Cone v. Nevada Service Employees Union

• Citation: 116 Nev. 473,998 P.2d 1178
• Decision Date: 04 May 2000
• Docket Number: No. 29718.,29718.
• Parties: Annice CONE, Sharon Mallory, and Karl Schlepp, Appellants, v. NEVADA SERVICE EMPLOYEES UNION/SEIU LOCAL 1107, The University Medical Center of Southern Nevada, and the State of Nevada, Local Government Employee-Management Relations Board, Respondents.
• Court: Nevada Supreme Court

998 P.2d 1178

116 Nev. 473

Annice CONE, Sharon Mallory, and Karl Schlepp, Appellants, v. NEVADA SERVICE EMPLOYEES UNION/SEIU LOCAL 1107, The University Medical Center of Southern Nevada, and the State of Nevada, Local Government Employee-Management Relations Board, Respondents.

No. 29718.

Supreme Court of Nevada.

May 4, 2000.

Frank J. Cremen, Las Vegas, for Appellants.

Frankie Sue Del Papa, Attorney General, Jan Cohen, Senior Deputy Attorney General, and Matthew T. Dushoff, Deputy Attorney General, Carson City; Stewart L. Bell, District Attorney, and Mitchell M. Cohen, Deputy District Attorney, Clark County; Dennis A. Kist & Associates, Las Vegas; Van Bourg, Weinberg, Roger & Rosenfeld and James G. Varga, Los Angeles, California; and National Right to Work Legal Defense Foundation and Glenn M. Taubman, Springfield, Illinois, for Respondents.

BEFORE ROSE, C.J., MAUPIN and SHEARING, JJ.

OPINION

PER CURIAM:

SUMMARY

This case presents an issue that we have not previously considered: whether it is an unfair labor practice for a union to charge nonunion members within its bargaining unit fees for individual representation in grievances, hearings, and arbitrations. Both the Employer Management Relations Board and the district court, in part, answered this question in the negative. We agree, and therefore affirm the order of the district court.

STATEMENT OF THE FACTS

The relevant facts in this case are not in dispute, as the parties have stipulated to them. Appellants, Annice Cone, Sharon Mallory, and Karl Schlepp (collectively hereinafter "appellants"), are nonunion employees of the University Medical Center of Southern Nevada ("UMC"), a local government employer pursuant to NRS 288.060. Appellants, as employees of UMC, are governed by a collective bargaining agreement (the "CBA") and are members of a bargaining unit that is represented by Nevada Service Employees Union/SEIU Local 1107 (the "union").

In October 1994, approximately 100 union members, including the appellants in this case, exercised their rights under article 8, section 4 of the CBA to revoke their union dues authorization forms, thereby becoming nonunion members of the bargaining unit. During this same time period, in October 1994, the union disseminated a new Executive Board Policy (the "policy"), which is at issue in this case. The policy served two purposes: (1) to establish a fee schedule for all nonmembers of the union for representation in grievance matters; and (2) to notify nonunion members that they could select outside counsel to represent them in bargaining unit matters. The policy's fee schedule provided that grievance consultation would cost a minimum of sixty dollars an hour, that the nonunion member was responsible for fifty percent of the billed fee for hearing officers and arbitrators, and one hundred percent of union attorney fees of up to two hundred dollars per hour.

The policy was authorized by article 6, section 2 of the CBA, which provides that:

The Union recognizes its responsibility as bargaining agent and agrees fairly to represent all employees in the bargaining unit. UMC recognizes the right of the Union to charge nonmembers of the Union a reasonable service fee for representation in appeals, grievances and hearings.

It is undisputed that the policy was never actually enforced against any UMC nonunion employee, including appellants. However, because appellants believed that article 6, section 2 of the CBA and the policy violated the Local Government Employee-Management Relations Act (the "act"), appellants filed a complaint with the Local Government Employee-Management Relations Board (the "board"). In their complaint, filed on March 7, 1995, appellants alleged that the policy violated the act because it "interfered with, restrained, coerced and discriminated against the [appellants] (and all other employee[s] in the bargaining unit) in the exercise of their right, if they choose, to be nonmembers of the UNION, all in violation of NRS 288.140, 288.270(1)(a), 288.270(1)(c), 288.270(2)(a)."

In response to appellants' initial complaint, UMC, the board, and the union filed answers. Thereafter, the parties filed legal briefs, stipulated to the facts, and agreed to let the board decide the issues in this case without a hearing.

