AMERICAN
FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES LOCAL 2088, APPELLEE
v.
COUNTY
OF DOUGLAS ET AL., APPELLANTS
209
Filed
August 7, 1981, No. 43141
SUPPLEMENTAL
OPINION
Appeal from the
Nelson & Harding, Donald L. Knowles,
Douglas County Attorney, H. L. Wendt, and John J. Reefe, Jr., for appellants.
John B. Ashford of Bradford & Coenen for appellee.
Heard before KRIVOSHA, C.J., BOSLAUGH, MCCOWN,
CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
KRIVOSHA, C.J.
In argument on
the motion for rehearing, appellee maintains that the language of our opinion
previously adopted and appearing at 208 Neb. 511, 304 N.W.2d 368 (1981), with regard to the obligation of the public
employer to the public employee over subsequent years' raises, is ambiguous. In
an effort to clarify our position, we substitute the following language to our
opinion, in lieu of that language which now appears as the last full paragraph
of the opinion:
It is the
holding of this court that once a public employer has established a rate of pay
for the performance of a particular job in a specific year by granting an
across-the-board, cost-of-living wage increase to a group of employees, it may
not withhold paying that salary to an employee of the classification granted the
raise and performing that work, who would otherwise be entitled to payment at
the increased rate of pay, solely on the basis that at the time the payment
should otherwise be made the public employer and the bargaining representative
of the employee are then engaged in a labor dispute. By so declaring, we 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. As an example, if in the instant case all
county welfare employees were granted an increase of 7 percent across the board
as a cost-of-living wage increase, the county may not pay the increase to
nondisputing employees while escrowing the funds belonging to disputing
employees until the dispute is terminated. Such a declaration may, in fact,
cause some disputes to become moot. It would occur to us that that would be in
keeping with the policy of the entire act and consistent with the Legislature's
desire that the public policy of this state be such that there be no
interruption of public service. The order of the CIR in the instant case is
reversed and the cause remanded for further proceedings in accordance with this
opinion, if necessary.
REVERSED AND REMANDED WITH DIRECTIONS.
CLINTON, J.,
dissenting.
I respectfully
dissent from the original as well as the supplemental opinion issued after we
heard arguments on the motion for rehearing. The issue of whether or not
granting a raise to certain county employees not members of the union involved
in the current controversy was not raised by either party in the case, nor was
it considered by the Commission of Industrial Relations, and the evidence with
respect to it was extremely limited, to say the least. The opinion, with respect
to that issue, begins by saying: "Though it was not raised by either party,
the record discloses that
The response
of the union to the motion for rehearing sets out what apparently is the entire
record on the subject of the evidence on the issue. See p. 4, union's response.
It will be noted that the employees referred to in the testimony are employees
who are not in the bargaining unit involved in the current litigation, and the
answer of the county's witness indicated that all employees of the county,
whether in or out of any particular bargaining unit, apparently received a 7
percent wage increase where there was no labor dispute in progress or wage
issues being negotiated.
What we have
done in effect is to hold that whenever any group of employees of the
governmental unit receives a wage increase, union employees in any bargaining
unit involved in a wage dispute must receive the same increase as the
nondisputing employees, and receive it in the same amounts and in the same
across-the-board fashion.
The court's
opinion also does not contemplate that there may be different bargaining years
for labor contracts and that different and multiple bargaining units may be
involved. As the motion for rehearing points out, our opinion uses the terms
"members of AFSCME," "employees," and "disputing
employees" almost interchangeably. The opinion also refers to wages in
dispute "in a given year" and disputes "over a previous year's
wages." It is obvious that there may be multiple bargaining units
represented by unions in some cases, no unions in others, and, in many cases,
where the bargaining unit may contain a mixture of union and nonunion employees.
It seems to me
a more critical factor involved here may be that in selecting an issue that was
not raised by the parties nor considered by the Commission of Industrial
Relations, and doing so under our plain error rule, we pass on an issue which
is, initially at least, an issue for the Commission of Industrial Relations.
Neb. Rev. Stat.
ยง 48-819.01 (Cum. Supp. 1980). The question of what is an unfair labor practice
is a question which should be first raised in the Commission of Industrial
Relations, and generally the Commission of Industrial Relations ought to have an
opportunity to pass on the issue before this court reviews it. Such an issue
ought to be fully covered by the evidence and argued by counsel before we
undertake to get into it. Section 48-819.01 was enacted as a consequence of our
holding in University Police Officers Union v. University of Nebraska,
203 Neb. 4, 277 N.W.2d 529 (1979). In that case we held that the Commission of
Industrial Relations had no authority "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."
(Syllabus of the court.)
If every
across-the-board raise granted by a governmental employer to employees in one
bargaining unit not then involved in wage negotiations must be immediately
passed on to every employee of every bargaining unit in across-the-board
fashion, the governmental employer has lost virtually all its bargaining power.
Every union or employee representative will feel entirely free to proceed with
labor controversies and wage negotiations on every occasion because they have
absolutely nothing to lose.
Such a broad
holding is contrary to the provisions of the act which requires the Commission
of Industrial Relations to determine and fix comparable wages.
We have
consistently held that the determination of the terms and conditions of
employment is a legislative function.
Even if this
were an appeal from a court and involved a matter strictly judicial, there is no
precedent which supports what we do here. We are not in this case merely saying
a wrong principle of law has been relied upon, but say to the parties, in
effect: This was not an issue made by the pleading or the evidence, nonetheless,
we make it an issue.