NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

STATE CODE AGENCIES	|	CASE NO. 520
EDUCATION ASSOCIATION, An	|
Unincorporated Association,	|
	|
Petitioner,	|
	|
v.	|	ORDER EN BANC
	|	AS TO
DEPARTMENT OF PUBLIC	|	JURISDICTION
WELFARE, STATE OF	|
NEBRASKA,	|
	|
Respondent.	|

Before: Judges Gradwohl, Davis, Kratz, Orr and Mullin ( EN BANC):

GRADWOHL, J:

This matter came on for a hearing en banc to determine whether the Commission has jurisdiction of the pending industrial dispute between the parties. Petitioner, State Code Agencies Education Association ("Association"), was represented by its Attorneys, Theodore L. Kessner and Mark D. McGuire. Respondent, Department of Public Welfare of the State of Nebraska ("Department"), was represented by its Attorneys, Sharon M. Lindgren and Linda L. Willard. We now rule that the Commission does have jurisdiction of the pending industrial dispute and that a trial date should be set for its settlement in accordance with Section 48-818, R.R.S. 1943.

The Association's Petition asks the Commission "(a) to define the industrial dispute existing between the parties and (b) to resolve the industrial dispute including the establishment of wages and other terms, tenure and conditions of employment for the teaching employees who are the members of the bargaining unit for the 1982-1983 contract year". The Department's Answer admits that the Association is a "labor organization" and the Department an "employer" under the CIR statutes; that the Association is the certified exclusive bargaining agent of teaching employees of the Department working at the Nebraska Center For Children and Youth, Lincoln, Nebraska; and that the parties have negotiated items concerning the terms, tenure and conditions of employment of the teaching employees in the bargaining unit for the 1982-1983 contract year but that such negotiations failed to conclude in an agreement between the parties.

The Department's Answer alleges that the negotiations failed to conclude in an agreement between the parties because the Association demanded that the Department "negotiate various terms and conditions of employment, such as pay increases and insurance benefits, over which the respondents had no power or authority"; that pay raises and insurance benefits are established by the Nebraska Unicameral and that the Department has no power or authority with respect to these items; that the Commission lacks jurisdiction to order the Department to provide different benefits than those authorized by the Legislature; that no "industrial dispute", as that term is defined in the CIR statutes, exists between the parties; and that the Association's Petition, therefore, fails to state a claim upon which relief can be granted in this proceeding for the reason that the Department and the Commission have no power or authority over the terms and conditions of employment that are in dispute.

The Answer alleges, additionally, that Section 48-819.01, Supp. 1982, is unconstitutional. The Petition does not refer to that Section and it is not clear at this stage of the proceeding whether or not it will have any bearing whatsoever in this case. The Nebraska Supreme Court, however, subsequent to the time the Department's Answer herein was filed, has held, over similar objections, that Section 48-819.01 is valid and enforceable. International Association of Firefighters Local 831 v. City of North Platte, 215 Neb. 89, 337 N.W.2d 716 (1983).

Section 48-810, R.R.S. 1943, provides that "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..." Section 48-801(7), R.R.S. 1943, states that "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." Section 48-801(4), R.R.S. 1943, provides that "Employer shall mean the State of Nebraska or any political or governmental subdivision of the State of Nebraska..." Authority is provided under Section 48-816(1), Supp. 1982, for the Commission to enter orders as to bargaining in good faith, mediation, or fact-finding and other "temporary findings and orders as may be necessary to preserve and protect the status of the parties, property and public interest involved, pending final determination of the issues."Section 48-818, R.R.S. 1943, contains the Commission's authority to establish or alter the scale of wages, hours of labor, or conditions of employment of public employees

covered by the CIR statutes. Section 48-819.01, Supp. 1982, contains further remedial powers and authority of the Commission. Section 48-823, R.R.S. 1943, adds that "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." Section 48-837, R.R.S. 1943, states that "Public employees shall have the right to be represented by employee organizations to negotiate collectively with their public employers in the determination of their terms and conditions of employment, and the administration of grievances arising thereunder; Provided, that any such agreements with the State of Nebraska or any agency thereof shall cover an annual period coinciding with the annual budgeting period of the state and shall be subject to approval by the Legislature."

