| AMERICAN FEDERATION OF STATES, COUNTY AND | | | CASE NO. 382 |
| MUNICIPAL EMPLOYEES, COUNCIL #32, | | | |
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| Petitioner, | | | |
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| v. | | | OPINION AND ORDER |
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| STATE OF NEBRASKA DEPARTMENT OF PUBLIC | | | |
| INSTITUTIONS, | | | |
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| Respondent, | | | |
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| and | | | |
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| NEBRASKA ASSOCIATION OF PUBLIC EMPLOYEES, | | | |
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| Intervenor. | | |
Appearances:
For the Petitioner:John B. Ashford
Bradford, Coenen & Ashford
For the Respondent: Lynne Rae Fritz
John M. Boehm
Melvin Y. Kammerlohr
Assistant Attorneys General
For the Intervenor: Steven D. Burns
Noren and Burns
Before: Judges Gradwohl, Berkheimer and Orr.
GRADWOHL, J:
This matter comes on for a determination of Respondent's Motion to Dismiss the Petition herein for the reason that the Commission lacks subject matter jurisdiction. Upon the filing of the Petition, which contains a prayer for temporary findings and orders, the case was set for a hearing on preliminary matters pursuant to Section 48-816(1). Respondent, State of Nebraska Department of Public Institutions, entered a voluntary appearance in accordance with
Section 48-813 and contemporaneously submitted the Motion to Dismiss. After oral argument, the Commission reserved ruling on the Motion To Dismiss. An evidentiary hearing was held on the prayer for temporary findings and orders. Following the hearing, the Commission denied the request for temporary findings and orders and allowed the parties additional time to file written Briefs on the Motion To Dismiss.
For the following reasons, we conclude that the Motion To Dismiss should be sustained. Petitioner has, in the meantime, filed a Motion For Leave To File An Amended Petition to conform to the proof presented at the hearing. For the reason that the Amended Petition attached to the Petitioner's Motion For Leave also does not allege matters within the subject matter jurisdiction of the Commission, that Motion should be denied.
1. Nature of the Proceeding.
This suit was initiated to prevent the layoff of twenty-one employees of the Norfolk Regional Center on September 7, 1980. The Petition alleged that the layoff was in violation of the collective bargaining currently in effect; that the 'hiring freeze" implemented by order of the Governor of Nebraska, coupled with the failure of the Respondent to secure waivers under the 'hiring freeze", violated Section 48-802(1) and (2) and was otherwise illegal; and that the Respondent failed to provide training and retraining for the employees in violation of a federal statute. The Amended Petition, for which Petitioner seeks leave to file, does not contain the "hiring freeze" allegations and the federal statute claim and states a separate cause of action that the actions of the Respondent will hinder, delay, limit, or suspend the continuity and efficiency of the Norfolk Regional Center and the Department of Public Institutions.
The Nebraska Association of Public Employees was allowed to intervene in the temporary proceedings, aligned with the Petitioner, on behalf of certain employees represented by it who are not covered by the collective bargaining agreement between the Petitioner and Respondent. The Petition Of Intervention is similar to the Petition. Its Brief contains an additional allegation that the Respondent has not followed its own Personnel Rules and Regulations, admitted in evidence at the hearing, concerning the rights of employees as to layoff.
2. Statutory Jurisdiction of the Commission.
The general jurisdiction of the Commission is contained in Section 48-810, which states in part:
"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 of the Commission of Industrial Relations; ....
Petitioner and Intervenor also argue that the Commission has jurisdiction under Section 48-819.01, which provides:
"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 commissions hall 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 resolve the dispute."
Section 48-819.01 was enacted by Section 8 of L.B. 444 and became effective on May 22, 1979. Previously, the Commission lacked this type of jurisdiction. See University Police Officers Union v. University of Nebraska , 203 Neb. 4, 277 N. W. 2d 529 (1979).
