| NEBRASKA STATE COUNCIL OF LOCAL UNIONS | | | CASE NO. 410 |
| NUMBER 32, AMERICAN FEDERATION OF STATE | | | |
| STATE, COUNTY AND MUNICIPAL EMPLOYEES, | | | |
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| Plaintiff, | | | |
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| v. | | | OPINION AND ORDER |
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| DAKOTA COUNTY, NEBRASKA, | | | |
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| Defendant. | | |
Appearances:
For the Plaintiff: Thomas F. Dowd
For the Defendant: Maurice S. Redmond
Before: Judges Kratz, Gradwohl, and Davis
GRADWOHL, J:
Plaintiff was certified after a secret ballot election as the bargaining representative for the following unit on January 23, 1980, in Case No. 326:
All employees of the Dakota County Clerk's Office, Treasurer's Office, Sheriff's Department, County Assessor's Office, Road and Highway Department, Weed Control, Custodial and Maintenance, Veterans' Service Office and Extension Office, but excluding all appointed and elected officials.
The certification order was not appealed from and is currently in effect.
Bargaining sessions were held between the parties during the summer of 1980, but no agreement was reached. Plaintiff then secured a Bargaining Order in a separate case, Case No. 386, dated October 28, 1980, and filed October 30, 1980. Defendant appealed the Bargaining Order to the Nebraska Supreme Court and that proceeding is now pending in the Nebraska Supreme Court.
The issue raised in the pending appeal to the Nebraska Supreme Court concerns whether the County (County Board) or the elected public official is the "employer" under the Nebraska Commission of Industrial Relations statutes. Defendant in that litigation relies primarily upon the Nebraska Supreme Court's interpretation of Section 23-1111 in Bass v. County of Saline, 171 Neb. 538, 106 N.W.2d 860 (1960), that county officials establish the salaries of employees in their offices and that the county board must approve the salaries set by the county official unless the action of the county official is arbitrary, capricious, or unreasonable.
In April, 1981, the Dakota County Board approved claims for salaries of Sheriff's Department Deputies and other Sheriff's Department personnel containing a three percent salary increase. In June, 1981, the Dakota County Board approved claims for salaries of the Assessor's Office Deputy and other Assessor's Office personnel containing an 11.2 percent pay increase. Neither the elected official nor the Dakota County Board made any attempt to negotiate with the Plaintiff prior to unilaterally instituting these pay increases.
With respect to Deputy sheriffs, Section 33-118 states:
Sheriffs' deputies; compensation. 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 Sarpy Lodge No. 3 v. County of Sarpy , 3 CIR 265 (1977), the Commission of Industrial Relations held:
Where the County determines the number of deputies a sheriff may employ and fixes their compensation, it shall be designated the employer bargaining agent in negotiations with a unit consisting of deputy sheriffs, rather than the office of the County Sheriff, though the County Sheriff has the authority to select and appoint his deputies.
With respect to a Deputy Assessor and other assistants, Section 77-401.01 states:
County assessor; assistants; appointments; salary.
The county assessor with the consent of the county board, may appoint, without reference to precinct lines, a deputy and such assistants as may be necessary to enable him to properly discharge the duties of his office. The salary of the deputy and assistants of the county assessor shall be fixed by the county board unless otherwise fixed by law.
Under each of the foregoing authorities, action by the Dakota County Board was necessary to effectuate the pay increases of the Sheriff's Department Deputies and Employees and the Assessor's Office Deputy and Employees. The pay increases could not have been done without some official action by the Dakota County Board-as a minimum, approval of the salary claims and, as to at least some if not all of the persons affected, a greater approval.
Section 48-811 provides in part:
No adverse action by threat or harassment shall be taken against any employee because of any petition filing by such employee, and the employment status of such employee shall not be altered in any way pending disposition of the petition by the commission.
This statutory provision serves several important purposes:
(1) The statute protects employees against adverse actions taken against them during the pendency of an industrial dispute, particularly actions motivated by a desire to discourage or retaliate for Union membership or activity. See Mid-Plains Education Assn. v. Mid-Plains Tech. College , 189 Neb. 37, 199 N.W. 2d 747 (1972); Local Union No. 647 v. City of Grand Island , 196 Neb. 693, 244 N.W. 2d 515 (1976).
(2) The statute protects the orderly determinative processes of the Nebraska Commission of Industrial Relations and Nebraska Supreme Court to resolve pending industrial disputes free from unilateral actions by one of the parties.