This case is one of several cases pending in the Commission in which the counsel for an agency of the State of Nebraska has raised issues concerning the jurisdiction of the Commission of Industrial Relations to settle a pending industrial dispute between the state agency and a labor organization representing its employees. The Association and the Department have negotiated collective bargaining agreements for several years prior to the 1982-1983 year in question here. These agreements were approved by the Nebraska Legislature as required by Section 48-837, R.R.S. Neb. 1943 ("provided that any such agreements with the State of Nebraska or any agency thereof shall cover an annual period coinciding with the annual budgeting period of the state and shall be subject to approval by the Legislature"), and were carried out by the parties.

During the Pretrial Conference in this matter, at the suggestion of Counsel for the Department, and over the objection of Counsel for the Association, it was determined that this matter might serve to adjudicate the general issue of jurisdiction of the Commission of Industrial Relations with respect to agencies of the State of Nebraska. It was ordered that "a trial shall be held on the matter of negotiability of economic items, specifically wages and insurance, with teachers employed by a state agency". Subsequently, the Commission ordered this jurisdictional issue to be heard en banc. An evidentiary hearing was held before all of the Judges of the Commission. All of the Judges agree that the Commission has jurisdiction to settle the industrial dispute pending in this matter. We conclude that the "proviso" in Section 48-837 precludes the Commission from ordering these parties to negotiate collectively at this time. We will set the matter for trial as promptly as possible for a determination of wages and conditions of employment under the provisions of Section 48-818.

The "proviso" in Section 48-837 was offered as a floor amendment to L.B. 15 in 1969 by Senator Marvel, then Chairman of the Budget Committee. Volume 1, 1969 Nebraska Legislative Journal, page 832. The amendment referred to the "biennial budgeting period" employed by the State of Nebraska in 1969. There was considerable legislative floor discussion of the amendment on March 5, 1969, and it was held for further consideration. See pages 528 to 532, Record of the Nebraska Legislature, March 5, 1969.

On April 9, 1969, Senator Marvel's amendment was agreed to without further debate. Volume 1, 1969 Nebraska Legislative Journal, page 1352; Page 913, Record of the Nebraska Legislature, April 9, 1969. Several years later, the Revisor of Statutes changed "biennial" to "annual" to correspond to the annual sessions of the Legislature.

This "proviso" appears to require collectively negotiated agreements with the State of Nebraska or any agency thereof to be submitted for approval by the Legislature at the same legislative session as the budget for that period is adopted by the Legislature. This interpretation of the "proviso" seems especially compelling in view of the biennial budgeting period in effect in 1969 to which the proviso was originally applicable.

The evidence in the record in this case indicates that prior agreements between these parties have been presented to the same Legislature as that which adopted the budget for the period "coinciding" with the period of the collectively negotiated agreement. The same practice also appears to have been followed in other cases. See, e.g., Locals 601, 671, 1188, 1459 and 2504, AFSCME, v. State of Nebraska Department of Public Institutions, 6 CIR 233 (1982).

The period in question in this case is the 1982-1983 annual budgeting period. We conclude that the "proviso" in Section 48-837 precludes the Commission from ordering these parties to negotiate collectively at this time with respect to wages and conditions of employment for the 1982-1983 annual budgeting period.

The Nebraska Supreme Court has affirmed the Commission's authority to establish wages and other conditions of employment pursuant to Section 48-818 for state employees jointly employed by a state administrative department and a county department. Local No. 2088, American Federation of State, County and Municipal Employees v. County of Douglas, 4 CIR (1979), reversed and remanded with directions on other grounds, 208 Neb. 511, 304 N.W.2d 368, supplemental opinion, 209 Neb. 597, 309 N.W.2d 65 (1981), decision following remand, 5 CIR 265 (1981). In Local 2088, the Commission's and Supreme Court's determinations under Section 48-818 were made subsequent to the Legislature's appropriation to the Department of Public Welfare (the same party involved in this case) and after the public employer had adopted a general across-the-board, cost-of-living wage increase for its employees generally.

