11 CIR 296 (1992), Later decision at 12 CIR 103 (1995). Rev'd and Remanded for Further Proceedings, 252 Neb. 289, 562 N.W.2d 61 (1997).

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

BONNIE JOLLY, and | CASE NO. 840
NEBRASKA ASSOCIATION |
OF PUBLIC EMPLOYEES, |
LOCAL 61 OF THE AMERICAN |
FEDERATION OF STATE, COUNTY |
AND MUNICIPAL EMPLOYEES, |
|
Petitioners, |
|
v. | DECISION AND ORDER
|
STATE OF NEBRASKA, |
NEBRASKA STATE DEPARTMENT |
OF PERSONNEL, and NEBRASKA |
STATE DEPARTMENT OF REVENUE, |
|
Respondents. |

Appearances:

For Petitioner: Raymond B. Simon

Attorney at Law

101 South 38th Street

Omaha, NE 68131

For Respondent: Lisa D. Martin-Price

Assistant Attorney General

2115 State Capitol

Lincoln, NE 68509

BEFORE: Judges Kratz, V. Moore, Orr

KRATZ, J:

This case comes before the Commission on Respondent's Motion for Summary Judgment. Briefs were submitted, evidence was adduced, and the matter was orally argued to the Commission on April 23, 1992.

The significant facts are as follows: Bonnie Jolly is an employee of the State of Nebraska, Department of Revenue. She is represented in collective bargaining by the Nebraska Association of Public Employees, Local 61, of the American Federation of State, County, and Municipal Employees (NAPE/AFSCME). Ms. Jolly is a member of the Administrative Professional Bargaining Unit, which is covered by the 1991-1993 collective bargaining agreement between NAPE/AFSCME and the State of Nebraska (State). The collective bargaining agreement lists the job titles covered by the agreement.

On or about July 11, 1991, Ms. Jolly asked to be promoted from Property Tax Analyst No. I to Property Tax Analyst No. III. The Respondent State of Nebraska, instead, promoted her to Property Tax Analyst No. II. She appealed this decision to the Classification Appeal Panel, which, after a hearing, moved her to Property Tax Analyst No. III. Seven days after this decision, the State eliminated the classification of Property Tax Analyst No. III and Ms. Jolly was returned to Property Tax Analyst No. II. According to the State, the decision to remove this classification was made prior to the decision of the Classification Appeal Panel. The State did not advise, or negotiate with, the Union (NAPE/AFSCME) prior to the elimination of this job classification.

On November 20, 1991, Ms. Jolly, pursuant to the grievance clause in the collective bargaining agreement, filed two grievance appeals to the Nebraska State Personnel Board. One grievance concerned the elimination of the classification of Property Tax Analyst No. III, and the other claimed the State's elimination of the Property Tax Analyst No. III classification was in retaliation for Ms. Jolly's appeal to the Classification Appeal Panel.

On February 5, 1992, Ms. Jolly and NAPE/AFSCME filed this case with the Commission of Industrial Relations (CIR or Commission) claiming that the State had violated certain provisions (Sec. 81-1386, R. R. S. 1943) of the State Employees Collective Bargaining Act (SECBA). The appeal of these grievances to the Nebraska State Personnel Board was pending at the time this motion was heard.

In order for this Commission to render a summary judgment, the moving party must show that the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is

no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. After review of the evidence, the affidavits, the briefs, and the oral arguments, we have concluded that the motion for summary judgment should be denied. Our basis for this decision is an follows:

1. The threshold issue is whether the elimination of a job classification is a mandatory subject of collective bargaining. The Respondents say it is not and the Petitioners claim that it is. In behalf of their position, the Respondents cite decisions of the CIR which, they claim, hold that the elimination of job classifications is not a mandatory subject of collective bargaining. See Douglas County Health Department Employees Association v. County of Douglas , 8 CIR 208 (1986); Douglas County Health Department Employees Association v. County of Douglas , 9 CIR 227; Douglas County Health Department Employees Association v. County of Douglas , 229 Neb. 301, 427 N.W. 2d 28 (1988). The Petitioners say these cases do not apply because they "do not stand for the proposition of law that all aspects of job classifications are not mandatory subjects of bargaining" and they do not "directly" declare the status of job classifications as they relate to mandatory subjects of bargaining.

