|AMERICAN FEDERATION OF|||||CASE NO. 104|
|STATE, COUNTY AND MUNICIPAL|||||REP. DOC. NO. 21|
||||Appealed to Nebraska|
|DEPARTMENT OF PUBLIC|||||Supreme Court,|
|INSTITUTIONS, STATE|||||February 18, 1975,|
|HOSPITALS OF THE STATE OF|||||Docket No. 40031|
NOTE: SOME PUBLISHED ORDERS HAVE BEEN DEEMED TO BE NOT HELPFUL AND HAVE, THEREFORE, BEEN OMITTED FROM THIS FILE.
The facts of this case have been stipulated between the parties. The Plaintiffs have asked this Court to hold an election pursuant to Section 48-838 R.R.S. 1943. The only issue raised by the Attorney General for the defendant, Department of Public Institutions, is the jurisdiction of this Court over an executive department of State Government.
The Attorney General has taken the position that Article XV, Section 9 of the Constitution did not authorize an Industrial Court to exercise jurisdiction over government employees. In support of this position he cites the dissenting opinion of Judge Newton in School District of Seward Education Association v. School District of Seward , 188 Neb. 772, 785 (1972). This dissent did not take into consideration either the history of Article XV, Section 9, nor the contemporaneous understanding of its scope. As Judge Spencer so clearly and eloquently pointed out in the Court's opinion, it was clearly the intention of the Constitutional Convention to provide and to create a body with legislative and executive powers and further that the Legislature could delegate its authority over School Districts to such a Court. We are bound by the Supreme Court on this issue.
The Attorney General attempts to distinguish this case on the basis that in the Seward case the employer was a School District and in this case the employer is the State. The Attorney General cites as the applicable provisions the following:
...Subject to the provisions of this Constitution, the heads of the various executive or civil departments shall have power to appoint and remove all subordinate employees in their respective departments (Section 1, Article IV).
The supreme executive power shall be vested in the Governor, who shall take care that the laws be faithfully executed and the affairs of the State efficiently and economically administered (Section 6, Article IV).
The civil administration of the laws of the State if vested in the Governor. For the purpose of aiding the Governor in the execution and administration of the laws, the executive and administrative work shall be divided into the following departments...(10) Departments of Institutions (81-101 R.R.S. 1943).
The basic position of the Attorney General, therefore, is that the Court may not exercise any jurisdiction over code departments of the State as such authority is exclusively vested in the executive branch of the Government. Basic to this argument is two points. One, that the Legislature cannot grant such jurisdiction to this Court and two, that the Constitutional provisions authorizing this Court do not contemplate this Court exercising jurisdiction over public bodies.
Turning to the first point, it is clear that the Constitution itself contemplated the legislative control over government agencies. Thus Section 19, Article IV provides that the general management control and government of all State charitable, mental, reformatory, and penal institutions shall be vested as determined by the Legislature. In fact, the very existence of the Department of Institutions is dependent on the legislative enactment cited by the Attorney General, 81-101 R.R.S. 1943. It is also clear that the Legislature has previously restricted the authority of the executive branch to control employees by establishing a personnel system, 81-1301 et. seq., R.R.S. 1943 (Reissue 1971). There can be no question that the Legislature, which was granted general management and control of State Institutions, may make laws concerning the employees of such institutions. This Court notes with interest that the authority granting such control is found not in Article III, the Legislative power, but in Article IV, the Executive power. Therefore, since it is clear that the Legislature has the authority under Section 19, Article IV to legislate concerning the employees of the Department of Institutions, we turn now to such legislation.
The Legislature in 48-801 et. seq. provided for a Court of Industrial Relations to carry out the following policy:
(1) The continuous, uninterrupted and proper functioning and operation of the governmental services...are hereby declared to be essential to the welfare, health and safety...48-802(1) R.R.S. 1943.
In order to carry out the public policy of the State of Nebraska as set forth in 48-802, there is hereby created an industrial commission to be known as the Court of Industrial Relations, 48-803 R.R.S. 1943 (Reissue 1974).
