*1 we making should refrain from such broad gratuitous legal state- ments until before properly this court. stated, For the reasons I dissent from the majority opinion and
would reverse the summary judgment and remand this case for trial.
NEVADA ASSOCIATION, HIGHWAY PATROL JERRY SEEVERS, WOODRUFF, ROBERT HUTCHINGS, ROY ROSA, JOHN RUSS HALL, BENZLER and TIM
Appellants, NEVADA, v. THE STATE OF DEPART- MENT OF MOTOR VEHICLES AND PUBLIC SAFETY, NEVADA DIVISION, HIGHWAY PATROL Respondents.
No. 21369
July
Frankie Papa, Sue Del Attorney Carson City, Gren- Pridham, ville General, Thomas Deputy Attorney Vegas, Las Respondents.
OPINION Per Curiam: in the court an action state district
Appellants brought asserting policy provides compensation highway respondent’s —which time off in lieu of overtime pay— officers patrol compensatory 201, U.S.C. violates the Fair Labor Standards Act. See 29 §§ 216(b). The was removed to the United States matter District summary judgment the of Nevada where Court for District favor. granted respondents’ Appeals The United States Court of 28, 1990, reversing grant a on March the issued decision of remanding back to the summary judgment and the case district Thereafter, petition filed a appellants court instructions. for 13, 1990, August and on the United States rehearing, Court of for Circuit certified two questions the Ninth for the Appeals First, Court’s consideration. See NRAP the Supreme Nevada to know States Court of would like whether an United Assembly Concurrent Resolution has the force and effect of Second, court know law. the would like to whether Nevada prohibits the recognized of state representative behalf employees State. by the DOES CONCURRENT
I. AN ASSEMBLY RESOLUTION NEVADA HAVE THE FORCE AND EFFECT OF LAW? 3, 1969, the Nevada Legislature passed Assembly On March in relevant part: Concurrent Resolution No. which states ASSEMBLY CONCURRENT RESOLUTION —Pro- of viding recognition the Nevada State Employees’ state Association.
WHEREAS, number of state employees A substantial are Association; Nevada State Employees’ members of the and WHEREAS, Employees’ The Nevada State Association as of its representative should be members for their interests as advancing state purposes preserving therefore, now, be it employees; Nevada, Resolved the State the That the of the concurring, legislature Senate State of that the division personnel Nevada its sense of the expresses department recognize of administration should the Nevada of its mem- Association as Employees’ State hours employment, of conditions bers for discussion right same time preserving while at the wages, speak not members of such association to who are for themselves. Sess., Nevada Leg. 1969 Statutes of
A. Con. Res. 55th considered this concurrent resolution in appeals The federal court We now hold litigants. lawsuit between that underlying resolution, resolutions, does like similar concurrent not other law. and effect Nevada have the force nature,
First, assembly its an concurrent resolution not of law. to Rule to have the force effect Pursuant 7 of intended Assembly, purpose Nevada Senate and the Joint Rules Legislative a direct Commission of concurrent resolution studies, return request interim of a bill from the to conduct house, an enrolled bill request other and to from Governor. occasion, also a concurrent resolution is used to memorialize On Legislature distinguished person or other a former member of death, any organi- or to or commend congratulate person upon *3 significant accomplishment. a and meritorious zation for Second, which may passed legislature bill have “[e]very law, shall, presented governor it a be to before becomes Const, IV, legislative . art. 35. A review of the . . .” Nev. § Resolution, Concurrent the aforementioned history of resolution, 29, other this like concurrent reso- No. indicates that during period, the same time by legislature passed lutions approval disapproval. never to the Governor for See presented HISTORY, FINAL ASSEMBLY 1969 at generally VOLUME concurrent resolution can- assembly Accordingly, 218-288. of the law this State.
