8 CIR 323 (1986), Appeal Dismissed April 29, 1987.


Petitioner, |
Respondent. |


This is a proceeding under Section 48-818 to determine wages and conditions of employment for all commissioned officers of the Nebraska State Patrol including the classifications of Trooper I, Trooper II, Corporal, Sergeant, Investigative Officer I, Investigative Officer II and Investigative Officer III.

The State Troopers Association of Nebraska (Union) filed its Amended Petition on April 25, 1986, requesting the CIR to establish a scale of wages with progressive steps for all bargaining unit employees and to provide a clothing allowance for plain clothes investigators for the July 1, 1985/June 30, 1986, contract year; to establish hours of work for bargaining unit employees for the July 1, 1986/June 30, 1987, contract year; and to require the Nebraska State Patrol (State) during both contract years, as appropriate, to abide by and adhere to certain contract language agreed to during negotiations.

In its Answer to Amended Petition filed May 14, 1986, the State prayed alternatively that the Amended Petition be dismissed for lack of subject matter jurisdiction or, without conceding the jurisdictional issue, that, for the 1986-1987 contract year, the CIR establish hours of work for bargaining unit employees and require the parties to abide by and adhere to all other contract provisions agreed to during the negotiations. The State opposed all relief sought concerning the 1985/1986 contract year because of a collective bargaining agreement between the parties covering that period.

On June 16, 1986, the State filed an Amended Answer to Amended Petition praying further that any determination of the CIR not apply to the sergeants within the bargaining unit. No request was made to remove sergeants from the bargaining unit.

Motion for Partial Dismissal

On May 21, 1986, the State filed a Motion for Partial Dismissal seeking dismissal of that portion of the Amended Petition which relates to the 1985/1986 contract year. The State contends that there is and was no industrial dispute concerning the 1985/1986 contract year. The State argues that a fully executed and ratified collective bargaining agreement covering the 1985/1986 contract year settled all bargainable issues between the parties thus foreclosing a later industrial dispute as to such issues during the term of the agreement.

In order to determine whether there is an industrial dispute, it is necessary for the Commission to interpret Section 22.3 of the 1985/1986 collective bargaining agreement, a so-called "zipper" clause, which specifically resolved all issues which the parties "did bargain or could have bargained". Section 22.3 provides:

It is agreed that this Agreement contains the full and complete agreement on all subjects upon which the parties did bargain or could have bargained. Neither party shall be required, during the term of this Agreement, to negotiate or bargain upon any other issue except for substitute provisions as provided in the Savings Clause (Article 20). All matters not included in this Agreement shall be deemed to have been raised and disposed of as if covered herein. All subjects referred to in the Management Rights Clause shall likewise be deemed to have been raised and bargained to a conclusion. All terms of this Agreement are subject to budgetary, and/or legislative limitations or changes. (emphasis added)

The Supreme Court in Transport Workers of America v. Transport Authority of the City of Omaha , 205 Neb. 26, 286 NW2d 102 (1979), held that the CIR lacked the jurisdiction to interpret a contract and to determine whether it had been breached. However, the Commission has not been precluded from incidentally interpreting a contract where necessary to determine whether it has jurisdiction. In NAPE v. Game & Parks Commission , 220 Neb. 883, 374 N.W.2d 46 (1985), the Supreme Court stated:

An administrative body has no power or authority other than that specifically conferred by statute or by a construction necessary to accomplish the plain purpose of the act.

It would indeed be an anomaly if the CIR lacked the ability to determine whether a matter was within its jurisdiction without referring the issue for determination in the courts. We shall, therefore, proceed to interpret the above-quoted contract provision to determine whether the Commission has jurisdiction.

When negotiations for the 1985/1986 collective bargaining agreement began, both the Union and the State believed that the 1985/1986 wage and related issues involved herein were non-negotiable items solely within the province of the legislature. The March 22, 1985, opinion of the Supreme Court in State Code Agencies Ed. Assn. v. Department of Pub. Insts. , 219 Neb. 555, 364 NW2d 44, makes it clear that the parties' belief was in error. At least in the sense that Nebraska law does not prohibit bargaining, wages and related items "could" have been bargained.

