the exclusive representation of employees by one union or one association;

C. Declare the appropriate unit.

On September 28, 1970, Judge Kratz of this court entered an order that counsel of both the plaintiff and the defendant appear before him for a pre-trial conference at which "the parties shall also be prepared to:


3. State what they consider to be the issues of this case;


5. Discuss the requirements for notice contained in §48-813 R.R.S. Neb. 1943;


On February 9, 1971, the pre-trial order found that:

"The information requested in the court order...was submitted and upon consideration of the information submitted and the agreements between counsel, it is hereby ordered...that the interest of the employees in having plaintiff represent them is sufficient to require further proceedings..."

Neither party filed any objection or response of any kind to the pre-trial order or made any request for trial. On the court's own motion June 15, 1971, the case was set for trial on July 16. On July 3, 1971, by reply the plaintiff alleged, "that...there is (no) defect of parties to this action for the reason that Tri-County Employees Union has not become a party to this action nor intervened herein nor has it asserted any request for recognition from the defendant."

On July 16th evidence on all the foregoing issues was adduced by each party. Each party has made timely submission of briefs.

We must face immediately the question of what decisions, if any, of the court can be made so long as only International Brotherhood of Electrical Workers Local Union No. 2185 and the Central Nebraska Public Power and Irrigation District are the only parties.

In our opinion of August 1, 1963, in Kramer Power Station Employees Committee vs. Loup River Public Power District et al., Case No. 16, in overruling the defendant's motion to make the plaintiff set forth the names of the employees which had authorized it to bring the action for a determination of certain conditions of employment, we held:

"We overrule the defendants' motion..., contemplating thereby that the defendants' answer need not be limited merely to relief for employees, who have authorized the plaintiff to represent them in this action. We, therefore, are treating this action, at this stage of the proceeding, as possibly affecting all of defendants' employees at Kramer Power Station. However, we do not now irrevocably conclude that this action is in the nature of a class suit involving the status of all employees at the Kramer Power Station, whether or not they are identified with the plaintiff. Conceivably, in entering orders or judgements in an industrial setting, it may frequently be necessary to affect the relationships of employees, who not only are not formally identified with any labor organization or other employees.

"Accordingly, it becomes necessary for the court, on its own motion, to consider the rights, if any, of all employees at the Kramer Power Station and the question of due process of law with respect to them. We feel that those employees, who may not be identified with the plaintiff, are legally entitled to notice of the pendency of this action and an opportunity to plead and otherwise appear before the court at the hearing..."

And, on the authority of §48-813 R.R.S. Neb., we ordered the defendant to post a notice drafted by the court of the pendency of the proceedings and of a summary of the petition and answer and of each employee's right to enter his appearance in the action by informal writing or otherwise. No response of any kind to that notice was received, and after trial we included in our findings and order of December 16, 1963, the following:

"We find here no indication that it is either necessary or desirable, in settling this dispute, to affect in any way the compensation or working conditions of employees other than those named in paragraph numbered 1 above. The order in this action will affect the benefits extended by the defendants to only those of the defendants' employees named in paragraph numbered 1 above. We adhere to our opinion entered August 1, 1963, with respect to our jurisdiction and the power to affect compensation benefits, and working conditions of other employees, but find as matters of fact and law that this is not a proper case for exercising power and jurisdiction."

In cases numbered 17, 19, and 20 the court ordered the posting of similar notices drafted by the court again without any response whatsoever. The latter cases, however, did not depart from or elaborate on the above-quoted doctrine of Kramer that the action might be in the nature of a class suit involving all employees whether or not identified with the union. We did not hold that individual employees were indispensable parties to any of those actions.

In the Metropolitan Utilities District cases, cases numbered21 and 22, it was apparent from the pleadings that each of two unions, each a party plaintiff to a separate action against the employer, sought to bargain with the employer on behalf of its own members, while the employer contended that it already was bargaining satisfactorily with a third union not a party to any action which, the employer alleged, represented all the employees. From our previous opinion of August 1, 1963, in Kramer, we reread the following:

"Is this court's jurisdiction limited to the granting of relief only to those employees whom the plaintiff states or whom the evidence ultimately establishes, that the plaintiff represents? Is this court clothed with jurisdiction to enter an order which will affect employees who do not participate in the plaintiff as a labor organization?...If we were to sustain the defendants' motion, this would constitute, at the very outset, a limitation on the issues involved in reaching a settlement as well as a decision arbitrarily setting the outer limits of the court's jurisdiction. We feel that if defendants' motion were sustained, this would amount to a premature restriction of the potential outer limits of the court's jurisdiction and we, therefore, decline to make such a limitation or arrive at such an important jurisdictional decision without a thorough marshaling of the evidence and an exhaustive consideration of the legal principles involved."