The Nebraska Supreme Court has, on many occasions, held the CIR statutes applicable to both constitutionally and statutorily created agencies of the State of Nebraska. Nebraska Department of Roads Employees Association v. Department of Roads, 2 CIR No. 57 (1972), affirmed, 189 Neb. 754, 205 N.W. 2d 110 (1973); Nebraska Council of Educational Leaders v. Nebraska State Department of Education, 2 CIR No. 56 (1972), reversed and dismissed on other grounds, 189 Neb. 811, 205 N.W.2d 537 (1973); American Federation of State, County and Municipal Employees v. Department of Public Institutions, 2 CIR No. 104 (1975), affirmed , 195 Neb. 253, 237 N.W.2d 841 (1976); Nebraska Association of Public Employees v. Nebraska Game and Parks Commission 4 3 CIR 83 (1975), affirmed , 197 Neb. 178,247 N.W.2d 449 (1976); American Federation of State, County and Municipal Employees v. State of Nebraska; Nebraska Association of Public Employees v.State of Nebraska, 3 CIR 77, 3 CIR 148 (1976), affirmed as modified, 200 Neb. 171, 263 N.W.2d 471 (1978); Nebraska Association of Public Employees v. State of Nebraska, Department of Education , 3 CIR 374 (1978), affirmed , 204 Neb. 165, 281 N.W.2d 544 (1979).

Similarly, the Supreme Court has held that the CIR statutes are applicable to independent constitutionally created governmental units. American Association of University Professors v. Board of Regents of the University of Nebraska, 3 CIR 71 (1975), affirmed, 198 Neb. 243, 253 N.W.2d 1 (1977); House Officers Association v. University of Nebraska Medical Center, 3 CIR 159 (1976), affirmed in part, and in part reversed and remanded on other grounds, 198 Neb. 697, 255 N.W.2d 258 (1977); University Police Officers Union v. University of Nebraska, 3 CIR 335 (1977), affirmed in part and in part reversed and remanded on other grounds, 203 Neb. 4, 277 N.W.2d 529 (1979); American Association of University Professors v. Board of Regents of the University of Nebraska, 3 CIR 457 (1978), affirmed, 203 Neb. 628, 279 N.W.2d 621 (1979); Retail and Professional Employees Union v. Board of Trustees, Nebraska State Colleges, CIR Case No. 256, Order for Election, affirmed, 203 Neb. 829, 280 N.W.2d 656 (1979); State Colleges Education v. Board of Trustees of Nebraska State Colleges; Chadron State College Teaching Faculty Bargaining Unit v. Board of Trustees of the Nebraska State Colleges, 3 CIR 607 (1978), reversed and remanded on other grounds, 205 Neb. 107, 286 N.W.2d 433 (1979), decision following remand, 4 CIR 160 (1980).

The Commission on a number of other occasions has entered Orders involving the State of Nebraska and its employees. Nebraska Department of Roads Employees Association v. Department of Roads, 2 CIR No. 53 (1971); Kearney State College Employees Union v. State of Nebraska, 2 CIR No. 87 (1974); American Federation of State, County and Municipal Employees v. Department of Labor, 2 CIR No. 89 (1973); Nebraska Association of Public Employees v. Nebraska Game and Parks Commission, 2 CIR No. 106 (1975); International Brotherhood of Electrical Workers, Local 1221 v. State of Nebraska, Nebraska Educational Television Commission, 3 CIR 23 (1975); Nebraska Local of the International Brotherhood of Correctional Officers v. State of Nebraska, Department of Correctional Services, 3 CIR 181 (1976); Retail and Professional Employees Local 1015 v. State of Nebraska, Kearney Youth Development Center, 3 CIR 400 (1978); Vathauer v. Higher Education Association of Nebraska, Chadron State Education Association and Board of Trustees, Nebraska State Colleges, 3 CIR 289 (1977); State Code Agencies Teachers Association v. Department of Public Institutions and Department of Public Welfare, CIR Case No. 250, Certification Order, June 28, 1978; Nebraska Association of Public Employees v. State of Nebraska, CIR Case No. 259, Memorandum and Order, December 7, 1978; Scottsbluff Association of Welfare Workers v. County of Scottsbluff and State of Nebraska Department of Public Welfare, Case No. 289, Certification Order, April 17, 1979; Nebraska Correctional Officers Union Local No. 9 v. Nebraska Department of Correctional Services, 4 CIR 70 (1979); Neeman v. State of Nebraska, Lancaster County Division of Public Welfare, American Federation of State, County and Municipal Employees, Local 2802, CIR Case No. 330, Decertification Order, January 22,1980; Nebraska Association of Public Employees v. Nebraska Department of Roads and Nebraska Game and Parks Commission 4 CIR Case No. 331, Judgment and Order, December 3, 1979; State Code Agencies Education Assn v. Department of Corrections, State of Nebraska, CIR Case No. 351, Certification Order, May 23, 1980; American Federation of State, County and Municipal Employees, Council 32 v. State of Nebraska Department of Public Institutions, 5 CIR 52 (1980); American Federation of State, County and Municipal Employees v. State of Nebraska Department of Public Institutions, 6 CIR 78, 6 CIR 233 (1982); American Federation of State, County and Municipal Employees v. Governor Kerrey, State of Nebraska, State of Nebraska Department of Public Institutions and State of Nebraska Department of Labor, CIR Case No. 510, Order on Demurrers, 7 CIR 110 (1983).

