13 CIR 270 (2000). Appealed 2/7/00. Appeal dismissed 6/20/00.

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

FRATERNAL ORDER OF POLICE,

 

)

CASE NO. 977

LODGE 41,

         

)

             

)

     

Petitioner,

   

)

             

)

 
 

vs.

         

)

DECISION AND ORDER

             

)

THE COUNTY OF SCOTTS BLUFF,

 

)

NEBRASKA; ED MARTIN, ESTHER J.

 

)

BENSON, BARBARA EISENACH, MARK

)

 

J. MASTERSON, and DOUGLAS LEAFGREEN,

)

SCOTTS BLUFF COUNTY BOARD OF

 

)

COMMISSIONERS,

       

)

             

)

       

Respondents.

 

)

 


APPEARANCES:

For the Petitioner: John P. Fahey

Law Office of John P. Fahey, P.C.

1905 Harney Street, Suite 620

Omaha, NE 68102

For the Respondents: Jerry L. Pigsley

Harding, Shultz & Downs

800 Lincoln Square

121 S. 13th Street

P.O. Box 82028

Lincoln, NE 68508

Before: Judges Anderson, Moore, Orr, DeLay and Cullan (EN BANC);

Judges Anderson and Cullan concurring in part and in part, dissenting.

ORR, J.

NATURE OF THE PROCEEDINGS:

Fraternal Order of Police, Lodge 41 (hereinafter, "Petitioner") filed a Petition pursuant to Neb. Rev. Stat. §§ 48-824 and 48-825 (Reissue 1998), claiming that the County of Scotts Bluff and the Scotts Bluff County Board of Commissioners (hereinafter, collectively "Respondent") committed a prohibited practice by refusing to bargain in good faith over terms and conditions of employment when it unilaterally implemented a new wage scale and benefit package for bargaining unit members of the Scotts Bluff County Sheriff's Office. Petitioner seeks "immediate and temporary relief pursuant to §48-816.02 . . ." and rescission of a July 6, 1999, Board resolution increasing wages and otherwise altering terms and conditions of employment of certain employees in the Scotts Bluff County Sheriff's Office.

On August 2, 1999, Respondent filed an Answer and Demurrer alleging the following as summarized and restated by the Commission: (1) the petition does not state a cause of action, (2) the Commission does not have jurisdiction or authority to grant the requested relief, and (3) Respondent lawfully implemented portions of a final offer after the parties had bargained in good faith to impasse and before a case was filed with the Commission.

After the parties waived § 48-816.02's requirement that a hearing on a request for temporary relief be held within ten (10) days, the Commission held a hearing on August 4, 1999, before Judge G. Roderic Anderson. At the hearing, the parties introduced exhibits 1-22. These exhibits were received into evidence without objection. At the conclusion of the hearing, the parties agreed that the hearings on the temporary and final relief would be consolidated and considered on the record; thus, eliminating the issue of immediate and temporary relief.

The parties submitted alternating post-hearing briefs with the Petitioner submitting the first brief, the Respondent submitting its brief and the Petitioner then submitting a reply brief. Thereafter, Petitioner filed a motion requesting oral arguments and consideration by the Commission en banc. The Commission ultimately granted both of Petitioner's requests, and oral arguments were heard by the five Commission judges on November 24, 1999.

For the reasons stated herein, the Commission finds Respondent's unilateral implementation of changes in wage rates, vacation leave, educational incentives, and longevity to be lawful; Respondent's unilateral implementation of other terms and conditions of employment not bargained over in good faith to impasse to violate §§ 48-424(1) and (2)(e); and Respondent's unilateral alteration of the bargaining unit description to be unlawful and against public policy.

FINDINGS OF FACT:

The following in-depth focus on the facts, and more specifically on the terms of the offers, is necessary to determine whether the parties had reached impasse on the terms unilaterally implemented by Respondent. In doing so, the Commission does not pass judgment on any of the offers' terms and emphasizes that it cannot force the parties to agree to a proposal or make a particular concession. Neb. Rev. Stat. § 48-816(1).

On June 8, 1998, Respondent voluntarily recognized Petitioner as the bargaining unit representative for members of the Scotts Bluff County Sheriff's Department. (Ex. 12) Previously, the bargaining unit members had been represented by Communication Workers of America (hereinafter "CWA"). (Ex. 11; 10:13-23) The voluntarily recognized bargaining unit consisted of "all employees of the Sheriff's Office of Scotts Bluff County, Nebraska, excluding the Sheriff, Chief Deputy and Office Manager/Confidential Secretary." (Ex. 13)

During July of 1998, Petitioner submitted an initial contract proposal to Respondent to represent workers in the bargaining unit and indicating Petitioner's desired wages, terms and conditions of employment for the bargaining unit's July 1, 1998 to June 30, 1999 contract year. (Ex. 1; 27:15-21; 42:11-13) This proposal made changes to the prior CWA 1997-1998 contract, and any items not specifically changed were to be continued in accordance with the prior contractual terms. (45:12-46:1)