The Union argues that it "could not" bargain the wage and related issues because the parties had adopted ground rules for negotiations which prohibited submission of new proposals after March 13, 1985, and because the State would have refused to negotiate these issues. The State points out that the Union never raised these issues in negotiations but concedes that they may not have been willing to negotiate such items even after the decision in State Code Agencies , supra.

Although the March 13 1985, deadline established in the ground rules for submission of new proposals had passed before the State Code Agencies decision on March 22, 1985, the ground rules did not prevent the parties from negotiating wages and related issues. The ground rules were unratified by either party. They were subject to modification during bargaining by agreement of the parties. A refusal to modify ground rules to allow negotiation of a negotiable item previously thought by both parties to be non-negotiable would itself be an industrial dispute subject to the Commission's jurisdiction. In the sense that the existence of ground rules did not prohibit bargaining, wages and related items "could" have been bargained.

Since the Union made no attempt to negotiate wages and related items for the 1985/1986 contract year, we can only speculate as to whether an attempt would have met with resistance from the State. However, the State's steadfast refusal to negotiate would not change the fact that the parties "could" have bargained concerning these negotiable items if they chose to do so. A refusal to do so would have been an industrial dispute subject to the Commission's jurisdiction. Wages and related items "could" have been bargained.

Since the 1985/1986 collective bargaining agreement covers all items "upon which the parties did or could have bargained", the CIR lacks jurisdiction to alter the wages, hours, or other terms and conditions of employment for that contract year. To do so would be to change the terms of an existing agreement. This, as the Supreme Court has stated in Transport Workers , supra, the CIR cannot do:

The mandate language of section 48-818 does not lend itself to any suggestion that the CIR could alter or modify the terms of an existing agreement during the life of the agreement, any more than either party could unilaterally do so.

Accordingly, we find that the Amended Petition presents no industrial dispute concerning the 1985/1986 contract year which is subject to the jurisdiction of the CIR.

Motion to Require Implementation


Motion in Opposition

On June 13, 1986, the Union filed a Motion to Require Implementation of Legislatively-Mandated Pay Increase and Administratively-Required Position Reclassification. In its Motion, the Union seeks an order requiring the State to implement a three percent (3%) pay raise provided to nearly all State employees in L.B. 1250 passed by the Legislature during the 1986 Legislative Session and further requiring the State to implement the position reclassification of bargaining unit employees as required by the Rules and Regulations of the State personnel system. The Union alleges that bargaining unit employees are being denied the three percent (3%) pay raise and reclassification because of the labor dispute before the Commission.

On June 17, 1986, the State filed a Motion in Opposition requesting the Commission to deny the Union's Motion. The State alleges that the Union's requested relief is prohibited by Section 48-811, R.R.S., 1943. We disagree.

There is no dispute concerning the basic facts. By L.B. 1250, the Legislature granted nearly all employees of the State of Nebraska, including bargaining unit employees, an across-the-board three percent (3%) pay raise. Pursuant to Nebraska State Personnel Rules and Regulations, a reclassification that would result in a wage increase of seven and one-half percent (7.5%) for most members of the bargaining unit was to have been implemented July 1, 1986. Because of the pendency of this case, both the raises and the reclassifications were canceled for bargaining unit employees while implemented for other employees. Respondent had "fought long and hard" for the reclassifications. Further, failure to implement the reclassifications goes against the "philosophy and goals" of the Respondent.

Because of the provisions of Section 48-811, the State concluded it must withhold from bargaining unit employees the across-the-board three percent (3%) raise provided for LB 1250 and the favorable reclassifications provided for under Nebraska State Personnel Rules and Regulations. Section 48-811 provides in pertinent 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.

