| SARPY COUNTY PUBLIC EMPLOYEE'S | | | CASE NO. 522 |
| ASSOCIATION, | | | |
| | | ||
| Plaintiff, | | | |
| | | ||
| v. | | | OPINION AND ORDER |
| | | ||
| COUNTY OF SARPY; CARL | | | |
| HIBBELER, Sarpy County Register | | | |
| of Deeds; MARY COWGER, County | | | |
| Clerk; AL DVORAK, County | | | |
| Assessor; KATHLEEN INGRAM, | | | |
| County Treasurer; CHARLENE | | | |
| MARCHAND, Clerk of the District | | | |
| Court; SUSAN SMITH, Election | | | |
| Commissioner; NORMAN | | | |
| WHITNEY, County Surveyor. | | | |
| | | ||
| Defendants. | | |
Appearances:
For the Plaintiff:Thomas C. Marfisi
807 North 39th Street
Omaha, Nebraska
For the Defendant,
County of Sarpy: George C. Rozmarin
3535 Harney Street
Omaha, Nebraska
For the Defendant,
Individuals:Verne Moore, Jr.
10010 Regency Circle
Omaha, Nebraska
Before: Judges Orr, Gradwohl, and Kratz
ORR, J:
The primary issue presented by this case, as stipulated by the parties, is "who among the defendants is the 'employer' of the plaintiff's members."
The plaintiff, Sarpy County Public Employee's Association, is an unincorporated association of employees who represents a bargaining unit described as:
All full-time and regular part-time administrative and clerical employees of the County excluding those working in the Sheriffs Department and the County Extension Department, and excluding all professional, supervisory, and confidential employees.
In separate briefs filed with the Commission at the close of the trial, both the plaintiff and the defendant, Sarpy County, argue that Sarpy County, acting through its county board, is the employer of the plaintiff s members. The elected and appointed officials named as defendants in this case ("county officials"), who do not necessarily recognize the plaintiff's unit as the appropriate bargaining unit, claim in their brief, however, that each county official is the employer of the county employees within his or her office.
In previous cases addressing this issue, the Commission has consistently found Sarpy County to be the employer of county employees within the meaning of Section 48-801 to 48-839, R.R.S. 1943. See, Sarpy Lodge No. 3, Fraternal Order of Police v. County of Sarpy, 3 CIR 265 (1977); American Federation of State, County, and Municipal Employees v. County of Sarpy, 3 CIR 136 (1976), Sarpy Lodge No. 3, Fraternal Order of Police v. County of Sarpy, 3 CIR 122 (1976). We feel a reexamination of the position previously taken by the Commission on this issue is in order.
In the case at bar, the elected and appointed Sarpy County officials have been joined as defendants. These officials have taken an affirmative position and have claimed that they are the actual employers of the administrative and clerical employees in their offices. Consequently, they claim that they, and not the county board, are entitled to negotiate the terms and conditions of employment with their employees.
Section 48-801(4), R.R.S. 1943, defines an employer for the purposes served by the Commission of Industrial Relations. It states:
Employer shall mean the State of Nebraska or any political or governmental subdivision of the State of Nebraska, except the Nebraska National Guard or State militia, any municipal corporation or any public power district or public power and irrigation district. It shall also include any public utility as defined in sections 48-801 to 48-823.
The county officials contend that each county office is a governmental subdivision of the State of Nebraska. Consequently, as administrators of county offices, they claim that they fall within the statutory definition of Section 48-801(4), R.R.S. 1943. In addition, the county officials point to Section 23-1111, R.R.S. 1943, which provides:
The county officers in all counties shall have the necessary clerks and assistants for such periods and at such salaries as they may determine with the approval of the county board, whose salaries shall be paid out of the general fund of the county.
Based on the Section 48-801(4), R.R.S. 1943 and Section 23-1111, R.R.S. 1943, they conclude that they, as county officials, and not Sarpy County, have been statutorily vested with the authority to hire their respective employees and to provide for the other usual terms and conditions of employment.
Addressing similar arguments in American Federation of State, County, and Municipal Employees v. County of Sarpy, 3 CIR 136 (1976), we said:
The only sincerely contested item before the Court is 'who is the employer of the employees?' in the various elected officials' offices.
