|INTERNATIONAL|||||CASE NO. 48|
|LOCAL UNION NO. 1536,||||
|v.|||||FINDINGS AND ORDER|
|CITY OF LINCOLN,||||
|NEBRASKA, A MUNICIPAL|||||NOTE: LB 1228 (1972)|
On August 17, 1971, this matter came on for trial on the Petition, Answer, and Reply of the parties, evidence was presented, oral arguments given, and briefs submitted thereafter.
The evidence was presented on a stipulated record. the International Brotherhood of Electrical Workers, Local Union No. 1536 (referred to herein as IBEW), represents some employees of the Lincoln Electrical System (referred to herein as LES). IBEW seeks exclusive representation for the purpose of collective bargaining. LES has agreed to grant exclusive representational status to IBEW, but only if IBEW receives a simple majority of the votes cast in a representation election in which at least eighty percent of the eligible employees participate. Recognition of IBEW as an exclusive bargaining agent, has, therefore, been conditioned by LES upon an election in which at least eighty percent of eligible LES employees vote.
The appropriate unit consists of all employees of LES except the special assistant to the administrative board and the administrator of the administrative board, and except probationary employees, seasonal employees, and temporary employees as defined by the ordinances of the City of Lincoln. There are approximately 122 employees in this unit who would be eligible to vote in a representation election.
Over IBEW's objections as to relevance and materiality, the parties stipulated that the day to day operational management of LES is under the direction of an employee of the Nebraska Public Power District under an operating agreement between the City of Lincoln and Nebraska Public Power District (referred to herein as NPPD). There are approximately 88 employees of NPPD working on the LES properties who, pursuant to the operating agreement, would be granted the same wages and terms and conditions of employment as LES employees would receive under a collective bargaining agreement with IBEW. LES reimburses the cost of these employees to NPPD. NPPD has not recognized IBEW. Within the last year, LES adjusted the wage rates and fringe benefits of its employees to equalize them with NPPD employees working on the Lincoln properties. IBEW objected that since the 88 employees of NPPD were concededly not within the appropriate LES unit (a point with which the Court perceives no reason for disagreement), evidence as to the operating agreement and the 88 NPPD employees was not relevant or material. We reserved ruling on this objection at the trial. We now overrule IBEW's objection for the reason that the evidence is relevant and material to the intention and object of LES in establishing the eighty percent participation requirement. For the reasons discussed below, however, it is not necessary to consider LES's intention and object in presenting the participation requirement in this case, and, therefore, this evidence is not determinative of any of the issues decided herein.
The sole issue which the parties have asked the Court to resolve is whether the Nebraska statutes allow an employer to condition its recognition of exclusive bargaining status upon the union's receiving a majority of the votes cast in an election in which eighty percent of the eligible voters participate. The reasoning below leads to the conclusion that the condition is not improper under the Nebraska statutory language and apparent legislative intention. It is necessary to examine the scope and nature of exclusive representation, itself, under the Nebraska statutes.
The reasoning underlying our decision in this case is as follows:
1. 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.
2. Section 48-816 provides that a governmental unit may agree to a secret ballot representation election "to determine questions of representation for purposes of collective bargaining" but the section does not require that such an election must be held.
3. Since an employer is neither required to grant exclusive representation nor to agree to an election, an employer can insist as a part of the election agreement upon any condition which is not in violation of the state of federal constitutions, statutes or other law.
4. The eighty percent participation requirement sought in this case is not in violation of state or federal constitutions, statutes or other law.
In the City of Grand island v. American Federation of State, County and Municipal Employees , 186 Neb. 711, 714, 185 N.W.2d 860, 863 (1971), the Court noted that decisions under the National Labor Relations Act are "helpful but not controlling upon the court." The Nebraska Supreme Court found the federal law "helpful" in resolving the appropriate unit and supervisor issues involved in that case. The questions presented in this case are of a much different nature. Here, there is a sharp divergence between the Nebraska statutes and the federal statutes. When the legislative history of the enactment of LB 15 in 1969 is brought into consideration, it is clear that the Nebraska legislature did not follow the pattern of the National Labor Relations Act in respect to exclusivity. This comparison reveals what is in substance a legislative rejection of a compulsory exclusive relationship and a legislative rejection of a compulsory secret ballot election process.
