12 CIR 324 (1996).

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS


HALL COUNTY PUBLIC DEFENDERS | CASE NO. 918
ORGANIZATION, |
|
Petitioner, |
| FINDINGS AND ORDER
v. |
|
COUNTY OF HALL, a political |
subdivision, and HALL COUNTY |
BOARD OF SUPERVISORS, |
|
Respondents. |

MCFARLAND, J:

This matter comes before the Commission upon Petitioner's Application For Temporary Relief. Specifically Petitioner (or "HCPDO") requests an order requiring Respondents to begin good faith bargaining and enjoining Respondents from threatening, harassing or discriminating against Petitioner or its members. In response, Respondents filed a Motion for Stay of Proceedings.

A hearing was held on June 21, 1996, on Petitioner's Application for Temporary Relief. By joint stipulation of the parties, said hearing was also held for consideration of Respondents' Motion for Stay of Proceedings. Petitioner was represented by its attorney, Mr. Edward F. Pohren, and Respondents were represented by their attorneys, Mr. Jerry L. Pigsley and Mr. Jerom E. Janulewicz. At the conclusion of the hearing, the Commission took the matters under advisement. Respondents requested, pursuant to Neb. Rev. Stat. § 48-816(7)(a) (1995 Supp.), that the Commission make findings of fact in this case.

FINDINGS OF FACT

From the evidence presented and by judicial notice of prior proceedings, the Commission makes the following findings of fact. Petitioner filed a representation petition in Hall County Public Defenders Organization (HCPDO) v. County of Hall, Case No. 905, seeking to represent, for purposes of collective bargaining, the Hall County Assistant Public Defenders. The Commission conducted an election during which all four Hall County Assistant Public Defenders voted in favor of representation by the Petitioner. On May 13, 1996, the Commission entered a Certification Order certifying Petitioner as the bargaining representative for all Hall County Assistant Public Defenders who are attorneys licensed to practice law in the State of Nebraska and who are paid on a salary basis.

On May 30, 1996, the Respondents filed an appeal of Case No. 905 to the Nebraska Court of Appeals. Also at that time, Respondents filed with the Commission a Motion For Supersedeas seeking a stay of the Commission's Certification Order. On June 12, 1996, the Motion For Supersedeas was denied by the Commission.

The Petitioner, on several occasions, has requested collective bargaining negotiations with the Hall County Board of Supervisors ("Board"). The first request occurred on May 17, 1996, when Petitioner's attorney, Edward F. Pohren, contacted Respondents' attorney, Jerry L. Pigsley, by telephone. Mr. Pigsley stated that such bargaining "was not likely to happen since the Respondent Hall County Board of Supervisors had voted in favor of an appeal." Mr. Pigsley predicted "that the Respondents would seek further appeal to the Nebraska Supreme Court if the Commission [Certification] Order was sustained by the Nebraska Court of Appeals." Mr. Pigsley also stated that "it was Respondents' intent to freeze the salaries of the Petitioner's members at their present levels while the appeal was pending."

The second request for bargaining occurred on May 21, 1996, when Mr. Pohren faxed a letter to Mr. Pigsley requesting that their "respective clients commence good faith bargaining."

The third request for bargaining occurred on May 29, 1996, when Assistant Public Defender Kevin K. Knake, in his capacity as designated agent for the HCPDO, sent a letter to Board Chairman Tammie Stelk of the Hall County Board of Supervisors "again requesting that the Hall County Board of Supervisors or its designated agent(s) meet with the designated agents of [the HCPDO] bargaining unit to begin good faith negotiations."

In response to these requests, Mr. Pigsley sent a letter to Mr. Pohren dated May 30, 1996. In this letter, Mr. Pigsley advised Mr. Pohren that the Board had decided to appeal the Commission's Certification Order to the Nebraska Court of Appeals and that a Motion for Supersedeas had been filed with the Commission requesting the Commission to stay its Certification Order pending a determination by the Court of Appeals.

