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Nebraska Protective Services Unit, Inc. v. State

Supreme Court of Nebraska

April 26, 2018

Nebraska Protective Services Unit, Inc., doing business as Fraternal Order of Police Lodge #88, appellant,
v.
State of Nebraska and Nebraska Association of Public Employees, Local 61 of the American Federation of State, County and Municipal Employees (NAPE/AFSCME), appellees.

         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 erroneous 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 decertifying the existing collective bargaining agent for a particular bargaining 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, language contained in a rule or regulation is to be given its plain and ordinary meaning.

         7. ___ .A rule is open for construction only when the language used requires interpretation or may reasonably be considered ambiguous.

          [299 Neb. 798] 8. Commission of Industrial Relations: Administrative Law: Labor and Labor Relations: Contracts: Pleadings: Time. For each agreement, contract, or understanding subject to the Rules of the Nebraska Commission of Industrial Relations 9(II)(C)(1) (rev. 2015) and a statutory 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 bargaining 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 bargaining period in § 81-1379.

          Appeal from the Commission of Industrial Relations. Affirmed.

          Gary L. Young and Thomas Fox, of Keating, O'Gara, Nedved & Peter, PC, L.L.O., for appellant.

          Dalton W. Tietjen, of Tietjen, Simon & Boyle, for appellee 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 collective bargaining agent for the protective service bargaining unit (PSBU) and certification of itself as PSBU's new collective bargaining agent. The CIR ruled the petition was not [299 Neb. 799] timely filed, under CIR rule 9(II)(C)(1), [1] and dismissed the petition. We affirm.

         BACKGROUND

         The State Employees Collective Bargaining Act[2] 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 collective 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 negotiating 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 bargaining 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 1, 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.

          [299 Neb. 800] 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 ...


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