UNIVERSITY
POLICE OFFICERS
V.
APPELLANTS
AND CROSS-APPELLEES.
203
Filed
April 10, 1979,
1. Constitutional Law. Each and every clause
in the Constitution has been inserted for some useful purpose. Constitutional
provisions should receive even broader and more liberal construction than
statutes, and constitutions are not subject to rules of strict construction.
2. Court of Industrial Relations: Colleges
and Universities: Board of Regents: Statutes: Labor and Labor Relations. The
Board of Regents of the University of Nebraska has primary authority for
establishing its own schedules of wages, terms and conditions of employment, and
hours of labor, but when an industrial dispute, as defined by section 48-801
(7), R. R. S. 1943, arises, the Court of Industrial Relations may acquire
jurisdiction for the limited purpose of resolving such dispute. Likewise, the
Court of Industrial Relations may acquire jurisdiction for resolving an
industrial dispute 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.
3. Court of Industrial Relations. Decisions
under the National Labor Relations Act are helpful but not controlling upon
either the Court of Industrial Relations or the Supreme Court. Likewise,
decisions under the National Labor Relations Act are of no help or benefit in
attempting to determine actions absent similar provisions under the
4. Court of Industrial Relations:
Administrative Law. In the grant of power to an administrative agency to
legislate such power must be limited to the express purpose and administered in
accordance with standards prescribed in the legislative act. An administrative
board has no power or authority other than that specifically conferred upon it
by statute or by a construction necessary to accomplish the purpose of the act.
That authority which is necessary to accomplish the purpose of the act must be
narrowly construed. It is fundamental that in the legislative grant of power to
an administrative agency, such power must be limited to the express legislative
purpose and administered in accordance with standards described in the
legislative act. The limitations of the power granted and the standards by which
the granted powers are to be administered must be clearly and definitely stated.
They may not rest upon indefinite, obscure, or vague generalities or upon
extrinsic evidence not readily available.
5. Court of Industrial Relations: Labor and
Labor Relations: Jurisdiction. In the absence of specific statutory authority
the Court of Industrial Relations is without jurisdiction to generally find and
declare unfair labor practices.
6. Court of Industrial Relations: Labor and
Labor Relations: Statutes. The adoption of sections 48-801 to 48-838, R. R. S.
1943, was not intended to in any way remove the lawful responsibility nor the
proper prerogative of public employers in the exercise of their recognized
management rights or in the exercise of their lawful duties, except as may
otherwise have been specifically entrusted to the Court of Industrial Relations
in resolving industrial disputes as prescribed by the statutes.
7. Public Officers and Employees: Labor and
Labor Relations. Public employees are generally not entitled to collective
bargaining in the sense that private industrial employees are.
8. Court of Industrial Relations:
Jurisdiction. The authority of the Court of Industrial Relations is carefully
circumscribed. Its procedures are prescribed by statute. Its jurisdiction is
clearly defined and is limited to what are clearly legislative concerns.
9. Court of Industrial Relations: Labor and
Labor Relations. The Court of Industrial Relations has power and authority upon
its own initiative to make 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. That authority does not authorize the
Court of Industrial Relations to make findings with regard to unfair labor
practices or direct a public employer to take any more action than is necessary
to preserve and protect the status of the parties' property and public interest
involved pending final determination of the issues.
10. Governmental Subdivisions: Labor and
Labor Relations. It shall be presumed, in the case of governmental subdivisions,
such as municipalities, counties, power districts, or utility districts with no
previous history of collective bargaining, that units of employees of less than
departmental size shall not be appropriate.
Appeal from the Court of Industrial
Relations. Affirmed in part, and in part reversed and remanded.
John C. Gourlay, for appellants.
J. Murry Shaeffer, for appellee.
Heard before KRIVOSHA, C. J., BOSLAUGH,
MCCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
KRIVOSHA, C. J.
This matter
involves two separate appeals from orders entered by the Court of Industrial
Relations (CIR) on December 20, 1977. Case No. 41916 is the result of a petition
filed with the CIR by the University Police Officers Union, International
Brotherhood of Police Officers, Local 567, (University Police Officers), asking
the CIR to declare all commissioned police officers and all security officers
employed by the University of Nebraska-Lincoln, Department of Police and
Security, excluding the director and three immediate assistants holding
authority subordinate only to the director, as the appropriate unit for purposes
of exclusive representation and bargaining. The petition recited that University
Police Officers had on two occasions requested voluntary recognition and that
both requests were denied by appellants. For purposes of convenience the
appellants in this case will be jointly referred to as UNL.
