Nebraska Protective Servs. Unit v. State

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www.nebraska.gov/apps-courts-epub/
07/06/2018 09:12 AM CDT
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
NEBRASKA PROTECTIVE SERVS. UNIT v. STATE
Cite as 299 Neb. 797
Nebraska Protective Services Unit, Inc., doing business
as Fraternal Order of Police Lodge #88, appellant,
v. State of Nebraska and Nebraska Association
of P ublic Employees, Local 61 of the A merican
Federation of State, County and Municipal
Employees (NAPE/AFSCME), appellees.
___ N.W.2d ___
Filed April 26, 2018. No. S-17-916.
1. Administrative Law: Statutes: Appeal and Error. To the extent that
the meaning and interpretation of statutes and regulations are involved,
questions of law are presented, in connection with which an appellate
court has an obligation to reach an independent conclusion irrespective
of the decision made by the court below.
2. Administrative Law: Appeal and Error. A court accords deference to
an agency’s interpretation of its own regulations unless plainly errone-
ous or inconsistent.
3. Commission of Industrial Relations: Administrative Law. Under
Neb. Rev. Stat. § 48-809 (Cum. Supp. 2016), the Commission of
Industrial Relations promulgated the Rules of the Nebraska Commission
of Industrial Relations 9 (rev. 2015) to govern the processes of decer-
tifying the existing collective bargaining agent for a particular bargain-
ing unit.
4. ____: ____. The Commission of Industrial Relations is an administrative
agency empowered to perform a legislative function.
5. Administrative Law. Generally, for purposes of construction, a rule or
order of an administrative agency is treated like a statute.
6. ____. Absent a statutory or regulatory indication to the contrary, lan-
guage contained in a rule or regulation is to be given its plain and ordi-
nary meaning.
7. ____. A rule is open for construction only when the language used
requires interpretation or may reasonably be considered ambiguous.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
NEBRASKA PROTECTIVE SERVS. UNIT v. STATE
Cite as 299 Neb. 797
8. Commission of Industrial Relations: Administrative Law: Labor
and Labor Relations: Contracts: Pleadings: Time. For each agree-
ment, contract, or understanding subject to the Rules of the Nebraska
Commission of Industrial Relations 9(II)(C)(1) (rev. 2015) and a statu-
tory bargaining period, a particular party may file a petition only within
the period that occurs earlier in its particular circumstances.
9. Commission of Industrial Relations: Administrative Law: Public
Officers and Employees: Pleadings: Time. Public employee bar-
gaining units, created pursuant to Neb. Rev. Stat. § 81-1369 et seq.
(Reissue 2014), must file any petition, under the Rules of the Nebraska
Commission of Industrial Relations 9(II)(C)(1) (rev. 2015), during the
period preceding the commencement of the statutorily required bargain-
ing period in § 81-1379.
Appeal from the Commission of Industrial Relations.
Affirmed.
Gary L. Young and Thomas Fox, of Keating, O’Gara,
Nedved & Peter, P.C., L.L.O., for appellant.
Dalton W. Tietjen, of Tietjen, Simon & Boyle, for appel-
lee Nebraska Association of Public Employees, Local 61 of
the American Federation of State, County and Municipal
Employees (NAPE/AFSCME).
No appearance for appellee State of Nebraska.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
JJ., and Derr and Urbom, District Judges.
Funke, J.
The appellant, Nebraska Protective Services Unit, Inc.
(NPSU), doing business as Fraternal Order of Police Lodge
#88, filed a petition with the Commission of Industrial
Relations (CIR) requesting decertification of the certified col-
lective bargaining agent for the protective service bargaining
unit (PSBU) and certification of itself as PSBU’s new col-
lective bargaining agent. The CIR ruled the petition was not
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
NEBRASKA PROTECTIVE SERVS. UNIT v. STATE
Cite as 299 Neb. 797
timely filed, under CIR rule 9(II)(C)(1),1 and dismissed the
petition. We affirm.
