INTERNATIONAL
V.
CITY
OF
265
Filed
May 2, 2003, No. S-02-581
1. Commission of Industrial Relations: Appeal
and Error. Any order or decision of the Commission of Industrial Relations may
be modified, reversed, or set aside by an appellate court on one or more of the
following grounds and no other: if the commission acts without or in excess of
its powers, if the order was procured by fraud or is contrary to law, if the
facts found by the commission do not support the order, and if the order is not
supported by a preponderance of the competent evidence on the record considered
as a whole.
2. Statutes: Appeal and Error. Statutory
interpretation presents a question of law, in connection with which an appellate
court has an obligation to reach an independent, correct conclusion irrespective
of the decision made by the court below.
3. Statutes: Legislature: Intent. In reading
a statute, a court must determine and give effect to the purpose and intent of
the Legislature as ascertained from the entire language of the statute
considered in its plain, ordinary, and popular sense.
4. Commission of Industrial Relations:
Federal Acts: Statutes: Public Policy. When the Commission of Industrial
Relations finds that a party has violated the Industrial Relations Act, Neb.
Rev. Stat. §§ 48-819.01 and 48-825(2) (Reissue 1998) grant the
commission authority to issue such orders as it may find necessary to provide
adequate remedies to the parties to effectuate the public policy enunciated in Neb.
Rev. Stat. § 48-802 (Reissue 1998).
5. Commission of Industrial Relations: Labor
and Labor Relations: Administrative Law. The Commission of Industrial Relations
has authority to enter orders preserving the status quo until a dispute is
resolved.
Appeal from the
Roger K. Johnson for appellant.
Thomas F. Dowd, of Dowd & Dowd, for
appellee.
Hendry, C.J., Wright, Connolly, Gerrard,
Stephan, McCormack, and Miller-Lerman, JJ.
Wright, J.
NATURE
OF CASE
The
International Union of Operating Engineers Local 571 (IUOE) filed a petition in
the Commission of Industrial Relations (CIR) alleging that the City of
Plattsmouth (Plattsmouth) had engaged in a prohibited practice in violation of
the Industrial Relations Act (IRA) by failing to bargain in good faith over the
effects of the elimination of a city department, which included the layoff of a
bargaining unit employee. See Neb. Rev.
Stat. § 48-824(1) (Reissue 1998). The CIR ordered Plattsmouth to cease
and desist from unilaterally implementing changes in terms and conditions of
employment which were mandatory subjects of bargaining, and it ordered the
parties to commence good faith negotiations. The CIR also ordered Plattsmouth to
make the laid-off employee whole by compensating him with backpay until one of
several conditions, including reinstatement, was met. Plattsmouth appeals.
SCOPE
OF REVIEW
Any order or
decision of the CIR may be modified, reversed, or set aside by an appellate
court on one or more of the following grounds and no other: if the commission
acts without or in excess of its powers, if the order was procured by fraud or
is contrary to law, if the facts found by the commission do not support the
order, and if the order is not supported by a preponderance of the competent
evidence on the record considered as a whole.
Statutory
interpretation presents a question of law, in connection with which an appellate
court has an obligation to reach an independent, correct conclusion irrespective
of the decision made by the court below. Keller v. Tavarone, ante p. 236,
655 N.W.2d 899 (2003).
FACTS
In July 2001,
the IUOE requested that Plattsmouth voluntarily recognize it as the bargaining
representative for certain Plattsmouth employees working in four departments,
including the Parks Department and the Street Department. On August 20, the
Plattsmouth City Council voluntarily recognized the IUOE as the employees'
collective bargaining representative. At a special meeting held on September 24,
Plattsmouth eliminated its Parks Department and transferred the department's
function to the newly created Street and Property Maintenance Department. In
doing so, Plattsmouth laid off Randy Winters, who had been an employee of the
Parks Department. The IUOE was Winters' recognized collective bargaining
representative, and the layoff was completed without any bargaining over the
effects of the reorganization of the departments.