From July to September of 1998, five negotiation sessions occurred. (12:1-3; 28:16-18; 48:10-16; 53:23-54:7) Raymond Huffman, a Scotts Bluff County Sheriff's Office employee and officer of the Fraternal Order of Police, Lodge 41, and Barbara Eisenach, chairman of the board of county commissioners, principally represented their respective parties during these bargaining sessions. (9:19-10:12; 84:17-85:1) The negotiations worked off of Petitioner's initial proposal and did not include bargaining over any other terms or conditions of employment. (11:14-25; 55:2-10) Therefore, the only items at issue during these bargaining sessions included: wages, health insurance, dental insurance, educational incentive program, shift differential, sick leave, vacation leave and injury leave. (Ex. 1)

During these five bargaining sessions, Respondent rejected the changes suggested by Petitioner, but never submitted a counterproposal other than a 3% wage increase - the same 3% wage increase received by every Scotts Bluff County employee. (28:16-19; 55:2-4; 12:4-15) Due to the apparent lack of progress in negotiations, on October 16, 1998, Petitioner hired an attorney to negotiate on its behalf. Thereafter, Respondent also hired an attorney to negotiate on its behalf. (Ex. 14) Subsequent offers were presented through the mail by the parties' attorneys. (See, Ex. 2-6, 15)

On December 23, 1998, Petitioner mailed an offer to Respondent proposing changes in wages, vacations, holidays and sick leave for the 1998-1999 and1999-2000 contract years. (Ex. 2) On January 15, 1999, Respondent replied by proposing a two-year contract which would increase the base wage rate 5% each year and delete standby pay, longevity pay and education incentives. (Ex. 3) Respondent rejected Petitioner's proposed changes to sick leave and holiday pay. Id.

Petitioner countered, on January 26, 1999, by insisting on leaving standby pay, longevity pay and education incentives in place. (Ex. 4) In support of its proposal, Petitioner claimed that Respondent was not providing sufficient levels of health insurance coverage as compared to similar counties. Id. Petitioner, however, was willing to forego any changes to health insurance if Respondent would continue to provide standby pay, longevity pay and education incentives. Id. Petitioner stressed that the changes implemented should be retroactive to July 1, 1998. Id. Additionally, Petitioner dropped its proposals for changes in sick leave and holiday pay, but stuck to its proposal for an increase in vacation allowance. Id. In summary, Petitioner proposed a two-year contract with increased vacation allowance and 5% wage raises each year, retroactive to July 1, 1998, while leaving standby pay, longevity pay, education incentives, health insurance, sick leave, vacation pay and holiday pay unchanged. Id. at 3.

On February 4, 1999, Respondent indicated to Petitioner its willingness to enter into a twenty-six month contract. (Ex. 15) The contract would contain two 5% wage increases, the first being retroactive to July 1, 1998, and the second occurring on July 1, 1999. Id. Health insurance contributions would remain unchanged; vacation days would increase; and standby pay, longevity pay and education incentives would be deleted. Id. Petitioner understood this to be Respondent's final offer. Id. at 2.

On March 4, 1999, Petitioner filed a petition in Case No. 968, requesting the Commission to establish wages, hours, benefits and conditions of employment solely for the 1998-1999 contract year. (Ex. 16, 17) After Petitioner filed Case No. 968, the parties agreed to return to the bargaining table. Therefore, on May 28, 1999, the Commission granted the parties' joint motion for a stay of the proceedings in Case No. 968.

On June 15, 1999, Respondent, through its new attorney, submitted a new contract proposal to Petitioner for the 1998-1999 and 1999-2000 contract years based on comparability. (Ex. 5; 57:17-19) This proposal included changes to several items in the CWA 1997-1998 contract that had been neither negotiated nor discussed during the previous bargaining sessions, such as changes in the bargaining unit description, deletion of union dues deductions and reduction of clothing allowances. (Ex. 5; 17:5-18:7; 72:20-74:22) Respondent admits that some of its proposals contained in the June 15 offer were regressive in comparison to the Respondent's January 15 offer. (Respondent's Post-Hearing Brief, p. 18) Respondent's June 15 offer, however, no longer sought the deletion of standby pay. (Ex. 5) Respondent did not state in the letter that this was a final offer. (Ex. 5)

Raymond Huffman, Petitioner's representative, testified that County Board Chairman Barbara Eisenach informed him by phone in late June that Respondent "could implement a new wage scale for the deputies and . . . that's what they were going to do." (19:23-20:2) This conversation took place before Petitioner had responded to the offer either affirmatively or negatively. Barbara Eisenach testified that she informed Mr. Huffman that the Board "could" vote to set the wages unilaterally, but denied telling Petitioner anything about Respondent's intentions. (83:13-85:14)

By a letter dated, July 1, 1999, Petitioner responded to Respondent's letter of June 15, 1999, with a counterproposal. (Ex. 6) In this counterproposal, Petitioner indicated that it was willing to forego standby pay and education incentives if Respondent would continue longevity pay. Id. In summary, Petitioner offered a twenty-six month contract with 5% wage increases retroactive to July 1, 1998, and July 1, 1999, with longevity pay and health insurance contributions unchanged, with Respondent's proposed increase in vacation allowance, but without standby pay and education incentives. Id. All terms not mentioned in Petitioner's proposal, including all of the new issues raised by Respondent and not discussed between the parties, would remain unchanged from the 1997-1998 CWA contract. Id.

