3 CIR 200 (1977). Affirmed. 200 Neb. 301, 263 N.W.2d 471 (1978).


Plaintiff, |
Defendant. |


For Plaintiff: Robert E. O'Connor, Jr.

For Defendant: Michael Heavican and William Harding

Before: Judges Wall, Kratz & DeBacker. DeBacker concurring. Kratz dissenting.


This industrial dispute brings before us the question of harmonizing, distinguishing or balancing the statutes governing collective bargaining and the statutes mandating a civil service system in Lancaster County, Nebraska. We find that we have jurisdiction of the parties and of the subject matter.

This case was presented on a stipulation of facts, which include the following:

1. The parties entered into an election agreement in August, 1974. This agreement contained a description of the bargaining unit, which included most of the county employees.

2. An election was held on September 26, 1974, and a majority of the employees in the bargaining unit voted to be represented by the plaintiff.

3. Thereafter, the parties held 15 regular bargaining sessions from December 19, 1974 thru June 25, 1975, in an attempt to reach agreement on a collective bargaining contract.

4. Proposed contract provisions discussed during these sessions included the following: recognition, check-off, labor management committee, management rights, hours of work, work breaks, holidays, vacations, sick leave, leaves of absence, unpaid leaves of absence, insurance, wages, minimum time payments, overtime, seniority, promotions, trial periods, transfers, lay-off and recall, discipline, grievance procedures, bulletin boards, non-discrimination, uniforms and protective clothing, severance pay, safety committee, personnel records, work rules, union activities, savings clause, contracting and subcontracting, retention of benefits, longevity pay, termination and miscellaneous provisions.

5. At the 10th meeting on May 7th, the defendant introduced a proposal stating their position that all items covered by the Revised Statutes of the State of Nebraska pertaining to the civil service system for Lancaster County ( Neb. Rev. Stat. Sections 23-2517 to 23-2533) and all of the duties, responsibilities, operations and procedures mandated by those statutes were non-negotiable items.

6. The parties met five more times and continued to negotiate, but the May 7th contentions led the union to declare an impasse at the June 25, 1975 meeting. This action followed on October 31, 1975.

The sole issue presented is whether the parties are prohibited from bargaining collectively with regard to any of the provisions specifically listed by statute in the Lancaster County Civil Service System of personnel administration.

In 1969, the Nebraska Legislature amended the Court of Industrial Relations act to authorize public employees to negotiate collectively over "terms and conditions of employment." In 1974, the Nebraska Legislature enacted LB 995, now codified as Sections 23-2517 to 23-2533, R.R.S. 1943, which establishes a civil service system for Lancaster County based on merit principles. The legislative history of this Act shows that the primary concern of both those in favor and those opposed was whether county officials or the County Board were to have the upper hand. It is a fair assumption that everyone assumed the collective bargaining statutes of the state would continue to apply. See the rule on collective bargaining adopted by the defendant immediately after the act became effective, infra.

Plaintiff argues that the Lancaster County civil service statutes can be read in pari materia with the Court of Industrial Relations Act and that possible conflicts in these two statutes should be harmonized.

The defendant argues for the doctrine of implied repealer, a view which seems to result in a most mischievous end-whichever statute is passed or amended last would control. This approach would put in question collective bargaining in Douglas County where it has apparently been meshed into the civil service system without particular incident. It does not consider all those municipalities or school districts which have a civil service system and which also bargain collectively with their employees. The state personnel system would be subordinated to the Court of Industrial Relations Act simply because its enabling act was passed before authority to bargain was granted. To apply the maxim prior tempore potior jure as a broadaxe in this area of the forest where the public interest requires only some trimming, would make this court a problem-creator, rather than a problem solver.

