Opinion
No. 81-778.
Filed April 15, 1983.
1. Mandamus. Before a court is warranted in granting a peremptory writ, it must appear that the relator has a clear legal right to the performance of the duty by the respondent. To warrant the issue of mandamus against an officer to compel him to act, it must be established that (1) the duty must be imposed upon him by law, (2) the duty must still exist at the time the writ is applied for, and (3) the duty to act must be clear. 2. Statutes. Statutes are not open to construction as a matter of course. It is not our province to read meaning into a statute not warranted by the language.
Appeal from the District Court for Adams County: FRED R. IRONS, Judge. Reversed.
Michael E. Sullivan, for appellant.
Thomas E. Dowd of Dowd Fahey Law Offices, for appellee.
KRIVOSHA, C.J., BOSLAUGH, McCOWN, WHITE, HASTINGS, and CAPORALE, JJ., and MORAN, D.J.
This case arises on a petition for writ of mandamus filed by relator-appellee, Nebraska State Council #32, AFSCME, to compel the respondent-appellant, City of Hastings, to withhold monthly dues from the pay of city employees who are members of relator's union. The facts are not in dispute and the judgment of mandamus was issued on the pleadings.
Relator is the certified bargaining agent for a unit of employees of the City of Hastings, Nebraska. Relator, by its attorney, requested that pursuant to the requests signed by a number of the employees in the unit, the respondent deduct the sum of $10 per month from the pay of the requesting employees. The city refused and suit was filed.
Involved in this action is the interrelation of two statutes, Neb. Rev. Stat. § 48-224 (Reissue 1978) and 48-816 (Cum. Supp. 1982).
Section 48-224 provides: "Any employee of the State of Nebraska, any municipal corporation, or any public body or agency created by the laws of this state, who desires to participate voluntarily in any employee organization, credit union, or any community charity or public welfare plan approved by the Governor and the Director of Administrative Services, in the case of employees of the State of Nebraska or by the duly elected governing body of such municipal corporation or other public body or agency, may execute an order authorizing the withholding from any wages or salary paid to such employee of a sum each month or pay period and the same to be paid to the designated recipient thereof."
Section 48-816 provides in part: "When an employee organization has been certified as an exclusive collective bargaining agent or recognized pursuant to any other provisions of this act, the appropriate public employer shall be and is hereby authorized to negotiate collectively with such employee organization in the settlement of grievances arising under the terms and conditions of employment of the public employees as provided in this act, and to negotiate and enter into written agreements with such employee organizations in determining such terms and conditions of employment, including wages and hours."
The questions succinctly stated are (1) whether the certification of the relator establishes that the respondent has approved the relator, and (2) if the respondent has approved the relator, is there a mandatory duty to withhold dues and transmit them to relator under 48-224?
At the time of the passage of 48-224, 1967 Neb. Laws, Ch. 571, 1, p. 1878, the political subdivisions of this state were not empowered to recognize and bargain with labor organizations as the exclusive collective bargaining agents of their employees. In 1969 the Legislature passed L.B. 15, which amended Neb. Rev. Stat. § 48-801 et seq. (Reissue 1968), granting such power to the state and its subdivisions. 1969 Neb. Laws, Ch. 407, p. 1405.
The amendment by the Legislature appears to have been in response to the decision of American Federation of State, Co., Mun. Emp. v. Woodward, 406 F.2d 137 (8th Cir. 1969), which held that neither Nebraska's Constitution nor its statutes limited union membership to private employment. Therefore, public policy warranted its extension to public employment.
The relator argues that by virtue of its certification as the exclusive bargaining unit of its members and the fact that respondent already has bargained with it, the city has approved of it within the meaning of 48-224. The relator maintains that once approval is obtained, 48-224 is directive to the respondent to check off dues from its employees and remit them to relator.
However, before a court is warranted in granting a peremptory writ, it must appear that the relator has a clear legal right to the performance of the duty by the respondent. To warrant the issue of mandamus against an officer to compel him to act, it must be established that (1) the duty must be imposed upon him by law, (2) the duty must still exist at the time the writ is applied for, and (3) the duty to act must be clear. State ex rel. Blome v. Bridgeport Irr. Dist., 205 Neb. 97, 286 N.W.2d 426 (1979).
An examination of the legislative history shows that 48-224 contemplated only formal approval by the city council and does not mention implied approval by bargaining or certification as alternatives, for the obvious reason that at the time of its passage, no provisions existed in the statutes for any type of approval for a public employee collective bargaining unit.
While there is no question that automatic dues checkoffs are the proper subject of collective bargaining, it does not follow, absent a direct command from the Legislature, that the City of Hastings must automatically allow a dues checkoff simply by certifying the union and agreeing to bargain with it.
We are unable to discern such a direct command or even one reasonably inferable from the statutes involved. Statutes are not open to construction as a matter of course. It is not our province to read meaning into a statute not warranted by the language. Watson v. City of Omaha, 209 Neb. 835, 312 N.W.2d 256 (1981).
In addition, upon a further reading of amendments to the statute, we note that the language in 48-816 states in part: "To bargain in good faith shall mean the performance of the mutual obligation of the employer and the labor organization to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession." (Emphasis supplied.) The amendment to 48-816 was in effect at the time of this dispute, and it is certainly indicative of an existing legislative intent not to force collective bargaining concessions upon the parties by statute.
We therefore hold that the City of Hastings did not approve of the union within the meaning of 48-224, and even if the city were to approve of the union formally by resolution, in the absence of a directive by the Legislature, the checkoff of dues is not mandatory but, rather, is a subject for collective bargaining.
The conclusions of law of the trial court were in error. The trial court's action in issuing the writ of mandamus is hereby reversed.
REVERSED.