Section 9(a) of the National Labor Relations act provides that "Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining...." 29 U.S.C.A. §159(a). Most state statutes on government employee labor relations also contain a specific provision for exclusive representation. Waks, "The Privilege of Exclusive Recognition and Minority Union Rights in Public Employment", 55 Cornell L. Rev. 1004 (1970). Section 9(c)(1) of the National Labor Relations Act requires that "If the Board finds....that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof." 29 U.S.C.A. §159(c)(1). As Senator Simpson explained twice on the legislative floor, the statements of which are set out below, the language of section 48-816 does not require a representative election to be held.
In considering these representation and election issues, it is extremely important to examine LB 15 of 1969 as originally introduced on January 8, 1969, the bill as finally enacted into law, and the legislative history of the changes. The original version would have created a Public Employment Relations Board and appears to have been modeled on the New York Public Employees' Fair Employment Act (The Taylor Law), passed in New York in 1967, 1967 Laws of New York c. 392, now contained (as amended) in 9 McKinney's Consol. Laws of N.Y., Civil Service Law §§200-212 (1970-1971 Supp.). On February 19, 1969, when LB 15 was on Select File, Senator Pedersen secured unanimous legislative acceptance of a complete substitute which placed the jurisdiction in the existing Court of Industrial Relations rather than a new Public Employment Relations Board. All of the new provisions which Senator Pedersen's substitute bill added to Chapter 48, Article 8, of the Nebraska statutes were taken from the original version of LB 15. Senator Simpson secured an amendment, adopted April 9, 1969, which added the three paragraphs which are presently the second, third, and fourth paragraphs of section 48-816 and are directly involved in deciding the issues in this case. It is necessary to examine the various provisions separately in the light of their legislative history and intended operation.
The only statute referring specifically to exclusive representation is the last paragraph of section 48-816 which states in full:
The court shall have the authority (1) to make studies and analyses of, and act as a clearing house of information relating to, conditions of employment of public employees throughout the state; (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 functions and powers; (3) to conduct studies of problems involved in representation and negotiation, including, but not limited to (a) whether employee organizations are to be recognized as representatives of their members only or are to have exclusive representation rights for all employees in the negotiating unit, (b) the problems of the unit determination, (c) those subjects which are open to negotiation in whole or in part, (d) those subjects which require administrative or legislative approval of modifications agreed upon by the parties, and (e) those subjects which are for determination solely by the appropriate legislative body, and make recommendations from time to time for legislation based upon the results of such studies; (4) to make available to employee organizations, governments, mediators, fact-finding boards and joint study committees established by governments and employee organizations statistical data relating to wages, benefits and employment practices in public and private employment applicable to various localities and occupations to assist them to resolve complex issues in negotiations; and (5) to establish, after consulting representatives of employee organizations and administrators of public services, panels of qualified persons broadly representative of the public to be available to serve as mediators or members of fact-finding boards.
In an abbreviated form subparagraph 3(a) states:
The court shall have the authority....to conduct studies of....whether employee organizations are to be recognized as representatives of their members only or are to have exclusive representation rights for all employees in the negotiating unit....and make recommendations from time to time for legislation based upon the results of such studies....
This language appears in the New York Civil Service Law. 9 McKinney's Consol. Laws, Civil Service §205 (1970-1971 Supp.). It was contained in the original version of LB 15 (pp. 7-8). The language was brought into Nebraska law through the Pedersen substitute. Senator Pedersen gave no explanation of this specific provision in moving for the adoption of his substitute. His full statement for the substitute bill on the legislative floor was as follows:
Senator Pedersen; Very briefly, it places under the Court of Industrial Relations governmental employees, those employees engaged in governmental service. It is not limited just to those engaged in proprietary services. It increases the size of the court from three to five. It broadens out their responsibility to conduct research, investigation, work to mediate disputes if disputes do come to the attention of the court. It gives the Court the authority to work with the governmental sub-divisions throughout the state in providing research in statistics so that these matters can be resolved on a local level so that they would not necessarily have to come to the Court of Industrial Relations. Recognizing as a recent case in the state of Nebraska has said that no one can be prevented from joining a union. This but puts into the law the provision that a man may join and be represented by an organization inasmuch as the Court has said recently that this could not be denied. Finally that the Court has been able to, if a matter would come to it, establish rates of pay if there is a dispute. The way it has been in the past the language has been so strict and very much confusing that the court has not been able to correctly apply that provision of the law. This will give them the opportunity to set a rate if this is a matter of dispute that cannot be resolved. That is substantially what the amendment does other than strike all sections 1-12 in a sense it strikes out LB 15 and inserts the amendment which is the bill. (Floor Debate, Feb. 19, 1969, p. 296).
