| NEBRASKA ASSOCIATION | | | CASE NO. 554 |
| OF PUBLIC EMPLOYEES, | | | |
| GAME AND PARKS CHAPTER, | | | |
| | | ||
| Petitioner, | | | |
| | | ||
| v. | | | FINDINGS AND ORDER |
| | | ||
| GAME AND PARKS | | | |
| COMMISSION, STATE OF | | | |
| NEBRASKA, | | | |
| | | ||
| Respondent. | | |
Before: Judges Gradwohl, Orr, and Davis
GRADWOHL, J.
Nebraska Association of Public Employees (NAPE), Game and Parks Chapter, is the certified, exclusive bargaining agent for employees within a unit of the Game and Parks Commission (Game and Parks), State of Nebraska. The crux of NAPE's broadly drawn Petition in this matter, filed April 5, 1984, is that the Commission define the mandatory non-economic terms and conditions of employment with respect to which Game and Parks is obligated to bargain under Nebraska's public employment bargaining laws, and that the Commission enter a bargaining order for the 1984-1985 contract year.
The 1984 Nebraska Legislature adjourned sine die on April 9,1984. Legislative Journal (loose leaf edition), Sixtieth day, April 9, 1984, page 2469. Prior to adjournment, the 1984 Nebraska Legislature enacted appropriations measures for the 1984-1985 fiscal year. It also approved five collective bargaining agreements between unions and agencies of state government for the 1984-1985 fiscal year. LR 358, Legislative Journal (loose leaf edition), Fifty-Fifth and Fifty-Sixth Days, March 29 and March 30, 1984, pages 2016-2017, 2120 (Department of Education-NAPE; Department of Education-Nebraska Department of Education Teachers Association; Department of Public Institutions-AFSCME; Department of Labor-AFSCME; and Department of Correctional Services-Nebraska Association of Correctional Employees).
The Commission ordered the matter set for hearing pursuant to Section 48-816(1) to determine, among other things, "what preliminary proceedings may be necessary to insure a prompt hearing and speedy adjudication of the industrial dispute." Following that hearing, NAPE was ordered "to show cause why this proceeding, which appears to involve an industrial dispute with respect to the 1984-1985 contract year, should not be dismissed for the reasons set out in State Code Agencies Education Association v. Department of Public Institutions, Case No. 552, Order Entered April 25, 1984; State Code Agencies Education Association v. Department of Correctional Services, Case No. 551, Order Entered April 25,1984; AFSCME v. State of Nebraska Department of Public Institutions, Case No. 510, Opinion and Order Entered February 13, 1984; State Code Agencies Education Association v. Department of Public Welfare, 7 CIR 134 (Order En Banc As To Jurisdiction, 1984)."
The Order En Banc As To Jurisdiction in State Code Agencies v. Department of Public Welfare summarizes the Commission's
statutory collective bargaining dispute resolution authority with respect to state agencies (7 CIR at 135-136):
"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(4), 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."'
The Order En Banc As To Jurisdiction determined that the "proviso" in Section 48-837 requires collective bargaining agreements with state agencies to be submitted for approval by the Legislature at the same legislative session as the budget for that period is adopted by the Legislature. The Order states (7 CIR at 136-137):
"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 the by 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, 196. 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."
NAPE's Amended Petition states that it invokes the jurisdiction of the Commission "as stated in the Rules of the Commission of Industrial Relations, Rule 4C and 4D." Rule 4 covers Petitions. Rule 4C pertains to "Proceedings Concerning Bargaining" and Rule 4D pertains to "Proceedings Under Section 48-818." Both of these Rules call for a clear and concise statement of the facts constituting the industrial dispute and "A concise prayer of one or more forms of relief desired by the petitioner."
NAPE's response to the show cause order, filed May 14, 1984, states:
"Realizing that the above cases all held that the Commission of Industrial Relations does not have the authority to order parties to negotiate collectively subsequent to the adjournment of the legislative session, the Petitioner invoked the jurisdiction of the Commission of Industrial Relations (a) to define the industrial dispute; and, (b) to resolve the industrial dispute by establishing specific terms and conditions of employment.
"On May 1, 1984, the parties pursuant to the Order for Preliminary Proceeding met and discussed what proceedings may be necessary to insure a prompt hearing and adjudication, whether the Commission should order bargaining and whether further orders may be necessary. Specifically, the parties discussed whether or not in lieu of the above cited cases, the Commission should hear these cases or whether these cases should be dismissed.
"Clearly the Commission of Industrial Relations has authority to set terms and conditions of employment for state employees. State Code Agencies Education Association v. Department of Public Welfare, 7 CIR 134.
"Petitioner will show (a) the facts of this particular dispute are such that a continuing dispute will exist regarding the bargain ability of the terms and conditions of employment until such dispute is resolved; and, (b) these facts distinguish this dispute from those cases previously cited because the items in dispute are all non-economic and that Petitioner has not requested a bargaining order.
"Frankly, the Petitioner would prefer after the Commission has defined the industrial dispute and after the Commission has established the general terms and conditions of employment of a certified unit, to resolve this dispute in a less burdensome manner, preferably at the bargaining table. If this cannot be accomplished through the authority of the Commission of Industrial Relations to order bargaining and Respondent continues to refuse to negotiate the items, the Petitioner would be forced to invoke the Commission of Industrial Relations' jurisdiction to establish the terms and conditions of employment by submitting the disputed terms and conditions to the Commission of Industrial Relations.
"Petitioner would further request leave to amend its prayer for relief when the Commission determines that the non-economic items in dispute are subject to an order by the Commission to bargain in good faith."