Without first responding to Petitioner's proposal in any manner, Respondent adopted a resolution, on July 6, 1999, declaring an impasse in negotiations and purporting to implement Respondent's June 15 contract proposal as it applied to the 1999-2000 contract year. (Ex. 19) The resolution, signed only by Chairman of the Board Barbara Eisenach, did not affect any terms or conditions of employment for the 1998-1999 contract year which was at issue in Case No. 968, but did alter terms and conditions of employment for the 1999-2000 contract year, for which there was no case pending before the Commission. Id. The next day, Mr. Huffman received a copy of the resolution from the county clerk. (21:5-10) The resolution, however, referenced Appendix A which was not attached to Mr. Huffman's copy of the resolution. (21:14-19) The county clerk then informed Mr. Huffman that he could not receive a copy of Appendix A for another week, because it was a wage scale that was still being compiled. (21:18-24) Mr. Huffman returned on July 14, 1999, and received a copy of Appendix A. (22:1-2)

It was not until August 3, 1999, the day before the hearing in this case, that the sheriff delivered to Petitioner a complete document setting forth the terms and conditions of employment purportedly implemented by Respondent on July 6, 1999. (Ex. 10; 24:11-21) This document allegedly is identical to Respondent's June 15, 1999 proposal as it applies to the 1999-2000 contract year. (Ex. 10; 24:25-25:1)

Respondent's unilateral implementation altered the previous contract by:

been disciplined or received an evaluation of "unsatisfactory" or "needs improvement;"

(Ex. 5, 10)

LEGAL ANALYSIS:

Jurisdiction:

The Commission finds it has jurisdiction of this matter under Neb. Rev. Stat. §§ 48-824 and 48-825.

Section 48-824 states in relevant part:

(1) It is a prohibited practice for any employer . . . to refuse to negotiate in good faith with respect to mandatory subjects of bargaining.

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

. . .

(e) Refuse to negotiate collectively with representatives of collective-bargaining agents as required by the Industrial Relations Act.

Section 48-825 gives the Commission the authority to hold prohibited practice hearings, make related findings of fact and conclusions of law, and order appropriate remedies.

Applicability of NLRB Decisions:

The Nebraska Supreme Court has repeatedly held that "[d]ecisions under the NLRB [National Labor Relations Board] are helpful where there are similar provisions under the Nebraska statutes." Nebraska Pub. Emp. v. Otoe Cty., 257 Neb. 50, 63, ___ N.W.2d ___ , ___ (1999) (quotingUniversity Police Officers Union v. University of Neb., 203 Neb. 4, 12, 277 N.W.2d 529, 535 (1979)). Therefore, a thorough comparison of the Nebraska Industrial Relations Act (hereinafter "IRA") and the National Labor Relations Act (hereinafter "NLRA") is necessary before federal cases may be used as guidance in this case.

As mentioned previously, § 48-824 of the IRA states in relevant part:

(1) It is a prohibited practice for any employer . . . to refuse to negotiate in good faith with respect to mandatory subjects of bargaining.

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

. . .

(e) Refuse to negotiate collectively with representatives of collective-bargaining agents as required by the Industrial Relations Act.

In comparison, § 8(a) of the NLRA (29 U.S.C. § 158(a) (1994)) states in part: "It shall be an unfair labor practice for an employer . . . (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a)." Section 9(a) provides, "Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. . ." Finally, § 8(d) defines collective bargaining as "the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment. . ."

The federal and state statutes are substantially similar for our purposes. Section 8(a)(5) of the NLRA is nearly identical to § 48-824(2)(e) of the IRA. Both sections forbid an employer from refusing to bargain collectively with a labor representative. The NLRA provides a good faith requirement in § 8(d)'s definition of the phrase "to bargain collectively," which states:

[T]o bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession...

(emphasis added) The IRA provides for the same good faith requirement in § 48-824(1) by stating, "It is a prohibited practice for any employer . . . to refuse to negotiate in good faith with respect to mandatory subjects of bargaining." Section 48-816(1) further defines the phrase "to bargain in good faith" as follows:

To bargain in good faith shall mean the performance of the mutual obligation of the employer and the labor organization to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment or any question arising thereunder and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.

(emphasis added)

In Ewing Educ. Ass'n v. Holt Co. School Dist. No. 29, 12 CIR 242 (1996), the Commission, analyzed whether § 48-824(2)(e) had been violated by a unilateral change in a term of employment found in an existing collective bargaining agreement. In determining whether federal cases could be used as guidance, the Commission found that § 8(d) includes at least one provision that is not included in the IRA. That provision states, "[W]here there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless [certain procedural requirements are met]." The Commission held that because this provision does not exist in the IRA, under Nebraska public sector labor law, a unilateral change in the terms and conditions of anexisting collective bargaining agreement is not by definition a failure or refusal to bargain, although it may be a breach of contract over which the Commission does not have jurisdiction. The Commission concluded:

Prior to the passage of what has now become § 48-824 et seq., our Supreme Court held that a duty to bargain exists only after a Petition has been filed with this Commission or a request for bargaining has been made. Kuhl v. Skinner, 245 Neb. 794, 515 N.W.2d 641 (1994). While the addition of § 48-824 to the [IRA] may have extended the duty to bargain beyond that found in Kuhl, we are not prepared to find that a duty to bargain exists in this case.

Id. at 245.

Contrary to the situation involved in Ewing, in the case before us, Respondent did have a duty to bargain consistent with Kuhl and § 48-816(5) (1), since a request for bargaining had been made by the lawfully recognized exclusive bargaining representative, and the parties had indeed begun bargaining.