In the New York law, the language in the last paragraph of section 48-816 serves as a general grant of authority to study these subjects and does not serve as a specific grant of substantive power to adjudica. The provisions as to bargaining and elections in the New York law are covered in other provisions which have either been omitted from the enacted version of LB 15, or, in the case of what is now the fourth (next to last) paragraph of section 48-816, substantially changed as discussed below. From this legislative history, the best inference is that the last paragraph of section 48-816 really means for studies to be conducted and was not intended to be a substantive provision as to exclusive recognition.
Section 48-837 authorizes a labor organization to represent employees in collective bargaining. It provides:
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. 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; Provided, that any such agreements with the State of Nebraska or any agency thereof shall cover a biennial period coinciding with the biennial budgeting period of the state and shall be subject to approval by the Legislature.
The two sentences of this section preceding the "proviso"can be found in section 202 and 203 of the New York Civil Service Law. They were contained in the original version of LB 15 and included in the Pedersen substitute. The language is very similar to that of the National Labor Relations Act. The language of the "proviso" was introduced on the floor and is a special Nebraska state budgetary provision.
Before the enactment of LB 15, there was authority to represent employees in bargaining derived from the definitions of labor organization and industrial dispute in sections 48-801(6) & (7) which provide:
(6) Labor organization shall mean any organization of any kind, or any agency or employee representation committee or plan, 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;
(7) 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;
The third and fourth paragraphs of section 48-816 were included in LB 15 to authorize government employers to enter into collective bargaining agreements under the new statutory framework. These paragraphs state:
Public employers are hereby authorized to recognize employee organizations for the purpose of negotiating collectively in the determination of, and administration of grievances arising under, the terms and conditions of employment of their public employees as provided in this act, and to negotiate and enter into written agreements with such employee organizations in determining such terms and conditions of employment.
Where an employee organization has been certified or recognized 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 arising under the terms and conditions of employment of the public employees as provided in this act, and to negotiate and enter into written agreements with such employee organizations in determining such terms and conditions of employment.
There was a vital amendment in the paragraph beginning "Where an employee organization has been certified or recognized pursuant to the provisions of this act...." In the New York statutes (Civil Service Law § 204), the phrase "is hereby authorized" reads "is hereby required". The original version of LB 15 (page5) also contained these two paragraphs but the latter paragraph said "required". The Simpson amendment used "authorized" in place of "required." The New York Court of Appeals has impliedly recognized exclusive representation in the absence of a specific statute, but did so in considerable reliance upon section 204 of the Civil Service Law. See Civil Service Employees Association v. Helsby, 21 N.Y. 2d 541, 236 N.E. 2d 481 (1968).
The second paragraph of section 48-816 relates to elections. It provides:
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.
This language cannot be traced directly into the original version of LB 15. It was also a part of the Simpson amendment. It was the first paragraph of the amendment proposed on March 5, 1969, and adopted on April 9, 1969. But it should be noted that LB 15 (pages 9-10) as originally introduced included much more comprehensive provisions for ascertaining the employees' choice of bargaining representative and for certification by the Board. the second and third paragraphs of the Simpson amendments were the authority to recognize and bargain set out above. In moving the amendments on March 5, 1969, Senator Simpson explained the purpose as follows:
Senator Simpson: Mr. President and Members, this is rather a long amendment. It does three things. The first paragraph allows employers and employees to agree to hold a secret ballot election to decide if employees want representation and then they shall inform the court of Industrial Relations of the action and if it is for the organization that they shall be certified. In Sec. 2, which is a recognition section whereby public employers may recognize unions for grievances and negotiation. May is the word that I want understood. Section 3 is, if these unions or organizations are recognized and certified then the employer may negotiate conditions and administer grievances and also enter into written contracts with these people and I move the adoption of the amendment. (Record of Floor Debates, March 5, 1969, page 527).
Again on April 9, 1969, Senator Simpson explained the amendment:
Senator Simpson: Just a word of explanation about the amendment. There are three paragraphs, the first paragraph says that employers and employees may mutually agree by secret ballot for representation of the employees and that then they shall inform the Court of Industrial Relations of the result and be certified. The second paragraph says that the public employers can recognize the Union for grievances and negotiation and make written contracts, it allows them to. The third section says that the certified or recognized unions and the public employer may negotiate conditions, administer grievances and enter into written contracts. I ask unanimous consent to accept the amendment. (Record of Floor Debates, April 9, 1969, page 913).