In AFSCME State Council No. 32 v. Dakota County, Nebraska , 5 CIR 214 (1981), the Commission interpreted Section 48-811 to prohibit employment status changes "without the agreement, consent or approval of the other party". It is abundantly clear that the Union consents to and approves of both the raises and reclassifications. If there was any doubt as to the Union's willingness to accept the withheld raises and reclassifications, that doubt has been unmistakably erased by the filing of the Union's Motion to Require Implementation. Section 48-811 is not a bar to granting the withheld raises and reclassifications.

In AFSCME Local 2088 v. County of Douglas , 208 Neb. 511, 304 NW2d 368, Supplemental Opinion 209 Neb. 597, 309 NW2d 65 (1981), the practice of withholding a raise in wages from bargaining unit employees because of the existence of a labor dispute while granting the same to other employees was declared both "improper and illegal". The Supreme Court held that Neb. Const., art. XV, sections 13 and 15 are violated by such favoring of nondisputing employees over disputing employees. In its Supplemental Opinion, the Supreme Court stated:

[W]e intend that the wage which should be paid to a public employee by a public employer during a dispute is that wage which the public employer has declared as the appropriate wage to be paid and which it would otherwise agree to pay the public employee if no dispute then existed.

Withholding raises and favorable reclassifications to bargaining unit employees because they have engaged in collective bargaining, have reached an impasse with the public employer, and have sought the assistance of the CIR, is in violation of the public policy established in Neb. Const. art. XV, sections 13 and 15. If no dispute existed, bargaining unit employees would receive the raises and reclassifications being withheld. We, therefore, find that the State should implement the wage increases granted by the legislature and the reclassifications for which the evidence establishes the Respondent "fought long and hard". The State need not, and must not, delay implementation of these raises and reclassifications for fear of violating the provisions of Section 48-811. To do so would be improper and illegal. The raises and favorable reclassifications should be granted and implemented retroactively to the date when, but for this proceeding, they would have been granted or implemented.

Motion In Limine


Motion to Strike

On June 16, 1986, the State filed its Motion In Limine requesting that the Union be prohibited from introducing evidence relating to sergeants because, it is alleged, they are supervisory personnel to whom any order under section 48-811 cannot apply.

On June 19, 1986, the Union filed its Motion to Strike the Amended Answer filed by the State principally because of its attempt to raise the supervisory issue relating to sergeants mentioned above.

As previously noted, the Amended Answer, also filed June 16, 1986, prayed that any determination of the CIR not apply to sergeants within the bargaining unit. In paragraph 1 of the Amended Answer, the State denies that "sergeants are properly a part of the collective bargaining unit". In paragraph 13, the State alleges that the bargaining unit "improperly includes supervisors and any decision of the Commission should exclude" sergeants. In the prayer of the Amended Answer, the State asks that sergeants be excluded from "any determination in this case". The State did not ask that sergeants be removed from the bargaining unit.

The State argues that General Drivers & Helpers Union, Local No. 554 v. Saunders County Nebraska , 6 CIR 134 (1982), requires the Commission to exclude sergeants from any decision it may make in this case. In Saunders County , the Commission considered the supervisor issue out of a need to determine "whether or not these disputed individuals are a part of that unit". Here there is no dispute concerning whether sergeants are members of the bargaining unit. On September 4, 1984, in Case No. 561, Representation Docket No. 178, the State agreed that sergeants should be included in the bargaining unit.

It is fundamental that the purpose of the CIR is to settle pending industrial disputes. Here the industrial dispute involves a bargaining unit which by agreement includes sergeants. Consequently, to settle the pending industrial dispute, our determination, and the evidence received in connection therewith,must not exclude sergeants.

Motion for Sanctions and Attorney's Fees

On June 19, 1986, the Union filed its Motion for Sanctions and Attorney's Fees citing Holt County Coop Ass'n. v. Corkle's Inc. , 214 Neb. 762, 336 NW2d 312 (1983). The Union requests the Commission to find that the State had engaged in conduct which was vexatious, unfounded and dilatory in the filing of numerous motions and pleadings so as to postpone trial in this matter. At hearing, the Union sought imposition of sanctions and an award of attorney's fees.