Furthermore, unlike Ewing, the case before us does not involve unilateral changes to an existing collective bargaining agreement. The agreement has expired, and Respondent has unilaterally implemented new terms and conditions of employment after declaring an impasse in negotiations. Therefore, the above quoted provision of § 8(d) which is not found in the IRA is not applicable to this set of facts, and any differences between the NLRA and the IRA are irrelevant for the purposes of our analysis.

Finally, the legislative history of the IRA's § 48-824 clearly states that the purpose of the section is to provide public sector employees with the same protection from unfair labor practices that most private sector employees enjoy under the NLRA and to make refusing to negotiate in good faith on mandatory bargaining topics a prohibited practice. LB 382, 94th Leg., 1stSess., 1995.

Thus, we find the corresponding sections of the IRA and NLRA making it unlawful for parties to refuse to negotiate in good faith over mandatory bargaining topics are sufficiently similar for the NLRB decisions to be useful as guidance in interpreting the IRA.

Categories of Collective Bargaining Subjects:

There are three categories of collective bargaining subjects: mandatory, permissive and prohibited. Mandatory collective bargaining subjects are those which relate to "wages, hours, and other terms and conditions of employment, or any question arising thereunder." Neb. Rev. Stat. § 48-816(1). Additional mandatory subjects of bargaining are those which "vitally affect" the terms and conditions of employment. Allied Chemical & Alkali Workers Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971). The IRA only requires parties to bargain over mandatory bargaining subjects. Neb. Rev. Stat. § 48-816(1). Permissive bargaining subjects are legal subjects of bargaining which do not fit within the definition of mandatory subjects. See, NLRB v. Borg-Warner Corp., Wooster Div., 356 U.S. 342 (1958). Either party may raise a permissive subject during bargaining, but the non-raising party is not required to bargain over permissive subjects. Id. Finally, prohibited bargaining subjects are topics which the law forbids the parties from agreeing upon. See Patrick Hardin, The Developing Labor Law 851-954 (3rd ed., vol. 1, 1992), for a detailed discussion of all three categories of bargaining.

Additionally, some subjects are considered management prerogatives and may generally be altered at the will of the employer. See, Metropolitan Tech. Community College Educ. Ass'n v. Metropolitan Tech. Community College Area, 203 Neb. 832, 281 N.W.2d 201 (1979) (holding in a school case that the following subjects are management prerogatives: the right to hire; to maintain order and efficiency; to schedule work; to control transfers and assignments; to determine what extracurricular activities may be supported or sponsored; and to determine the curriculum, class size, and types of specialties to be employed).

The distinction between the different categories of bargaining subjects is important, because rules stated below allowing parties to bargain in good faith to impasse and then to unilaterally implement changes apply only to mandatory bargaining subjects and management prerogatives.

Unilateral Changes After Impasse:

The IRA's principle objective is the establishment of terms and conditions of employment through the collective bargaining process. Ewing, 12 CIR at 246. Promoting successful labor-management negotiations in which the parties jointly establish wages, terms and conditions of employment is a goal of labor law in general and of this Commission in particular. See, Id. at 245 ("While the [IRA] does not require the making of an agreement, there can be no doubt its purpose is to encourage and foster such agreements. Coming to the Commission is a last resort."); McClatchy Newspapers, 321 NLRB 1386, 1388 (1996)(describing the NLRA's "primary objective" as the establishment of working conditions jointly by labor and management through the process of collective bargaining), enforced, 131 F.3d 1026 (D.C. Cir. 1997), cert. denied, 118 S.Ct. 2341 (1998). As stated by the Commission in Educational Services Unit No. 12 Educ. Ass'n v. Educational Service Unit No. 12, 9 CIR 97, 98 (1987):

The collective bargaining process is a continuing process which the parties must learn to use to supplement or replace litigation before the Commission. It remains the Commission's position that good faith negotiation is the preferred method for resolution of differences concerning wages, hours and other terms and conditions of employment. Public employers and the bargaining agents for their employees have a duty to bargain in good faith in an attempt to resolve their differences both before, and after, they bring their disputes to the Commission. Successful collective bargaining is less expensive for the parties, less disruptive of public service, more flexible in terms of available solutions, and more likely to promote harmony between public employers and their employees. The public interest is not served by public officials and administrators or the agents of public employees who are unwilling or unable to pursue collective bargaining in good faith.

Unfortunately, the negotiation process is not perfect; it may work more slowly than the parties would like or break down entirely. The parties, however, need not continue "to engage in fruitless marathon discussions at the expense of frank statement and support of [their] position[s]." NLRB v. American Nat'l Ins. Co., 343 U.S. 395, 404 (1952). After parties bargain in good faith to impasse, an employer may unilaterally implement changes to mandatory terms and conditions of employment if the changes implemented were reasonably comprehended within its pre-impasse proposals to the bargaining unit representative. Taft Broadcasting Co., 163 NLRB 475, 478 (1967), aff'd sub nom., American Federation of Television and Radio Artists v. NLRB, 395 F.2d 622 (D.C. Cir. 1968).

