| AMERICAN FEDERATION OF | | | CASE NO. 128 |
| STATE, COUNTY AND MUNICIPAL | | | AND 138 |
| EMPLOYEES, AFL-CIO | | | |
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| Plaintiff, | | | |
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| v. | | | |
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| STATE OF NEBRASKA DEPARTMENT | | | |
| OF ROADS, | | | |
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| Defendant, | | | |
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| NEBRASKA ASSOCIATION OF | | | |
| PUBLIC EMPLOYEES, a | | | MEMORANDUM |
| Corporation, | | | AND ORDER |
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| Intervenor. | | | |
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| NEBRASKA ASSOCIATION OF | | | |
| PUBLIC EMPLOYEES, a | | | |
| Corporation, | | | |
| | | ||
| Plaintiff, | | | |
| | | ||
| v. | | | |
| | | ||
| STATE OF NEBRASKA | | | |
| DEPARTMENT OF ROADS, | | | |
| | | ||
| Defendant. | | |
Appearances: Counsel for AFSCME: O'Connor and O'Connor
Counsel for Plaintiff and
Intervenor, NAPE: Steven D. Burns
Counsel for Defendant,
Department of Roads: Robert Avey
Before: Judges Wall, Kratz and Green
WALL, J.:
This matter comes before the Court on motions for new trial, raising basically three issues. The first is the determination of the appropriate units. This issue is discussed in full in the original decision herein, and the decision to create two units seems fully supported in law and fact. We do not discuss this issue further. The second issue is the question of the constitutionality of Sections 48-801, et seq., R.R.S. Nebr. 1943, and the third issue is the propriety of continuing the election to finality in the absence of a specific rule or statute on the question. While both of these issues have been determined sub silentio during the progress of the case, both deserve further discussion for the benefit of the parties and others affected.
We address the Constitutional issue first. In School District of Seward Educ. Assn. v. School District , 188 Neb. 772, 199 N.W. 2d 752 (1972), the Supreme Court, per Spencer, Justice, held that Article XV, Section 9, Constitution of Nebraska, constituted an exception to Article II, Section 1, and that this court was created as an agency having legislative, executive and judicial powers. The question of violation of the doctrine of separation of powers was thus laid to rest.
In two more recent cases, the question of the constitutional authority of this court over various agencies of state government has arisen. In Orleans Educ. Assn. v. School District , 193 Neb. 675, 229 N.W. 2d 172 (1975) the Supreme Court avoided placing total reliance upon Section 9 of Article XV by finding legislative power over school districts in Article III, Section 1. Justice Clinton, in his majority opinion, withdrew the separation of powers remarks from his dissent in School District of Seward Educ. Assn. v. School District, supra . Again, in AFSCME v. DPI , 195 Neb. 253, 237 N.W. 2d 841, in a Per Curiam opinion, the Supreme Court found Constitutional support for the authority of the Legislature over at least certain departments of the state government in Article IV, Section 19. Justice Newton, who had dissented in Seward and in Orleans , also dissented in DPI and was joined by Justice Spencer, who had authored the Seward opinion.
With this division and redivision of the Supreme Court before us, we proceed to our own analysis of Article XV, Section 9. We agree that the terms "business" and "government" are mutually exclusive, and that the phrase "business...affected with a public interest" probably does not include the public business of government. A different result is reached, however, when the phrase "any...vocation affected with a public interest" is considered. In the past, this Court and other courts reviewing the situation have spent a great deal of time reviewing the dry record of the Constitutional Convention of 1920, attempting to discern a legislative intent as if interpreting an ambiguous statute, rather than a living Constitution. State constitutions, as opposed to the Federal Constitution, are limitations of power, rather than grants of power. (See Clinton, J., respondent, in Orleans, supra .) Under the Nebraska Constitution, as interpreted in Orleans , the Legislature has all powers not expressly forbidden to it, and it is not necessary to find a specific grant of power to enable the Legislature to act. The word "vocation" is defined in the 1973 American Heritage Dictionary as "A regular occupation or profession; especially, one for which one is specially suited or qualified." Its etymology is given as coming from the Middle English vocacioun , divine call to a religious life, from Old French vocation , from Latin vocatio , a calling, summoning, from vocare , to call. Certainly a job in the public administration is a "vocation affected with a public interest." We need think only of police,fire and garbage strikes and their results to have demonstrated as axiomatic that these vocations, professions or callings are deeply involved in the public interest. The common law abolished trial by battle in 1187. At the urging of C. Petrus Peterson, the Convention of 1920 provided for the abolition of trial by battle in the labor-management field- the lock-out and the strike-by adding Article XV, Section 9. The provision for dispute resolution by adjudication was implemented by legislation introduced by Senator Peterson and extended by Senator Pedersen's later amendments. It is unthinkable that either of these staunch conservatives, devoted to the rule of law, could have even considered an action not within the ambit of constitutionality and legality.
At least three members of the Convention of 1920 have left their mark on the pages of Nebraska history other than as signers of the 1920 Constitution. Senator C. Petrus Peterson's contribution to the law of the state is both well remembered and well documented. See, e.g., Judge Gradwohl's history of the section under consideration and the Senator's contribution to it in Public Service Employees Council v. M.U.D. , 1 CIR 24, 22-48 (1968). Another is Dean TePoel, whose memory is firmly etched in the memories of his students and who needs no other memorial. A third is Aaron Wall, County Judge of Sherman County, in the 1870's and 1880's, subjected to assault on his life for his judicial decisions by the employees of the I.P. (Print) Olive. We cannot indulge the speculation that any of these gentlemen, devoted to the rule of law as they were, or any other member of that Convention, would prefer to see public employee disputes resolved by the force of pickets, police lines, or the militia, rather than by an orderly process such as they provided.