The Supreme Court in Holt County held that "courts of general jurisdiction have inherent power to do all things necessary for the proper administration of justice and equity within the scope of their jurisdiction." The Supreme Court approved the attorney's fees awarded by the trial court but stated:

Should a case such as this present itself in the future, however, the trial court shall, after hearing, make specific findings of fact sufficient to support a conclusion that there existed conduct during the course of litigation which was so vexatious, unfounded and dilatory as to constitute or be tantamount to bad faith. . . . Such an attorney fee must further be limited in amount so as to relate only to that part of the action necessitated by misconduct.

As has been noted in other opinions of the Nebraska Supreme Court, the CIR is not a court. There is, therefore, some question as to whether the Holt County case can be relied upon concerning the imposition of sanctions or an award of attorney's fees in cases before the Commission.

Authority to impose sanctions and tax costs, however, has been provided to the Commission. Section 48-809 grants the CIR full power to adopt procedural rules. The Code of Civil Procedure applicable to the district courts is made applicable to proceedings before the Commission by Section 48-812. CIR Rule 19. I. adopts the Nebraska Discovery Rules promulgated by the Supreme Court. Both the Code of Civil Procedure and the Nebraska Rules of Discovery make provision for sanctions and expenses including attorney's fees.

Section 25-824 provides that allegations or denials which are frivolous or made in bad faith shall subject the party or attorney pleading the same to the payment of expenses including attorney's fees. Section 25-1336 provides like relief concerning affidavits made in bad faith in summary judgment proceedings. Rule 30 of the Nebraska Discovery Rules provides for payment of reasonable expenses, including attorney's fees, for failure of the party giving notice of the taking of a deposition to attend the deposition or for failure to serve a subpoena. Nebraska Discovery Rule 36 provides for imposition of sanctions and payment of expenses, including attorney's fees, for failure to make discovery as required by the discovery rules.

When misunderstandings arise, or when a party or lawyer fails to participate in pretrial proceedings in good faith, and the parties are unable to resolve their differences after personal consultation between opposing counsel, the matter should be presented promptly to the CIR upon an appropriate motion even where no sanctions or expenses are in issue. In order to avoid undue delay, these matters should be brought before the Commission without delay--after counsel have attempted to find a solution--so that all parties have an adequate opportunity to prepare for pretrial conference and trial.

In the limited time allowed for discovery and preparation for trial before the CIR, it is understandable that from time to time the parties and their attorneys may be tempted to abandon the courtesy every party and lawyer owes to every other party and lawyer. It is also understandable that on occasion it may appear that an inability to supply information or materials sought in discovery is a product of such a lack of courtesy and professionalism. Under the sporting theory of justice, which is now in great disfavor, such conduct may even have been greatly admired as appropriate advocacy. The adversary system is not, however, equatable with some sort of game in which lawyers are encouraged to employ every device short of outright fraud in order to advance a client's cause. The adversary system in modern practice envisions professionalism, candor, prompt disclosure and communication between counsel which is courteous and forthright.

The burden of proof concerning whether sanctions are to be imposed or expenses are to be allowed rests on the moving party. Here, the evidence and representations of counsel indicate that, while the open communications between counsel may have been impaired by misunderstandings concerning the requirements of Section 48-811 and concerning the availability of information and materials sought in discovery, no conduct requiring imposition of sanctions or awarding expenses, including reasonable attorney's fees, was present. The Motion for Sanctions and Attorney's Fees must therefore be denied.

This Memorandum is issued in connection with the Order entered herein on July 1, 1986, granting and denying the above-described Motions as follows:

1. Respondent's Motion for Partial Dismissal--granted;

2. Petitioner's Motion to Require Implementation--granted;

3. Respondent's Motion in Opposition--denied;

4. Respondent's Motion In Limine--denied;

5. Petitioner's Motion to Strike Amended Answer to Amended

Petition--granted; and

6. Petitioner's Motion for Sanctions and Attorney's Fees--denied.

Entered July 24, 1986.