Bell Federal Credit Union v. Christianson

• Decision Date: 08 March 1991
• Docket Number: No. 90-291,90-291
• Citation: 466 N.W.2d 546,237 Neb. 519
• Parties: BELL FEDERAL CREDIT UNION, Appellant, v. Kathleen CHRISTIANSON et al., Appellees.
• Court: Nebraska Supreme Court

Page 546

466 N.W.2d 546

237 Neb. 519

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

No. 90-291.

Supreme Court of Nebraska.

March 8, 1991.

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 court, without a jury, de novo on the record of the agency.

2. Jurisdiction: Appeal and Error. After an appeal has been perfected in this court, the trial court or any other lower tribunal is without jurisdiction to hear a case involving the same matter between the same parties.

3. Administrative Law: Pleadings: Time: Judgments: Final Orders: 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 judgment rendered or final order made by the district court may be reversed, vacated, or modified by the Supreme Court for errors appearing on the record.

4. Employment Security: Labor and Labor Relations. An individual shall be disqualified for unemployment benefits for any week with respect to which the Commissioner of Labor finds that his or her total unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he or she was last employed.

5. 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.

6. 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.

7. Employment Security: Labor and Labor Relations: Words and Phrases: Proof. 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.

8. Employment Security: Labor and Labor Relations. Depending on the facts of the case, various factors become relevant as to the determination of a work stoppage.

9. Employment Security: Labor and Labor Relations. A work stoppage cannot be determined solely on the basis of the proportionate number of employees affected.

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

Laureen Van Norman and John F. Sheaff, Lincoln, for appellee Commissioner of Labor.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

FAHRNBRUCH, Justice.

Bell Federal Credit Union (Bell) appeals a district court holding 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.

We reverse the holding and remand this cause for further proceedings because the district court for Douglas County used the wrong standard of review and because this court has concluded that as a matter of law, it cannot be said that a work stoppage did or did not occur.

Bell's three assignments of error in substance allege that the district court erred in (1) applying the wrong standard in reviewing the Nebraska Appeal Tribunal's decision, (2) entering an order applying the proper standard of review after an appeal had already been docketed with this court, and (3) finding that there was competent and substantial evidence to support the appeal tribunal's decision to award unemployment benefits to Bell's striking employees.

Bell is a federally chartered credit union serving 32,000 members. Membership is restricted to individuals who are employed by companies within Bell's field of membership and to relatives of individuals who have an account at Bell. At the time of the strike, Bell had five offices in Omaha, one office in Grand Island, and one office in North Platte.

Before the subject labor dispute, Bell employed 115 people. Twenty-three of those employees were management and support personnel. The remaining 92 Bell employees were members of a bargaining unit which was represented by the Communication Workers of America (CWA).

On May 31, 1989, the contract expired between Bell and its employees represented by the CWA. Fifty-three of the bargaining unit employees struck Bell. The parties stipulated that the workers were unemployed during the period of time from June 12 through June 23, 1989, and that a labor dispute existed during that period of time. The striking employees returned to work on Monday, June 26, 1989.

A number of the striking employees filed applications for unemployment benefits with the Nebraska Department of Labor. Although the record does not state the exact period of time for which the striking employees sought unemployment compensation benefits, it is assumed that the benefits were sought for the period during which the workers were on strike. Benefits were denied by the Deputy Commissioner of Labor on July 14, 1989. On July 31, 1989, that determination was appealed to the Nebraska Appeal Tribunal. A hearing was held before the tribunal on August 28, 1989. The appeal tribunal reversed the deputy commissioner's decision and awarded unemployment compensation benefits to those employees who had applied for them. The decision was served on the parties on October 17, 1989.

On November 13, 1989, Bell filed an appeal from the tribunal's decision in the district court for Douglas County. The district court, on March 2, 1990, affirmed the decision of the appeal tribunal. However, in affirming the appeal tribunal's decision, the district court asserted, "The standard for review on appeal of such an issue requires that the decision of the appeal tribunal should be affirmed unless it is unsupported by competent and substantial evidence, or is arbitrary or capricious, or the result of an error of law." On March 27, 1990, Bell filed a notice of appeal to this court, along with a docket fee, in the district court.

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 court, without a jury, de novo on the record of the agency. Neb.Rev.Stat. § 84-917(5)(a) (Cum.Supp.1990). As stated, the petition was filed in district court after July 1, 1989, and the court failed to apply the correct standard of review.

The parties allege that after this appeal was docketed in this court, the district court, on its own motion, set aside its order of March 2, 1990, reconsidered the matter applying the proper standard of review, and entered an order on May 17, 1990, again affirming the appeal tribunal. The district court's docket sheet reflects that the only action taken by the district court after this appeal was docketed was a notice of show cause hearing entered on March 26, 1990. Nonetheless, as correctly pointed out by Bell, any action taken by the district court in this case after this appeal was docketed was void because the district court was divested of jurisdiction. See Tracy v. United Telephone Co., 218 Neb. 331, 353 N.W.2d 273 (1984) (after an appeal has been perfected in this court, the trial court or any other lower tribunal is without jurisdiction to hear a case involving the same matter between the same parties.)

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 judgment rendered or final order made by the district court may be reversed, vacated, or modified by the Supreme Court for errors appearing on the record. Neb.Rev.Stat. § 84-918(3) (Cum.Supp.1990). It is a logical impossibility for this court to review the district court judgment for errors appearing on the record if the district court incorrectly limited its review and, thus, failed to make factual determinations, as it must under a de novo on the record review. The district court's and this court's standards of review are interdependent. However, if as a matter of law the evidence was insufficient to demonstrate a stoppage of work, it would not matter that the district court used an improper standard of review because under any standard, a stoppage of work could not be shown. Cf. Gray v. Fuel Economy Contracting Co., 236 Neb. 937, 464 N.W.2d 366 (1991) (although an enhanced burden of proof was imposed by the compensation court panel, this court affirmed the judgment because the evidence was insufficient as a matter of law even under the proper burden of proof).

This court may, therefore, review the record to determine if as a matter of law the evidence was insufficient to demonstrate a stoppage of work.

An individual shall be disqualified for [unemployment] benefits:

....

(d) For any week with respect to which the commissioner finds that his or her total unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he or she was last employed....

Neb.Rev.Stat. § 48-628 (Cum.Supp.1990).

The parties stipulated that there was a "labor dispute" within the meaning of § 48-628(d). The entire focus of this appeal is on whether Bell suffered a "stoppage of work" as used in § 48-628(d). An employer contesting unemployment benefits has the burden of proving that it suffered a stoppage of work because of a labor dispute. See IBP, inc. v. Aanenson, 234 Neb. 603, 452 N.W.2d 59 (1990).

The phrase "stoppage of work" refers to an employer's operations, rather than the employee's labor. George A. Hormel & Co. v. Hair, 229 Neb. 284, 426 N.W.2d 281 (1988). "[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. [Citations omitted.]" IBP, inc., supra at...