The petition
further recited that there were approximately 37 employees in the requested
unit. UNL filed its answer generally denying the claims made in the University
Police Officers' petition. UNL further alleged that the CIR did not have
jurisdiction over UNL and even if jurisdiction were present, the proposed
bargaining unit was not an appropriate unit.
On October 19,
1977, while the action in case No. 41916 was pending before the CIR and before a
hearing was held, a subsequent petition, case No. 41917, was filed by University
Police Officers with the CIR. That petition, supported by affidavits, alleged
that UNL was harassing and intimidating certain police officers because of their
union activity in violation of section 48-811, R. R. S. 1943. The following day
an order was entered by the CIR. Said order stated in part: "The Court
having convened, and upon the evidence * * *." Our examination of the
record does not disclose, however, any hearing having been held or any evidence
being introduced. Presumably the order of the court entered on October 20, 1977,
was based upon the affidavits filed by University Police Officers the day
before. What opportunity UNL was given to respond to the affidavits or to be
heard is not made clear by the record.
In any event,
the CIR entered a preemptory protective order prohibiting UNL from altering the
status quo of any of the members of the University Police Officers. Said order
also prohibited UNL from engaging in any action intended to or tending to
intimidate plaintiff or its members or to encourage such members to abandon
plaintiff as a prospective bargaining agent. The CIR further specifically
prohibited UNL from altering the status of, or reclassifying, Officer Barbara
McGill and Officer Mary Fleming. It further ordered that if any change in the
status quo had been made prior to the receipt of the order, such change was to
be voided.
The CIR
further ordered UNL to post a copy of its order on each bulletin board or other
place regularly used by UNL to communicate with members of the University Police
Officers. The CIR consolidated case No. 41917 for trial with case No. 41916, and
hearing was held on both matters.
Thereafter, on
December 20, 1977, CIR entered its opinion and order finding that the CIR had
jurisdiction over UNL; that UNL had committed what the CIR described as
"unfair labor practices;" that the appropriate unit for purposes of
bargaining, a unit consisting of all commissioned police officers and all
security officers employed by the University of Nebraska-Lincoln, Department of
Police and Security, excluding officers of the rank of sergeant and above, be
established; and it entered certain orders in connection therewith. The ordered
unit was not sought by either party. An election to determine whether the
proposed unit should serve as the exclusive collective bargaining agent was also
ordered by the CIR.
UNL perfected
its appeal to this court assigning as error three basic propositions: (1) That
the CIR was without jurisdiction over UNL by reason of the provisions of Article
VII, section 10, of the Constitution of the State of Nebraska, and our holding
in Board of Regents v. Exon, 199 Neb. 146, 256 N. W. 2d 330; (2) that the unit designated by the CIR as the
appropriate unit was inappropriate under the circumstances; and (3) that UNL had
not committed any "unfair labor practices." The University Police
Officers cross-appealed maintaining that the CIR was in error in excluding, from
the appropriate unit, officers of the rank of sergeant and above.
We shall
proceed to review these matters individually, turning first to the question of
whether the CIR does in fact have jurisdiction over UNL.
Article VII,
section 10, of the Constitution of the State of
UNL argues
that the provisions of the Constitution referred to above and our decision in
Board of Regents v. Exon, supra, foreclose any further discussion in this case.
UNL claims that the aforesaid clearly establishes that it is constitutionally
empowered to set its own salaries and terms and conditions of employment as an
integral part of its governance of the University. Consequently, the Legislature
may not interfere in that function by vesting certain authority in the CIR to
rule over said UNL matters. If we confine our reading only to Article VII,
section 10, of the Constitution of the State of
In
In addition to
the provisions of Article VII, section 10, of the Constitution of the State of
Nebraska, the Constitution contains Article XV, section 9, which provides as
follows: "Laws may be enacted providing for the investigation, submission
and determination of controversies between employers and employees in any
business or vocation affected with a public interest, and for the prevention of
unfair business practices and unconscionable gains in any business or vocation
affecting the public welfare. An Industrial Commission may be created for the
purpose of administering such laws, and appeals shall lie to the Supreme Court
from the final orders and judgments of such commission." No exception is
made for UNL thereunder. It is of significance to note that both Article VII,
section 10, and Article XV, section 9, of the Nebraska State Constitution were a
part of the 1920 Constitutional Convention. Moreover, Article VII, section 10,
of the Constitution has been amended twice since its adoption. Yet no language
has been inserted which in any way exempts the provisions of Article VII,
section 10, from the provisions of Article XV, section 9. We are therefore
compelled to read both sections together harmoniously. We do not find it
difficult to do so. Article VII, section 10, does indeed grant to the
Further
examples of the above are easy to find. While UNL does have primary authority
over its own governance, nevertheless, it is by statute bound by the provisions
of the Nebraska Workmen's Compensation Law, sections 48-192 to 48-1,109, R. R.