A final request for bargaining occurred on or about June 17, 1996, when Mr. Knake spoke with Ms. Stelk by telephone, informing her that the Commission on June 12, 1996, had denied the Respondents' Motion For Supersedeas and again requesting to begin negotiations. Ms. Stelk responded that "she believed the Board would not enter into collective bargaining unless they were ordered to do so." The Board Chairman indicated that the Board would not negotiate because they were in the process of an appeal to the Nebraska Court of Appeals. As a result, the Respondents have refused to bargain in good faith with the Petitioner.

Petitioner's members have not received a salary or benefit increase for the 1996-97 fiscal year. On or about May 13, 1996, the Grand Island Daily Independent newspaper reported on the Board's decision regarding the salary of the Board Assistant to the Hall County Board of Supervisors. This report in the newspaper was interpreted by Assistant Public Defender Kevin K. Knake as increasing the Board Assistant's salary by 8 percent. However, the Board Assistant did not receive an 8 percent pay increase, but instead received a one-month merit pay increase for the month of June, 1996, until the end of the 1995-96 fiscal year on June 30, 1996. In addition, the Board authorized the Board Assistant to budget a cost-of-living increase for herself for the 1996-97 fiscal year, but the cost-of-living increase is only a budget item for consideration and must be approved by the Board during its budget process which is scheduled to conclude at the end of August, 1996.

The Grand Island Daily Independent newspaper had also reported in approximately September, 1995, percentage salary increases for various departments of the County of Hall interpreted by Mr. Knake as exceeding the percentage salary increases for Petitioner's members in the 1995-96 fiscal year. These reported increases, however, were percentage increases in the salary line items that included cost-of-living increases and projected merit pay increases, which may or may not have been provided during the fiscal year. The line item salary increases also reflected total salary increases due to increases in the number of staff people employed in particular county departments.

On May 21, 1996, Board Chairman Tammie Stelk provided to the Elected and Appointed Officials and Agency Directors of Hall County a memorandum regarding budget expectations of the 1996-97 fiscal year, July 1, 1996 to June 30, 1997. This "budget letter" included a budget request form for each of the departments to submit to the Board. Discussions by the Board on budget requests from each of the departments are scheduled to occur in the middle of August, 1996, when the Board holds its budget hearings. The scheduled date for the Board to adopt the budget is August 27, 1996. This budget is scheduled to be provided to the State of Nebraska by September 10, 1996.

Although at least two individual Board members have in the past expressed occasional displeasure with the HCPDO, the Board has not voted to take any action to increase, decrease, or freeze the wages or benefits of the members of the Hall County Public Defenders Organization for the 1996-97 fiscal year. Most of the displeasure of the Board has been with Public Defender Gerard A. Piccolo as an individual, rather than with the HCPDO.

In approximately June, 1996, the Public Defender made a request of approximately $6,000.00 to the Board for a cost overrun for depositions. The Board initially, on a vote of 3 to 3, did not approve the request. It therefore appeared that the Public Defender might have to use funds designated for salaries in his office to pay for the deposition cost overrun. But, at the next Board meeting, the Board readdressed the request and voted to approve it. The Board also granted a request by the Public Defender for approximately $6,700.00 out of the 1995-96 fiscal year budget to purchase a new fax copy machine.

On June 17, 1996, the Commission entered an Order for Hearing on Petitioner's Application for Temporary Relief to be held before the Commission on June 21, 1996. On June 18, 1996, Respondents filed with the Nebraska Court of Appeals their Motion for an Order of Supersedeas of the Commission's Certification Order pending determination of their appeal in the Court. Also, on June 18, 1996, Respondents filed with the Commission their Motion for Stay of Proceedings pending a ruling by the Nebraska Court of Appeals on their Motion for Supersedeas filed with the Court. Other than the attempt by the Respondents to obtain a supersedeas order, there are no impediments to the Respondents beginning bargaining immediately with the Petitioner.

CONCLUSIONS OF LAW

The initial question presented is whether or not to grant Respondents' Motion for Stay of Proceedings. If that Motion is granted, then Petitioner's Application for Temporary Relief regarding the issues of good faith bargaining and of threat or harassment need not be decided. The Commission therefore addresses these questions beginning with the Motion for Stay followed by the issues raised by Petitioner's Application for Temporary Relief.

