| LOCALS 58, 601, 671, 1188, | | | CASE NO. 510 |
| 1459 AND 2504 OF THE AMERICAN | | | |
| FEDERATION OF STATE, COUNTY | | | |
| AND MUNICIPAL EMPLOYEES, | | | |
| AFL-CIO; and COUNCIL 32 | | | |
| OF THE AMERICAN FEDERATION | | | |
| OF STATE, COUNTY AND | | | |
| MUNICIPAL EMPLOYEES, | | | |
| AFL-CIO; | | | |
| | | ||
| Petitioners, | | | |
| | | ||
| v. | | | ORDER ON DEMURRERS |
| | | ||
| GOVERNOR ROBERT KERREY, | | | |
| STATE OF NEBRASKA, STATE | | | |
| OF NEBRASKA DEPARTMENT | | | |
| OF PUBLIC INSTITUTIONS | | | |
| and STATE OF NEBRASKA | | | |
| DEPARTMENT OF LABOR, | | | |
| | | ||
| Respondents. | | |
Before: Judges Kratz, Davis and Orr
KRATZ, J:
Several units of the American Federation of State, County and Municipal Employees (AFSCME) have instituted this proceeding against four Respondents, Governor Robert Kerrey, State of Nebraska, State of Nebraska Department of Public Institutions and
State of Nebraska Department of Labor. The primary relief requested in the Petition is "that Respondents be ordered to bargain with the Petitioners in good faith concerning wages and other economic items." The Petition also requests that the Respondents "not implement any changes in the terms and conditions of employment without negotiating said items with Petitioners."
The Respondents have filed separate Demurrers. The Respondents Governor Robert Kerrey and State of Nebraska demur for the reason that the Commission has no jurisdiction over that Respondent (see Section 25-806(1)); all four Respondents demur for the further reasons that the Petition does not state facts sufficient to constitute a cause of action (see Section 25-806(6)) and that several causes of action and parties have been improperly joined (see Section 25-806(5)).
A public "employer" has a statutory duty to engage in good faith bargaining with a "certified" bargaining representative of its employees. Section 48-816(5) states:
"Upon receipt by an employer of a request from a labor organization to bargain on behalf of employees, the duty to engage in good faith bargaining shall arise if the labor organization has been certified by the commission or recognized by the employer as the exclusive bargaining representative for the employees in that bargaining unit."
AFSCME was "certified as the exclusive bargaining agent for all full-time employees of the Department of Labor of the State of Nebraska", excluding certain specified classifications, on September 18, 1973. For a published copy of the Order of Certification, see 2 CIR at 89-18. Pursuant to that certification, the Department of Labor and AFSCME have engaged in collective bargaining through the years and have entered into contracts applicable to the Department's employees.
AFSCME was "certified as the exclusive bargaining agent for all full-time employees of the Department of Public Institutions, State Hospitals of the State of Nebraska in the bargaining unit previously found appropriate" by the Commission on January 16, 1975. For a published copy of the Order of Certification, see 2 CIR at 104-23. The Department of Public Institutions preserved a number of objections to the constitutionality, jurisdiction and authority of the Commission of Industrial Relations with respect to the Department of Public Institutions. The Commission's Certification Order was affirmed by the Nebraska Supreme Court in American Federation of State, County and Municipal Employees v. Department of Public Institutions, 195 Neb. 253, 237 N.W.2d 841 (1976). That Certification Order has also served as the basis for subsequent bargaining and agreements between AFSCME and the Department.
The term "employer" is defined in Section 48-801(4) as follows:
"Employer shall mean the State of Nebraska or any political or governmental subdivision of the State of Nebraska, except the Nebraska National Guard or state militia, any municipal corporation or any public power district or public power and irrigation district. It shall also include any public utility as defined in sections 48-801 to 48-823."
It is clear that the Respondents State of Nebraska Department of Public Institutions and State of Nebraska Department of Labor are each an "employer" under the CIR statutes. Whatever lack of clarity there may have been in the amendments effected in L.B. 15 in 1969 (in which, among other things, present Section 48-837 requiring Legislative approval of collective bargaining agreements"with the State of Nebraska or any agency thereof" was enacted), those ambiguities have been eliminated by the specific provisions adopted in L.B. 1228 (1972) and L.B. 819 (1974) making the statutes applicable to agencies of State government and providing procedures for cases involving State agencies. In addition to AFSCME v. Department of Public Institutions, cited above, the Supreme Court has applied the statutes to State governmental agencies in AFSCME Local 2088 v. County of Douglas (and State of Nebraska Department of Public Welfare, a co-employer), 208 Neb. 511, 304 N.W.2d 368 (1981); AFSCME v. Counties of Douglas and Lancaster (and State of Nebraska Department of Public Welfare, a co-employer), 201 Neb. 295, 267 N.W.2d 736 (1978); AFSCME v. State of Nebraska Department of Roads, 200 Neb. 171, 263 N.W.2d 643 (1978); and NAPE v. Nebraska Game and Parks Commission , 197 Neb. 178, 247 N.W.2d 449 (1976).
The Respondents Governor Robert Kerrey and State of Nebraska
were not parties to the prior certification proceedings and are not covered by the prior and currently effective Certification Orders of this Commission applicable to employments within either the State of Nebraska Department of Public Institutions or State of Nebraska Department of Labor. On that basis, their Demurrers that the Commission has no jurisdiction over them in this proceeding should be sustained.
Paragraph VII of the Petition alleges "That an industrial dispute has arisen concerning the Respondents' obligations to bargain with the Petitioners in good faith concerning wages, hours and other terms and conditions of employment." Paragraph IV of the Petition alleges "That despite said demands being made the Respondents, Department of Labor and Department of Public Institutions, have failed and refused to bargain with the Petitioners concerning wages and other economic items stating that they have no power and authority to do so."