On January 10, 1996, the board issued a divided 2-1 decision. A majority of the board upheld the policy, concluding that it was not contrary to the provisions of NRS 288 or Nevada's Right to Work Law (NRS 613.230-.300) and that, in the alternative, appellants had waived by inaction their right to object to such provisions. Further, the board concluded that the policy was neither coercive nor discriminatory in nature and did not derogate the union's statutory duty as an exclusive bargaining agent to represent all UMC employees fairly and impartially.

In contrast, the dissenter to the board's decision concluded that the policy was invalid as a prohibited practice under NRS 288.270(2)(a) because it served to coerce non-union employees into joining the union. Further, the dissent concluded that the policy was a prohibited practice because the union, as the exclusive bargaining agent for UMC employees, had a duty to represent all union and nonunion employees on a nondiscriminatory basis.

Because appellants felt that the board erred in reaching this conclusion, appellants filed a petition for judicial review (the "petition"). The district court denied in part and granted in part¹ the petition, ruling that it was not arbitrary or capricious for the board to conclude that the policy was not discriminatory against nonunion employees or otherwise unlawful as interpreted.

Believing that the district court erred in making the aforementioned ruling, appellants filed this timely appeal.

DISCUSSION

This court has held that it will conduct an independent review of an administrative agency's construction of a statute where the facts are not in dispute. See American Int'l Vacations v. MacBride, 99 Nev. 324, 326, 661 P.2d 1301, 1302 (1983)

. Because the facts are not in dispute in this matter, and indeed have been stipulated to, this court's review is de novo.

The board, and later the district court, concluded that NRS 288.027 did not prohibit the union from charging a nonmember costs for the union's grievance representation services. Appellants first contend that this conclusion is erroneous because the union, as the "bargaining agent" of UMC employees, is obligated by the plain language of NRS 288.027 to "exclusively" represent all UMC employees, including nonunion members, in all grievance matters without charging a fee.² We disagree.

A. NRS 288.027

NRS 288.027 defines a bargaining agent as an "exclusive" representative:

an employee organization recognized by the local government employer as the exclusive representative of all local government employees in the bargaining unit for purposes of collective bargaining.

Because of the inclusion of the word "exclusive," appellants conclude that the union is not allowed to "pick and choose" which of the representational activities that it will provide free of charge because its statutory designation as the "exclusive representative" requires it to provide all services for free. We do not agree that the mere inclusion of the word "exclusive" in and of itself prohibits a union from charging nonunion members service fees for individual grievance representation.³ See National Treasury Employees Union v. Federal Labor Relations Auth., 800 F.2d 1165, 1167 (D.C.Cir.1986)

(noting that there was "nothing particularly plain or compelling about the text [of a similar federal statute], standing alone").

Further, with regard to statutory language, there is another Nevada statute, NRS 288.140(2), that explicitly authorizes a nonunion member to act on his own behalf "with respect to any condition of his employment." This statute provides an individual with a right to forego union representation. Implicit in the plain language of this provision is the requisite that a nonunion member pay for pursuing his or her own grievance, even if such payment is made to the union.

Accordingly, we conclude that there is nothing in the plain language of NRS 288.027 that would prohibit the union from charging nonmembers fees for individual representation.

B. Right to work laws

Appellants next contend that the policy violates Nevada's right to work laws. Nevada's right to work laws, particularly NRS 613.250, were enacted for the express purpose of guaranteeing every individual the right to work for a given employer regardless of whether the worker belongs to a union. See Independent Guard Ass'n v. Wackenhut Servs., 90 Nev. 198, 202-03, 522 P.2d 1010, 1013 (1974)

. In Wackenhut, this court invalidated an agency shop agreement, an agreement to pay fees to a labor organization in lieu of membership dues, because it violated NRS 613.250 since it was equivalent to conditioning employment on union membership. 90 Nev. at 203,

522 P.2d at 1014.

The instant policy is unlike the agency shop agreement in Wackenhut, because paying a service fee for grievance representation is not a condition of employment. Indeed, an individual may opt to hire his or her own counsel, and thereby forego giving the union any money at all without fear of losing his or her job.

Accordingly, we conclude that the policy does not violate Nevada's right to work laws.

C. NRS 288.140(1) and NRS 288.270(2)

Appellants' final argument is that the union discriminated against its nonunion members, and thereby breached its duty of fair representation set forth in NRS 288.140(1) and NRS 288.270(2) by charging nonunion members a service fee for individual grievance representation.⁴ We disagree.

NRS 288.140(1)⁵ sets forth the union's duty of fair representation and explicitly states that a local government employer shall not discriminate based on membership or nonmembership in an employee organization. Further, NRS...