Unilateral changes to mandatory terms and conditions of employment made before impasse are per se violations of the party's duty to bargain in good faith. See, NLRB v. Katz, 369 U.S. 736 (1962) (equating pre-impasse unilateral changes to flat refusals to negotiate). In other words, a finding of bad faith is not necessary. Id. In the case at bar, we find the parties had reached impasse over several of the terms implemented, that these terms were reasonably comprehended within Respondent's pre-impasse offers, and that Respondent bargained in good faith; however, Respondent also committed several per se violations of the duty to bargain in good faith by implementing terms and conditions of employment which the parties had not bargained over to impasse.

An employer may lawfully implement changes in terms and conditions of employment which are mandatory topics of bargaining only when three conditions have been met: (1) the parties have bargained to impasse, (2) the terms and conditions implemented were contained in a final offer, and (3) the implementation occurred before a petition regarding the year in dispute is filed with the Commission. See, Geneva Educ. Ass'n v. Fillmore County School Dist. 75, 10 CIR 238 (1989); General Drivers & Helpers Union, Local No. 554 v. Saunders County, 6 CIR 313 (1982); Lincoln County Sheriffs' Employees Ass'n Local 546 v. County of Lincoln, 5 CIR 441 (1982). (2) If any of these three conditions are not met, then the employer's unilateral implementation of changes in mandatory bargaining topics is aper se violation of the duty to bargain in good faith.

Mandatory Subjects:

Of the topics altered by Respondent, the Commission finds the following topics to be mandatory bargaining subjects: wages; sick leave; vacation leave; nondiscrimination policy; union dues check off; outside employment without a uniform; health insurance; educational incentives; compensation for attendance in court, conference and other meetings; uniform cleaning/clothing allowance; longevity; overtime computation; call-back pay; compensatory time; maternity leave and family emergency leave; injury leave; and contract duration. As such, they cannot be unilaterally altered after the expiration of a contract unless the changes were offered during bargaining and impasse has been reached. Taft Broadcasting Co., supra.

Impasse:

The initial inquiry is whether the parties bargained to impasse before Respondent unilaterally implemented changes in mandatory bargaining subjects. The burden of proving impasse is on the party claiming that negotiations have reached impasse. PRC Recording Co., 280 NLRB 615 (1986), enforced, 836 F.2d 289 (7th Cir. 1987); The Baytown Sun, 255 NLRB 154 (1981). In this case, Respondent has the burden of proving impasse.

Impasse means that the parties have reached a deadlock in negotiations. See, e.g., PRC Recording Co. 280 NLRB at 640 (for impasse to occur, both parties must be unwilling to compromise); Powell Electrical Mfg. Co., 287 NLRB 969, 973-74, enforced as modified, 906 F.2d 1007 (5th Cir. 1990) (futility, not some lesser level of frustration, discouragement, or apparent gamesmanship, is necessary to establish impasse); D.C. Liquor Wholesalers, 292 NLRB 1234, 1235 (1989), enforced, 924 F.2d 1078 (D.C. Cir. 1991) (exhaustion of the collective-bargaining process is required for impasse to exist).

Factors to be considered in determining whether the parties are at impasse include: "number of meetings, length of meetings, period of negotiations, whether either party has expressed a willingness to modify its position, whether a mediator has been called in (a sign of deadlock), the importance of the issues over which the parties disagree (the more important the issue the more likely an impasse), and the understanding of the parties regarding the state of negotiations." Douglas E. Ray et al., Understanding Labor Law208 (Matthew Bender & Co. 1999)(citation omitted); See, David G. Epstein, Comment, Impasse in Collective Bargaining, 44 Tex. L. Rev. 769 (1966). Additional factors may include the parties' bargaining history, continuation of bargaining, union animus, the extent of the difference or opposition, duration of hiatus between bargaining meetings, and other actions inconsistent with impasse. John T. Neighbours et al., The Developing Labor Law 299, 300 (3rd ed. 1998 Cum. Supp.)(citations omitted).

Based on the foregoing factors, the Commission finds that the parties were at a partial impasse. The parties had bargained over wage increases, vacation leave, educational incentives, and longevity for more than one year. As to these terms, the Commission finds that the parties were at impasse. As stated by the Commission in International Bhd. of Elec. Workers, Local No. 1536 v. City of Fairbury, 9 CIR 317, 318:

The Commission encourages parties to bargain and settle disputes themselves[,] and if it appears that further bargaining would be fruitful, we will send them back to the bargaining table as we are authorized to do under Section 48-816(1). However, bargaining cannot continue beyond a reasonable time period and still adhere to the public policy of resolving disputes in a timely fashion.

Having bargained for over a year on these terms, the Commission finds that further bargaining would be futile and would further frustrate the public policy of timely resolution of disputes. In conclusion, the parties reached impasse on wage increases, vacation leave, educational incentives, and longevity. In addition to having reached impasse over these terms, these implemented terms were also reasonably comprehended within Respondent's pre-impasse proposals; therefore, Respondent lawfully increased wages, decreased vacation leave, discontinued educational incentive wage increases, and deleted longevity pay.