We decided that in MUD the time had come for such "exhaustive consideration of legal principles" and formulated carefully in detail the questions and subquestions on which we ordered submission of briefs. This order was completely ignored, and accordingly the two cases numbered 21 and 22 went to trial on only the question of whether (a) the court had power to order bargaining and (b) if so whether bargaining would resolve the necessary-party question as well as other questions involved in those cases. Our Order of May 13, 1968, in cases numbered 21 and 22 held only that the questions which we here are concerned with, namely the parties to the actions and adequate representation of persons not a party to the action, could not be resolved by bargaining, and we ordered further trial with reference to those questions. At that stage the MUD cases were dismissed, and so we still are without a resolution of these problems. We have not, however, in any subsequent cases adopted the practice initiated by and analyzed in the opinion of August 1, 1963, of the court's ordering on its own motion notice to all employees and employee organizations of an employer who was a party to the suit. In the Seward case No. 34 the question was raised by a post-trial motion as to whether a declaration of this court (said declaration being that a previous year's salary index schedule was not controlling on the school board and its teachers for subsequent years) was binding on the teachers, who were not parties to the action, but of whom the evidence disclosed all were members of the plaintiff association. While we decided the question by overruling the motion, we did so without opinion. From Kramer and Seward we conclude that the law is that every individual who is a member of a union which is a party to a suit in this court is bound by the decision of this court in that suit. Parenthetically we remark that probably there still would remain for adjudication in a collateral suit a question as to whether a party to such collateral suit actually had been a member of the union in the first suit in this court. From Kramer we deduce the further principle of law that this court has the power to bind, that is make adjudications with respect to, persons and groups of persons who are not members of a union party to a suit in this court or are not otherwise in privity with a party to a suit in this court (such "otherwise in privity with" might include a wholly dominated company union or several co-operating unions, both of which conditions seem to be present in the MUD cases) as long as such persons and groups of persons will have received notice consistent with §48-813 R.R.S. Neb. and constitutional requirements of due process of law.

To this time Tri-County Union has not been served with summons or entered an appearance in the case. There is evidence in the case that at the time suit was filed 16 employees of the defendant belonged to both IBEW and Tri-County; and at time of trial six such employees belonged to both; this evidence is uncontroverted. Furthermore there is highly controverted evidence from which the plaintiff, strongly resisted by the defendant, would have us draw the inference that Tri-County is not a labor organization within the meaning of §48-801 R.R.S. Neb., and that it has never actually negotiated with the defendant with respect to wages, hours, and working conditions. Can this court make findings of fact on such controverted evidence without the presence of Tri-County or its members individually in this action? Can the court even make findings with respect to the uncontroverted evidence of membership as a basis for a further ultimate finding that Tri-County may have had notice? We have no hesitancy in answering these question "no".

Cunningham vs. Brewer, 144 Neb. 218, 16 NW 2d 533 (1944) was an action by a wife alone to cancel a deed executed and delivered by both the wife and her husband and purporting to convey their homestead. The husband was not made a party to the original action either as plaintiff or defendant. After trial, but before decree in the lower court, he attempted to intervene but his petition of intervention was dismissed and he did not appeal therefrom nor was he made a party to the appeal. The failure to make the husband a party was not raised by defendant grantees either by demurrer or answer. After decree in favor of the plaintiff and affirmance thereof on appeal, the question of defective parties was raised for the first time on motion for rehearing. In withdrawing the original opinion and reversing with directions to the district court to make the husband a party and proceed with the retrial of the case, the court held:

"'All persons whose rights, interests, or relations with or through the subject matter of the suit would be affected by the cancellation or rescission are proper and necessary parties in order that they may have an opportunity to be heard; and unless they are made parties the court is precluded from rendering a judgment or decree of cancellation...All parties to the instrument sought to be cancelled are necessary parties to the suit for cancellation, either as plaintiffs or as defendants, unless it is obvious that the one not joined has no interest whatever in the subject matter of the suite'. (emphasis supplied)...(After citing present §25-806 R.R.S. Neb. re raising defective parties by demurrer and §25-808 R.R.S. Neb. re waiver of defect by failure to object by demurrer or answer) However, as stated in Reformed Presbyterian Church vs. Nelson, 35 Ohio State 638: 'The proposition that, where no objection is made by demurrer or answer on account of the defective parties, the objection is to be deemed as waived, applies only in cases where it is competent for the party pleading to waive the objection. But where the presence of an absent party is essential to the determination of the controversy, the parties cannot waive the objection. The court, in such case, must order the party to be brought in.'

