class size, work schedules and transfers held not mandatory subjects
How later courts described this case
- class size, work schedules and transfers held not mandatory subjects
Written by the judges who cited it.
The opinion
Clinton, J.,
dissenting.
I respectfully dissent. The majority opinion points out, correctly I believe, that Article XV, section 9, of the Constitution of Nebraska, authorizes the creation of the commission with commingled administrative, executive, and judicial powers. The opinion also points out that this is an independent grant of such power by virtue of the special provisions of Article XV, section 9, and is a constitutional exception to the separation of powers provision of Article II. I agree with this reasoning insofar as it applies to the scope of the matters entrusted to the commission by Article XV, section 9.
The point raised by Judge Newton is not the specific constitutional question raised by the defendant, but I believe it is in part valid. With him I believe Article XV, section 9, does not by its terms apply to employers and employees in the governmental sector. I base this conclusion upon the language of section 9 as adopted and without reference to the language eliminated from the original proposal in the course of this consideration. Section 9 grants power in two areas: (1<) In determining controversies between employers and employees “in business or vocations affected with a public interest,” and (2) the prevention of “unfair business practices and unconscionable gains in any business or vocation affecting the public welfare.” (Emphasis supplied.)
*797 It seems apparent to me that the terms “business or vocation” as twice used in Article XV, section 9, refers to profit-making businesses and vocations for the term “unfair business practices and unconscionable gains” can have no reference to the operation of state or governmental subdivisions in their governmental capacities. As first used, those terms refer to the employer’s business or vocation and not to the occupation or vocation of the employee, for example, teachers. It is not reasonable to assume that in the first instance government is included in the term “business or vocation” and in the second instance it is not.
Because the statute in question grants a combination of executive, legislative, and judicial powers outside the scope of the matters authorized by Article XV, section 9, it runs afoul of Article II of the constitutional provision pertaining to the separation of powers.
There would, however, seem to be no question that the Legislature may enact independently of Article XV, section 9, labor legislation applicable to public employees, but in so doing the provisions of Article II on the separation of powers must be observed.