The framers of the Constitution of the United States did not all anticipate the change from an agricultural to a manufacturing society, nor foresee rapid advances in transportation affecting the quality of life. Yet that document suffices us to meet today's challenges with 200-year-old words. Certainly our own constitution can permit us to handle today's problems with words little more than fifty years old. The terminology "vocation affected with a public interest" fits persons working for the public in the business of government and should be so read and applied. Accordingly, the Legislature has authority under Article XV, Section 9, to put any department or division of government under the dispute resolution procedure of §48-801, et seq.
Lest the Supreme Court continue its retreat from Seward and toward the interpretation of our Constitution as a grant, rather than a limitation, of powers, an interpretation it has specifically denounced (Orleans, supra) , we point out a specific area of authority as used by the court in AFSCME v. DPI, supra . Article IV, Section 1, provides that "the executive officers of the state shall be the Governor, Lieutenant Governor, Secretary of State, Auditor of Public Accounts, Treasurer, Attorney General and heads of such other executive departments as set forth herein or as may be established by law." It goes on to provide that the named executive officers shall be the heads of such departments as the Legislature may provide. Clearly, if an executive officer may be head of a department only at the pleasure of the Legislature, then the Legislature may condition its grant of authority to require the submission of industrial disputes within the department to a peaceful dispute resolution process. The office of Tax Commissioner, created by Article IV, Section 28, has specific duties specified by that Section. None of the duties specified include running a department. If a department is given to the Tax Commissioner to run, it must be given by the Legislature, and the reasoning above as to conditioning the grant applies. The restrictions of the police power are not involved in any department, since the Legislature has plenary power over governmental agencies unless denied by the Constitution. See Seward, supra .
Again, as related to the department specifically before us, we find no enumeration of the Director of the Department of Roads among the executive officers named in the Constitution, nor do we find a mention of the department as an executive agency. Instead, we find the Department of Roads and the position of Director-State Engineer created by the Legislature by Section 81-701.01, et seq., R.R.S. 1943, under the provisions of article IV, Section 27. [1] Prior to the Constitutional Convention of 1920, executive officers were strictly limited to those enumerated in Article IV, Section 1. Swanson v. State , 132 Neb. 82, 271 N.W. 264 (1937). By the amendments proposed by the Convention and adopted by the people, this relative inflexibility in the creation of constitutional executive offices was modified to permit their creation by the Legislature by two-thirds vote of the entire body. Again, if the Legislature has the authority to create, it may certainly limit or place conditions on the creation, and one of those conditions can be the requirement that employee disputes be handled by a system providing for their peaceful resolution.
Finally, we come to the contention that the Court erred in directing the continuation of the election in the maintenance group to a final determination, absent a rule providing for such a "run-off," as the parties denominate the continuation of the election by a second ballot after the first had resulted only in a plurality. Section 48-838 directs that "the court...shall make rules and regulations for the conduct of elections to determine the exclusive collective bargaining agent for employees..." The same section also provides that "the court shall only certify an exclusive collective bargaining agent if a majority of the employees voting in the election vote for the agent." We have adopted Rules 9 and 10 of this court to govern and regulate elections. The rules neither define an election as consisting of one, two, three or more ballots, nor provide for more than one ballot if the first is indecisive under the "majority" provisions of §48-838 (4). The 1973 edition of the American Heritage Dictionary defines "election" 1. as the act or power of choosing and 2. the act or process of choosing by vote among candidates to fill an office or position. The etymology is given as coming from Middle English electen , from Latin eligere (past participle electus ), to pick out, select; ex-out + legere , to gather, choose. We note in passing the Legislative preference for finality in elections for office by providing for two ballots-one at the primary, generally to reduce the number of candidates to double the number of vacancies to be filled, and one at the general to make the final selection. We note also the mandate of the Legislature that the court shall only certify an agent for collective bargaining who obtains a majority vote, which we take as another indication of desired finality. This Court has administrative, legislative and judicial powers. Seward, supra . As such, we may proceed by rule-making or on a case-to-case basis. See, e.g., NLRB v. Beech-Nut Life Savers, Inc. 406 F2d253, 257 (CA2, 1968). Cert. den., 394 U.S. 1012, 89 S.Ct. 1624. We find nothing in the requirements of §48-838 (1) that prevents us from either interpreting our rules or from preceding on a case-by-case basis in those areas in which the rules are not explicit, E.G., NLRB v. Paper Art Co., Inc. , F2d82, 84 (CA7, 1970). We have during the course of this proceeding interpreted the word "election" in our rules to provide for as many ballots as may be necessary to arrive at finality and determine the majority required by the statute. After review, we adhere to that interpretation. We further hold, after review, that the dropping of the proposition receiving the lowest number of votes in the first balloting was proper, reasonable and just as to all parties concerned in order to assure a final result. This is particularly true where, as here, the proposition of "no union" gained only 56 out of 804 votes, or less than 7% of the total, and the combined votes for both unions on the first ballot was over 92%. This interpretation seems also to accord with common practice in similar situations.
The statute directs that a majority choose. The rules and our interpretations of those rules herein were all directed toward carrying out that Legislative mandate with fairness to all parties. We find no error in this aspect of the proceedings.
Accordingly,
IT IS ORDERED that the motions for new trial herein be, and the same hereby are overruled.
Entered November 4, 1976.
[1]LB 442, adopted May 7, 1957 (Ch. 365, 1957 Session Laws) was adopted on final reading with 35 ayes, no nays, and 8 not voting. This more than two-thirds of the then 43 elected members.
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