Both Section 48-810 and Section 48-819.01 use the term "industrial dispute." Section 48-801(7) defines "industrial dispute":
"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 specific provisions of the Nebraska Commission of Industrial Relations Statutes which Petitioner and Intervenor claim are violated in this matter are contained in Section 48-802(1) and (2):
"To make operative the provisions of section 9, Article XV, of the Constitution of Nebraska, the public policy of the State of Nebraska is hereby declared to be as follows:
"(1) The continuous, uninterrupted and proper functioning and operation of the governmental service including governmental service in a proprietary capacity and of public utilities engaged in the business of furnishing transportation for hire, telephone service, telegraph service, electric light, heat or power service, gas for heating or illuminating, whether natural or artificial, or water service, or any one or more of them, to the people of Nebraska are hereby declared to be essential to their welfare, health and safety. It is contrary to the public policy of the state to permit any substantial impairment or suspension of the operation of governmental service, including govemmental service in a propriety capacity or any such utility by reason of industrial disputes therein. It is the duty of the State of Nebraska to exercise all available means and every power at its command to prevent the same so as to protect its citizens from any dangers, perils, calamities, or catastrophes which would result therefrom. It is therefore further declared that governmental service including governmental service in a proprietary capacity and the service of such public utilities are clothed with a vital public interest and to protect same it is necessary that the relations between the employers and employees in such industries be regulated by the State of Nebraska to the extent and in the manner hereinafter provided;
"(2) No right shall exist in any natural or corporate person or group of persons to hinder, delay, limit, or suspend the continuity or efficiency of any governmental service or governmental service in a proprietary capacity of this state, either by strike, lockout, or other means;"
3. Contract Claim.
Petitioner claims rights under a collective bargaining agreement with the Respondent covering the period July 1, 1980, to June 30, 1981. In several recent decisions, the Nebraska Supreme Court, reversing the Commission, has held that the jurisdiction of the Commission is limited to the adjudication of rights with respect to which the parties have not yet reached agreement. Transport Workers of America v. Transit Authority of the City of Omaha , 205 Neb.
26, 286 N. W. 2d 102 (1979); State Colleges Education Association v. Board of Trustees , 205 Neb. 107, 286 N.W. 2d 433 (1979); Plattsmouth Police Department Collective Bargaining Committee v. City of Plattsmouth , 205 Neb. 567, 288 N. W. 2d 729 (1980). These decisions are, of course, controlling on the Commission. Saltz v. School District of Norfolk , Case No. 329 (February 19, 1980) (Appeal Pending).
4. Claims Other Than Contract.
Petitioner's underlying objections in this matter pertain exclusively, or primarily, to the amount, type, and quality of services and care provided at the Norfolk Regional Center. The Respondent has recently made changes in the operation of the Norfolk Regional Center and throughout the Department of Public Institutions. The Respondent's changes have been motivated exclusively, or primarily, by considerations of the philosophy of providing services and care by the Department of Institutions. The Petitioner's allegations, especially as restated in its proposed Amended Petition, pertain largely to the services and care at the Norfolk Regional Center and the potential loss of accreditation by the facility.
The jurisdiction of the Commission of Industrial Relations is limited to "industrial disputes". Section 48-810 provides that "All industrial disputes ... shall be settled by invoking the jurisdiction of the Commission of Industrial Relations." Section 48-819.01 states that "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 48-810 to 48-838", the Commission "shall have the power and authority to enter . . . temporary or permanent orders . . . ." No statute grants subject matter jurisdiction to the Commission of Industrial Relations in the absence of an industrial dispute. The definition of industrial dispute is contained in Section 48-801(7), set out above.
The Nebraska Supreme Court has recently ruled on a related and analagous issue. In Metropolitan Technical Community College Education Association v. Metropolitan Technical Community College Area , 203 Neb. 832, 281 N. W. 2d 201 (1979), the issue concerned whether the number of faculty "contact hours" (the times when the instructor must be available in the classroom, laboratory, or clinic for teaching purposes) was a matter of "wages, hours and conditions of employment" and, therefore, the proper subject for a bargaining order by the Commission. The Supreme Court held that since faculty contact hours" was a foundational value judgment
which struck "at the very heart of the educational philosophy of the particular institution" (203 Neb. at 842-843), the item was not a proper subject for negotiation even though that decision might have some impact on working conditions. The Supreme Court
ruled that the Commission had no authority to order the College to bargain on the number of faculty contact hours" to be required at the institution.
Portions of the Metropolitan Technical Community College decision states:
"During negotiations of wages and other terms and conditions of employment for the 1977-1978 contract year, the Association proposed that faculty 'contact hours' be set at a maximum of 14 hours per week and contact or duty hours' for counselors, evaluators, and campus librarians be established at 28 hours per week. The College refused to negotiate, alleging that 'workload' was'predominately a matter of educational policy, management prerogative, and/or constitutes a demand for bargaining over the statutory duties of the Board of Governors of the Metropolitan Technical Community College Area.' This litigation then followed.(203 Neb. at 834)."
