11 CIR 182 (1991)


Petitioner, |
A Municipal Corporation, |
Respondent. |


For the Petitioner: Thomas F. Dowd

Dowd & Dowd

1905 Harney St., # 710

Omaha, Nebraska 68102-2314

For the Respondent: Kent N. Whinnery

Deputy City Attorney

804 Omaha/Douglas Civic Center

1819 Farnam St.

Omaha, Nebraska 68183

Before: Judges Flowers, Orr, and V. Moore


The Nebraska Public Employees Local Union 251, American Federation of State and County Municipal Employees, AFL-CIO ("Union") filed a petition alleging that the City of Omaha ("City") unilaterally and unlawfully rescinded a tuition reimbursement program by reducing the funds normally allocated to it. The Union further alleged that the City unilaterally and unlawfully rescinded parking privileges for the Union president and vice president and for 911 employees working the "C" shift.

The parties are generally not in disagreement as to the material facts. The tuition reimbursement program is available to Union employees, as well as to other City employees. Reimbursement is not guaranteed, but is subject to requirements of employee eligibility, credits per semester, course subject, successful completion, and availability of funds. In January 1991, the funding for tuition reimbursement was reduced from approximately $70,000 to $40,000. However, the City is contractually obligated to reimburse firefighter employees for fire protection technology courses, which are estimated to cost $40,000.

Prior to December 1988, 911 employees working the "C" shift (3:00 p.m. to 11:00 p.m.) were instructed to park on level "A" of the Omaha/Douglas Civic Center parking garage when they first arrived at work. The "A" level is parking available to the general public. Although the public is required to pay, the 911 employees did not have to pay for such parking. After 5:00 p.m., the 911 employees could move their cars to the "B" level, which is parking reserved for City employees without cost to the employees. On or about December 1988, the 911 employees working the "C" shift were informed that they would no longer be able to park on level "A" free of charge.

The Union president, Ed Cox, has been on leave of absence from his employment with the City for several years. He works full-time for the Union. He is allowed to keep his seniority status with the City, and receives health and life insurance from the City's group plan. However, the Union pays the full cost of both insurance plans. He receives no monetary benefits from the City. The Union vice president, John Foster, receives his salary and benefits from the City. Although both work at 30th and Farnam, they were allowed to park on level "B" when meeting with City officials or conducting other Union business. On April 1, 1991, their "B" level parking privilege was revoked. They can still park in the garage free of charge if they can find a vacant stall on level "A" and if they can find Thomas Marfisi, the labor relations director, to sign their parking ticket. Otherwise, they must pay for "A" level parking, or park elsewhere.

The Union argues that the tuition reimbursement program and the parking privileges are terms and conditions of employment, and as such, the City cannot unilaterally rescind them, but must negotiate any changes with the Union. The Union further contends that the City's actions constitute a refusal to bargain in good faith in violation of Neb. Rev. Stat. ยง 48-816 (1988). This unilateral action has frustrated the bargaining process, undermined their status as bargaining representative, and has had an economic impact on the bargaining unit employees. As relief, the Union requests that the Commission order the City to reinstate the tuition reimbursement program and the parking privileges as they were prior to implementation of the City's changes.

The City denies that parking privileges are a term and condition of employment. It contends that the Omaha/Douglas Building Commission, a separate political entity, has ultimate control over parking on the "A" level of the Omaha/Douglas Civic Center and that it allowed, and then later rescinded, the parking privileges accorded to the 911 employees working the "C" shift. Although the parking privilege granted to the Union president was within the control of the City, the City contends that it is not a term and condition of employment because he is not an employee of the City. Finally, the City asserts that the Union vice president so infrequently incurs expenses for parking that it does not rise to the level of an industrial dispute.

Regarding the tuition reimbursement program, the City argues that it has not rescinded the program. The City acknowledges that it has reduced the funding, but it contends that this program was always subject to the availability of funds and that City employees, with the exception of firefighters, were never guaranteed reimbursement.

The Commission finds that the parking privilege for Ed Cox and John Foster is not a term and condition of their employment with the City. Cox is employed by the Union and performed duties for the Union when he parked free of charge on level "B." While Foster is paid by the City, it is undisputed that he performed Union business while using his parking privilege.

The Commission further finds that the tuition reimbursement program and the parking privilege for 911 employees working the "C" shift are terms and conditions of employment. However, the City did not unilaterally rescind the tuition reimbursement program. Reimbursement under the program was never a guarantee and was always subject to the availability of funds.

It is the Commission's determination that its decision in State Troopers Association of Nebraska v. Nebraska State Patrol , 8 CIR 323 (1986) is dispositive of the remaining issue -- parking for 911 "C" shift employees. In State Troopers , this Commission found that a zipper clause precluded it from resolving a dispute over wages and related items. When State Troopers was decided, we relied on the supreme court decision in Transport Workers of America v. Transport Authority of Omaha , 205 Neb. 26, 286 N.W.2d 102 (1979) stating that the Commission's jurisdiction is limited to industrial disputes absent an agreement, and that we lack authority to resolve contract disputes.

The Union employees and the City are currently operating under a labor agreement, and contained within article 35 of the agreement is a zipper clause stating that the agreement resolves any and all negotiable issues except a pension issue. At the time the labor agreement was under negotiation, the parking problem relative to 911 "C" shift employees had arisen and was unresolved. "Notwithstanding the fact that the parties hereto consider the 1990-1991-1992 Labor Agreement as resolution of any and all negotiable terms, the parties nonetheless agree that they will negotiate . . . pension items only for 1992. . . ."

The parties clearly reserved their right to negotiate pension items, and could have done the same with other terms and conditions of employment, including parking privileges for 911 employees working the "C" shift. Base on the facts of this case, the zipper clause is dispositive of these charges. Since the Commission lacks jurisdiction to alter terms and conditions of employment that could have been part of the 1990-1992 agreement, the Commission finds that it does not have jurisdiction in this case and the same is hereby dismissed.

All judges assigned to the panel in this case join in the entry of this Findings and Order.

Entered September 23, 1991.