Nebraska Protective Servs. Unit v. State , 299 Neb. 797 ( 2018 )


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    06/08/2018 01:07 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 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 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 PROTECTIVE SERVS. UNIT v. STATE
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    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 PROTECTIVE SERVS. UNIT v. STATE
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    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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    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 PROTECTIVE SERVS. UNIT v. STATE
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    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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    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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    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).
    

Document Info

Docket Number: S-17-916

Citation Numbers: 299 Neb. 797

Filed Date: 4/26/2018

Precedential Status: Precedential

Modified Date: 11/1/2019