BACKGROUND
The State Employees Collective Bargaining Act2 created the
PSBU to represent the State of Nebraska “institutional security
personnel, including correctional officers, building security
guards, and similar classes.”3
The Nebraska Association of Public Employees, Local 61
of the American Federation of State, County and Municipal
Employees (NAPE/AFSCME), has been the certified collec-
tive bargaining agent for the PSBU since a 1991 election.
As PSBU’s exclusive bargaining agent, NAPE/AFSCME is
responsible for representing all PSBU employees in negotiat-
ing biennial collective bargaining agreements with the State of
Nebraska, pursuant to § 81-1377(4).
The 2015-17 collective bargaining agreement between the
State and PSBU was set to expire on June 30, 2017. In
September 2016, NAPE/AFSCME, as PSBU’s collective bar-
gaining agent, and the State began negotiations for a 2017-
19 collective bargaining agreement, pursuant to § 81-1379.
Negotiations for the agreement were completed in January
2017, and the contract was subsequently ratified by a PSBU
employees’ vote and signed by representatives of both parties.
The 2017-19 collective bargaining agreement had an effective
date of July l, 2017.
In late August 2016, certain PSBU employees decided to
attempt to decertify NAPE/AFSCME as PSBU’s exclusive
bargaining agent. In October, these PSBU employees formed
NPSU to organize the decertification effort and affiliated the
organization with the Fraternal Order of Police as Lodge #88.
1
See Rules of the Nebraska Commission of Industrial Relations 9(II)(C)(1)
(rev. 2015).
2
Neb. Rev. Stat. § 81-1369 et seq. (Reissue 2014).
3
§ 81-1373(1)(f).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
NEBRASKA PROTECTIVE SERVS. UNIT v. STATE
Cite as 299 Neb. 797
On March 3, 2017, the NPSU filed a petition with the
CIR, requesting a combination election to determine whether
PSBU members wanted to (1) decertify NAPE/AFSCME as
its bargaining unit and (2) certify NPSU as its new collective
bargaining unit. The CIR clerk certified the signatures of 683
PSBU employees, or 43 percent of the total employees, sup-
porting the election requested by NPSU.
The CIR determined that NPSU had made a sufficient show-
ing of interest to warrant an election, but it ruled an election
would not be held and dismissed the petition, because NPSU
failed to comply with the timeframe expressly required by
rule 9(II)(C)(1). The CIR specifically rejected NPSU’s argu-
ment that a memorandum from CIR clerk Annette Hord, dated
December 29, 1999 (Hord memo), interpreted rule 9(II)(C)(1)
to permit public employee bargaining units to file within a later
period, which NPSU had complied with.
NPSU filed a timely appeal to the Nebraska Court of
Appeals, which was removed to this court by order of the clerk
of the Supreme Court.4
ASSIGNMENTS OF ERROR
NPSU assigns, restated and consolidated, that the CIR erred
in (1) finding that it did not timely file its petition, under rule
9(II)(C)(1); (2) not ordering an election to be held; and (3)
dismissing its petition.
STANDARD 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 fol-
lowing grounds and no other: (1) if the CIR acts without or in
excess of its powers, (2) if the order was procured by fraud
or is contrary to law, (3) if the facts found by the CIR do not
support the order, and (4) if the order is not supported by a
4
See § 81-1387(3).