In those states having both civil service and collective bargaining laws, there are three types of jurisdiction: There are those which have made the merit system principles supreme, those which have selectively excluded merit system items and those, like Nebraska, where no legislation regarding the relationship of the two systems has been passed. Since both of the systems-merit and collective bargaining-were passed as remedial acts, it seems our duty to accommodate the two systems to the extent possible. The defendant's reliance on implied repeal of the earlier statute by the later ignores the long line of case law in Nebraska which disapproves of implied repealer. See State v. Babcock , 21 Neb. 599, 33 N.W. 247 (1887); Wheeler v. State , 74 Neb. 232, 102 N.W. 773, rev'd on other grds., 105 N.W. 1081 (1905); Liske v. State , 119 Neb. 640, 230 N.W. 503 (1930); Steeves v. Nispel , 132 Neb. 597, 273 N.W. 50 (1937); Thompson v. Commercial Credit , 169 Neb. 377, 99 N.W. 2d 761 (1959). Such reliance also ignores the doctrine in this state that statutes in pari materia should be construed together and harmonized wherever possible. Morrow County v. Bliss , 125 Neb. 97, 249 N.W. 98 (1933); McQuiston v. Griffith , 128 Neb. 260, 258 N.W. 553 (1935); Scotts Bluff County v. State , 133 Neb. 508, 276 N.W. 366 (1939); 136 Neb. 146, 285 N.W. 314 (1939); Hadley v. Corey , 137 Neb. 204, 288 N.W. 826 (1939); Lennox v. Housing Authority , 137 Neb. 204, 288 N.W. 826 (1939); Lennox v. Housing Authority , 137 Neb. 582, ap. supp. 137 Neb. 582, 291 N.W. 100 (1940); Hergitt v. Nebraska State Ry. Comm. , 145 Neb. 100, 15 N.W. 2d 418 (1944); State v. Nichols , 167 Neb. 144, 91 N.W. 2d 308 (1958); Wulf v. Farm Bureau Ins. Co. , 188 Neb. 258, 196 N.W. 2d 164 (1972); Crete Educ. Assn. v. School District , 193 Neb. 245, 226 N.W. 2d 752 (1975); Matter of Caha's Estate , 195 Neb. 333, 237 N.W. 2d 870 (1976).

Having concluded that harmonization is the rule of reason, we then proceed to that required harmonization.

It is necessary to preservation of the remedial aspects of both acts that we exclude the essential elements of the merit principle from the scope of bargaining and, second, that we restrict the unilateral authority of the administrator of the merit system to those matters essential to the merit principle. See Helburn & Bennett, Public Employee Bargaining and the Merit Principle . 23 Lab. J. 618, 624, 625 (1972). We find that we can protect both by excluding from the scope of bargaining the two elements of the merit system which are essential to its functioning-selection on merit and promotion on merit. By excluding from the unilateral authority of the merit administrator such non-merit personnel matters as compensation plans, fringe benefits and grievance procedures, we guarantee the functioning of collective bargaining on those subjects traditionally within its scope-wages, hours and working conditions.

We note that the 1974 Personnel Rules of Lancaster County envisaged an accommodation with the collective bargaining law, as shown by the rule providing:

"Employees of the County shall have the right to organize and join or refrain from joining any organization for the purpose of representation on matters relating to personnel administration in accordance with applicable State of Nebraska laws. The personnel officer shall meet and confer with such organization when requested."

We view the history here of bargaining for approximately six months without raising the alleged preemption of the bargaining by §§23-15-533, R.R.S. 1943, as an indication that the alleged preemption is more in the nature of a stance adopted for bargaining advantage than a legal position to which defendant is firmly wedded.

Accordingly, we find that §§ 23-2517-2533, R.R.S. 1943 do not constitute a bar to bargaining on any issue raised by plaintiff or defendant except insofar as they may infringe specifically on hiring and promotion by merit. We decline to define the areas of conflict more specifically in the absence of a more finely honed approach and presentation by the parties. The defendant's present blanket refusal to proceed sheds little light on this dark corner of possibly conflicting public policies.

We do note the following decisions from other jurisdictions as guides to the parties: In Massachusetts, a state which specifically excludes merit system matters from collective bargaining, the Supreme Judicial Court nevertheless held that:

"...although a charge brought by a municipal employee under civil service before the Civil Service Commission was 'insubordination,' it was not improbably that the question of antiunion bias might come up in the unfolding of the facts as possibly qualifying or negating the charge, and in that situation it could not be said that the Labor Relations Commission lacked jurisdiction to proceed with an inquiry into antiunion bias upon the concurrently filed complaint before it charging a prohibited practice." Town of Dedham v. Labor Relations Commission , Mass., 312 N.E. 2d 548 (1974).