"The parties agree, and their position is supported by both case law and statutes, that matters which are predominantly matters of educational policy and management prerogative are not subject to mandatory negotiation, whereas conditions of employment are. School Dist. of Seward Education Assn. v. School Dist. of Seward , 188 Neb. 772, 199 N. W. 2d 752 (1972); ยงยง48-816, R.R. S. 1943. It is also obvious that number of 'contact hours' or 'duty hours' which must be spent out of the 40-hour workweek has some effect on whether it is an easy job or a difficult job and these hours are therefore, to that extent, 'conditions of employment.' By the same token, if the number of 'contact hours' requires a change in the philosophy of education, the number of teachers needed, the scope of the program offered, the number of students, or the amount of financial aid, as was demonstrated by the record, it affects educational policy and management prerogatives."
"The College recognized this dichotomy, or perhaps more accurately this overlapping, in its formal response to the Association's demand for negotiation. In that document the College said:
'The allocation of the time and energies of its faculty are consequences of the College's basic educational policy. This is an area of management prerogative and policy-making powers, reserved to the Board of Governors of the College. Accordingly, we decline to bargain concerning the number of hours within the work week that are to be allocated to classroom time, laboratory time or other time in contact with students. However, this is not to say that we decline to bargain, at the appropriate time, concerning the affects [sic] of the Board's allocation of faculty's time on the wages of bargaining unit employees.' (Emphasis supplied)." (203 Neb. at 837-838). (Emphasis in original text).
***
"A matter which is of fundamental, basic, or essential concern to an employee's financial and personal concern may be considered as involving working conditions and is mandatorily bargainable even though there may be some minor influence on educational policy or management prerogative. However, those matters which involve foundational value judgments, which strike at the very heart of the educational philosophy of the particular institution, are management prerogatives and are not a proper subject for negotiation even though such decisions may have some impact on working conditions. However, the impact of whatever decision management may make in this or any other case on the economic welfare of employees is a proper subject of mandatory bargaining." (203 Neb. at 842-843).
"We find the evidence supports the College's position that the number of instructor contact hours involves a foundational value judgment which is essential to its basic educational and learning philosophy and is therefore a prerogative of management and is not bargainable." (203 Neb. at 843).
A similar characterization is called for in the present case to determine whether or not there is an "industrial dispute" over which the Commission has subject matter jurisdiction. The pleadings and the evidence at the hearing on preliminary proceedings make clear that the primary activities of the Respondent to which the Petitioner and Intervenor complain "involve fundamental value judgments, which strike at the very heart of the ... philosophy of the particular institution." These matters involve the amount, type, and quality of services and care provided at the Norfolk Regional Center. It is also true that "such decisions may (clearly, they do) have some impact on working conditions". (203 Neb.
843). The Petitioner and Intervenor seek to have the Commission set aside the foundational value judgments of the Respondent.
A dispute primarily concerning foundational value judgments which strike at the very heart of the philosophy of the particular governmental institution is not an "industrial dispute" within the meaning of sections 48-810, 48-819.01, and 48-801(7). The crux of this suit by the Petitioner and Intervenor is to set aside the foundational value judgments of the Respondent with respect to the Norfolk Regional Center. It does not accept the foundational value judgments of Respondent and seek to have the Commission, within the limitations of its statutory jurisdiction, act in an industrial dispute concerning the impact of such foundational value judgments on the economic welfare of the employees. See Hastings Education Association v. School District of Hastings , 4 CIR 226 (1980).
5. Pleadings.
The Petition, the Amended Petition attached to Petitioner's Motion For Leave To Amend Petition, and the Petition of Intervention do not allege facts constituting an industrial dispute within the jurisdiction of the Commission of Industrial Relations. Paragraphs 3 to 7 of the Petition are founded on the collective bargaining agreement. Paragraphs 8 to 10 of the Petition contain allegations relating primarily to the amount, type and quality of care and services provided at the Norfolk Regional Center. The petition does not contain factual allegations constituting an industrial dispute within the statutory jurisdiction of the Commission of Industrial Relations. The Amended Petition and Petition of Intervention similarly do not contain factual allegations constituting an industrial dispute within the jurisdiction of the Commission. Allowing the Petitioner and Intervenor the benefit of the evidence introduced at the preliminary proceeding under Section 48-816(1), the matter does not constitute an industrial dispute under the statutory authority of Chapter 48, Article 8, of the Nebraska statutes.
IT IS, THEREFORE, ORDERED that:
1. Petitioner's Motion For Leave To Amend Petition is overruled;
2. Respondent's Motion to Dismiss is sustained; and
3. The Petition of American Federation of State, County and Municipal Employees, Council #32, and Petition of Intervention of Nebraska Association of Public Employees are hereby dismissed.
All of the Judges assigned to the Panel in this matter join in the entry of this Opinion and Order.
Entered September 29, 1980.
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