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Nebraska Supreme Court A dvance Sheets
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NEBRASKA PROTECTIVE SERVS. UNIT v. STATE
Cite as 299 Neb. 797
preponderance of the competent evidence on the record consid-
ered as a whole.5
[1,2] To the extent that the meaning and interpretation of
statutes and regulations are involved, questions of law are
presented, in connection with which an appellate court has an
obligation to reach an independent conclusion irrespective of
the decision made by the court below.6 However, we accord
deference to an agency’s interpretation of its own regulations
unless plainly erroneous or inconsistent.7
ANALYSIS
The Industrial Relations Act vests authority in the CIR to
“determine questions of representation for purposes of collec-
tive bargaining for and on behalf of public employees”8 but
prohibits it from “order[ing] an election until it has determined
that at least thirty percent of the employees in an appropri-
ate unit have requested in writing that the [CIR] hold such an
election.”9 Further, it provides that the CIR “may adopt all rea-
sonable and proper regulations to govern its proceedings [and]
the filing of pleadings.”10
[3] Under this authority, the CIR promulgated rule 9 to
govern the processes of decertifying the existing collective
bargaining agent for a particular bargaining unit. Regarding the
period that the decertification process must be initiated within,
CIR’s rule 9 provides:
II. Petitions Filed by an Employee, Employees, or a
Labor Organization:
....
5
§ 81-1387(4).
6
In re Estate of Vollmann, 296 Neb. 659, 896 N.W.2d 576 (2017).
7
Melanie M. v. Winterer, 290 Neb. 764, 862 N.W.2d 76 (2015).
8
Neb. Rev. Stat. § 48-838(1) (Cum. Supp. 2016). See, also, § 81-1372.
9
§ 48-838(3).
10
Neb. Rev. Stat. § 48-809 (Cum. Supp. 2016).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
NEBRASKA PROTECTIVE SERVS. UNIT v. STATE
Cite as 299 Neb. 797
C. Such a petition may only be filed:
1. Between the one-hundred twentieth (120th) day and
the sixtieth (60th) days preceding either;
a. Termination of an existing agreement, contract or
understanding, or
b. Preceding commencement of a statutorily required
bargaining period, whichever is earlier.
The State Employees Collective Bargaining Act mandates
that “[a]ll contracts involving state employees and negoti-
ated pursuant to the Industrial Relations Act or the State
Employees Collective Bargaining Act shall cover a two-
year period c­oinciding with the biennial state budget . .
. .”11 Further, the State Employees Collective Bargaining Act
requires:
The Chief Negotiator and any other employer-­
representative and the exclusive collective-bargaining
agent shall commence negotiations on or prior to the
second Wednesday in September of the year preced-
ing the beginning of the contract period, except that the
first negotiations commenced by any bargaining unit may
commence after such September date in order to accom-
modate any unresolved representation proceedings. All
negotiations shall be completed on or before March 15 of
the following year.12
Both parties assert that rule 9(II)(C)(1) is unambiguous
regarding the time in which a petition to decertify a collective
bargaining agent may be filed.
NPSU contends that rule 9(II)(C)(1) permits it to choose
to file its petition within either filing period. It contends that
the disjunctive terms “either” and “or” mean that a party may
choose between the two periods and that the phrase “which-
ever is earlier” does not restrict a party to a single period but,
instead, simply requires a party to file its petition during the
11
§ 81-1377(4).
12
§ 81-1379.
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Nebraska Supreme Court A dvance Sheets
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NEBRASKA PROTECTIVE SERVS. UNIT v. STATE
Cite as 299 Neb. 797
next available period after deciding to decertify the collective
bargaining agent. It cites the Hord memo as interpreting the
rule as such.
NAPE/AFSCME contends that the phrase “whichever is
earlier” is a qualifying factor to the disjunctive terms that
limit the filing options available to a particular bargaining
unit based on its circumstances. It argues that we should defer
to the CIR’s interpretation, in this case, and that the Hord
memo is not authoritative and not inconsistent with the CIR’s
interpretation.