(3) The statute protects the integrity of the public employment collective bargaining statutes by resolving industrial disputes in the Nebraska Commission of Industrial Relations and Nebraska Supreme Court rather than through what might be termed the "self-help" of one of the parties.
(4) The statute protects the integrity of the bargaining unit determined to be appropriate within the statutes and by the Nebraska Commission of Industrial Relations and Nebraska Supreme Court, free from being changed, injured, or undermined by the unilateral actions of one of the parties to a pending industrial dispute proceeding.
(5) The statute protects the status of the representative as exclusive bargaining agent pending adjudication by the Commission of Industrial Relations and Nebraska Supreme Court.
The actions of the Dakota County Board were taken during the pendency of Case No. 386 on appeal from the Nebraska Commission of Industrial Relations in the Nebraska Supreme Court. That case involves the obligation of the Dakota County Board, the Defendant in both proceedings, to bargain with the Plaintiff concerning the wages it has unilaterally increased without the agreement, consent or approval of the Plaintiff. Section 48-838 (4) provides that "A certified exclusive collective bargaining agent shall represent all employees in the appropriate unit with respect to wages, hours, and conditions of employment."
The sentence from Section 48-811, set out above, means that the employment status of employees shall not be altered in any way during the pendency of an industrial dispute before the Nebraska Commission of Industrial Relations, or before the Nebraska Supreme Court if an appeal is taken, without the agreement, consent or approval of the other party. A change in wage rates of bargaining unit employees constitutes a change in the employment status of the employees under Section 48-811. The Dakota County Board, therefore, violated Section 48-811 in effecting or approving a change in wage rates of bargaining unit members without the agreement, consent or approval of the duly certified statutory bargaining agent during the pendency of Case No. 386.
Three statutes empower the Commission to enter an Order where there has been a violation of the provisions of the last sentence of Section 48-811:
(1) Section 48-810 provides that "All industrial disputes. . shall be settled by invoking the jurisdiction of the Commission of Industrial Relations..." In Mid-Plains Education Association v. Mid-Plains Nebraska Technical College , 189 Neb. 37, 199 N.W. 2d 747 (1972), the Nebraska Supreme Court affirmed the Commission's reinstatement of five teachers wrongfully discharged by the College because of labor organization activity. The Mid-Plains decision applied the first portion of the last sentence in Section 48-811, the very same sentence involved in this matter. Mid-Plains involved the "no adverse action" clause (see 189 Neb. at 39); the present matter involves the "employment status ... shall not be altered" clause of the same sentence. In Mid-Plains , both the Commission of Industrial Relations and the Nebraska Supreme Court held that the provisions of Section 48-810 empowered the Commission to enter an order reinstating the five teachers.
(2) Section 48-819.01, enacted in 1979, states:
Commission; power to make findings and enter orders; when. Whenever it is alleged that a party to an industrial dispute has engaged in an act which is in violation of any of the provisions of sections 48-801 to 48-838, or which interferes with, restrains, or coerces employees in the exercise of the rights provided in sections 48-801 to 48-838, the commission shall have the power and authority to make such findings and to enter such temporary or permanent orders as the commission may find necessary to provide adequate remedies to the injured party or parties, to effectuate the public policy enunciated in section 48-802, and to resolve the dispute.
(3) Section 48-823 mandates a liberal construction of the grants of power, authority and jurisdiction of the Commission of Industrial Relations and gives the Commission "all incidental powers" to carry out the statutes. Section 48-823 states:
Act; construction. The provisions of sections 48-801 to 48-823 and all grants of power, authority and jurisdiction herein made to the Commission of Industrial Relations shall be liberally construed to effectuate the public policy enunciated in section 48-802. All incidental powers necessary to carry into effect the provisions of sections 48-801 to 48-823 are hereby granted to and conferred upon the commission herein created.
From the evidence presented, the appropriate remedy in this situation is to direct the Dakota County Board to cease and desist from continuing its unilateral change in the wages of bargaining unit employees during the pendency of Case No. 386 and to rescind its previous actions taken in that regard.
The parties have raised other issues and presented other facts which need not be considered in view of the foregoing analysis.
It is, therefore, Ordered that the Defendant cease and desist forthwith from continuing its change in the wages of bargaining unit employees during the pendency of Case No. 386 and that the Defendant rescind all of its actions previously taken which fixed or approved any change in the wages of bargaining unit employees during the pendency of Case No. 386.
All Judges assigned to the Panel in this matter join in this Opinion and Order.
Entered July 15, 1981
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