The Department contends that the actions of the 1982 Nebraska Legislature, together with statutes previously enacted, on the subjects of appropriations and insurance preclude it from bargaining with the Association and preclude the Commission from having jurisdiction to act with respect to the industrial dispute claimed by the Association. See LB 761 (1982) (Respondent's Exhibit 2) and LB 970 (1982) (Respondent's Exhibit 7). The Department is correct that where the Legislature specifies that a precise term or condition of employment shall exist, the parties to collective bargaining are not free to vary the statutory mandate through collective bargaining; it is equally true, however, that to the extent there is not such a statutory directive as to a term or condition of employment, the parties are obligated under the public employment bargaining statutes to negotiate in good faith on all mandatory subjects. Speaking to the issue of the relationships of the CIR statutes to the civil service act applicable to Lancaster County, the Supreme Court stated in American Federation of State, County and Municipal Employees v. Lancaster County, 200 Neb. 301, 304-305, 263 N.W.2d 471, 474 (1978), affirming 3 CIR 200 (1977):

"Among the topics included in the package bargaining agreement which was presented by the Plaintiff to the defendant were the following: Hours of work, work breaks, holidays, vacations, sick leave, leaves of absence, unpaid leaves of absence, insurance, wages, minimum time payments, overtime, transfers, lay-off and recall, uniforms and protective clothing, severance pay, work rules, and longevity pay. There is nothing in the civil service act which prohibited the county board from bargaining with its employees in regard to these topics. There were other topics included in the package bargaining agreement which were controlled by the civil service act to some extent, such as promotions, discipline, grievance procedure, nondiscrimination, and termination. To the extent that the civil service act contains specific and mandatory provisions relating to such matters, the county board is not free to bargain. As an example, the act provides all appointments and promotions shall be based on merit and fitness. The county board has no power or authority to bargain or agree that any appointment or promotion shall be based upon anything other than merit and fitness except as provided in the act.

"In a case involving somewhat similar issues the Supreme Court of Pennsylvania stated as follows: 'The mere fact that a particular subject matter may be covered by legislation does not remove it from collective bargaining under section 701 if it bears on the question of wages, hours and conditions of employment. We believe that section 703 only prevents the agreement to and implementation of any term which would be in violation of or inconsistent with any statutory directive.' Pennsylvania Lab. Rel. Bd v. State Col. A. School Dist., 461 Pa. 494, 337 A. 2d 262. See, also, Sutherlin Ed. Assn. v. Sutherlin School Dist. No. 30, 25 Or. App. 85, 548 P.2d 204; Board of Education v. Associated Teachers, 30 N.Y.2d 122, 331 N.Y.S.2d 17, 282 N.E.2d 109.

"The defendant had no right to refuse to bargain on all the topics contained in the package bargaining agreement which are referred to in sections 23-2517 to 23-2533, R.R.S. 1943, although it may not have been required or permitted to bargain upon some of the topics. Upon the present state of the record it is impossible to do more than generalize in regard to the particular matters that are subject to negotiation.