From these statutes and the legislative history of their enactment, it seems clear that an employer and a labor organization can voluntarily adopt an exclusive representation relationship. In International Brotherhood of Electrical Workers v. City of Hastings, 179 Neb. 455, 457-8, 138 N.W.2d 822, 824 (1965), the Supreme Court stated, "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." This undoubtedly applies to authority to enter into exclusive bargaining relationships as well. State Board of Regents v. United Packing House Food and Allied Workers, 175 N.W.2d 110, 113 (Iowa 1970). Contra: Chicago Div. of Ill. Ed Ass'n v. Board of Education, 222 N.E.2d 243, 251 (Ill. App. 1966).
The presence of a secret ballot election provision, alone, warrants the conclusion that exclusive representation is authorized. What other reason can there be for including a secret ballot procedure? If a bargaining representative is to act on behalf of less than all of the employees in the appropriate unit, there would need to be an open designation of the representative relationship. The secret ballot procedure is intended to be an eminently fair means for determining the true employee sentiment. In Wisconsin, compulsory election provisions in the statutes were held to infer a compulsory exclusive bargaining requirement, even though the statutes did not, themselves, specifically require exclusivity. Board of School Directors v. Wisconsin Employment Relations Commission, 42 Wis. 2d 637, 168 N.W.2d 92 (1969). See Zwackman, "Municipal Employment Relations in Wisconsin: The Extension of Private Labor Relations Devices Into Municipal Employment", 1965 Wis. L. Rev. 671, 672-679. In the Nebraska statutes, on the other hand, there is only a permissive election procedure, not a compulsory provision as in the Wisconsin and federal statutes. But the conclusion follows, nevertheless, that with a permissive secret ballot election system, there is a permissive exclusive representation authority. Under the federal law, it would be an unfair labor practice to recognize a union as exclusive bargaining representative if the union in fact was authorized by only a minority of the employees. International Ladies Garment Workers' Union (Bernhard-Altmann Texas Corp.) v. NLRB, 366 U.S. 731 (1961). So the election feature inserted in Senator Simpson's amendment is an excellent means of measuring employee sentiment, but it is a useful provision in the statutes only on the assumption that an exclusive relationship may result. If the Union is entitled to represent only those employees who authorize it to act for them, a secret ballot election procedure would serve no purpose. Unless exclusive representation is involved, the designation must be made openly and not in secret.
The Nebraska statutory authority to enter into collective bargaining agreements can also be interpreted as authority to enter into an exclusive bargaining agreement. See Tremblay v. Berlin Police Union, 237 A.2d 668 (NH 1967). There are strong practical policies which might well support a decision of the governing board of an employer, as apparently is the situation in this case, that it would be advantageous to deal with a single representative exclusively if that representative is, in fact, the choice of a substantial number of its employees. Also, the authority to "study" whether employee organizations should "have exclusive representation rights for all employees" indicates that the practice is permitted so that the Court (and the Legislature, as well) can meaningfully evaluate the consequences in Nebraska at the present time.
But this analysis does not lead to the conclusion that an employer must grant exclusive representative status to a union representing a majority of the employees. The Nebraska statutes do not include an express requirement that the representative designated or selected by a majority of the employees becomes an exclusive representative, as the National Labor Relations Act and many state statutes do. Additionally, the Nebraska statutes do not contain any mandatory election or certification procedures as the National Labor Relations Act and many state statutes, such as Wisconsin and New York, do.
The present situation is much like that in IBEW v. City of Hastings, 179 Neb. 455, 460, 138 N.W.2d 822, 826 (1965), where Judge McCown's opinion concluded, "However desirable extrajudicial discussion between the parties or 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." There may very well be strong arguments in support of exclusivity in Nebraska governmental employer-employee agreements. See Labor-Management Policies For State and Local Government (Advisory Commission on Intergovernmental Relations), pp. 105-106 (1969). But the present legislative decision, reflected in reading the statute as a whole and particularly section 48-816, is that before this important legislative policy is finally resolved, there should be further "studies of problems involved in representation and negotiation, including but not limited to (a) whether employee organizations are to be recognized as representatives of their members only or are to have exclusive representation rights for all employees in the negotiating unit....and recommendations from time to time for legislation based upon the results of such studies." It should also be remembered that following the Supreme Court's decision in IBEW v. City of Hastings in late 1965, the very next Legislature in 1967 amended the law-even though the 1953, 1955, 1959, 1961, and 1963 Legislatures had rejected such a change. Recent Legislatures have devoted extensive time and interest to the important policies of Nebraska government employer-employee labor relations. It can be expected that if the present statutes turn out to be inadequate in securing the Legislative purpose, future legislatures will take appropriate action.
