14 CIR 259 (2004) 

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 APPEARANCES:

International Union of Operating Engineers Local 571, (hereinafter, "Petitioner," "Union" or "Local 571") filed a Petition pursuant to Neb. Rev. Stat. § 48-824(1) and (2)(a), (c), (e), and (f) (Reissue 1998), claiming that the County of Cass; and Boyd Linder, Louis Allgayer, Robert Clancy, Joe Solomon, and Paul McManis, County Commissioners, (hereinafter, "Respondents") committed a prohibited practice by refusing to engage in good faith bargaining. Petitioner also claims that the Respondents participated in unlawful interference practices in the conduct of the foreman, Mike Stubbendeck. Petitioner asserts that the Respondents failed to negotiate in good faith by insisting upon an illegal subject of bargaining, when it demanded that the agreement include waiver of the Commission’s jurisdiction. The Petitioner further maintains that the unilateral withdrawal of recognition of Petitioner as bargaining agent without a Decertification Petition was a failure to bargain in good faith. Petitioner seeks "that the Respondent cease and desist from bypassing Petitioner and engaging in collective bargaining with bargaining unit employees represented by Petitioner."

On October 14, 2003, Respondents filed an Answer stating that it had negotiated in good faith with the Petitioner regarding topics of mandatory bargaining and had not interfered with, restrained, or coerced employees in the exercise of rights under the Industrial Relations Act ("IRA"). Respondents denied any participation in the actions of the foremen, and that the foremen were treated by Respondents as members of the bargaining unit. Respondents also asserted legal authority for unilaterally withdrawing recognition pursuant to the employees’ petition. Respondents then denied that the clause regarding the Commission’s jurisdiction is a waiver of any rights and denied that such clause is prohibited. Respondents finally claimed that the allegations are time-barred pursuant to Neb. Rev. Stat. § 48-825 (1) (Reissue 1998).

The Commission held a hearing on November 25, 2003, before the Honorable William G. Blake. The parties submitted post-hearing briefs, the Respondent on December 2, 2003 and the Petitioner on December 10, 2003.

For the reasons stated herein, the Commission finds that Respondents refused to negotiate in good faith with respect to mandatory topics of bargaining, interfering with the employees’ exercise of rights granted by the Industrial Relations Act, refusing to negotiate collectively with representatives of the collective bargaining agents as required by the Industrial Relations Act, and denying the rights accompanying certification or recognition granted by the Act, in violation of Neb. Rev. Stat. § 48-824(1), (2)(a),(c),(e), and (f) (Reissue 1998). The Commission therefore, orders that the Respondents must negotiate with Petitioner in good faith until or unless decertification proceedings have been held in accordance with the Industrial Relations Act and the rules of this Commission.

The certification of Local 571 occurred on September 17, 2002. An appeal is currently pending in the Nebraska Court of Appeals as to whether the Commission was correct in holding that two foremen are not supervisors under the Industrial Relations Act and were likewise included in the bargaining unit. Following the certification of September 17, 2002, Petitioner and Respondents bargained for a contract. Ten negotiation sessions took place between January 16, 2003 and May 16, 2003. The Respondents outline of a proposed agreement, dated January 16, 2003, at Article 25, provides that the Union waived its right to file any proceedings with the Commission, alleging lack of comparability of wages, fringe benefits and conditions of employment with respect to the time period of the proposed agreement. In September, 2003, several employees who are members of the bargaining unit personally circulated a petition among the members. It was prepared by one of the employees, and stated that the persons signing the petition felt that they were "not being represented as a whole," and requested that they "be allowed a re-vote." The two employees occupying the foreman positions still in dispute were among the group of employees circulating the petition. The foremen and two other employees then met with the Highway Superintendent to present the signed petition. After the employees presented the petition, the Highway Superintendent contacted Cass County’s attorney.

On September 22, 2003 the Respondents, through their agent, sent a letter by fax to the Petitioner’s chief negotiator, Dennis Smith, notifying Petitioner that the Respondents have "received a written petition, notifying Cass County that a majority of the unit members no longer desire to be represented by Local 571." The notification continued by stating that "accordingly, Cass County withdraws recognition of … Local 571, as the bargaining representative of the employees of Cass County Department of Roads, effective immediately." Respondents admitted that it unilaterally withdrew recognition on the basis that Petitioner had lost the support of the majority of the bargaining unit employees. Petitioner then filed this action with the Commission on October 1, 2003.