"The order of the Court of Industrial Relations directing the parties to proceed with bargaining was correct and is affirmed."

The 1982-1983 legislative appropriation for the Nebraska Center For Children And Youth is contained in Section 26(6) of LB 761 (1982):

"(6) Program No. 524-Nebraska Center for Children and Youth

GENERAL FUND 2,868,101

CASHFUND 129,132

FEDERAL FUND est. 71,422

PROGRAM TOTAL 3,068,655

"Total expenditures for permanent and temporary salaries and per diems shall not exceed $2,218,448.

Section 93 of LB (1982) states:

"Sec. 93. (1) The Director of Personnel shall on October 1, 1982, revise the Classified Service Salary Schedule and the Medical Doctors Salary Schedule of the State of Nebraska Classification and Pay Plan by increasing all hiring, minimum permanent, and maximum rates of each salary grade by five percent to the nearest dollar. The monthly,biweekly, and hourly rates shall be computed from the increased annual rates.

For Governor Thone's partial veto message, see 2 Nebraska Legislative Journal 1952-1957 (1982).

Section 93(7) of LB 761 (1982) expressly states that in addition to the five percent across the board increase provided in Section 93(2), "salary increases may be granted for promotions, merit, salary grade adjustments, or reclassifications" within the personal services spending limitations contained in the Bill. Within the rules stated in American Federation of State, County and Municipal Employees v. Lancaster County, set out above, the Department had no right to refuse categorically to bargain with respect to any wage issue whatsoever with the Association. Similarly, the Department is incorrect in urging that the Commission has no jurisdiction with respect to any wage issue whatsoever by virtue of LB 761.

The same reasoning holds as to LB 970 (1982) on the subject of health insurance for state employees. That Bill gives an option to employees mandatorily retired before age sixty-five because of the provisions of any state retirement system; and increases the state contributions for single health insurance coverage from $22.96 to $29.82 per month, for two or four party coverage from $59.31 to $75.14 per month, and for family coverage from $85.14 to $106.75 per month, effective July 1, 1982. Previous enactments of the Legislature have provided insurance benefits for state employees. See, e.g., Sections 44-1615, 44-1616, 44-1620 et. seq. R.R.S. Supp. 1982. As in the American Federation of State, County and Municipal Employees v. Lancaster County reasoning set out above, this legislation may limit the scope of the Department's obligation to mandatorily negotiate on the subject of insurance but it does not foreclose its total obligation to bargain in good faith, as that term is defined in Section 48-816(1), R.R.S.Supp. 1982, with the Association. See also School District of Seward Education Association v. School District of Seward, 188 Neb. 772, 199 N.W.2d 752 (1972); Metropolitan Technical Community College Education Association v. Metropolitan Technical Community College Area, 203 Neb. 832, 281 N.W.2d 544 (1979).

The Association's prayer in its Petition and its claim at the present hearing and in its post-hearing Brief is that the Commission establish wages, hours, and conditions of employment pursuant to the criteria of Section 48-818, R.R.S. Neb. 1943. The standard under that section is stated in terms of "overall compensation". Section 48-818 states:

"The findings and order or orders may establish or alter the scale of wages, hours of labor, or conditions of employment, or any one or more of the same. In making such findings and order or orders, the Commission of Industrial Relations shall establish rates of pay and conditions of employment which are comparable to the prevalent wage rates paid and conditions of employment maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions. In establishing wage rates the commission shall take into consideration the overall compensation presently received by the employees, having regard not only to wages for time actually worked but also to wages for time not worked, including vacations, holidays, and other excused time, and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees."

Although state statutes, or existing contractual arrangements as to insurance, may limit some specific items of the Commission's determinations, they do not foreclose the Commission's ability to make determinations in terms of "overall compensation" under Section 48-818.

ORDER

It is, therefore, Ordered that the Respondent's objections as to the jurisdiction of the Commission of Industrial Relations with respect to the pending industrial dispute between the parties be, and hereby are, overruled. The case will be set for a Pretrial Conference and Trial by separate Order as promptly as possible.

All Judges join in the entry of this Order.

Filed January 17, 1984

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