The Court's jurisdiction is set out in 48-810 as follows:
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 over any persons, organization or school districts subject to the provisions of the Nebraska Teachers' Professional Negotiations Act, sections 79-1287 to 79-1295, until all provisions of such act have been exhausted without resolution of the dispute involved.
Again, in 48-816 R.R.S. 1943 (Reissue 1974) the Court is granted the power to require bargaining and in 48-837 R.R.S. 1943 (Reissue 1974) public employees were given the right to organize and bargain collectively. In addition, 48-838 provides for he conduct of elections among employees. The petition in this case is for such an election and the stipulation of facts establish all the relevant evidence to grant this Court jurisdiction under 48-816 R.R.S. 1943 (Reissue 1974).
If anything, the authority of the Legislature over public employees and the Department of Institutions is greater than its authority over School Districts. In any case, the present controversy is limited to the ordering of an election under 48-638 R.R.S. 1943 and not to either the tenure or salary of any employee. Thus none of the issues presently raised by the Attorney General are ripe for decision.
The Court therefore finds that:
(1)The American Federation of State, County, and Municipal Employees is a labor organization within the meaning of R.R.S. 48-801(6) and is registered with the Secretary of State in accordance with R.R.S. 25-314, and has maintained a business office and address in Nebraska.
(2)That an industrial dispute exists within the meaning of R.R.S. 48-801(7).
(3)That in excess of thirty per cent (30%) of the employees in the appropriate unit have requested an election as required by R.R.S. 48-838, as amended by L.B. 819, 83rd Legislature, Second Session.
(4)That the signatures on the employee authorizations wherein they petition the Court have been authenticated by the Department of Institutions and have been found to be employees of the Department of Institutions within the appropriate bargaining unit.
(5)That the appropriate unit for bargaining consists of employees within certain work classifications at the mental health and retardation facilities at Lincoln, Hastings, Norfolk, and Beatrice; and the Nebraska Veteran's Home at Grand Island, and the Nebraska Veteran's Home Annex at Norfolk, has been agreed upon by stipulation of the parties, and is approved by the Court.
(6)That the aforementioned unit contains approximately 2220 employees as of May 13, 1974, of which 1104 have signed authorization petitions which have been authenticated by the Department of Public Institutions.
(7)That in determining what employees within the appropriate unit shall be eligible to vote, those employees in the appropriate unit who are employees as of the last payroll of May, 1974, shall be eligible.
(Editor's Note: On December 10, 1974, fifty persons, alleging to be employees of defendant with job classifications falling within the designate appropriate bargaining unit, filed a motion to intervene, stating that many employees who signed plaintiff's "request for an election" didn't know what they were signing, or the consequences of signing; that many of those requests were signed months earlier and were no longer valid, that serious doubt existed as to whether the persons signing the request presently constituted 30% of the employees in the unit; that intervenors were members of the Nebraska Association of Public Employees; that NAPE should be placed on the ballot; that the election procedures ordered were inadequate; and that intervenors had insufficient notice of the scheduling of the election.)
The Court having received and considered the intervenor's motion to intervene hereby denies said motion for the following reasons:
1. The Representation Petition in this case, which was filed on March 5, 1974, in compliance with the Court's Rule 4 (B)(3) indicated that intervenor was an organization which had shown some interest in the appropriate bargaining unit, and intervenor, by copies of all pleadings of the parties and copies of all orders of the Court up to the date of trial, has been notified of the proceedings herein.
2. A pre-trial conference, of which intervenor was notified, was held on May 8, 1974, and a trial, of which intervenor was notified, was held on August 20, 1974, but intervenor did not appear at said pre-trial conference or trial to express an interest in the bargaining unit or to intervene.
3. Any employees who do not wish to be represented by plaintiff herein, and who are eligible to vote in the election ordered to be held on December 20, 1974 may cast their votes to reflect their wishes.
Entered December 19, 1974.