In Hawaii, also a specific exclusion state, the Hawaii PERB held:

"...a contractual requirement that promotions should be based on seniority when employee qualifications are 'relatively equal' does not conflict with (merit) principles." Frank R. Fasi v. City and County of Hawaii , Number 60, February 12, 1975, 616 GERR C-1.

In Minnesota, a public labor contract provision may not in itself or in its implementation violate or be in conflict with a statute or a home rule charter. But, in Int'l. Union of Operating Engineers, Local 494 v. City of Minneapolis , Hennepin County Ct., 632 GERR E-1, civil service commission rules were not accorded the status of such statute or charter.

It thus appears that even in states giving statutory priority to the merit system that the courts have felt sufficient public interest in the continuation of a collective bargaining process to find methods of harmonization permitting the best elements of both systems to continue.

The parties are given thirty (30) days to complete bargaining hereunder or to bring the underlying dispute here for resolution.

Judge DeBacker concurs in this Opinion.

Entered February 11, 1977.

Kratz, J., Dissenting.

I disagree. The significant portions of the 1974 law (23-2517 to 23-2533, R.R.S. 1943), which establishes a civil service system for Lancaster County based on merit principles, include the following:

Sec. 23-2517 describes the purpose of the Act and says that it shall include policies and procedures for "...salary administration, fringe benefits, discharge and other related activities."

Sec. 23-2525 describes the method of establishing rules and regulations and says such rules and regulations shall, inter alia , provide:

"(2) For a compensation plan for all employees in the classified service, comprising salary schedules, hours of work, premium payments, special allowances, and fringe benefits, considering the amount of money available, the prevailing rates of pay in government and private employment, the cost of living, the level of each class of position in the classification plan, and other relevant factors. Initial, intervening, and maximum rates of pay for each class shall be established to provide for steps in salary advancement without change of duty in recognition of demonstrated quality and length of service...


"(15) For establishment of a plan for resolving employee grievances and complaints;

"(16) For hours of work, holidays and attendance regulations in the various classes of positions in the classified service, and for annual, sick and special leaves of absence, with or without pay, or at reduced pay."

Plaintiff argues, and a majority of this Court agrees, that the Lancaster County civil service statutes can be read in para materia with the Court of Industrial Relations Law, and that the possible conflicts in these two statutes can be harmonized. This would leave all matters of wages and conditions available for collective bargaining and leave to the civil service system only the matters of selection and promotion. This interpretation, of course, would make much of the specific language used in the 1974 civil service law (salary schedules, hours of work, rates of pay, grievance procedure, fringe benefits) meaningless.

Our problem with this issue is not a new one. But while many other states have the same type of conflict, there has been little judicial resolution which is helpful. Many states have both an Industrial Relations Act, which allows collective bargaining by public employees, and a civil service or merit system law, which allows employees to be selected and advanced on the basis of merit and competence. Many of these other states, however, have recognized the problem involved with two such statutes and have provided some specific statutory accommodation.

Eleven states resolve the conflict between these two possibly conflicting statutes by specifically excluding certain matters from the scope of collective bargaining. For instance, New Hampshire and Pennsylvania specifically limit bargaining to matters not covered by merit system laws, and the Wisconsin law specifically says:

"Nothing herein shall require the employer to bargain in relation to statutory and rule provided prerogatives of promotion, layoff, position classification, compensation and fringe benefits, examinations, discipline, merit salary determination policy, and other actions provided for by law and rules governing civil service." Wis. Stat. Ann., § 111.91(2) (1970).

Other states which include some type of accommodation between the two laws are Vermont, California, Massachusetts, Rhode Island, Washington, Hawaii, Connecticut, and Maine. [1]

There are states [2], however, like Nebraska, which do not provide a specific accommodation between the two laws, and our research into these states for some type of judicial interpretation which might be helpful was mostly unsuccessful.