S. 1943. Likewise, UNL is subject to the provisions of the Nebraska Employment
Securities Law, sections 48-601 to 48-669, R. R. S. 1943. Further examples could
be given.
We therefore
hold that UNL has primary authority for establishing its own schedules of wages,
terms and conditions of employment, and hours of labor; but when an industrial
dispute, as defined by section 48-801 (7), R. R. S. 1943, arises, the CIR
acquires jurisdiction for the limited purpose of resolving such dispute.
Likewise, the CIR acquires jurisdiction for resolving an industrial dispute
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. As there was an
industrial dispute in existence, the CIR was correct in holding it had
jurisdiction over UNL in this case.
We now turn to
the next assignment of error. In its order of December 20, 1977, the CIR
included the following: "We then turn to the far more difficult task of
evaluating the evidence and determining the issues raised as to illegal
practices or what is known elsewhere in labor law as 'unfair labor practices.'
" (Emphasis supplied.) Further in its order the CIR recited, "We note
that the NLRB consistently holds past practice to be the guide in making
decisions under Section 8a and 8b of the NLRA as to what is or is not an unfair
labor practice. We consider the NLRB practice as sufficient confirmation of our
own judgment as to the standard to be applied, and proceed on that basis."
It would
appear from reading the order of the CIR that it is of the opinion that it has
jurisdiction to determine "what is known elsewhere in labor law as 'unfair
labor practices.' " Orders and rulings in connection therewith have thus
been entered by the CIR previously. We have heretofore said that decisions under
the National Labor Relations Act were helpful but not controlling upon either
the CIR or this court. American Fed. of S., C. & M. Emp. v. State,
200 Neb. 171, 263 N. W. 2d 643. That declaration must be carefully understood to
mean that decisions under the NLRB are helpful where there are similar
provisions under the
In Orleans
Education Assn. v. School Dist. of Orleans, 193 Neb. 675, 229 N. W. 2d 172, we said, " 'In the grant of power to an
administrative agency to legislate, such power must be limited to the expressed
purpose and administered in accordance with standards prescribed in the
legislative act.' " Recently, in Nebraska P. P. Dist. v. Huebner,
202 Neb. 587, 276 N. W. 2d 228, we said: "An administrative board has no
power or authority other than that specifically conferred upon it by statute or
by a construction necessary to accomplish the purpose of the act." That
authority which is necessary to accomplish the purposes of an act must be
narrowly construed.
It is
fundamental that in the legislative grant of power to an administrative agency,
such power must be limited to the expressed legislative purpose and administered
in accordance with standards described in the legislative act. The limitations
of the power granted and the standards by which the granted powers are to be
administered must be clearly and definitely stated. They may not rest on
indefinite, obscure, or vague generalities or upon extrinsic evidence not
readily available. Lincoln Dairy Co. v. Finigan, 170 Neb. 777, 104 N. W. 2d 227;
Gillette Dairy, Inc. v.
Section 8a of
the NLRA specifically provides that the doing of certain enumerated acts by an
employer constitutes an "unfair labor practice." Likewise, the
provisions of section 8b of the NLRA specifically provide that the doing of
certain enumerated acts by the union constitutes an unfair labor practice. See
29
No such
similar authority can be found in the
A reading of the
applicable provisions of the act clearly establishes that the authority of the
CIR is narrowly described and is limited in scope. In the first instance, it is
limited to "industrial disputes" as defined by section 48-801 (7), R.
R. S. 1943. These 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. While this may provide in some limited instances authority for the
CIR to act, it does not grant to the CIR the authority to declare unfair labor
practices and to take action therefor.