The Petitioners further refer us to several decisions of the National Labor Relations Board where that tribunal has concluded that the elimination of a job classification, without notice to or bargaining with the union, constitutes a unilateral change in violation of the National Labor Relations Act. Bay State Gas Co ., 105 LRRM 1673, 1674 (1980); San Antonio Cement Co. , 121 LRRM 1268 (1985); Thurston Motor Lines, Inc. , 108 LRRM 1087 (1981).

Petitioners also claim that SECBA provides a broader definition of mandatory subjects of bargaining than is found in the Commission of Industrial Relations Act (CIRA). This reference is to Section 81-1371(7), R. R. S. 1943, which defines "issue" as including "all aspects of wages." By eliminating a classification, Petitioners say the State has unilaterally changed an "aspect of wages." Thus, Petitioners seem to be saying that even if the elimination of a job classification was ruled previously to be a management prerogative and therefore not a mandatory subject of collective bargaining under the Court of Industrial Relations Act (CIRA), it now is a mandatory subject because in 1987, with the enactment of SECBA, the legislature broadened this definition. We don't agree that this definition has been broadened. The referenced statutory section (81-1371(7)) defines "issue" and not "mandatory topic or topics of bargaining," which is defined in subsection (8) as follows:

(8) Mandatory topic or topics of bargaining shall mean those subjects of negotiation on which employers must negotiate pursuant to the Industrial Relations Act, including terms and conditions of employment which may otherwise be provided by law for state employees, except when specifically prohibited by law from being a subject of bargaining.

This new definition offers no changes in the definition we have always used.

Although the Nebraska Supreme Court has said that the CIR may consider and apply the interpretations of similar statutes by the National Labor Relations Board, where the CIR has made an interpretation that is contrary to an NLRB interpretation, we will, of course, use the CIR interpretation. Thus, while the NLRB seems to have concluded that the elimination of a classification is a mandatory subject of bargaining, the CIR has concluded, on the contrary, that the removal of a classification is a management prerogative and therefore is not a mandatory subject of bargaining. Petitioner's argument that the CIR has not "directly" declared that the elimination of job classifications is not a mandatory subject of bargaining has some validity. The cases cited by the Respondent in behalf of this proposition are wage cases rather than unfair labor practice cases. They do not directly involve, like the instant case, the specific issue of whether this unilateral change requires notice to or bargaining with the union. Nevertheless, in both cases cited by Respondent, job classifications were eliminated and the Commission considered it necessary to comment that this act of "reassignment" was a management prerogative. If it is a management prerogative it follows, of course, that it is not bargainable. Most significant to our ruling here is the fact that the Supreme Court, in their review of the Douglas County Health Department case, supra, discussed the subject of "improperly eliminated" or consolidated job classifications and ruled as follows (p. 317):

The CIR rightly refused to enter into the realm of management prerogative and review the reassignment of individuals within certain job classifications or order wages based on both groups of job classifications.

From our review of the decisions of the Supreme Court, we conclude that it prefers to apply a strict interpretation of what constitutes mandatory subjects of bargaining and would, in the instant case, determine that the removal of a job classification was not such a subject.

2. Having answered the threshold question, we next turn to the primary basis for this motion. Respondents argue that since elimination of job classifications is not a mandatory subject of bargaining, Petitioner's claim that the State cannot unilaterally

eliminate classifications is based on the language of the collective bargaining agreement. They say, therefore, that this claim is for breach of contract and is beyond the jurisdiction of the Commission of Industrial Relations.