The IUOE
petitioned the CIR, alleging that Plattsmouth had violated § 48-824(1) by
refusing to bargain in good faith over the effects of the elimination of the
Parks Department. The IUOE sought reinstatement for Winters with backpay and
asked that Plattsmouth be ordered to engage in good faith collective bargaining
with the IUOE concerning the layoff of bargaining unit employees. Plattsmouth
admitted that it had eliminated the Parks Department and created the Street and
Property Management Department. It also admitted that one full-time bargaining
unit employee had been laid off. Plattsmouth alleged, however, that the IUOE had
waived its right to bargain.
The CIR found
that as a result of the reorganization of its departments, Plattsmouth had
unilaterally decided to lay off a member of the recently organized bargaining
unit. The CIR determined that no bargaining had occurred over the impact of this
reorganization upon the membership of the bargaining unit. It also found that
the evidence did not support a waiver of the IUOE's right to bargain and that
Plattsmouth's failure to bargain over the effects of the reorganization was a
prohibited practice as defined by § 48-824(1).
Relying upon
various decisions of the National Labor Relations Board (NLRB) for guidance, the
CIR ordered Plattsmouth to make Winters whole by compensating him with backpay
until one of several conditions, including reinstatement, was met. It further
ordered Plattsmouth to cease and desist from unilaterally implementing changes
in terms and conditions of employment which were mandatory subjects of
bargaining. It also ordered the parties to commence good faith negotiations over
the changes. Plattsmouth timely appealed.
ASSIGNMENTS
OF ERROR
Plattsmouth
assigns, restated, that the CIR erred (1) in ordering it to reinstate Winters
and (2) in ordering it to pay Winters backpay in a manner consistent with an
award issued by the NLRB pursuant to the National Labor Relations Act (NLRA), 29
U.S.C. § 151 et seq. (2000).
ANALYSIS
The issue
presented is whether the CIR acted in excess of its powers when it ordered that
Winters be reinstated with backpay in order to remedy the prohibited practice in
violation of § 48-824(1). Plattsmouth does not challenge the CIR's
determination that it engaged in a prohibited practice.
Our scope of
review provides that any order or decision of the CIR may be modified, reversed,
or set aside by an appellate court on one or more of the following grounds and
no other: if the commission acts without or in excess of its powers, if the
order was procured by fraud or is contrary to law, if the facts found by the
commission do not support the order, and if the order is not supported by a
preponderance of the competent evidence on the record considered as a whole.
Based upon our
scope of review, we must determine whether the CIR acted without or in excess of
its powers. See
Plattsmouth
contends that the CIR's statutory authority cannot be expanded beyond that which
is provided by the Legislature. It claims that the CIR's reliance upon various
decisions of the NLRB was misplaced because the CIR does not have the same
statutory powers as the NLRB.
The IUOE
refers this court to various NLRB decisions which have held that where there has
been a failure to bargain prior to a layoff, the appropriate remedy under the
NLRB is reinstatement of the affected employees with backpay until the employer
has fulfilled its bargaining obligation. The IUOE argues that we must look to
the decisions of the NLRB for guidance in resolving this issue because the IRA
and the NLRA have similar provisions.
We have
previously held that decisions of the NLRB provide guidance and are helpful to
the CIR in resolving issues where there are similar provisions. See
Although the
NLRA and the IRA contain similar provisions, the NLRA specifically provides that
reinstatement with or without backpay is a remedy for an unfair labor practice.
See 29 U.S.C. § 160(c). The IRA does not specifically provide for such a
remedy. Therefore, the decisions of the NLRB are not helpful to our analysis on
this issue.
Plattsmouth
also argues that the present action is not an "industrial dispute"
because it involves only one employee and that, therefore, the CIR had no
authority to enter an order of reinstatement with backpay. Brief for appellant
at 28. Plattsmouth relies upon Nebraska Dept. of Roads Employees Assn. v.
Department of Roads, 189 Neb. 754, 205 N.W.2d 110 (1973), in which we held
that a uniquely personal termination of employment did not constitute an
industrial dispute within the purview of the IRA. However, Nebraska Dept. of
Roads Employees Assn. does not control our decision.