"...In Phoenix Mutual Life Insurance Co. vs. City of Lincoln, 87 Neb. 626, 127 NW 1069, we held: 'When the determination of a controversy cannot be had without the presence of new parties to the suit, the code directs the court to order them to be brought in. The Code Civil Procedure §46 (now 25-323 R.R.S. Neb.)' We have defined indispensable parties in Jordan vs. evans, 99 Neb. 666, 157 NW 620, as follows: '"Indispensable parties" to a suit are those who not only have an interest in the subject-matter of the controversy, but also have an interest of such nature that a final decree cannot be made without affecting their interests or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience.' ...Both grantors' rights to this property are such that a final decree canceling the deed could not be made without materially affecting both of them. They were both indispensable parties in an action to cancel their deed because of fraud. When this appears neither the court of original jurisdiction nor the appellate court should proceed further in the matter until the omission is corrected, even though, as here, no proper objection was made by any party-litigant."

Burke Lumber and Coal Company vs. Anderson, 162 Neb 551, 76 NW 2d 630 (1956) was an action originally commenced for foreclosure of mechanic's lien. Boyle was served with summons, defaulted, and default judgment against him was entered. Thereafter an insurer paid money into court stating that it was the proceeds of fire insurance on one of the buildings subject to foreclosure, and that Boyle might have some interest in such proceeds. Nevertheless the trial court proceeded to adjudicate entitlement to the proceeds among the remaining parties without further notice to Boyle. In reversing and remanding for a new trial the court quoted and relied on Cunningham v. Brewer, supra.

When does it become "obvious that one not joined has no interest whatever in the subject matter of the suite," within the meaning of the Cunningham rule above quoted, so that the suit can proceed without such one? Perhaps in the types of cases of which this court has jurisdiction such obviousness with respect to every employee of an employer who is a party can not always be obtained, with certainty, so that this court should return to the notice procedure originally formulated in the Kramer case No. 16 and followed in cases numbered 17, 19, and 20.

On the other hand perhaps the court should wait until evidence is before it either by affidavit in support of a motion to bring in an additional party or in support of allegations in an answer before deciding either that "it is obvious that one not joined has no interest whatever in the subject matter of the suit," or "that they have or may have such an interest." In Redick vs. Peony Park, 151 Neb. 442, 37 NW 2d 801(1949) an action for declaratory judgment of the validity of a contract putting restraints on real estate, the court in reversing judgment for the plaintiff and remanding with directions held:

"In United Slate Tile and Composition Roofers, Damp and Waterproof Workers Association Local No. 80 vs. United Brotherhood of Carpenters, 185 Md. 32, 42 Atl 2d 913, a declaratory judgment was sought construing certain contracts involving the jurisdiction of the unions. Adversary parties were before the court as parties. Other parties to the contract were not parties to the action. The court denied a declaratory judgment on the ground that all the parties to the contract were not before the court.


"The record is clear that Mach is a party to the contract which plaintiffs seek to have construed and declared void. Mach owns land involved in the contract. A declaratory judgment by this court such as plaintiffs seek would be a precedent applicable to his rights and liabilities under the contract contrary to the statutory provisions that no declaration shall prejudice the rights of persons not parties to the proceeding. Such a declaration, however, would not be res adjudicata as to him and would not terminate any uncertainty or controversy that he might wish to assert against either plaintiffs or defendant, or they against him. The absence of Mach as a party renders necessary a reversal of the judgment of the trial court and a denial of the declaratory judgment sought. (emphasis supplied)

"The situation presented as to Tower Tourist Village presents a comparable situation. Plaintiff's alleged facts, the effect of which was to say that the contract involved was one made for the benefit and advantage of Tower Tourist Village. Plaintiff offered evidence to sustain those allegations. Tower Tourist Village, therefore, on plaintiffs' own allegations and evidence had an interest which would be affected by the declaration, yet it is not made a party...