There have been two cases in Michigan.[3] Both held, on the basis of implied repealer, that the provisions of the Act enabling public employees to bargain collectively, enacted subsequent to the Act enabling counties to establish civil service systems, supersede the civil service law when the two are in conflict. If the later act prevails, then in our case, unlike Michigan, it is the Lancaster County Civil Service Act.

The way the Lancaster County civil service law is drawn, particularly in relation to its general purpose and in its comparison to the language used in this type of law in other states, is significant to my opinion in this case. The merit system is a concept "under which public employees are recruited, selected, and advanced under conditions of political neutrality, equal opportunity, and competition on the basis of merit and competence."[4] We have seen that three state laws[5] consider the appointment and promotion functions the principal basis for civil service laws, and it seems apparent that most civil service laws deal primarily with recruitment, advancement, position classification and discharge.[6]

Helburn & Bennett (see footnote 6) recommend the following type of accommodation between civil service statutes and public sector collective bargaining laws:

"The necessary legal framework for such an accommodation would consist of two separate laws: (1) a merit system law limited to a strict application of the merit principle; and (2) a public employee collective bargaining law which would provide for the exclusion of merit system matters from the scope of bargaining."

Since the merit system principle means primarily recruitment, advancement, and discharge, our Nebraska law is not "limited to a strict application of the merit principle."

In discussing accommodation, the aforementioned article also says:

"Thus a merit system strictly related to the performance of essential merit related functions could exercise unilateral authority over those matters without unduly restricting the bargaining process since issues most important to employees ( that is, wages, hours, and other working conditions) would be excluded from merit system responsibilities." (emphasis supplied)

We agree that for proper accommodation, wages, hours, and other working conditions should have been excluded from the Lancaster County civil service law. They were not.

If the Nebraska legislature intended the Court of Industrial Relations Act and the Lancaster County civil service law to work together and in harmony, they should have given the administrators of the law a less limited function, related mostly to just recruitment, promotion, transfer, and discharge. They didn't do this. Instead, they authorized rules and regulations for "a compensation plan for all employees", "salary schedules", "rates of pay",[7] "hours of work", "grievances", and "fringe benefits". These items constitute wages and conditions, and they were authorized by statute subsequent to the enactment of the law which authorized public employees to bargain for wages and conditions.

If we now say the application of the civil service law in Lancaster County doesn't include salaries, hours of work, grievances and fringe benefits, we have rendered those words meaningless in this newly enacted law. I am of the opinion that we cannot do this.[8] If the Legislature had wanted to leave salaries, hours of work, and fringe benefits exclusively to collective bargaining, they should not have included them in LB 996.[9]

Apparently there has been a recent realization of the need for limitation in merit system statutes, but attempts to restrict the application of merit benefits, where benefits have been received through collective bargaining, have failed in both the 1974 (LB 907) and 1975 (LB 229) sessions of the Legislature.

While the Nebraska Supreme Court ruling in Seward Education Association v. School District of Seward , 188 Neb. 772, 199 N.W.2d 752 (1972) deals with issues different from this one, the Court made the following comment, the underlined portion of which I consider to have some application and significance to the instant issue:

"While there are many nebulous areas that may overlap working conditions, boards should not be required to enter negotiations on matters which are predominately matters of educational policy, management prerogatives, or statutory duties." (emphasis supplied)

I see no validity in the argument that to put Lancaster County employees under civil service and other county employees under collective bargaining produces an inequity to the Lancaster County employees. We cannot presume that better wages and conditions can be provided through collective bargaining, or a ruling of this court in the event that collective bargaining fails, than through the rules and regulations promulgated by the administrators of the Lancaster County civil service law.

I would conclude, therefore, that the parties should be bound in their negotiations by the statutory duties outlined in Sections 23-2517 through 23-2533 of the Nebraska Revised Statutes, and where the authority granted under those statutes conflicts with the authorizations of the Court of Industrial Relations act, the former should prevail.

NOTE: Footnotes deleted.