not be construed as law be as every clause of shall follows: Finally, enacting “[t]he Nevada, of in Senate and represented ‘The of the State People ’ no law be follows, do enact as shall enacted Assembly, ” Const, IV, added.) art. We (Emphasis bill. Nev. except § mandatory clause enacting have ruled that this previously every Legislature. law created See must be included in (1875). 250 Since Concurrent Resolu- State v. 10 Nev. Rogers, tion, do not contain the similar resolutions No. 29 other represent cannot the law of language, they enactment requisite this State. COLLECTIVE BAR- LAW PROHIBIT
II. DOES NEVADA BEHALF OF STATE ON GAINING REPRESENTATION REPRESENTATIVE UNLESS THE EMPLOYEES BY THE STATE? IS RECOGNIZED Next, Court United States
550 whether Nevada law prohibits court to determine would like this on behalf of state employees collective by the State. “The rule is majority jurisdictions throughout a among well-settled authority, express statutory public absent United States that offi- authority have the to enter agencies do not into cials or state public employees.” Local bargaining agreements collective Stratton, (N.M. 1989) P.2d 80 2238 AFSCME v. However, minority jurisdictions a hold original). (emphasis that, otherwise, statutory in the absence of concluding express a collectively, general grant power to to authority bargain may necessary carry- officers means for imply administrative granted, may execution the and this include ing power into between the administrative offi- agreements collective bargaining Stratton, P.2d at 80- employee representatives. cers and state why reasons courts are split There are a number of on this concluded that the separation powers some courts have issue: authorization before legislative public mandates specific doctrine occur; bargaining collective can other courts have employee doctrine bars collective preemption bargaining concluded that Dole, Jr., See legislative authorization. State and specific absent Bargaining in the Public Collective Absence Employee Local Authorization, L. Legislative Iowa Rev. 549-550 Explicit (1969). cogent argument against implying power We believe a a collectively in these cases is couched in a concern that bargain to will public employer bargaining legitimization public employee the incidence of strikes.1 Collective increase the strike as a to contemplate weapon would seem While such a result is uncer- employees. enforce the demands of tain, matter, we believe the issue is best left a policy as rule-making. debate and
Likewise, it to allow the appropriate Legisla- we conclude *4 chooses, ture, recognition upon spe- to confer exclusive if it so entities. Where there are actual employee bargaining cific public it difficult representatives, may rival be potential employee or competitive pres- to obtain a master contract: employers public agree- reluctant to reach an representative make each may sures willing accept is to the same every ment until representative Comment, Con- Employee Bargaining Collective Public terms. provided by the services the Legislature has found “[t]hat 1The Nevada they nature that are not and government employers are of such state and local health, safety and are essential to the duplicated from other sources cannot be 288.230(l)(a). the State of Nevada.” NRS people of the and welfare Therefore, employee against any public for a to strike illegal in this State it is 288.230(2). NRS government employer. or local state Teachers, Rev. 33 U. Chi. L. 863-864 Chicago tracts: The in the best to position the is resolve (1966). Again, Legislature with fact associated this intensive issue. concerns legitimate the law majority we the common rule and hold adopt Accordingly, statutory authority, Nevada officials public absent express that to into authority do not have the enter collec- agencies and state and public employees, with that agreements bargaining tive bargaining representation collective on prohibits representative recognized the is employees unless behalf the by State.
III. CONCLUSION then, sum, to questions we answer the two certified In by United States Court court
as follows: Concurrent Resolution does not Assembly
1. An have the of Nevada law. force and effect law prohibits bargaining representa- Nevada
tion on behalf of state employees representative State. by the Young, JJ., Mowbray, J., Breen, C. Steffen D.
,2J. concur.
Rose, J., part: in in concurring part, dissenting that an Concurrent Resolu- agree majority I with force effect Nevada As does not have the law. to tion case, however, court has in this I dissent. This question second view that collec- and common-law adopt majority chosen to of state on behalf tive statutory has express unless the author- prohibited, minority jurisdictions the State. A have ity recognized legislative less require specific modified the common-law rule authority agree before collective I permitted. jurisdictions. these rule majority minority adopt depends largely
Whether to The reasons supporting considerations. public policy clearly are articulated in Local 2238 minority jurisdictions Stratton, (N.M. 1989). v. 769 P.2d These AFSCME requires me conclude that better rule less reasons lead authority. specific observes that opinion adoption majority
The its majority better, doing may because otherwise part, encourage rule is acts less than formal Permitting specific strikes. state worker Breen, Judge of Second Judicial District I. Peter 2The Honorable Court, place to sit in Honorable designated the Governor The Const, VI, Springer, Nev. art. § Justice. E. Charles *5 determining to be the factor recognition concerning the designation of a collective bargaining representative does not encourage to strike. the contrary, On expressly prohibits such strikes. NRS 288.230. Additionally, can and does function with county and city (NRS employees pursuant to Nevada law 288.033 et seq.) with- Therefore, out the employees having right to strike. I think concern majority’s right to strike is not warranted in this case.
The collective bargaining practice in this state should also be recognized in addition to Nevada law. The Nevada Highway Patrol Association is the collective bargaining agent for most of in troopers Highway the Nevada Patrol. It represents its matters, members in disciplinary prepares and presents individ- ual and collective grievances of its members for overtime and benefits, compensation represents its members on day-to-day conditions, working advises and assists its members with issues before the state judiciaries and federal appears behalf of in membership lobbying before the Nevada State Legislature. The Association is fact the collective bargaining agent for its and performs members most functions expected of a collective bargaining representative. reasons,
For the above I would answer both questions in the negative, rather than just first. PFOHLMAN, Appellant,
EDWARD JOHN v. Respondent. NEVADA, THE STATE OF
No.
August