The defendant has been misled by §23-1111, R.R.S. Nebraska 1943 permitting the elected official to set the salary of his clerks and assistants, into thinking that is the controlling factor before this Court. In fact, in its argument, defendant cites our Court's definition statute §48-801(4) R.R.S. 1943: 'Employer shall mean the State of Nebraska or any political or governmental subdivision of the State of Nebraska. . .' and then proceeds to argue that the separately elected county officials are separate subdivisions of government. The statute mandates otherwise. Section 23-101, R.R.S. 1943 says, 'Each county established in this state according to the laws thereof, shall be a body politic and corporate. . .' Sarpy county was established by G.S. 1873, c. 12, §46, p. 221, now §22-177, R.R.S. 1943. Being a body politic and corporate, the County of Sarpy neatly fits the statutory definition of an employer as set forth in §48-801(4), R.R.S. 1943.
Id at 137.
The real question in this case goes somewhat beyond a strict determination of who is within the statutory definition of Section 48-801(4), R.R.S. 1943. None of the parties to this case dispute the fact that Sarpy County is a governmental subdivision of the State of Nebraska, see Speer v. Kratzenstien, 143 Neb. 300, 9 N.W.2d 306 (1943), vacated and rec'd on rehearing, 143 Neb. 310, 313, 12 N.W.2d 360, 362 (1944); Franek v. Butler County, 127 Neb.852, 855, 257 N.W. 235, 236 (1934); American Federation of State, County, and Municipal Employees v. County of Sarpy, 3 CIR 135, 137 (1976), and that as such, it clearly fits within the statutory definition of an "employer" provided by Section 48-801(4), R.R.S. 1943. See, Sarpy Lodge No. 3, Fraternal Order of Police v. County of Sarpy, 3 CIR 265, 266 (1977); American Federation of State, County, and Municipal Employees v. County of Sarpy, 3 CIR 136, 137 (1976); Sarpy Lodge No. 3, Fraternal Order of Police v. County of Sarpy, 3 CIR 122, 123 (1976). Rather, the dispute is over who is obligated by law to actually negotiate the terms and conditions of employment with the employees of the various county offices of the officials named as defendants in this case, the county officials or the county board.
The statutes which govern the roles of the county board and the county officials in setting the wages and terms of employment of county employees are Section 77-401.01, R.R.S. 1943 and Section 23-1111, R.R.S. 1943.
Section 77-401.01, R.R.S. 1943 applies to the employees of the county assessor's office, while Section 23-1111, R.R.S. 1943 applies to the employees of the offices of the other county officials named as defendants in this case.
Section 77-401.01, R.R.S. 1943 provides:
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.
Section 23-1111, R.R.S. 1943, which applies to the offices of the other county officials named as defendants, provides:
The county officers in all counties shall have the necessary clerks and assistants for such periods and at such salaries as they may determine with the approval of the county board, whose salaries shall be paid out of the general fund of the county.
Although some distinction may be drawn between these statutes, it does not appear to be significant for the purposes of this case. Both Section 77-401.01, R.R.S. 1943 and Section 23-1111, R.R.S. 1943 require the consent or the approval of the county board in the appointment of assistants and, while Section 23-1111, R.R.S. 1943, places the primary duty of fixing the salaries of the employees of the various county offices with the county officials, the approval of the county board must, nevertheless, be obtained. See generally, Bass v. County of Saline, 171 Neb. 538, 106 N.W. 2d 860 (1960); Nebraska State Council of Local Unions Number 32, American Federation of State, County, and Municipal Employees v. Dakota County, 5 CIR 214 (1981).
Assuming, as the county officials contend, that each county office is a "governmental subdivision of the State of Nebraska," we do not conclude as they do that either Section 77-401.01, R.R.S. 1943 or Section 23-1111, R.R.S. 1943 makes the county officials the sole employers of the employees who work in each of their offices. Rather, the wording of these statutes clearly indicates the Legislature's desire to have both the county officials and the county board involved in the employment process.
The county board must be involved in the bargaining process because only the county board has the statutory authority to enter into binding contracts; the county officials do not.