Game and Park's Response to Petitioner's Showing treats NAPE's claim as being solely a proceeding concerning bargaining. It asks that the Commission dismiss NAPE's Amended Petition which involves bargaining dispute with respect to the 1984-1985 contract Year for the reasons set out in the Commission's prior orders, cited above.
NAPE's Amended Petition contains a variety of allegations or inferences which might potentially pertain to a number of aspects of the Commission's statutory jurisdiction. Despite the breadth of some of NAPE's statements the Amended Petition is an adequate pleading only as it pertains to bargaining and not as it pertains to proceedings under Section 48-818. The Amended Petition does not state facts constituting an industrial dispute under Section 48-818. Its prayer for relief relates solely to a determination of mandatory subjects of bargaining between the parties and does not contain a prayer for relief of the type covered by Section 48-818.
Insofar as it pertains to bargaining, the Amended Petition is a sufficient pleading only as it relates to the current year in question. The allegations that Game and Parks has acted in breach of the 1983-1984 collective bargaining agreement fall outside of the subject matter jurisdiction of the Commission. See Transport Workers of America v. Transit Authority of The City of Omaha, 205 Neb. 26, 286 N.W.2d 162 (1979). The allegations and request for relief as to defining the scope of mandatory good faith negotiations in future years call for declaratory judgments which are also outside of the subject matter jurisdiction of the Commission. See State College Education Association v. Board of Trustees, 205 Neb. 107, 286 N.W.2d 433 (1979).
NAPE contends that it has not specifically requested a bargaining order, itself, which was denied in the previous decisions of the Commission, cited above, but that in this case it merely requests the Commission to specify the parameters of the mandatory, non-economic conditions of employment upon which the parties are Statutorily obligated to bargain in good faith. The Statutory jurisdiction of the Commission is to settle pending controversies. See Section 48-810. The Supreme Court made clear in the syllabus and text of the State Colleges Education Association decision, above, that "The Commission of Industrial Relations has no authority to enter declaratory judgments..." We agree with the position taken in the Game and Parks Brief that a request for an advisory determination, apart from a settlement of a pending industrial dispute by that determination, a bargaining order, or some other form of relief, is beyond the statutory authority of the Commission.
With respect to the bargaining dispute concerning the 1984-1985 year, we adhere to our prior decisions, cited above, holding that the Commission cannot order a state agency to bargain collectively once the Nebraska Legislature has adopted an appropriations bill for the fiscal year in question and has adjourned. See State Code Agencies Education Association v. Department of Correctional Services, Case No. 551, Findings and Order entered May 22, 1984; State Code Education Association v. Department of Public Institutions, Case No. 552, Findings and Order entered May 22, 1984. We have carefully studied the forceful arguments presented in NAPE's Brief in this matter and again conclude that the "proviso" in Section 48-837 precludes the Commission from ordering these parties to negotiate collectively at this time with respect to conditions of employment for the 1984-1985 annual budgeting period.
NAPE contends that the language of the "proviso" in Section 48-837 is plain and unambiguous and, particularly, that the word"coinciding" modifies "cover an annual period" where the Commission's previous interpretations have applied the requirement of "coinciding" to legislative approval of the collective bargaining agreement as well. It notes that the annual budgeting period of the State can be "covered" by a collective bargaining agreement regardless of when the agreement is executed by the parties or approved by the Legislature. Further, NAPE argues that this case is distinguishable from the Commission's prior decisions, and not within the "Proviso" of Section 48-837, because the sole industrial dispute in this instance involves noneconomic issues which do not affect the annual budgetary appropriations of Game and Parks.
NAPE next asserts that the Commission has misinterpreted the legislative intention as expressed in the legislative history of the enactment of LB 15 in 1969, the purpose of the act as expressed in Section 48-802, and the context of the statutes applicable to the Commission of Industrial Relations when construed in their entirety. NAPE also seeks to invoke the rule that: "The intention of the Legislature when ascertained will prevail over the literal sense of the words used and this is especially true when the strict letter of the law would lead to injustice or absurdity. In interpreting a statute the legislative intent may be found from the reason of the enactment." State v. Goham , 191 Neb. 639, 216 N.W.2d 869 (1974) (syllabus by the Court).
NAPE argues further that the Commission's prior interpretations do not reflect sound public policy--either the sound public policy intended by the Nebraska Legislature or sound public policy in terms of effective collective bargaining relationships. The principal aspect of this contention is that the primary objective of the collective system is that the parties subject to the statutes arrive at an agreement through good faith negotiations whereas the effect of the Commission's previous interpretations of the "proviso" in Section 48-837 is that once the Legislature adjourns after having adopted an appropriations bill, the parties can no longer bargain collectively in good faith even as to matters which have no budgetary impact.
The "proviso" in Section 48-837 is the only substantive statutory provision applicable solely to "The State of Nebraska or any agency thereof." The analysis set out above from the Order En Bane As To Jurisdiction continues to be our determination of the most plausible interpretation of the language of the "proviso", the statutes as a whole, and the legislative history of the enactment. In view of the jurisdiction of the Commission to establish wages and conditions of employment under Section 48-818 within the budgetary and other limits prescribed by the Legislature, and considering that the application of the rules urged by NAPE would also present significant policy and pragmatic issues, we cannot say that this interpretation presents an "injustice or absurdity." We have endeavored in these cases, as in all of our decisions, to carry out the statutory provisions and policy determinations of the Nebraska Legislature.
Based on the foregoing, it is hereby Ordered that the Amended Petition herein be dismissed.
Filed June 1, 1984.
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