The adoption
of sections 48-801 to 48-838, R. R. S. 1943, was not intended to in any way
remove the lawful responsibility or the proper prerogative of public employers
in the exercise of their recognized management rights, or in the exercise of
their lawful duties, except as may otherwise have been specifically entrusted to
the CIR in resolving industrial disputes as prescribed by the statutes.
In a similar
situation involving a school district, we attempted in some small measure to
point out that there are certain areas under the
Many of the
factors involved in School Dist. of Seward Education Assn. v. School Dist. of
Seward, supra, are not applicable here. It nevertheless does point up the fact
that not all matters about which the public employer and its employees disagree
constitute an industrial dispute over which the CIR obtains jurisdiction. This
remains so notwithstanding the fact that in the private sector such matters or
activities would be properly before the NLRB and elsewhere might constitute an
unfair labor practice.
A further
reading of the act and the powers specifically granted to the CIR only further
strengthens that position. Nowhere within the act can there be found any
provisions similar to section 8a or 8b of the NLRA.
We have early
held that in the absence of specific statutory authority, public employers do
not even have the right to negotiate and bargain with public employees. In
International Brotherhood of Electrical Workers v. City of
In that
regard, it is significant to note that section 48-819, R. R. S. 1943,
specifically denies to the CIR authority to enforce its own rules. The statute
further requires that "Failure on the part of any person to obey any order,
decree or judgment of the Court of Industrial Relations, either temporary or
final, shall constitute a contempt of such tribunal in all cases where similar
failure to obey a similar order, decree or judgment of a district court would
constitute a contempt of such tribunal, and upon application to the appropriate
district court of the state shall be dealt with as would a similar contempt of
said district court."
The only
provisions which can be found in the act concerning activities of the employer
are found in section 48-811, R. R. S. 1943, and apply only during the pendency
of a petition for recognition. That section provides, in 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
Court." The provisions of section 48-811, R. R. S. 1943, do not constitute
matters similar to those prescribed in sections 8a and 8b of the NLRA. Thus, the
CIR does not, by reason of section 48-811, R. R. S. 1943, have authority to
declare unfair labor practices. If, in fact, the evidence discloses that a
public employer is threatening or harassing an employee because of any petition
filing by such employee, the CIR is limited to entering an order directing the
employer to cease and desist such threat or harassment. The CIR has no
authority, however, to require anything further. Upon failure of the public
employer to cease and desist, action must be brought by the employee in the
appropriate District Court seeking to hold the public employer guilty of
contempt of court. Other action, which an employee may seek in connection with a
public employer's action against such employee, must be sought by other means in
appropriate courts and not before the CIR. To that extent, therefore, the
ordering of UNL to remove letters from the employee's file, the ordering of the
employer to establish certain times for employee evaluation, or the ordering of
the reinstatement of employees at certain prescribed salaries for certain short
periods was beyond the authority of the CIR. Such action is hereby reversed.
Nothing we say herein, however, should imply that an employee may not have a
cause of action if in fact the employee's rights have been violated.
Nevertheless, that remedy must be sought in the appropriate forum and not in the
CIR.
We note that
the CIR directed UNL to post a copy of its temporary order, and in its opinion
of December 20, 1977, suggested it was considering requiring UNL to post
"mea culpa" notices. The CIR is without authority to make such orders.
Its authority is limited to the provisions of section 48-818, R. R. S. 1943,
wherein it is provided that the CIR's findings and orders may establish or alter
the scale of wages, hours of labor, or conditions of employment.
It is true
that the CIR has power and authority upon its own initiative to make such
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. The statute is not so broad as to authorize the CIR to make
findings with regard to unfair labor practices or direct a public employer to
take any more action than is necessary to preserve and protect the status of the
parties' property and public interest involved pending final determination of
the issues. We will not now attempt to enumerate all the possible circumstances
under which the CIR may exercise its authority. We do note, however, that the
authority granted to the CIR under the present act in general and section
48-816, R. R. S. 1943, in particular, is limited in nature. We would anticipate
that the CIR will exercise that jurisdiction in as narrow a manner as may be
necessary.