Neb. Rev. Stat. § 48-810 (Reissue 1998)
gives the CIR jurisdiction over "industrial disputes" and "other
disputes as the Legislature may provide." An industrial dispute is defined
as "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." Neb.
Rev. Stat. § 48-801(7) (Reissue 1998). In its petition, the IUOE alleged
that Plattsmouth had violated § 48-824(1) by failing to negotiate in good faith
with respect to a mandatory topic of bargaining. Thus, the matter at issue was
an industrial dispute as defined in § 48-801(7). Furthermore, Neb.
Rev. Stat. § 48-825 (Reissue 1998) allows a party alleging a violation
of § 48-824 to bring a complaint in the CIR and gives the CIR authority to
order an appropriate remedy for such violation. We therefore conclude that the
CIR had jurisdiction to hear this complaint and to order a proper remedy.
Plattsmouth
next argues that the CIR has only those powers specifically set forth in the
IRA. It argues that unlike the powers and authority provided to the Nebraska
Equal Opportunity Commission by the Nebraska Fair Employment Practice Act, Neb.
Rev. Stat. § 48-1101 et seq. (Reissue 1998), the powers and authority
provided to the CIR by Neb. Rev. Stat.
§ 48-809 (Reissue 1998) do not include the power or authority to enter an order
for reinstatement with backpay. Plattsmouth also contends that the CIR has no
authority to award damages.
In response,
the IUOE refers this court to IAFF Local 831 v. City of No. Platte, 215
Neb. 89, 337 N.W.2d 716 (1983), in which we recognized a general grant of
authority to the CIR to fashion necessary and appropriate remedies. In IAFF
Local 831, we held that the CIR had authority to award interest on wages
when it had ordered a wage rate as part of an industrial dispute over an
appropriate wage to be paid to the employees. Although there was no specific
language in the IRA granting the CIR authority to order payment of interest, we
nevertheless affirmed the award of interest.
The IUOE
asserts that the CIR has authority pursuant to § 48-825 and Neb.
Rev. Stat. §§ 48-819.01 and 48-823 (Reissue 1998) to fashion an
appropriate and necessary remedy to rectify the unfair and prohibited labor
practices of Plattsmouth.
In reading a
statute, a court must determine and give effect to the purpose and intent of the
Legislature as ascertained from the entire language of the statute considered in
its plain, ordinary, and popular sense. First Data Corp. v. State, 263
Neb. 344, 639 N.W.2d 898 (2002). Neb. Rev.
Stat. § 48-816(1) (Reissue 1998) provides in part:
In the event of an
industrial dispute between an employer and an employee or a labor organization
when such employer and employee or labor organization have failed or refused to
bargain in good faith concerning the matters in dispute, the commission may
order such bargaining to begin or resume, as the case may be, and may make any
such order or orders as may be appropriate to govern the situation pending such
bargaining.
The IRA also
provides that upon a finding by the CIR that a party has committed a prohibited
practice in violation of § 48-824, § 48-825(2) authorizes the CIR to order an
appropriate remedy. See
The commission shall file
its findings of fact and conclusions of law. If the commission finds that the
party accused has committed a prohibited practice, the commission, within thirty
days after its decision, shall order an appropriate remedy. Any party may
petition the district court for injunctive relief pursuant to the rules of civil
procedure.
Section
48-819.01 provides:
Whenever it is alleged that a party to an industrial dispute has engaged in an
act which is in violation of any of the provisions of the Industrial Relations
Act, or which interferes with, restrains, or coerces employees in the exercise
of the rights provided in such act, the commission shall have the power and
authority to make such findings and to enter such temporary or permanent orders
as the commission may find necessary to provide adequate remedies to the injured
party or parties, to effectuate the public policy enunciated in section 48-802,
and to resolve the dispute.
Furthermore,
§ 48-823 provides:
The Industrial Relations Act and all grants of power, authority, and
jurisdiction made in such act to the commission shall be liberally construed to
effectuate the public policy enunciated in section 48-802. All incidental powers
necessary to carry into effect the Industrial Relations Act are hereby granted
to and conferred upon the commission.
It is apparent from a review of the language
of the IRA that the Legislature has provided the CIR with general authority to
order an appropriate remedy.