The secret ballot election provision in the second paragraph of section 48-816 is clearly permissive. The first sentence states that "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." Why is this sentence in the statutes? It would be unwarranted to conclude that the Legislature assumed the Court's authority to order an election and then compel exclusive recognition, but found it necessary to explicitly state in the statute that the parties could mutually agree to an election. The history of the enactment of LB 15 was that there was no routine election authority in the Pedersen substitute and the Legislature intended to authorize merely those elections where the parties could mutually agree. this is certainly clear from Senator Simpson's explanations of the paragraph on the Legislative floor on March 5, 1969, and April 9, 1969. Both the statute and Senator Simpson's statements use the term "may" which, in accordance with section 49-802(1), is permissive rather than mandatory. Also, the change in the fourth paragraph of section 48-816 from "required" to "authorized" indicates that the legislature was intending to preserve a wide latitude of employer discretion in these matters.
Since an employer is neither required to grant exclusive recognition nor to agree to an election for that purpose, an employer can insist as a part of the election agreement upon any condition which is not in violation of state, or federal constitutions, statutes or other law. The eighty percent participation requirement sought in this case is not in violation of state, or federal constitutions, statutes or other law. Plaintiff's Brief cites no authorities that the participation requirement offends any applicable constitutional, statutory or other prohibition. With respect to the one-man-one-vote concept, the recent decision of the United States Supreme Court upholding a West Virginia requirement that 60% of the voters in a referendum election approve bonded indebtedness or tax increase by a political subdivision would strongly support the LES requirement insofar as federal constitutional questions are concerned. Gordon v. Lance, 91 Sup. Ct. 1889 (1971). See also Brenner v. School District of Kansas City, 315 F. Supp. 627 (W.D. Mo. 1970). Defendant's Brief cites a number of instances in which the Nebraska Constitution requires a "super majority" on some issue of decisional voting. We know of no constitutional, statutory or other rule which an eighty percent participation requirement would offend.
The parties can mutually agree to the conditions of a secret ballot election to determine whether the governmental employer will deal with the Union as an exclusive representative. If the conditions agreed to are met, the Union is entitled to negotiate for all employees in the unit. The parties are, of course, free to make any different agreement they may desire which is not in violation of state or federal constitutions, statutes or other law. We do not in this Findings and Order attempt to set out the statutory rules applicable in situations other than those involving exclusive representation.
We are all gaining experience under the new statutory system brought about by LB 15. Counsel for LES conceded during oral argument, in response to IBEW's argument and questions from the Court, that there might be some uneven features of the 80 percent participation requirement and that, perhaps, there are better ways of insuring the interests which LES seeks to serve. The present order does not prevent further negotiations precedent to the mutual agreement on a secret ballot election. We agree that there may be uneven applications in the eighty percent participation requirement-but not to such a degree as to render the requirement unconstitutional or otherwise invalid. For example, if 21% of the employees in the unit simply did not vote one way or the other, IBEW would lose the election even if 79% of the employees voted for IBEW in the election. But if 40% of the employees voted "no" and 19% of the employees did not vote, IBEW could gain exclusive representative status from the favorable vote of only 41% of the employees in the unit. The system proposed by LES does give great weight to not voting in the election. but, as we interpret the statute, LES is not required to grant exclusive bargaining status to IBEW unless IBEW represents 100% of the employees, if it does not choose to do so. LES, therefore, is granting IBEW something by agreeing to the election that it is not compelled to do under the Nebraska statutes. It may be that from the experience of this litigation, and generally under the statutes, the parties can agree upon a different formula for the vote necessary to determine exclusive representation. For these reasons, the Order will dismiss the Petition of the Plaintiff and the Court will not enter an order that the Plaintiff must receive at least a majority of the votes cast at an election in which at least eighty percent of the eligible employees vote.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED, that the Petition of the Plaintiff be, and it hereby is, dismissed.
Entered and filed this 13th day of October, 1971. Judge Henatsch did not participate in the trial of this matter or in the consideration or entry of this Findings and Order.