Motion for Stay

The Nebraska Supreme Court has stated that "courts inherently possess the power to stay such proceedings when required in the interests of justice." Schuessler v. Benchmark Marketing and Consulting, Inc., 243 Neb. 425, 429 (1993). "A stay of a civil action, especially a stay of indefinite duration, is an extraordinary remedy." Id. at 432. "The burden of establishing that a proceeding should be stayed rests on the party seeking the stay." Id. at 429.

In Schuessler, an upper level employee had brought a wrongful discharge suit against the company that formerly employed him. At the same time, the company was under federal investigation for mail and wire fraud. The concern in Schuessler was that incriminating evidence might become known during the wrongful discharge civil proceeding. The defendant company moved for a stay of the civil proceeding until the criminal investigation was completed.

In affirming the trial court's decision to deny the stay in Schuessler, the Nebraska Supreme Court further stated that "when the moving party seeks to stay a trial, the decision of whether to grant the motion is vested in the discretion of the trial court, and its decision will not be overturned on appeal absent an abuse of discretion." Id. "In making its decision, the trial court should balance the competing needs of the parties, taking into account, among other things, [1] the interest of the courts, [2] the probability that proceeding will work a constitutional violation on the movant, [3] the presence or absence of hardship or inequity, and [4] the burden of proof." Id.

Interest of the Courts. With respect to the interest of the courts, it may be argued that the expenditure of time and resources will be minimized by granting the stay. If the Nebraska Court of Appeals or the Nebraska Supreme Court on appeal reverses the Commission and vacates the Certification Order, then there is really no need to consider whether or not the Commission should enter a bargaining order because the HCPDO would not have been a certified labor organization for purposes of collective bargaining with the County. On the other hand, it may also be argued with equal validity that denying the stay and entering a bargaining order will also minimize the expenditure of time and resources. If the parties are required to bargain in good faith, it may be possible that an agreement could be achieved whereby the appeal is resolved and settled without the Nebraska Court of Appeals or the Nebraska Supreme Court having to decide the appeal. Moreover, if the Nebraska Court of Appeals or the Nebraska Supreme Court affirms the Commission's Certification Order, then a stay would have needlessly delayed the bargaining process. The Commission therefore finds that the interest of the courts weighs in favor of denying the stay.

Constitutional Violation. With respect to the probability that the proceedings will work a constitutional violation on the movant, there is no constitutional issue presented to the Commission by the Respondents. The absence of any constitutional issue being raised weighs in favor of denying the stay.

Hardship or Inequity. With respect to the presence or absence of hardship or inequity, the Commission must balance the competing needs of the parties. A bargaining order will require the Respondents to meet and confer with Petitioner with respect to wages, hours, and other terms and conditions of employment or any question arising thereunder. Such good faith bargaining would presumably take place before there is any decision on Respondents' Motion for Supersedeas and appeal of the Certification Order. Thus a bargaining order would require the Respondents to bargain with Petitioner even though their appeal might possibly be successful in challenging the Certification Order entered by the Commission. The obligation to bargain in good faith, however, does not compel the Respondents or Petitioner to make any concession in bargaining.

In contrast, the stay of this proceeding would presumably delay any good faith bargaining between Respondents and Petitioner for an indefinite duration while Respondents' Motion for Supersedeas and appeal are still pending before the Nebraska Court of Appeals. Respondents have already refused to bargain in good faith with Petitioner despite a number of requests by Petitioner to commence such bargaining. Respondents will not enter into collective bargaining unless ordered to do so. Thus any attempt to resolve the industrial dispute and possibly enter into a labor agreement will be delayed for an indefinite duration while Respondents' motion and appeal are still pending. Such a delay will thwart for an indefinite period of time one of the purposes inherent in the Nebraska Industrial Relations Act, that purpose being to promote good faith bargaining.