The following mandatory subjects of bargaining, however, were raised by Respondent for the first time in its June 15, 1999 proposal: disallowance of step increases for disciplined employees and employees receiving an evaluation of "unsatisfactory" or "needs improvement;" reduction in sick leave accumulation cap; disallowance of sick leave accumulated prior to November 1, 1987; deletion of 48 hours payment per year to those who have reached the sick leave cap; alterations to the nondiscrimination policy; discontinuance of union dues check-offs; requiring the sheriff's permission for outside employment without a uniform; reservation of the right to choose the health insurance carrier and benefits provided, including the deductible; reducing compensation for attendance in court, conferences, and other meetings; deleting payment for cleaning of uniforms; reducing clothing allowances for non-uniformed employees; altering the overtime computation; reducing compensation for call-back time; reducing the cap on accumulated compensatory time; replacing maternity leave and family emergency leave with family and medical leave; altering injury leave; and deleting contract duration language. Respondent raised these subjects for the first time in its June 15, 1999 proposal, and Petitioner did not respond to any of these subjects. Since virtually no bargaining has occurred on these terms, and the parties were not at impasse thereon, Respondent's unilateral implementation of these changes constitutes a refusal to bargain in violation of §§ 48-824(1) and (2)(e).

Other Terms Implemented:

Respondent's decision to no longer require notice to the Union prior to implementation of a management right is a management prerogative. It deals primarily with the employer's ability to implement its management rights. As such, Respondent is free to change its policy at will in the absence of a contract requiring otherwise.

The Scope of a Bargaining Unit:

Changes to the scope of a bargaining unit are permissive subjects of bargaining, whether the bargaining unit has been certified or voluntarily recognized. Walnut Creek Honda Assoc. 2, Inc. v. NLRB, 89 F.3d 645 (9thCir. 1996); Serramonte Oldsmobile, Inc. v. NLRB, 86 F.3d 227 (D.C. Cir. 1996); NLRB v. Greensburg Coca-Cola Bottling Co., Inc., 40 F.3d 669 (3rdCir. 1994); Hill-Rom Co., supra; Facet Enterprises, Inc. v. NLRB, 907 F.2d 963 (10th Cir. 1990); Louisiana Dock Co., Inc. v. NLRB, 909 F.2d 281 (7th Cir. 1990). Once a specific job has been included within the scope of the unit, an employer cannot unilaterally remove or modify that position without first securing consent of the union or the Commission. See, Hill-Rom Co., 957 F.2d at 457; Boise Cascade Corp. v. NLRB, 860 F.2d 471, 475-76 (D.C. Cir. 1988). The union's consent may be obtainable through good faith negotiations, if the union agrees to bargain over the permissive subject. If the parties are unable or unwilling to reach an agreement on changes to the scope of a certified or voluntarily recognized bargaining unit, the Commission's consent to such changes may be requested by filing a petition for amendment of the bargaining unit in accord with the Commission's Rule 12, which authorizes petitions for the amendment of a certified or recognized unit.

The policy behind prohibiting unilateral changes to the scope of a bargaining unit has been succinctly stated by the United States Court of Appeals for the Seventh Circuit as follows:

The reason why the law disfavors unilateral changes in the unit description is as simple as it is fundamental: if an employer could vary unit descriptions at will, it would have the power to sever the link between a recognizable group of employees and its union as the collective bargaining representative of these employees. "This in turn would have the effect of both undermining a basic tenant of union recognition in the collective bargaining context and of greatly complicating coherence in the negotiation process." Boise Cascade Corp., 860 F.2d at 474-75.

Hill-Rom Co., 957 F.2d at 457.

Respondent agreed to the definition of the bargaining unit in the 1997-1998 CWA contract. Having voluntarily recognized the unit as previously defined by the parties, Respondent's recourse if it now disagrees with the unit's composition is either to convince Petitioner to agree to a new bargaining unit definition or to file a petition with the Commission under Rule 12 for an amendment of the unit description.

Respondent relies on Temple Security Inc., 328 NLRB No. 87 (1999) (citing Wells Fargo Corp, 270 NLRB 787 (1987)), in arguing that an employer should be able to unilaterally alter the scope of a voluntarily recognized collective bargaining unit. (Respondent's Post-Hearing Brief, pp. 10-15) Temple Security and Wells Fargo both dealt with an employer withdrawing its recognition from a voluntarily recognized unit because the unit composition violated the guard rules of the NLRA's § 9(b).

The IRA contains no statutes similar to § 9(b); however, the Commission has previously recognized the conflict of loyalties that may result from having guard employees represented by the same union as non-guard employees. See, FOP, Lodge 41 v. County of Scotts Bluff, 13 CIR 236 (1999); Nebraska Ass'n Of Pub. Employees v. County of Richardson, 12 CIR 100 (1994); CWA v. Hall Co., 12 CIR 53 (1994); CWA v. County of Scotts Bluff, 11 CIR 60 (1990); Supervisory, Managerial, and Prof'l Employees Bargaining Ass'n. v. City of Bellevue, 11 CIR 48 (1991); Retail and Prof'l Employees Union, Local 1015 v. Metropolitan Technical Community College Area, 3 CIR 512 (1978); and University Police Officers Ass'n, Local 567 v. University of Neb., 3 CIR 335 (1977). Without so holding, the Nebraska Supreme Court has also recognized the guard/non-guard distinction. Lincoln City Employees Union v. City of Lincoln, 210 Neb. 751, 317 N.W.2d 63 (1982); University Police Officers Union v. University of Neb., 203 Neb. 4, 277 N.W.2d 529 (1979). The guard/non-guard prohibition, though, is not a strict prohibition. The parties may voluntarily agree to have guards and non-guards represented by the same union or even in the same bargaining unit. Henry Ford Health Sys. v. NLRB, 105 F.3d 1139 (6th Cir. 1996).