In Grace v. County of Douglas, 178 Neb. 690, 694, 695, 134 N.W. 2d 818, 821 (1965), the Nebraska Supreme Court said: "An office holder has no authority to bind the county in any contract without its approval." See also, Sarpy Lodge No. 3, Fraternal Order of Police v. County of Sarpy, 3 CIR 265, 267 (1977) (quoting Grace). Instead, Section 23-104, R.R.S. 1943 specifically gives the authority to contract to the county. It provides in part: "Each county shall have power ... (6) to make all contracts and to do all other acts in relation to the property and concerns of the county necessary to the exercise of its corporate powers." Thus, it is well established that any agreement negotiated by county officials fixing wages and conditions of employment of county employees cannot be consummated and made binding upon the county without the approval of the county board. See, Bass v. County of Saline, 171 Neb. 538, 543,106 N.W.2d 860,864 (1960). See also, Grace v. County of Douglas, 178 Neb. 690, 694, 134 N.W.2d 818, 821 (1965); Sarpy Lodge No. 3, Fraternal Order of Police v. County of Sarpy, 3 CIR 265, 267 (1977). With the county board having the power to contract, it seems imperative that the county board, as well as the elected officials, be involved in the bargaining process.
In American Federation of State, County, and Municipal Employees v. County of Lancaster, 196 Neb. 89, 241 N.W.2d 523 (1976), the Nebraska Supreme Court set out the criteria which are indicative of a joint employer situation in the public sector. These criteria included the interrelation of operations between the prospective joint employers, the degree of common management, and the extent of centralized control over labor-management relations. Id. at 91, 241 N.W.2d at 524. "While common management and interrelations of operation are important, the crucial test for the purposes of labor management relations herein must be the extent to which labor relations are under centralized control." Id. at 93, 241 N.W.2d at 525.
Because the relationship of the county and the county officials in regard to labor-management relations is so intertwined by statute, we believe that only one conclusion can be drawn. We hold that Sarpy County, the Sarpy County Assessor, the Sarpy County Register of Deeds, the Sarpy County Clerk, the Sarpy County Treasurer, the Clerk of the District Court of Sarpy County, the Sarpy County Election Commissioner and the Sarpy County Surveyor are joint employers of the employees described in plaintiffs bargaining unit.
To hold otherwise would contravene the express provisions of Section 77-401.01, R.R.S. 1943, Section 23-1111, R.R.S. 1943, Section 23-104(6), R.R.S. 1943, and existing case law. Also, there is a strong policy against undue fragmentation of bargaining units in the public sector, American Association of University Professors, University of Nebraska at Omaha Chapter v. Board of Regents, 203 Neb. 628, 633, 279 N.W.2d 621, 624 (1979), and many factors are involved in the determination of whether a particular group of employees constitutes an appropriate unit for bargaining. See, e.g., I.B.E.W. Local 1536 v. Lincoln Electric System, 215 Neb. 840, 842, 341 N.W.2d 340, 341 (1983); Sheldon Station Employees Ass'n. v. Nebraska Public Power District, 202 Neb. 391, 395-96, 275 N.W.2d 816, 819 (1979); American Federation of State, County, and Municipal Employees, Local 2088 v. County of Douglas, 201 Neb. 295, 300, 267 N.W.2d 736, 739 (1978); American Ass'n. of University Professors, University of Nebraska Chapter, 198 Neb. 243, 259-60, 253 N.W.2d 1, 12 (1977); American Federation of State, County, and Municipal Employees, Local 2088 v. County of Douglas, 208 Neb. 511, 304 N.W.2d 368 (1981).
To the extent that our prior decision in American Federation of State, County, and Municipal Employees v. County of Sarpy, 3 CIR 136 (1976) is in conflict with this decision, it is overruled.
Although plaintiff's Petition requested additional relief, we feel that in light of this decision, no further action need be taken by the Commission.
IT IS, THEREFORE, ORDERED THAT:
The County of Sarpy, the Sarpy County Assessor, the Sarpy County Register of Deeds, the Sarpy County Clerk, the Sarpy County Treasurer, the Clerk of the District Court of Sarpy County, the Sarpy County Election commissioner, and the Sarpy County Surveyor are joint employers of the employees described in plaintiffs bargaining unit.
Filed March 5, 1984.
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