"The situation as to the grantees of the defendant is different. Whether or not they have or claim any interest which would be affected by the declaration is not clear. The plaintiffs have the duty to determine that question initially. If they are not made parties and if, upon another trial of this action, it develops that they have or claim such an interest that they should be made parties, the court, consistent with the provisions of §25-323 R.S. 1943, must order them brought in and like-wise refuse to enter a declaratory judgment until that has been done. (emphasis supplied)

"The judgment of the district court is reversed and the cause remanded with directions to dismiss the cause without prejudice in case Mach and Tower Tourist Village are not made parties to the action within a time to be fixed by the district court."

In Gamble vs Wilson, 33 Neb. 270, 50 NW 3 (1891), it was held that a plaintiff who had lost on the merits could not obtain a reversal and a new trial on the ground that an indispensable party had not been joined. These cases indicate to us that this court need not on its own motion incur the responsibility of drafting a notice with its further responsibility of accurately summarizing the issues, but may leave the determination of indispensable party initially to the plaintiff with delay and retrial the price of an improper exclusion. We compare, however, Pollard vs. Larson, 115 Neb. 136, 211 NW 998 (1927), in which the defendant by motion brought in one who had a joint right or obligation with the plaintiff, that this was done by the defendant wisely in order to protect himself from multiplicity of suits, and that this was permitted even though this additional party was not subject to service of process. Thus the defendant to some extent shares with the plaintiff the responsibility of bringing necessary parties into the litigation.

The proposition cited in the plaintiff's brief:

"There is no defect of parties where the court can determine any controversy between the parties before it without prejudicing the rights of others or by saving the rights of others"

appears to be consistent with the authorities heretofore discussed in this opinion, but the cases cited by the plaintiff do not appear to us to be authority for applying that proposition to this case. Dent vs. City of North Platte, 148 Neb. 718, 28 NW 2d 562 (1947) involved an action by the county, to which the city was not a party, to foreclose the county's tax lien and an entirely separate action by the city, to which the county was not a party, to foreclose the city's tax lien. The Supreme Court held that the tax foreclosure statutes as construed by a long line of decisions expressly sanctioned the two procedures and clearly spelled out how each taxing authority's rights were preserved and insulated from the action to which it was not a party. Likewise in State vs. Conservative Savings & Loan Association, 143 Neb. 805, 11 NW 2d 89 (1943) it was held that the Quo Warranto statute under which the action was brought expressly did not allow the adjudication of any issues other than the issue of corporate authority. As pointed out above, the plaintiff's citation of Pollard vs. Larson, supra, hurts rather than helps the plaintiff's position. Kaplan vs. City of Omaha, 100 Neb 567, 160 NW 960 (1916) was an action to recover damages for personal injuries caused by a failure to properly fill and to guard an excavation for a sewer which the defendant city contended was one in which "a determination of the controversy cannot be had without the presence of other parties" within the meaning of §25-323 R.R.S. Neb., i.e. the contractor who had agreed to indemnify the city. In affirming the trial court's overruling of the motion to bring in the contractor the court held:

"The present action is brought to recover damages for a tort. If the negligence of the contractor in performing the work was the cause of the injury both the city and the contractor are liable, but such a liability is both joint and several. While plaintiff might have sued the city and the contractor in the same action it was not necessary for him to do so. He may not be concerned in the question of the city's right to indemnity from the contractor. City of Peoria vs. Simpson, 110 Ill 294, 51 Am Rep. 683. That question may be settled after the action by plaintiff is determined. His right to a judgment against the city does not depend upon a determination of the contractor's liability as an indemnitor. He should be allowed to proceed against the city without the presence of other parties since he has elected to do so."

Here there is no special statutory procedure, well established by a line of authorities, limiting the cause of action and preserving the non-party's rights as there was in the Dent case and the Conservative Savings and Loan Association case cited by the plaintiff. Here the defendant's position is more nearly analogous to the position of the defendant in Pollard vs. Larson where the defendant might have been liable jointly to the plaintiff and the one not a party than it is to the situation in Kaplan vs. City of Omaha where the defendant might have been jointly and severally liable with the one not a party.

§48-837 R.R.S. Neb. provides in part:

"...Public employees shall have the right to be represented by employee organizations to negotiate collectively with their public employers in the determination of their terms and conditions of employment and the administration of grievances arising thereunder;..."