In view of our
holding with regard to the authority of the CIR to find and determine
"unfair labor practices" it is not of particular importance that we
examine and comment on the entire record. The record consisted of more than 700
pages of which only 16 pages concerned the issue involving the determination of
the appropriate bargaining unit. Nevertheless, we have examined the record. We
do believe some brief comment may be sufficient to show that the record does not
establish threats or harassment against the employees as contemplated within
section 48-811, R. R. S. 1943.
One of the
complaints made by the police officers was that female employees of the police
force were required to wear a particular style of hat. It was alleged that this
requirement was motivated by UNL's antiunion feeling and its desire to threaten
or harass the employee. The CIR, as a matter of fact, specifically found that
the department used the "inefficiency" of its supply operations to
harass Officer Citta as union president. Yet a reading of the record discloses
that the request for the hat came from two of the four female employees affected
herein and was not instituted by Chief Gade.
In regard to
Officers McGill and Fleming, the testimony of Mr. Carlbom, Chief Gade,
Inspectors Duve and Meyers, and Captain Edmunds clearly established that the
proposed reclassification was pursued solely for the employees' benefit, and
that their union affiliation was never considered. It is true that what the
department sought to do may not have been permitted under UNL personnel policy.
Nevertheless the evidence is clear that the transfers were intended to provide
continued employment opportunities on a reduced salary basis for two employees
who otherwise would have been required to discontinue their employment and use
up leave time which they otherwise might retain. Both officers were advised of
the department's options; both were informed as to the reasons why the
reclassification was proposed; both were assured repeatedly that this was only
temporary in nature; and both officers were guaranteed by the head of the
department that they would be reinstated to their original jobs as soon as they
were physically able to perform the functions of those positions. Such action
hardly amounts to threats or harassment.
That leaves us
then with but the final question, the appropriateness of the bargaining unit. It
must be kept in mind that actions arising under the provisions of sections
48-801 to 48-838, R. R. S. 1943, concerning appropriate bargaining units are of
relatively recent origin and to some extent both the public employers and public
employees, the CIR, and this court are seeking to establish appropriate
guidelines. In more recent times we have more closely adhered to the legislative
admonition contained in section 48-838 (2), R. R. S. 1943, wherein the
Legislature provided: "It shall be presumed, in the case of governmental
subdivisions such as municipalities, counties, power districts, or utility
districts with no previous history of collective bargaining, that units of
employees of less than departmental size shall not be appropriate." See
American Assn. of University Professors v. Board of Regents, 198 Neb. 243, 253 N. W. 2d 1;
House Officers Assn. v. University of Nebraska
Medical Center, 198 Neb. 697, 255 N. W. 2d 258; and Sheldon Station Employees Assn. v. Nebraska
P. P. Dist., 202 Neb. 391, 275 N. W. 2d 816.
In order for
us, therefore, to find that all commissioned police officers and all security
officers employed by the University of Nebraska-Lincoln, Department of Police
and Security, excluding either the director and his three immediate assistants
holding authority subordinate only to the director, as requested by the police
officers or excluding everyone with the rank of sergeant or above as directed by
the CIR, are an appropriate unit, we must find some compelling unity of interest
as disclosed in the record. At the outset we note that the unit sought by the
police officers includes not only commissioned police officers, but also
noncommissioned security officers. One of the compelling reasons urged by the
police officers for the granting of this particular unit is the fact that
certain of the employees are commissioned as deputy sheriffs by the State of
The evidence
further discloses, notwithstanding that some of the police officers carry
weapons and are commissioned, others are not, yet all are subject to the rules,
regulations, and employees handbook promulgated by UNL and the state personnel
policies and procedures. There is no evidence in the record upon which the CIR
could make a rational analysis of those criteria which we have heretofore
indicated are relevant in evaluating an appropriate unit and therefore no
evidence is present which we can examine or review in this court on appeal. In
the absence of such evidence, we are not persuaded that the clear dictates of
section 48-838 (2), R. R. S. 1943, should be ignored.
We therefore
find a unit consisting of all commissioned police officers and all security
officers employed by the University of Nebraska-Lincoln, Department of Police
and Security, excluding the director and his three immediate assistants holding
authority subordinate only to the director, as requested by the police officers,
is not appropriate. We also find a unit consisting of all commissioned police
officers and all security officers employed by the
For the
reasons more particularly set out above, the order of the Court of Industrial
Relations is affirmed in part, and in part reversed and remanded with directions
in accordance with this opinion.
AFFIRMED IN PART, AND IN PART REVERSED AND
REMANDED.