13 CIR 169 (1998)


Bargaining Unit, )
Petitioner, )
v. )
Respondent. )


For the Petitioner: Vincent Valentino
Angle, Murphy, Valentino
& Campbell, P.C.
617 Grant Ave.
P. O. Box 584
York, Nebraska  68467
For the Respondent: William Harding
Margaret Stine
Harding, Shultz & Downs
800 Lincoln Square
121 S. 13th St.
P. O. Box 82028
Lincoln, NE  68501-2028
Donald Stenberg
Attorney General
P. O. Box 98920
State Capitol, Room 2115
Lincoln, NE  68509-8920

Before: Judges DeLay, Moore and Cullan



This unfair labor practice proceeding was filed by the State Law Enforcement Bargaining Council (Bargaining Council) against the State of Nebraska (State) pursuant to the prohibited practices provisions of the State Employees Collective Bargaining Act (the "Act" or "State Employees Act"). The prohibited practices alleged by the Bargaining Council were associated with the parties' attempt to negotiate a collective bargaining agreement for the 1997/1999 contract period. The State denied committing any unfair labor practices.

The Bargaining Council is the collective bargaining agent for a collective bargaining unit composed of the following eleven classifications of state employees:

1. State Patrol Trooper I

2. State Patrol Trooper II

3. State Patrol Sergeant

4. State Patrol Investigation Officer

5. Game and Parks Conservation Officer I

6. Game and Parks Conservation Officer II

7. Fire Marshal Deputy Trainee

8. Fire Marshal Deputy

9. Fire Marshal Deputy/Pipeline Safety

10. Liquor Control Inspector

11. State Patrol Carrier Enforcement Officer

At issue in this proceeding is whether the State violated the unfair labor practices provisions of the State Employees Act found at NEB. REV. STAT. §81-1386 by:

1) Refusing to provide information to the Bargaining Council concerning Group Health Insurance Benefit selections made by each bargaining unit member pursuant to its requests;

2) Proposing to combine the State Trooper I and State Trooper II classifications on January 10, 1997, the last day provided under the Act for negotiation of the 1997-1999 Agreement;

3) Proposing on January 10, 1997, to divide the Fire Marshal Deputy classification into two classes, i.e. Fire Marshal Investigator and Fire Marshal Inspector and to remove the Inspector Classification from the collective bargaining unit;

4) Offering to forego re-classification of the State Patrol Trooper and Fire Marshal Deputy positions if, and only if, the Bargaining Council agreed to accept the State's economic proposal and wage offer;

5) Discussion between the State Fire Marshal and an employee in his office concerning the possibility of layoffs if the Bargaining Council's wage demands were accepted by the State.

The Commission finds that the first four of these specifications constitute prohibited practices under Nebraska public sector labor law.

Provision of Insurance Plan Selection Information

Information concerning health insurance plan selections made by individuals in the bargaining unit was first requested by the Bargaining Council in May of 1996 before formal negotiations commenced. Further oral and written requests for this information were made during the course of negotiations. The information was not provided.

The specific information requested by the Bargaining Council included the name, job classification, and insurance plan selection of each collective bargaining unit member. The State refused to disclose such information on an individualized basis contending that each individual had a right of confidentiality as to such information. The State insisted on signed waivers of confidentiality before any personalized information would be disclosed.

The Bargaining Council wanted detailed information concerning insurance plan selection to prepare for negotiations and litigation in the event of impasse. The requested information was relevant to the issues involved in contract negotiations and was needed by the Bargaining Council in bargaining and to prepare for possible litigation. It should have been provided in a timely manner.

The State's refusal to provide the requested information in this case was a violation of the State's duty to bargain in good faith pursuant to the provisions of NEB. REV. STAT. §81-1386 (2) (e) and (g) which provide:

(2) It shall be a prohibited practice for any employer or the employer's negotiator to:

* * *

(e) Refuse to negotiate collectively with representatives of exclusive collective bargaining agents as required in the Industrial Relations Act and the State Employees Collective Bargaining Act;

* * *

(g) Refuse to participate in good faith in any impasse procedures for state employees as set forth in sections 81-1380 to 81-1385.

The collective bargaining process requires access to information relevant to the subjects at issue. Public employers must provide information requested by collective bargaining agents when the information is relevant to negotiation of wages, hours, and other terms and conditions of employment; relevant to resolution of an industrial dispute under the Industrial Relations Act (IRA) or the State Employees Act, or otherwise needed by a collective bargaining agent for the performance of its duties. The claims of confidentiality advanced by the State were without merit in this context and did not excuse the State's refusal to disclose the requested information.

Withholding the requested information from the Bargaining Council frustrates the purposes and intent of both the IRA and the State Employees Act. Without needed information, meaningful negotiations are jeopardized and impasse resolution proceedings under the Act fail to provide the parties, citizens and taxpayers the full, fair, and prompt remedy required by Nebraska law. Such conduct constitutes a refusal to negotiate as required by section 81-1386 (2) (e) and a refusal of good faith participation in impasse procedures as required by subsection (g).

Re-classification of Bargaining Unit Positions

On January 10, 1997, the State proposed re-classification of State Patrol Trooper I, State Patrol Trooper II, and Fire Marshal Deputy. The proposal was to combine the State Patrol Trooper positions into one classification and to split the Fire Marshal Deputy position into two classifications: one composed of Investigators and the other to include Inspectors. The proposal also specified that the new Fire Marshall Inspector classification be removed from the collective bargaining unit served by the Bargaining Council.