Having recognized a guard/non-guard distinction, Respondent now asks this Commission to trek further into this area of NLRB case law and recognize that an employer may unilaterally withdraw recognition from a voluntarily recognized mixed guard/non-guard unit at any time. (Respondent's Post-Hearing Brief, pp. 10-11) We will not do so.

The Commission's Rule 9 allows an employer to file a petition to decertify a union under certain circumstances, and Rule 12 allows an employer to file a petition requesting a clarification or an amendment of a certified or voluntarily recognized unit. Under these Rules, an employer has an acceptable recourse if it does not agree with the scope of a bargaining unit.

Conclusion:

THE COMMISSION HEREBY FINDS: (1) The parties reached good-faith impasse on wage increases, vacation leave, educational incentives, and longevity. Respondent's changes to these terms were all reasonably comprehended within its pre-impasse proposals, and no case regarding the year in question had been filed with the Commission. Therefore, Respondent's unilateral implementation of these changes was lawful. (2) Respondent violated §§ 48-824(1) and (2)(e) by implementing mandatory terms that it raised for the first time in its June 15, 1999 offer, since the implementation preceded impasse on those terms. (3) Respondent's unilateral alteration of the scope of the bargaining unit undermines the relationship between the employees and their recognized representative; thus, it is disallowed. An employer or bargaining representative must obtain the agreement of the other party or file a petition under Rule 12 when they wish to have the scope of a unit altered.

Remedy:

The Commission's authority to issue a remedy after finding a failure or refusal to bargain in good faith may be found in § 48-816(1) which provides in pertinent part:

In the event of an industrial dispute between an employer and an employee or a labor organization when such employer and employee or labor organization have failed or refused to bargain in good faith concerning the matters in dispute, the commission may make any such order or orders as may be appropriate to govern the situation pending such bargaining. The Commission shall require good faith bargaining concerning the terms and conditions of employment of its employees by any employer.

Additionally, § 48-819.01 provides:

Whenever it is alleged that a party to an industrial dispute has engaged in an act which is in violation of any of the provisions of the Industrial Relations Act, or which interferes with, restrains, or coerces employees in the exercise of the rights provided in such act, the commission shall have the power and authority to make such findings and to enter such temporary or permanent orders as the commission may find necessary to provide adequate remedies to the injured party or parties, to effectuate the public policy enunciated in section 48-802, and to resolve the dispute.

Finally, § 48-823 states:

The Industrial Relations Act and all grants of power, authority, and jurisdiction made in such act to the commission shall be liberally construed to effectuate the public policy enunciated in section 48-802. All incidental powers necessary to carry into effect the Industrial Relations Act are hereby granted to and conferred upon the commission.

The Commission has the authority to order an appropriate remedy which will promote public policy, adequately provide relief to the injured party, and lead to the resolution of the industrial dispute. However, the Nebraska Supreme Court's rulings in University Police Officers Union v. University of Neb., 203 Neb. 4, 277 N.W.2d 529 (1979) and Jolly v. State, 252 Neb. 289, 562 N.W.2d 61 (1997) raise some concern over the Commission's authority to issue prohibited practice remedies. In University Police Officers, the Court held:

It is fundamental that in the legislative grant of power to an administrative agency, such power must be limited to the expressed legislative purpose and administered in accordance with standards described in the legislative act. The limitations of the power granted and the standards by which the granted powers are to be administered must be clearly and definitely stated. They may not rest on indefinite, obscure, or vague generalities or upon extrinsic evidence not readily available.

203 Neb. at 13 (emphasis added).

Importantly, for purposes of our analysis, the Court in University Police Officers held that the Commission's only remedial authority in cases of threats or harassment against petitioners under § 48-811 is to issue cease and desist orders. Section 48-811 provides: "No adverse action by threat or harassment shall be taken against any employee because of any petition filing by such employee, and the employment status of such employee shall not be altered in any way pending disposition of the petition by the commission." Section 48-811, however, lists no remedial authorities.

Also in University Police Officers, the Commission ordered the offending party to post a copy of the temporary order and suggested it was considering requiring the offending party to post "mea culpa" notices. The Court held:

The CIR is without authority to make such orders. Its authority is limited to the provisions of section 48-818, R. R. S. 1943, wherein it is provided that the CIR's findings and orders may establish or alter the scale of wages, hours of labor, or conditions of employment.

It is true that the CIR has power and authority upon its own initiative to make such temporary findings and orders as may be necessary to preserve and protect the status of the parties' property and public interest involved pending final determination. The statute is not so broad as to authorize the CIR to make findings with regard to unfair labor practices or direct a public employer to take any more action than is necessary to preserve and protect the status of the parties' property and public interest involved pending final determination of the issues. We will not now attempt to enumerate all the possible circumstances under which the CIR may exercise its authority. We do note, however, that the authority granted to the CIR under the present act in general and section 48-816, R. R. S. 1943, in particular, is limited in nature. We would anticipate that the CIR will exercise that jurisdiction in as narrow a manner as may be necessary.

Id. at 17, 18 (emphasis in original). Since University Police Officers, several important aspects of the IRA have changed, most importantly the addition of §§ 48-819.01, 48-824, and 48-825.