Section 48-801(7) defines the term "industrial dispute":
"Industrial dispute shall 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.
The Petition alleges the existence of industrial disputes between AFSCME and the Respondents State of Nebraska Department of Public Institutions and State of Nebraska Department of Labor within the jurisdiction and authority of the Commission of Industrial Relations under Sections 48-810, 48-816, 48-819.01, and 48-823. Accordingly, Respondents' Demurrers on behalf of those Respondents that the Petition fails to state a cause of action should be overruled. It should be noted that this is a determination based upon the sufficiency of the Petition to state a cause of action and not a determination on the merits.
As to joinder of causes of action, Section 25-702 states:
"Except for product liability actions, the causes of action so united must affect all of the parties to the action, and not require different places of trial."
A number of cases are annotated under Section 25-702 holding that separate causes of action against different defendants cannot be joined and that, in any event, each cause of action must affect all parties. The Respondents' Brief (page 7) accurately states:
"As previously discussed in this brief, the CIR's jurisdiction is limited to industrial disputes between a public employer and its employees or the labor union certified to represent the public employer's employees. The Department of Labor and the Department of Public Institutions are separate entities. They are not joint employers of the employees represented by the petitioners. The two departments are governed by different statutory provisions. One is part of the State Personnel System and the second is a member of the State Merit System. Both agencies conduct separate negotiations with the petitioners and an agreement by one agency is not binding upon the second. Both agencies have separate bargaining teams. Further, both agencies have separate contracts with the petitioners and the terms of those contracts vary. Finally, different employees are represented by the petitioners in the two bargaining units."
The joinder of causes of action of Petitioners against the Respondents State of Nebraska Department of Public Institutions and State of Nebraska Department of Labor in this proceeding is improper by virtue of the provisions of Section 25-702 as applicable to the Commission under Section 48-812. Similarly, by virtue of the provisions of Section 25-702, Petitioners' Motion For Leave To Join Petitioner and Respondent, filed June 10, 1983, must be overruled.
On June 1, 1983, Petitioners filed a Motion "for a protective order ordering that the current collective bargaining agreement remain in full force and effect after June 30, 1983, during the pendency of this action. . . ." On June 30, 1983, the Commission entered the following ex parte Order:
"Pursuant to the authority of Sections 48-816(1) and 48-811, it is Ordered that the employment status of employees shall not be altered in any way pending disposition of the Petition herein by the Commission."
The second sentence of Section 48-816(1), upon which the June 30th Order is based and which allows the Commission to act "upon its own initiative", states:
"The commission shall have power and authority upon its own initiative or upon request of a party to the dispute 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 of the issues."
The second sentence of Section 48-811 provides:
"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."
The entry of this Protective Order was to underscore Nebraska's strong public policy, as expressed in the jurisdictional mandate of Section 48-810, that "All industrial disputes involving governmental service, service of a public utility, or other disputes as the Legislature may provide shall be settled by invoking the jurisdiction of the Commission of Industrial Relations." The Protective Order was intended to restate the provisions already in effect through the application of Section 48-811 (as distinguished from the request of Petitioners' Motion that "the current collective bargaining agreement remain in full force and effect. . ."). Having sustained Respondents' Demurrers, and in the absence of evidence that unilateral actions contrary to the CIR statutes may take place during the pendency of the matter before the Commission, the Commission now concludes that the Protective Order entered June 30, 1983, should be set aside.
Petitioners June 1st Motion for a protective order cannot be sustained in the form presented by the Petitioners because of the absence of contract jurisdiction and authority by the Commission. See Section 48-810.01 and Transport Workers of America v. Transit Authority of The City of Omaha, 205 Neb. 26, 286 N.W.2d 102 (1979). Accordingly, that Motion is overruled.
Having overruled Petitioners' Motions of June 1, 1983, for a protective order, and June 10, 1983, for the joinder of additional parties in this proceeding, the three Motions of Respondents filed July 7, 1983, are unnecessary and, in the interests of clarifying the record in this proceeding, can be overruled.
It is, therefore, Ordered:
1. The Demurrer of the Respondent Governor Robert Kerrey is sustained for the reason that the Commission lacks jurisdiction over such Respondent in this proceeding.
2. The Demurrer of the Respondent State of Nebraska is sustained for the reason that the Commission lacks jurisdiction over such Respondent in this proceeding.
3. The Demurrer of the Respondent State of Nebraska Department of Public Institutions is sustained for the reason that several causes of action and parties have been improperly joined in this proceeding and is overruled as to its allegation that the Petition does not state facts sufficient to constitute a cause of action against such Respondent.
4. The Demurrer of the Respondent State of Nebraska Department of Labor is sustained for the reason that several causes of action and parties have been improperly joined in this proceeding and is overruled as to its allegation that the Petition does not state facts sufficient to constitute a cause of action against such Respondent.
5. The Order of the Commission entered June 30, 1983, pursuant to the authority of Sections 48-816(1) and 48-811 is hereby set aside and vacated.
6. Petitioners' Motion for a protective order filed June 1, 1983, is hereby overruled.
7. Petitioners' Motion For Leave To Join Petitioner and Respondent filed June 10, 1983, is hereby overruled.
8. Respondents' Motions filed July 7, 1983, entitled Motion To Vacate Order, Opposition To Motion For Leave To Join Petitioner and Respondent And Request For Hearing, and Motion To Clarify Order, are each hereby overruled.
9. Petitioners are given ten days in which to further plead in this matter.
10. Respondents are given twenty days after service of any further pleadings by Petitioners to file responsive pleadings in accordance with Section 48-813.
All Judges assigned to the Panel in this matter join in the entry of this Order.
Filed July 18, 1983
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