Bell Federal Credit Union v. Christianson

• Court: Nebraska Supreme Court
• Writing for the Court: HASTINGS; HASTINGS; WHITE
• Citation: Bell Federal Credit Union v. Christianson, 505 N.W.2d 710, 244 Neb. 267 (Neb. 1993)
• Decision Date: 01 October 1993
• Docket Number: No. S-91-635,S-91-635
• Parties: BELL FEDERAL CREDIT UNION, Appellant, v. Kathleen CHRISTIANSON, et al., Appellees.

Page 710

505 N.W.2d 710

244 Neb. 267

BELL FEDERAL CREDIT UNION, Appellant, v. Kathleen CHRISTIANSON, et al., Appellees.

No. S-91-635.

Supreme Court of Nebraska.

Oct. 1, 1993.

Syllabus by the Court

1. Administrative Law: Pleadings: Time: Appeal and Error. When the petition instituting proceedings for review under the Administrative Procedure Act is filed in the district court on or after July 1, 1989, the review shall be conducted by the district court de novo on the record.

2. Administrative Law: Judgments: Final Orders: Appeal and Error. A judgment rendered or final order made by the district court under the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record.

3. Employment Security: Labor and Labor Relations: Proof. An employer contesting unemployment benefits has the burden of proving that it suffered a stoppage of work because of a labor dispute.

4. Employment Security: Labor and Labor Relations: Words and Phrases. The phrase "stoppage of work" refers to an employer's operations, rather than the employee's labor.

5. Employment Security: Labor and Labor Relations. In the final analysis, the considerations relevant to the determination of a stoppage of work will depend on the unique business involved in a particular case.

6. Judgments: Appeal and Error. An appellate court, in reviewing a judgment of the district court for errors appearing on the record, will not substitute its factual findings for those of the district court where competent evidence supports those findings.

7. Records: Appeal and Error. The party appealing has the responsibility of including within the bill of exceptions matters from the record which the party believes are material to the issues presented for review.

8. Evidence: Records: Appeal and Error. A bill of exceptions is the only vehicle for bringing evidence before an appellate court; evidence which is not made a part of the bill of exceptions may not be considered.

Soren S. Jensen and J Russell Derr, Erickson & Sederstrom, P.C., Omaha, for appellant.

Thomas F. Dowd, Dowd & Dowd, Omaha, for appellees.

HASTINGS, C.J., and BOSLAUGH, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.

HASTINGS, Chief Justice.

The claimants, here appellees, are employees of the appellant, Bell Federal Credit Union (Bell), and appealed from a determination by the Commissioner of Labor of the State of Nebraska dated July 14, 1989, which disqualified them from receiving unemployment benefits from June 11 through 24, 1989. The determination was based on a finding that the claimants' unemployment resulted from work stoppage due to a labor dispute within the meaning of Neb.Rev.Stat. § 48-628(d) (Reissue 1988), which stoppage began on June 12 and ended on June 23.

At the time the strike began, Bell employed 115 persons. Of these, a total of 53 employees went on strike. Of the remaining 62 employees, 23 were nonunion management and support personnel. Thirteen of the employees had been hired on a temporary basis prior to the strike, and three additional temporary employees were hired after the strike began. A net reduction of 37 employees occurred as a result of the strike.

The Nebraska Appeal Tribunal heard the claimants' appeal on August 28, 1989, and reversed the commissioner's findings. The tribunal stated that Bell's only evidence of revenue loss resulting from the labor dispute arose out of its witness' speculation that the shifting of personnel among the various departments necessarily resulted in a loss of revenue and went on to say:

Although the evidence shows that the employer suffered a 15% reduction in teller operations, the evidence also shows that union members had been instructed to make use of automatic teller machines during the strike. Consequently, the Tribunal can only speculate as to whether or not the reduction in teller operations resulted in a loss of revenue. Although evidence was presented to show that certain areas of work, such as the processing of loans following initial applications, the working of overdrawn accounts, the processing of applications for ATM cards and the remittance of money orders and traveler's checks after their issuance, and the follow up of insufficient fund checks suffered disruptions, no evidence was offered to show a resulting financial impact on the employer's operations.

The Tribunal can only speculate as to the extent or nature of any impact that this shifting of employees may have had on the employer's operations during the labor dispute. Although some transactions may have been delayed, the Tribunal is unconvinced that there was a significant loss in business or profit to the employer during the labor dispute. Speculation that a slowdown in certain operations during the period of the strike necessarily resulted in a loss of business or revenue could as easily be countered by speculation that the employer's operations were more profitable during the labor dispute because of decreased labor costs.

... It should be further noted that the employer, by its own statement, was operating at a reduced, but satisfactory level on June 20, 1989....

On appeal, pursuant to the Administrative Procedure Act, the district court held that the order of the tribunal finding that Bell's striking employees were eligible for unemployment benefits because Bell did not suffer a "stoppage of work," as that phrase is used in the Employment Security Law, was supported by substantial evidence and affirmed its decision. Bell made its first appeal to this court.

On March 8, 1991, as reported in Bell Fed. Credit Union v. Christianson, 237 Neb. 519, 466 N.W.2d 546 (1991) (Bell Fed. Credit Union I), this court reversed the judgment and remanded the cause for further proceedings, finding that the district court had utilized the wrong standard of review, i.e., as an error proceeding rather than de novo on the record. This court further concluded that, as a matter of law, it could not be said that a work stoppage did or did not occur.

We held that a work stoppage exists when it is proven that there has been a substantial curtailment of work produced by a labor dispute in an employing establishment.

" 'Substantial' has been defined to mean 'material,' 'important,' 'massive,' or 'considerable in amount.' [Citation omitted.] Accordingly, it becomes difficult to fix any definitive standard by which to gauge when a stoppage of work starts or stops.

"In adopting this approach, its effect was to require a case-by-case review of the particular facts and circumstances unique to each case, because we adopted a fluid test to determine when a substantial curtailment of work commences, and we remain convinced that this commonsense approach is both logical and reasonable and is the interpretation and application under similar statutes of other jurisdictions. [Citation omitted.]"

(Emphasis in original.) 237 Neb. at 524, 466 N.W.2d at 549-50.

This court ordered on remand that the district court determine in accordance with the new, fluid test the court had just enunciated whether substantial curtailment of work had resulted from the labor dispute between Bell and its striking employees.

On remand, the district court reviewed the original record. The district court entered an order on May 28, 1991, affirming the decision of the appeal tribunal as follows:

Upon a de novo review of the record, and after due consideration of the briefs of the parties, the Court finds:

(a) Generally for the defendants/appellees and against the plaintiff/appellant;

(b) That there was no substantial curtailment of the plaintiff's entire operations and that therefore there was no "work stoppage" because of the labor dispute which did exist;

(c) That the plaintiff's operations, although multi-officed, constituted a single integrated establishment, because of the functional dependency upon the main office of the outlying offices;

(d) That the decision of the Nebraska Appeal...