In a more recent case, Jolly v. State, 252 Neb. 289, 562 N.W.2d 61 (1997), the Supreme Court again narrowly interpreted the Commission's jurisdiction. In Jolly, the Court held that the IRA does not give the Commission the authority to grant a motion for summary judgment. The Court held that there are no statutes which could possibly be construed as giving the Commission the authority to enter summary judgment. There is nothing in the IRA that mentions summary judgment powers.

The Commission has the authority under the plain language of the statute to issue cease and desist orders following findings of prohibited practices and has done so in the past. In Ewing Educ. Ass'n v. Holt Co. School Dist. No. 29, 12 CIR 242 (1996)(en banc), the Commission found that the school district committed a prohibited practice when it unilaterally changed a condition of employment contained in a collective bargaining agreement. After entering into a collective bargaining agreement, the school district unilaterally changed the bargaining unit's health insurance options. As a remedy, the Commission ordered the school district to cease and desistfrom charging insurance fees, to reimburse the fees withheld, and to post a notice to employees promising not to commit the same prohibited practices. A copy of the notice can be found in 12 CIR at 247.

The Commission also found a prohibited practice in State Law Enforcement Bargaining Council v. State, 13 CIR 169 (1998)(applying the State Employees Collective Bargaining Act).

In this case, the Commission's remedy was an order for the Respondent to "cease and desist of and from the prohibited practices found herein." Id. at 176 (emphasis added).

The Supreme Court has interpreted the Commission's remedial authority broadly. In IAFF Local 831 v. City of North Platte, 215 Neb. 89, 337 N.W.2d 716 (1983), the Court upheld the Commission's award of interest against a party who had bargained in bad faith. The Court held that § 48-819.01 provided the Commission's authority to award interest even though it does not specifically mention awarding interest. Again, § 48-819.01 states:

Whenever it is alleged that a party to an industrial dispute has engaged in an act which is in violation of any of the provisions of the Industrial Relations Act, or which interferes with, restrains, or coerces employees in the exercise of the rights provided in such act, the commission shall have the power and authority to make such findings and to enter such temporary or permanent orders as the commission may find necessary to provide adequate remedies to the injured party or parties, to effectuate the public policy enunciated in section 48-802, and to resolve the dispute.

(emphasis added)

Finally, the Supreme Court approved of injunctive relief by the Commission in Transport Workers v. Transit Authority of Omaha, 216 Neb. 455, 344 N.W.2d 459 (1984). In Transport Workers, the Court held that the Commission has the authority to issue status quo orders under §§ 48-816 and 48-819.01. The Court concluded that "[t]o hold otherwise would be to completely repeal §§ 48-816 and 48-819.01 by judicial fiat." Id. at 460.

In conclusion, the Commission has authority under §§ 48-816, 48-819.01, and 48-823 to issue a remedy following a finding of a violation to bargain in good faith. These statutes authorize the Commission to issue appropriate remedies that will effectuate the policies of the IRA, adequately provide relief to the injured party, and lead to the resolution of the industrial dispute. An order requiring that good faith bargaining resume and that the offending party cease and desist from committing the prohibited practices found by the Commission is within this authority.

Petitioner specifically requested "that the Commission order the Respondents to rescind their actions of Resolution of July 6, 1999, and restore those affected employees to the wages, hours and conditions of employment enjoyed by those employees prior to Respondent's Resolution of July 6, 1999." (Petition ¶ XIV) From the evidence presented, Petitioner's requested remedy appears appropriate as to the violations found.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that:

Judges Orr, Moore and DeLay join in the entry of this Decision and Order. Judges Anderson and Cullan concur in part and dissent in part.

Issued January 10, 2000.

Judge G. Roderic Anderson, Concurring in Part, and in part, Dissenting

I concur with the majority Decision and Order with one exception. I disagree with the conclusion that the parties were at impasse over wages, vacation leave, educational incentives or longevity pay when Respondent implemented changes to these terms and conditions of employment on July 6, 1999.

The parties may have been at impasse in March of 1999 when Petitioner filed its wage case for the 1998-1999 contract year. However, that impasse was broken when the parties returned to the bargaining table and renewed negotiating in May 1999. After resuming bargaining, I am not convinced that the parties ever reached impasse again.

The NLRB, with a similar factual situation in Beverly Farm Foundation, 323 NLRB 787 (1997), enforced, 144 F.3d 1048 (7th Cir. 1998), stated: "[T]he Union never indicated that further bargaining would be futile or that it was wedded inalterably to any particular position. . . The parties were not stalemated when Respondent announced that it would implement parts of its final offer." Id. at 793.

Respondent's June 15 submission of a contract proposal with terms previously not discussed, to which Petitioner responded on July 1 with concessions from its previous position, give the appearance that collective bargaining was still proceeding at that time. The sudden declaration of impasse, and implementation of its "final offer" by Respondent is, therefore, surprising. This is reinforced by the lack of any notice that the June 15 proposal was a final offer, either when it was proposed, or before impasse was declared and new wages and terms of employment were implemented on July 6, 1999. This is contrasted with the clear communication that Respondent gave Petitioner in February that its February 4 offer was its final one. With the parties' continuing negotiation and changes in position, and without a declaration of a final offer from Respondent, it is difficult to conclude that the parties' resumption of negotiations had again reached impasse. I would conclude that the change of wages and other terms of employment in the July 6, 1999 board resolution were premature.

In all other respects, I join in the opinion of the majority.

Judge Cullan joins in the entry of this partial dissent.

Issued January 10, 2000.