At least prima facie under that statute both Tri-County and the employees whom it represents have rights. However meritorious the plaintiff's contentions ultimately may prove to be, the fact remains that it is seeking to obtain from this court an order excluding the exercise of those rights, and it is seeking such an order in an action in which the possessors of those rights have been neither made parties nor given such notice as is required by due process of law of opportunity to protect those rights.

Next the plaintiff contends: If the court determined that exclusive representation was legally proper, then the rights of Tri-County could be protected by:

1. placing Tri-County on the ballot,

2. allowing individual employees or groups of employees to present their grievances as long as the adjustment is not inconsistent with the terms and conditions of the collective bargaining agreement and provided that the exclusive bargaining representative is given a right to be present.

3. and, requiring any majority representative to fairly and impartially represent everybody in the unit.

It seems to us clear from the foregoing authorities that Tri-County or those whom it represents have a right to be heard as to whether exclusive representation is legally proper and as to whether their rights can be protected in the manners itemized by the plaintiff.

The plaintiff seems to be suggesting further that the proper procedure is to permit each of IBEW and Tri-County at whatever time each selects to petition the court for exclusive representation. Such a procedure would be unworkable for it could result in two determinations, one stating that IBEW, and the other stating that Tri-County, was the exclusive representative of all the employees, with neither adjudication being res judicata or controlling over the other.


1. That on or before August 30, 1971, the plaintiff shall effect Tri-County Employees Union a corporation's becoming a party to this action. That if the plaintiff does not obtain said corporation's voluntary intervention or appearance as intervenor before August 30, 1971, then on or before August 30, 1971, the plaintiff shall file with the Clerk of this court a praecipe for service of summons on Tri-County Employees Union, a corporation.

2. That upon the plaintiff's compliance with paragraph numbered 1 of this Order, as soon as possible but no later than October 4, 1971, Tri-County Employees Union, a corporation, by appropriate pleading filed in this action, shall assert every claim, defense, and objection, in law and in fact, available to and desired by said corporation at the time of such filing, and every claim, defense, or objection available at said time but not so asserted shall be deemed to have been waived, except that the defense of failure to join an indispensable party or the objection that the court lacks jurisdiction of the subject matter may be made at the trial on the merits in the light of any evidence that may have been received.

3. That in any hearing hereafter in this case the record, including transcript of oral testimony and documentary evidence received, heretofore made herein shall be a part of the entire record to which the court may give consideration; and that, pursuant to §48-817 R.R.S. Neb., any parties to the controversy may rebut any such information, evidence, or record either by cross examination or by testimony.

4. That the defendant forthwith shall post for a period of not less than ten (10) consecutive days in conspicuous places likely to be seen by each employee of the defendant copies of the "NOTICE TO EMPLOYEES" attached hereto, and the defendant shall take necessary action to insure that such posted notices shall not be altered, defaced, or covered by other material; and that on or before August 30, 1971, the defendant shall deliver or mail a copy of said NOTICE TO EMPLOYEES to each employee of the defendant.

5. That on or before September 7, 1971, the defendant shall make due return, in writing to the Clerk of this Court of the actions taken by the defendant in compliance with paragraph numbered 4 of this order.


November 9, 1971

This case was tried on July 16, 1971, and October 19, 1971. Pursuant to an Order entered August 17, 1971, Tri-County Employees Union, a corporation, was brought into the litigation.

Plaintiff's Petition sought exclusive recognition as the representative of all Defendant's employees except temporary, office clerical, and supervisory employees. Defendant has been willing to recognize any representative designated by an individual employee as his bargaining agent, but has refused to recognize the Plaintiff or any other union exclusively. For the past several years, Defendant has bargained with both the Plaintiff and Tri-County Employees Union.

On October 13, 1971, this Court held in International Brotherhood of Electrical Workers v. City of Lincoln, Case No. 48, Motion for New Trial overruled, November 9, 1971, that under the Nebraska statutes, a governmental unit may enter into an exclusive bargaining relationship with a labor organization, but it is not ordinarily required to deal exclusively if it does not choose to do so. The same rules apply in this case. Defendant also has agreed that the employee unit specified by the Plaintiff is appropriate if, as the Court has determined, the Defendant is not required under Nebraska law to deal exclusively with a single representative of the employees within the unit.

NOW, THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED that the prayer of the Plaintiff's Petition should be, and it hereby is, denied.

Entered and filed this 9th day of November, 1971, Judge Henatsch did not participate in the trial of this matter or in the consideration or entry of this Order.