From the above
pronouncements of legislative authority, we must determine how much power and
authority the Legislature intended to grant the CIR in order to provide an
appropriate remedy to an injured party or parties.
Plattsmouth
argues that the CIR's order of reinstatement with backpay was not an appropriate
remedy and therefore exceeded the authority given to the CIR by law. It contends
that §§ 48-819.01 and 48-825 grant the CIR authority to order an appropriate
remedy only as it relates to the issue of bargaining but not to the award of
damages. Plattsmouth also claims that Winters was not a party to the action and
that, therefore, the CIR had no authority to award damages to him.
In IAFF
Local 831 v. City of No. Platte, 215 Neb. 89, 337 N.W.2d 716 (1983), we
pointed out that § 48-819.01 was enacted as a result of our decision in University
Police Officers Union v. University of Nebraska, 203 Neb. 4, 277 N.W.2d 529
(1979) (superseded by statute as stated in IAFF Local 831 v. City of No.
In Transport
Workers v. Transit Auth. of Omaha, 216 Neb. 455, 344 N.W.2d 459 (1984), the
issue was whether the CIR had authority to enter temporary orders concerning
wages, hours, and terms and conditions of employment while the CIR was
attempting to resolve a labor dispute pending before it. The trial court had
concluded that the CIR's authority was limited to restraining the employer from
firing the employee. We reversed, and concluded that if the CIR had authority to
make temporary orders to protect the status of the parties, it obviously must
have had authority to do something more than simply make sure that the employer
did not fire the employee. We held that the IRA granted the CIR
"discretionary authority, when it appears appropriate, to order that the
status quo of the parties be retained until the dispute is resolved."
It may very well be that it
is in the public interest to be assured that public employees, who do not have
the right to strike or hinder, delay, limit, or suspend the continuity or
efficiency of governmental services, should continue to receive their previous
salaries or be afforded the same terms and conditions of employment while the
employer, the employee, and the CIR attempt to resolve the differences.
In Transport
Workers, we noted that the authority of the CIR is limited to that granted
by the Legislature and must be narrowly construed. However, the Legislature has
stated in § 48-823 that all grants of power, authority, and jurisdiction shall
be liberally construed to effectuate the public policy.
The rationale
in limiting the power and authority granted to the CIR is that the CIR is an
administrative body and is not a court. Therefore, the exercise of power is
based upon what is necessary to provide adequate remedies to effectuate the
public policy and resolve the dispute. It is simply a question of how much
authority an administrative body will be permitted to exercise in performing its
quasi-judicial functions. The Legislature has left this for the courts to
determine on a case-by-case basis.
In
In the case at
bar, the CIR's order to cease and desist unilaterally implementing changes in
the terms and conditions of employment is not at issue. We focus only on whether
the order of reinstatement with backpay was an adequate and appropriate remedy
and therefore within the authority of the CIR.
If the CIR
finds that an accused party has committed a prohibited practice, it has the
authority to order an appropriate remedy, see § 48-825(2), and such authority
is to be liberally construed to effectuate the public policy enunciated in Neb.
Rev. Stat. § 48-802 (Reissue 1998), see § 48-823. Since the Legislature
has chosen not to specifically define the extent of the remedial authority
granted to the CIR, the scope of such authority will be defined by the courts on
a case-by-case basis.
Plattsmouth's
failure to bargain over a mandatory subject of bargaining was a prohibited
practice, and thus, the CIR had the authority to craft an appropriate remedy for
the injured party. Although Winters was not named as a party, the IUOE properly
represented him as his recognized collective bargaining representative.
Therefore, he was an injured party for purposes of the IRA.
We have
previously determined that the CIR has authority to enter orders preserving the
status quo until a dispute is resolved. See Transport Workers v. Transit
Auth. of
CONCLUSION
The CIR was
correct in returning Winters to the status quo by ordering reinstatement and the
payment of his normal wages from the date he was laid off less any net interim
earnings. Such was an appropriate remedy under the facts of this case.
For the
reasons set forth herein, we affirm the order of the CIR.
AFFIRMED.