The 1995-1997 Collective Bargaining Agreement between the parties provides a procedure for resolving disagreements between the parties concerning the creation, revision or re-classification of bargaining unit positions. This procedure includes provision for notice to, and good faith consultation with the Bargaining Council to resolve any disagreements with the proposed changes. If agreement on the issue is not reached, the contract provides that the matter shall be submitted to the Commission of Industrial Relations. There was no attempt to use this procedure in the re-classifications proposed by the State on January 10,1997.

On January 10,1997, the State made its wage proposal for the 1997-1999 contract period. The State's economic package without a wage offer had been given to the Bargaining Council on November 22, 1996. When the State's wage proposal was made, the Bargaining Council was informed that if, but only if, it would accept the State's entire economic package the State would be willing to abandon the proposed re-classifications of bargaining unit positions.

It is fundamental under Nebraska public sector labor law that re-classification of bargaining unit positions is a management prerogative. As such, re-classification is a permissive subject of bargaining beyond the jurisdiction of the Commission of Industrial Relations. However, it is equally fundamental that the impact of re-classification and the bargaining unit composition aspects of the State's proposal are mandatory subjects of bargaining over which the Commission does have jurisdiction.

In this case the Bargaining Council was denied an opportunity to bargain over the impact of the re-classifications and the bargaining unit composition changes proposed as a direct result of the timing of the State's proposals which were made on January 10, 1997, the final day provided under the Act for negotiation of the 1997-1999 Agreement. Clearly, no negotiation can occur when the time allotted for negotiation has expired.

The timetable for obtaining a new agreement under the State Employees Act required the parties to commence negotiations on or before the second Wednesday in September, 1996. On or before January 10, 1997, the parties were required to identify and sign all agreed-upon issues and exchange final offers on each unresolved issue. No later than January 15, 1997, all unresolved issues that resulted in impasse were required to be submitted to a Special Master selected by the parties. The Special Master was required to choose the most reasonable final offer on each unresolved issue on or before February 15, 1997.

At a minimum, good faith collective bargaining demands some opportunity to bargain. Collective bargaining involves meetings, exchange of proposals, analysis, consultation and reaction. All of these elements take time which was not allowed by the State's last minute proposals.

It should further be noted that in the context of the impasse resolution procedures provided by the Act, good faith bargaining also demands at least some opportunity to construct a reasonable final offer on each unresolved issue. The State's last minute proposals denied the Bargaining Council such an opportunity and violated the State's duty to bargain in good faith pursuant to the requirements of NEB. REV. STAT. §81-1386 (2) (e) and (g) by refusing to negotiate as required in the IRA and the State Employees Act and refusing good faith participation in the impasse procedures provided.

Another related issue arises from the State's offer to abandon the proposed re-classifications in exchange for the Bargaining Council's acceptance of the State's economic package. This offer conditions agreement on a permissive subject of bargaining (re-classification) on agreement on a mandatary subject of bargaining (economic issues). The State's insistence to impasse on a permissive subject of bargaining is a prohibited practice under NEB. REV. STAT. §81-1386 (2) (e).

Potential Discharge of Bargaining Unit Members

While visiting informally with an employee over a cup of coffee, the State Fire Marshal expressed his concern that if the wage package being proposed by the Bargaining Council was accepted he would need to layoff two or three bargaining unit members. This concern was expressed in the context of responding to a question about filling a vacant position and was accompanied by mention of the possibility that the Legislature would provide additional funding to cover any wage settlement. There was no effort to make this conversation confidential.

Word of the Fire Marshal's opinion that layoffs were possible reached at least one of the employees considered vulnerable to layoff as well as to the Bargaining Council's negotiating team representative from the Fire Marshal's office. This all occurred near the end of negotiations. The negotiating team heard of the conversation on January 7, 1997, three days before impasse was declared on January 10, 1997.

We find that the statements of the State Fire Marshal do not constitute prohibited practices under the Act.

The Act's relevant prohibited practices provisions in NEB. REV. STAT. §81-1386 (2) (a) and (4) provide:

(2) It shall be a prohibited practice for any employer of the employer's negotiator to:

(a) Interfere with, restrain, or coerce state employees in the exercise of rights granted by the State Employees Collective Bargaining Act or the Industrial Relations Act;

* * *

(4) The expression of any views, argument, or opinion, or the dissemination thereof, wether in written, printed, graphic, or visual form, shall not constitute or be evidence of any unfair labor practice under any of the provisions of the Industrial Relations Act or the State Employees Collective Bargaining Act if such expression contains no threat of reprisal or force or promise of benefit.

Regrettably, an unsettling rumor flowed from the State Fire Marshal's comments. This even led one of the bargaining unit members considered vulnerable to layoff to voice a preference to preserve his job over the pay increases being sought by the Bargaining Council.

As discomforting as the Fire Marshal's must have been, they did not contain any "threat of reprisal or force or promise of benefit". Thus, under the Act, such comments do not constitute an unfair labor practice.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the State of Nebraska cease and desist of and from the prohibited practices found herein.

Entered November 10, 1998.