Petitioners agree that the CIR has no authority to decide contract disputes, and this is well established. See Transport Workers of America v. Transit Authority of the City of Omaha , 205 Neb. 26, 286 N.W. 2d 102 (1979), Plattsmouth Police Dep't Collective Bargaining Comm. v. City of Plattsmouth , 205 Neb. 567, 288 N.W. 2d 729 (1980), and Saltz v. School Dist. of Norfolk , 208 Neb. 740, 305 N.W. 2d 635 (1981). They argue, however, that this doesn't prohibit the CIR from interpreting provisions of a collective bargaining agreement in order to support its charge that the State committed a prohibited practice, and they cite the case of NLRB v. C & C Plywood Corp ., 353 U. S. 421, 64 LRRM 2065 (1967) in behalf of this proposition. That case concludes that the NLRB may consider contract language when it is necessary to determine whether or not an unfair labor practice has occurred and "this conclusion is reinforced by previous judicial recognition that a contractual defense does not divest the Labor Board of jurisdiction." See also, Mastro Plastics Corp. v. NLRB , 350 U. S. 270, 37 LRRM 2587.

The prohibited practice alleged herein is that the State of Nebraska, in the elimination of the job classification for Revenue Property Tax Analyst III, interfered with, restrained, and coerced state employees in the exercise of rights granted by the State Employees Collective Bargaining Act or the Industrial Relations Act. Petitioners also claim that Section 81-1386, R. R. S. 1943, was violated when Ms. Jolly's job classification was eliminated because of her appeals from the decision of the Nebraska State Personnel Board (retaliation).

In order to determine whether or not the Respondents have engaged in these afore-described prohibited practices, Petitioners say there must be a review of the collective bargaining agreement. They claim that we must look at the language of this document in order to see whether there is anything there which would prohibit or permit the action by Respondent which is claimed to be a prohibited practice.

We agree with Petitioners' claim that this Commission has authority to review and consider the language of a collective bargaining agreement in connection with the afore-discussed prohibited practice charge. This is very similar to the National Labor Relations Board consideration and review of a collective bargaining agreement in connection with an unfair labor practice charge. Thus, we are not going to dismiss this case at this time for lack of jurisdiction. The main thrust of Respondent's argument in favor of summary judgment is that this is a breach of contract suit which is outside the jurisdiction of the CIR. Since we have concluded that this is not a breach of contract suit that is outside the jurisdiction of the CIR, we are denying the Motion for Summary Judgment. Based on the limited record herein, Respondents have not shown they are entitled to judgment as a matter of law.

In addition to the question of whether or not the language of the agreement allows for the Respondents to unilaterally eliminate a job classification, there are other legal issues that need to be considered, such as (1) whether or not petitioners have waived their right to complain about job classification eliminations in light of the fact that they have never complained before, and (2) whether or not we should consider this claim at this time, or defer (like the NLRB), in light of the fact that the same issue presented here has been submitted, through the contract grievance procedure, to the State Personnel Board. The issue of retaliation is also not clearly delineated in the limited facts we have. A hearing should be scheduled in order to further consider these issues.

The Motion for Summary Judgment is denied and this case is set for hearing on July 16, 1992, at 8:30 A.M., in Supreme Court Hearing Room, #2, State Capitol Building, Lincoln, Nebraska.

Entered June 9th, 1992.

1 The memorandum advising of this action had been circulated among affected employees on September 13, 1991.

2 City of Grand Island v. AFSCME , 180 Neb. 711, 185 N.W.2d 860 (1970).

3 While this is the word used by the CIR as the management prerogative, we conclude that as used in these cases the word reassigment includes elimination and we refer to the following language from these decisions as our basis for this conslusion: "the County consolidated certain job classifications and eliminated previous job titles" (p. 226 of 9 CIR) and the "current Laboratory Scientist II was a Lab Scientist III prior to the elimination of that job classification by the County" (p. 226 of 8 CIR) (emphasis supplied).

4 Douglas County Health Dep't Employees Ass'n v. County of Douglas , supra; University Police Officers Union v. University of Neb. , 203 Neb. 4, 277 N.W.2d 529 (1979); School Dist. of Seward Educ. Ass'nv. School Dist. of Seward , 188 Neb. 772, 199 N.W.2d 752 (1972).

5 The Petitioners argue that there is language in the collective bargaining agreement which specifically prohibits the State from eliminating job classifications and the Respondents argue the language of the agreement authorizes elimination of job classification.

_______________________________