13 CIR 165 (1998). Previously appealed and remanded 11 CIR 296 (1992), 12 CIR 103 (1995), Reversed and Remanded for Further Proceedings, 252 Neb. 289 (1997).

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Before: Judges Moore, Cullan and Anderson

MOORE, J:

This matter comes before the Commission upon remand from the Nebraska Supreme Court. The case was initially filed on February 2, 1992, as an unfair labor practice complaint. Specifically, Petitioners alleged that the State of Nebraska had violated its duty to bargain with NAPE/AFSCME concerning a position covered by the 1991 - 1993 Collective Bargaining Agreement by unilaterally eliminating the classification of Revenue Property Tax Analyst III without negotiating with the Union, and that the Department of Personnel, by and through Andrew Russell, had retaliated against Jolly by eliminating the Revenue Property Tax Analyst III classification.

Jolly was an employee of the Department of Revenue and was covered by a collective bargaining agreement between NAPE/AFSCME and the State of Nebraska. On or about May 11, 1991, Jolly asked to be promoted from Revenue Property Tax Analyst I to Analyst III. After a desk audit, Personnel approved Jolly to be reclassified as an Analyst II. Jolly appealed this decision to the Classification Appeal Panel, which, on or about October 17, 1991, classified her as an Analyst III.

On or about October 22, 1991, Personnel eliminated the classification of Analyst III and Jolly was returned to an Analyst II. Prior to said elimination, the State did not negotiate with the Union over the elimination. On November 20, 1991, Jolly filed two grievances with the Nebraska Department of Revenue. These grievances were denied. On December 21, 1991, Jolly filed two grievance appeals with Nebraska State Personnel Board. One grievance concerned the elimination of the classification of Analyst III and the other claimed that the State's elimination of Analyst III was in retaliation for Jolly's appeal to the Classification Appeal Panel.

On April 1, 1992, Respondents filed a Motion for Summary Judgment ("1992 Motion") in this action, arguing that the Commission of Industrial Relations ("Commission") lacked subject matter jurisdiction over the dispute. An evidentiary hearing was held on the matter. The Commission's decision on the 1992 Motion is published at Jolly v. State, 11 CIR 296 (1992).

The Commission determined that Petitioner's claim was not a breach of contract suit outside of the Commission's jurisdiction and denied the Motion for Summary Judgment. The Commission further held that although the elimination of a job classification is a prerogative of management, and therefore not a bargainable issue, there were other unresolved prohibited practice issues. Specifically, the remaining issues were whether Petitioners waived their right to complain about elimination of job classifications since they never complained about past eliminations, whether the Commission should defer further action in this case until after a decision is rendered on the grievances, and whether the facts support a claim of retaliation.

On June 30, 1992, Respondents filed a Motion to Defer the proceedings before the Commission pending the outcome of the grievance before the Personnel Board, which the Commission granted July 21, 1992. A hearing on the grievances was held before the Personnel Board, and on June 10, 1993, the Personnel Board issued an order affirming the decision to promote Jolly to the position of Analyst II and eliminate the Analyst III position.

The Personnel Board's decision was appealed to the District Court of Lancaster County. On November 7, 1994, an order was issued affirming the Personnel Board's decision. The District Court found: (1) That the Department was acting within its management prerogative when it compressed the property tax analysts from six to four positions, eliminating the Analyst III position, and that there were no provisions within the labor contract which indicated that the State bargained away the management prerogative to make classification decisions; and (2) that the Department's decision to compress the property tax analyst classification was not made in retaliation for Ms. Jolly exercising her rights under the labor contract. No appeal of this decision was taken.

On January 31, 1995, Petitioners filed a Motion to Reactivate this case before the Commission for purposes of obtaining a final order. Said Motion was granted on February 10, 1995. Respondents filed a second Motion for Summary Judgment on March 3, 1995 ("1995 Motion"). The Commission held in its Order on Motion for Summary Judgment dated March 29, 1995, that the issues remaining from the 1992 decision were either resolved or moot and Respondents were therefore entitled to a judgment as a matter of law. The 1995 decision granting summary judgment is published at Jolly v. State, 12 CIR 103 (1995).

The Petitioners appealed the Commission's decision on the 1995 Motion granting summary judgment on April 7, 1995. On April 18, 1997, the Nebraska Supreme Court issued its decision, Jolly v. State, 252 Neb. 289 (1997), finding that the Commission lacked authority to grant or otherwise entertain motions for summary judgment. The Supreme Court reversed the decision of March 21, 1995 and remanded the case back to the Commission.

On remand, a hearing was held on September 16, 1997, at which time evidence was adduced and the matter was orally argued to the Commission. Exhibits 1 through 14 were offered and received into evidence. Exhibits 1 through 4 are the affidavits which were attached to the 1992 Motion for Summary Judgment. Exhibit 5 is an order from the State Personnel Board setting a hearing to determine whether either or both of the appeals are based on grievable issues. Exhibits 6, 7 and 8 are from the September 19, 1991 hearing before the State Personnel Board and are part of the district court's record. Exhibits 9 through 12 are the district court record and exhibit 13 is the order of the district court. Exhibit 14 is a Joint Stipulation of Facts.

Pursuant to the Joint Stipulation of Facts, Exhibit 14, submitted by the parties in action, the sole issue the Petitioners want the Commission to decide is whether or not the elimination of a job classification, covered by a collective bargaining agreement, is a mandatory subject for collective bargaining requiring the State to negotiate thereupon.

The Respondents asked the Commission to consider three issues. First, whether the Commission properly has subject matter jurisdiction of this matter, since the Commission entered an order deferring jurisdiction to the Nebraska State Personnel Board, and there has been no proper showing under the NLRB deferral doctrine that (a) the dispute was not submitted promptly to arbitration, or (b) the grievance or arbitration procedures were not fair or regular or have reached a result which is repugnant to the act. The second issue is whether the doctrines of res judicata and collateral estoppel apply, because the issue presented by the Petitioners to the Commission was or could have been fully adjudicated by a court of competent jurisdiction. Finally, in the event the Commission disagrees with Respondents' first two arguments set forth above and considers the merits of the legal issue presented by the Petitioners, i.e. whether classification is a mandatory subject of bargaining, and finds that classification is a mandatory subject of bargaining, then whether or not the Petitioners have waived their right to complain about job classification elimination in light of the fact that they have never complained in the past.

With regard to the sole issue identified by the Petitioner for determination by this Commission, we conclude that elimination of a job classification covered by a collective bargaining agreement is not a mandatory subject for collective bargaining requiring the State to negotiate thereupon. See Douglas County Health Department Employees Association v. County of Douglas, 29 Neb. 301, 427 N.W. 2d 28 (1988), University Police Officers Union v. University of Nebraska, 203 Neb. 4, 277 N.W. 2d 529 (1979), School District of Seward Education Association v. School District of Seward, 188 Neb. 772, 199 N.W. 2d 752 (1972).

Since the Petitioners identify the above as the sole issue it requested the Commission to determine in this proceeding, pursuant to the Joint Stipulation, the Petitioners have apparently abandoned the issue of whether an unfair labor practice was committed. Accordingly, it is not necessary for the Commission to address the issue of whether the State committed an unfair labor practice in failing to bargain with the union regarding elimination of the Analyst III position and/or by retaliating against Jolly for exercising her rights under the labor contract. As a result of the foregoing decision, it is not necessary to decide the issues identified by the Respondents in the Joint Stipulation.

The Commission therefore finds that the Unfair Labor Practice complaint filed by the Petitioners herein should be and the same is hereby dismissed.

Entered this 2nd day of December, 1998.