It is clear to the Commission that the Respondents and Petitioner have continued their industrial dispute in part because of their failure to bargain in good faith. Receiving communications and salary information by way of the local newspaper is not the most efficient way for Respondents and Petitioner to communicate. Misunderstandings and misinformation are the result. Personality conflicts between the Public Defender and the Board members are not sufficient justification to refuse to bargain. The Commission therefore finds that balancing the competing needs of the parties with regard to the presence or absence of hardship or inequity weighs in favor of denying the stay.

Burden of Proof. With respect to the burden of proof, the burden is on the Respondents to establish that a proceeding should be stayed. The only reason provided by the Respondents to stay this proceeding is that there is an appeal pending before the Nebraska Court of Appeals and a recent Motion for Supersedeas filed with that Court. The only impediment to the Respondents beginning bargaining immediately is their attempt to obtain a supersedeas order from the Nebraska Court of Appeals. If such Motion is granted by the Nebraska Court of Appeals, Respondents may apply to the Commission for a stay of these proceedings. In the absence of such a supersedeas by the Nebraska Court of Appeals, there is insufficient evidence to establish that this proceeding should be stayed. The Commission therefore finds that the Respondents have not met their burden of proof to establish that this proceeding should be stayed.

As a result of balancing the competing needs of the parties, the applicable factors all weigh in favor of denying the stay of these proceedings. The Commission therefore finds that Respondents' Motion for Stay of Proceedings should be denied.

Good Faith Bargaining

The Nebraska Industrial Relations Act provides authority for the Commission to order good faith bargaining between an employer and an employee or labor organization. The applicable statute reads in relevant part as follows:

Neb. Rev. Stat. § 48-816(1) (1995 Supp.).

The evidence is undisputed that the Respondents have refused to enter into bargaining with the Petitioner despite repeated requests. Respondents' appeal of the Commission's Certification Order and their Motion for Supersedeas before the Nebraska Court of Appeals are insufficient reasons to refuse to bargain in good faith. The Commission therefore finds that Petitioner's Application for Temporary Relief to require Respondents to begin good faith bargaining should be granted.

Threat or Harassment

The Nebraska Industrial Relations Act provides protection against threat of harassment by the employer. The applicable statute reads in relevant part as follows:

Neb. Rev. Stat. § 48-811 (1993).

Petitioner has requested an order to prohibit Respondents from taking adverse action by threat or harassment against Petitioner and its members. There is, however, insufficient evidence to establish that any such adverse action has occurred.

While individual Board members have expressed displeasure with the HCPDO, most of the displeasure of the Board has been with the Public Defender as an individual, rather than with the HCPDO. The Board has not voted to take any action to increase, decrease, or freeze the wages or benefits of the members of the Hall County Public Defenders Organization for the 1996-97 fiscal year.

At the present time, there is insufficient evidence to show that other county employees have received wage increases for the 1996-97 fiscal year. The Board Assistant merely received a one- month merit pay increase for June, 1996, the last month of the 1995-96 fiscal year. Budget hearings will be held by the Board in August, 1996, to consider financial matters including salary increases or decreases. The Board is not scheduled to adopt a budget for the 1996-97 fiscal year until August 27, 1996.

Although the Board initially did not approve Public Defender Piccolo's request for approximately $6,000.00 for a cost overrun for depositions, the Board granted this request at the next meeting of the Board. The Board also has granted a request by the Public Defender for approximately $6,700.00 out of the 1995-96 fiscal year budget to purchase a new fax copy machine.

For these reasons, Petitioner has not shown that Respondents have violated the statutory prohibition against threats or harassment contained in Neb. Rev. Stat. §48-811. The Commission therefore finds that Petitioner's Application for Temporary Relief for an order to require Respondents not to threaten or harass Petitioner or its members should be denied.

IT IS THEREFORE ORDERED:

  1. That Respondents' Motion for Stay of Proceedings is overruled;

  2. That Petitioner's Application for Temporary Relief for an order to require Respondents to begin good faith bargaining is sustained, and that Respondents and Petitioner shall bargain in good faith with respect to wages, hours, and terms and conditions of employment; and

  3. That Petitioner's Application for Temporary Relief for an order to require Respondents not to take adverse action by threat or harassment against Petitioner or its members is overruled.

Entered July 2, 1996.