| SARPY LODGE NO. 3, FRATERNAL | | | CASE NO. 191 |
| ORDER OF POLICE, An | | | |
| Unincorporated Association, | | | |
| | | ||
| Plaintiff, | | | |
| | | ||
| v. | | | FINDINGS AND ORDER |
| | | ||
| COUNTY OF SARPY, NEBRASKA, | | | |
| SARPY COUNTY BOARD OF | | | |
| COMMISSIONERS and PATRICK | | | |
| J. THOMAS, Sheriff of | | | |
| Sarpy County, Nebraska, | | | |
| | | ||
| Defendants. | | |
Appearances: For Plaintiff: J. Murry Shaeffer
For Defendant: Paul E. Watts
Before: Wall, P.J., Kratz & McGinley, J.J.
KRATZ, J.:
Plaintiff's Amended Petition requests this court to order Defendant, County of Sarpy, to bargain in good faith with Plaintiff regarding wages, hours and conditions of employment, pursuant to Section 48-816, R.R.S. Nebr., 1943. In its Answer, Defendant contends it is not a public employer within the meaning of Section 48-801(4), R.R.S., Nebr., 1943; that this court has never determined that Defendant is an employer within the meaning of Section 48-801(4); and that nothing in Chapter 48, Article 8, R.R.S., Nebr., 1943, compels public employers to negotiate collectively with an employee organization in the settlement of grievances arising under the terms and conditions of employment. In their Statement of Issues, filed in response to the court's order prior to hearing, the parties include the issue of whether the parties have already commenced negotiations, and in his opening statement at the hearing, counsel for Defendant Sarpy County seems to concede that the only significant issue concerns whether Plaintiff should bargain with the Sarpy County Board or with the Sarpy County Sheriff.
In Sarpy Lodge No. 3, Fraternal Order of Police v. County of Sarpy , 3 CIR 147-1 (1976), this court ordered an election among the employees in a unit consisting of deputy sheriffs, except the chief deputy, jail employees and clerical employees, of the Sarpy County Sheriff's department. The opinion and order in that case lists one of Defendant's (Sarpy County) defenses as the claim that "the sheriff, and not Sarpy County, is the employer, the County is not a proper party;" and this court answered this claim by saying:
"We have held that the County is the employer of county employees. AFSCME v. County of Sarpy , Case No. 157..."
Also, the specific language of Section 48-801 (4) makes clear that the county is a public employer under the Court of Industrial Relations Act:
"Employer shall mean...any political or governmental subdivision of the State of Nebraska..."
Thus, Defendant's claim that the County is not a public employer under the Court of Industrial Relations Act is without merit. Having so held, we needn't respond to Defendant's claim that this court has never determined that Defendant County is a public employer, though we are of the opinion that this conclusion is clearly included in Sarpy Lodge No. 3, Fraternal Order of Police v. County of Sarpy , supra.
We furthermore conclude that under the Court of Industrial Relations Act this court can compel a public employer to negotiate collectively with an employer organization in the settlement of grievances arising under the terms and conditions of employment. The court cannot, of course, require that the parties reach agreement in collective bargaining, but in the event of impasse, either party may submit the dispute to this court for resolution. Sec. 48-818, R.R.S., Nebr., 1943.
The Court of Industrial Relations Act defines an industrial dispute as follows (48-801, R.R.S., Nebr., 1943):
"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;"
It is clear that an industrial dispute exists and this Court has jurisdiction. sec. 48-810, R.R.S., Nebr., 1943.
The parties argued considerably over the issue of whether negotiations ever commenced after the order to negotiate in Sarpy Lodge No. 3, Fraternal Order of Police v. County of Sarpy , supra. The record of the County Board meetings in this regard do not, in this court's opinion, show a commencement of negotiations, but we conclude that this is not significant. When requested to do so by Plaintiff, the County Board should have commenced negotiations, and we will order them to do so at this time.
We understand Defendant's concern over the designation of the County Board as bargaining agent because of the budget appropriation and the current mill levy. The solution to this problem, however, rests with the Legislature and not this court.
That the County is a public employer is clear, and Section 33-118, R.R.S., Nebr., 1943, provides:
"The county board shall furnish the sheriff with such deputies as it shall deem necessary and fix the compensation of such deputies, who shall be paid by warrant drawn on the general fund."
In Grace v. County of Douglas , 178 Neb. 690, 134 N.W. 2d 818, the Nebraska Supreme Court interpreted Section 33-118 as follows:
"This statute clearly gives the County Board the right to determine the number of deputies a sheriff may employ, and to fix their compensation."
The court also said "an office holder has no authority to bind the county in any contract without its approval."
In Rohrs v. Harris , 100 Nebr. 745, the issue was whether Sec. 33-118 repealed an earlier statute which authorized the sheriff to appoint his deputies. The court decided against an implied repealer and harmonized the two statutes, as follows:
"The legislature of 1907 did not insert a repealing clause, and evidently intended to authorize the county's administrative body to determine the number of deputies needed and to fix the compensation, leaving the appointment to the sheriff, according to the terms of the former act."
Sheriff Thomas, in his testimony, concedes that the County Commissioners actually set the salaries of his deputies (page 16 & 17 of transcript of testimony taken on April 20, 1977). The starting salary, and subsequent increases, appear to be perfunctory[1], with no input supplied by the sheriff (page 22 & 24 of transcript of testimony taken on April 20, 1977). The last deputy increase was determined by the County Board, an across the board 5 or 6 per cent increase (page 29 of transcript of testimony taken on April 20, 1977).
Thus, while the sheriff can select his deputies, he has little control over the number of deputies or what they are paid. That is the prerogative of the County Board. Under this circumstance, the County Board should be the employer bargaining agent. Nothing, of course, would prohibit the sheriff from being a part of the County Board negotiating committee and it would seem reasonable to enlist his assistance in this regard.
In the case of AFSCME v. County of Lancaster , 196 Neb. 89, the issue was whether the state, as well as the county, should be included as the employer bargaining agent.[2] The Court held that the state must be a party to any contract negotiated between the county and the union because:
"The county would have no control over and would be unable to bargain collectively on most of the issues traditionally considered to be at the heart of collective bargaining."
These traditional issues over which the county had no control included "salary matters under the state pay plan..." In the instant case, the sheriff also has no control over "salary matters".
The Defendant's argument, therefore, that the county should not be the bargaining agent, though they provide and determine the funds for, and salaries of, the members of the bargaining unit, is simply not sustained by the statutes, the courts interpretation of those statutes, and the most recent Nebraska Supreme Court decision interpreting and applying the Court of Industrial Relations Act to an issue similar to the instant issue.
Defendant, County of Sarpy, is ordered to commence bargaining immediately with the Plaintiff.
1$700 starting wage without any regard to previous experience or qualifications, and $750 after 6 months.
2The state provided 98% of the funds for payment of salaries at the county level and the rules required state department approval for compensation schedule changes at the county division level.
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