10 CIR 238 (1989)


An Unincorporated Association, |
Petitioner, |
v. | ORDER
0075, a/k/a SCHOOL DISTRICT OF |
GENEVA, A Political Subdivision |
of the State of Nebraska, |
Respondent. |

For the Petitioner: Mark D. McGuire

Crosby, Guenzel, Davis,

Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska 68508

For the Respondent: Kelley Baker

Heron, Burchette, Ruckert & Rothwell

500 The Atrium, 1200 N Street

P. O. Box 82028

Lincoln, Nebraska 68501-2028


Before: Judges Peetz, Cope, and Dawson

This matter comes before the Commission upon the Petitioner's Application for a Temporary Order and the Respondent's Motion to Strike Application for Temporary Order and Objection to Application for Temporary Order. A hearing was held on September 29, 1989. The Petitioner was represented by its attorney Mark McGuire and the Respondent was represented by its attorney Kelley Baker.

Petitioner filed this Application on September 20, 1989 together with a petition seeking a Section 48-8l8 wage determination. The Petitioner in its Application for Temporary Order asks that the Commission order the parties to undertake good faith negotiations and direct the Respondent School District to vacate the August 19, 1989 unilateral adoption and implementation of terms and conditions of employment for the teachers of the district.

The Respondent contends that the Petitioner's Application should be stricken because it does not comply with the Commission's Rule 20 in that no brief was filed with the application. The Respondent also objects to the Application based on the merits of the request.

The evidence introduced at the hearing indicates that the parties did bargain in an attempt to reach a contract for the 1989-90 school year. It does not appear that there is a factual dispute as to whether or not the parties reached impasse. The Association first declared impasse at a meeting on July 31, 1989. The Board then sent a letter to the head negotiator for the teachers stating that unless one of the two final offers set out was adopted, the parties would be at impasse. The teachers responded by letter stating that both offers were rejected and "Therefore, we remain at impasse." (Exhibit 9). The Board then, on August 19, 1989 and prior to any filing by either party with the Commission, implemented one of the offers set out in its letter by increasing the base salary and changing the salary schedule.

The Petitioner seeks a temporary order pursuant to Neb. Rev. Stat . 48-8ll and 48-8l6(l) "to preserve and protect the status of the parties, property and public interest pending final determination of the issues." The Petitioner argues that since the Commission "may make any such order or orders as may be appropriate ...", Neb. Rev. Stat . 48-8l6, then we clearly have the authority to order the employer to take back unilateral implementation of certain wages, terms and conditions for the current contract year. The Petitioner further cites Transport Workers v. Transit Authority of Omaha , 2l6 Neb. 455, 344 N.W.2d 459 (1984) in support of its position. In effect, given the facts before us, the Petitioner is asking the Commission to reduce the wages of the teachers to last year's contract levels pending the outcome of the 48-8l8 wage case filed.

The Respondent argues that the Commission has no authority to grant Petitioner's Application. Respondent relies on previous Commission decisions in which the Commission found that an employer may unilaterally implement its final offer if it does so after impasse and before any proceeding has been initiated in the Commission. See General Drivers and Helpers Union Local 554 v. Saunders County , 6 CIR 313 (1982); Lincoln County Sheriffs Employees Ass'n, Local 546 v. County of Lincoln , 5 CIR 441 (1982), 216 Neb. 274, 343 N.W. 2d 735 (1984). The Respondent also cites Transport Workers, supra, in support of its position.

The parties to this action interpret the findings of the Transport Workers case differently and differ as to their understanding of the factual basis for the Commission's order in that case. In Transport Workers, the parties negotiated for a new contract while under an existing contract that was to end on June 30, 1983. On June 30th the parties declared impasse and the Transport Workers Union filed a wage petition and a request for a Temporary Order requiring the employer to maintain the employment status of the employees. On July 1, 1983 the employer implemented unilateral changes as to uniform and tool allowances. On July 13th the Commission issued a Temporary Order stating that "the employment status of employees shall not be altered in any way pending disposition of the Petition herein by the Commission." After the Commission's order was entered the employer then made an additional change to the existing terms and conditions of employment. The employees then sought a district court order enforcing the Commission's Temporary Order. The district court denied the employees request and the employees appealed to the Supreme Court. The Supreme Court reversed and remanded finding that the district court should have entered orders carrying out the orders entered by the CIR. The Supreme Court succinctly stated what it determined the issue to be in the first sentence of the Transport Workers opinion, "we are asked to determine what if any authority the Commission of Industrial Relations (CIR) has to enter temporary orders concerning wages, hours, and terms and conditions of employment while the CIR is attempting to resolve a labor dispute pending before it. (emphasis supplied)" 216 Neb. at 455. The Supreme Court found that the CIR could issue temporary orders concerning terms and conditions while the dispute was pending.

The facts in the present case differ from those in Transport Workers in that in Transport Workers the request for a temporary order maintaining the status quo was filed before any unilateral changes were implemented by the employer and after the parties were at impasse. In the present case, the request for temporary relief and the wage petition were filed well after impasse had been declared and after the employer implemented various unilateral changes.

In looking to the NLRB for guidance, the NLRB has clearly held that after bargaining to impasse the employer may make unilateral changes that are reasonably comprehended within his pre-impasse proposals. Taft Broadcasting Co. , 163 NLRB 475, 64 LRRM 1386 (1967). The NLRB emphasizes that an impasse must in fact exist or a unilateral change will be considered an unlawful refusal to bargain. See Taft Broadcasting, supra .

In the present case, there is no dispute that the parties were at impasse. The Petitioner's witness testified that it was his belief that formal negotiations were over (17:17-18) and that he declared an impasse at the negotiation session of July 31st (22:13-15). He also testified that he believed mediation was still an option in resolving the dispute between the parties even after declaring an impasse (28:11-14). However, there is no testimony that the employer at any point refused to engage in good faith negotiations. The Commission thus determines that Petitioner's Application should be denied. The parties had engaged in good faith negotiations and were at impasse. Furthermore, there was no petition on file with the Commission when the employer implemented the wage increase and changed the salary schedule.

IT IS THEREFORE ORDERED THAT Respondent's Motion to Strike on procedural grounds is overruled and Petitioner's Application for a Temporary Order is denied.

A Pretrial Conference on the Section 48-8l8 wage determination will be held on November 14, 1989 at 8:00 a.m. in the Commission's office, 5th Floor, State Office Building, 30l Centennial Mall South, Lincoln, Nebraska.

Said pretrial conference shall be conducted in accordance with Rule 22 which is appended hereto and the parties shall fully comply with the provisions set forth therein. In addition, the parties shall present to the Commission at the pretrial conference at least one copy of the exhibits intended to be introduced at trial.

Entered October 17, 1989.