[4-7] The CIR is an administrative agency empowered to
perform a legislative function.13 Generally, for purposes of con-
struction, a rule or order of an administrative agency is treated
like a statute.14 Absent a statutory or regulatory indication to
the contrary, language contained in a rule or regulation is to be
given its plain and ordinary meaning.15 A rule is open for con-
struction only when the language used requires interpretation
or may reasonably be considered ambiguous.16 As mentioned
above, we accord deference to an agency’s interpretation of its
own rules unless plainly erroneous or inconsistent.17
[8] We find that the language of rule 9(II)(C)(1) is not
ambiguous or open to interpretation, and therefore, we do
not consider the rules of construction suggested by the par-
ties. As NPSU argues, “the word ‘or’, when used properly, is
disjunctive.”18 Accordingly, rule 9(II)(C)(1) permits a petition
13
Douglas Cty. Health Ctr. Sec. Union v. Douglas Cty., 284 Neb. 109, 817
N.W.2d 250 (2012).
14
In re Petition of Golden Plains Servs. Transp., 297 Neb. 105, 898 N.W.2d
670 (2017).
15
Id.
16
See id.
17
Melanie M., supra note 7.
18
Brief for appellant at 20, citing Liddell-Toney v. Department of Health &
Human Servs., 281 Neb. 532, 797 N.W.2d 28 (2011). See, also, State v.
Rask, 294 Neb. 612, 883 N.W.2d 688 (2016).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
NEBRASKA PROTECTIVE SERVS. UNIT v. STATE
Cite as 299 Neb. 797
to be filed within one of the two periods stated in the rule.
However, as NAPE/AFSCME argues, the phrase “whichever
is earlier” is an express qualifying factor that limits the option
available to a particular party. Therefore, for each agreement,
contract, or understanding subject to rule 9(II)(C)(1) and a
statutory bargaining period, a particular party may file a peti-
tion only within the period that occurs earlier in its particular
circumstances.
[9] In the case of public employee bargaining units, created
pursuant to the State Employees Collective Bargaining Act, the
only period available to file a petition is the period preceding
the commencement of a statutorily required bargaining period.
Unlike other bargaining units under the Industrial Relations
Act, all public employee bargaining units are subject to the
bargaining period under § 81-1379, which commences on the
second Wednesday in September of the year preceding the
beginning of the contract period.
This interpretation is consistent with the CIR’s decision in
this case. Accordingly, the CIR’s decision was not contrary
to law. In addition, as stated above, the CIR was specifically
granted the authority to promulgate rule 9. Further, because
the interpretation of rule 9 is a question of law, the other
grounds for reversing its decision, under § 81-1387(4), do
not apply.
We do not consider whether the Hord memo is an authorita-
tive interpretation by the CIR, because we do not find its state-
ments inconsistent with the plain meaning of the statute. The
Hord memo stated, in relevant part, the following:
[The CIR clerk has] included information regarding the
rules that have been amended or added and a brief expla-
nation of the reason for the change or addition.
....
Rules 9C and 9G have been amended to allow enti-
ties that have statutorily required bargaining periods the
option to file a petition for decertification, whether it
be by the employer or by an employee, employees, or a
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
NEBRASKA PROTECTIVE SERVS. UNIT v. STATE
Cite as 299 Neb. 797
labor organization, in a time period between the 120th and
60th day preceding the commencement of that statutorily
required bargaining period.
The use of the word “option” in the Hord memo did not
indicate that a party could choose between the two options but
merely conveyed that parties subject to a statutorily required
bargaining period could now file a petition in a different period
than the one that was previously available, i.e., “[b]etween the
one-hundred twentieth (120th) day and the sixtieth (60th) days
preceding [the t]ermination of an existing agreement, contract
or understanding.”19 A party still retains the option to file no
petition at all. Additionally, were we to read the Hord memo as
NPSU suggests, it would not be entitled to deference based on
its inconsistency with the inclusion of the phrase “whichever is
earlier” in rule 9(II)(C)(1).
Because NPSU did not file its petition in the period required
under rule 9(II)(C)(1), its petition was time barred. Therefore,
the CIR did not err in denying NPSU’s request for an election
and dismissing the complaint.
CONCLUSION
For the reasons set forth herein, we affirm the judgment of
the CIR.
A ffirmed.
19
CIR rule 9(II)(C)(1)(a).