The Petitioner argues that the Respondents are responsible for the alleged conduct by Mike Stubbendeck. Conversely, Respondents argue they are not liable for Stubbendeck’s solicitation of employees to sign a petition. The Petitioner also argues that the Respondents participated in unlawful interference practices by offering the Petitioner’s union members a raise in exchange for signing the offered petition. Furthermore, the Petitioner suggests that the Respondents engaged in bad faith bargaining by delaying their response to the Petitioner with respect to bargaining. The Respondents claim that such an allegation is time-barred.

In the instant case, the evidence does not establish that Mike Stubbendeck, who occupies the position of foreman, which is still in dispute between the parties, made any promises of obtaining a raise in exchange for any action by the Union or any member of the bargaining unit. The evidence fails to establish that any action by Mr. Stubbendeck was required, endorsed or promoted in any way by the Respondents. From the evidence, we can only find that the Respondents took a hands-off position with respect to Mr. Stubbendeck’s involvement, recognizing that unless and until determined otherwise on appeal, he was to be treated as a member of the bargaining unit. Further, there is no indication of any action by Respondents with regard to the employment status or working conditions of any employee as a result of their actions in response to the efforts of Mr. Stubbendeck. We find that there is no showing of bad faith negotiations in this regard, and thus no prohibited practice. Furthermore, we do not find any evidence that the bargaining efforts of Respondents themselves were in bad faith.

Petitioner argues that the inclusion of the waiver clause in the Petition is a non-mandatory or an illegal subject of bargaining which resulted in bad faith negotiations on the part of the Respondents. The Respondents maintain that their contract proposal of a waiver of the Petitioner’s right to file a § 48-818 case for the period covered by the contract does not violate the Act.

The clause, which Respondents demanded to have contained in the agreement, is not a waiver of the Commission’s jurisdiction. Rather, we find that it is merely a statement of the legal consequences of reaching an agreement. While we do not understand the need for such a clause and do not endorse its inclusion in an agreement, we do not find that the demand for inclusion of the clause in question is a prohibited practice.

The Petitioner argues that the Respondents cannot unilaterally withdraw recognition from the Petitioner. Instead, the Petitioner contends that unless the Respondents attempt to decertify the Petitioner as the bargaining unit representative, a previously certified unit cannot have its recognition unilaterally withdrawn. The Respondents maintain that an employer may lawfully withdraw recognition from a union, which has lost the support of the majority of the bargaining unit members.

With respect to the Respondents’ effort to unilaterally withdraw recognition of the bargaining unit, we find that such effort did constitute a prohibited practice. First, we address the dispute between the parties regarding the effect of Petitioner’s failure to respond to Requests for Admission. The Respondents did serve such Requests for Admission upon Petitioner, and the Petitioner did not answer the Request for Admission served thereon. Petitioner has not provided the Commission with any showing as to why the Requests should not be deemed admitted.

Under Neb. Ct. R. of Discovery 36, Cass Counties’ requests were automatically deemed admitted when the Union failed to respond within the 30-day period which was applicable in this case.

Rule 36(a) states in relevant part:

A party may serve upon any other party a written request for the admission . . .. Each matter of which an admission is requested shall be separately set forth by the party making the request, and shall be repeated by the responding party in the answer or objection thereto. The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter . . . .

In Wibbels v. Unick, 229 Neb. 184, 190-91, 426 N.W.2d 244, 249 (1988), the Nebraska Supreme Court stated, "When a party has been served with a request for admission, pursuant to Rule 36, but fails to answer or object to the request, the subject matter of the request stands admitted by the unresponsive party and is conclusively established, unless the court on motion permits withdrawal of the admission by a party’s failure to respond." Thus, Cass Counties’ request was automatically admitted by the Union.

However, such factual admissions will not be given a reading beyond the logical conclusions drawn therefrom. Respondents rely primarily upon the statement at Request No. 32. The Request states that the Respondents had received a Petition signed by a majority of the unit members "who no longer desire to be represented by the Union." The Respondents also rely on Request for Admission No. 34, which states the Petitioner admitted without answering that the Respondents’ refusal to recognize the Petitioner was "only after receiving a petition signed by a majority of the employees in the Cass County bargaining unit indicating that they no longer wish to be represented by the Petitioner." However, Request for Admission No. 33 contradicts both Requests for Admission No. 32 and No. 34, because it states (as does the Petition) that the employees signing it are dissatisfied with the efforts of the Union and that they are "requesting at this time to be allowed a re-vote."

Request No. 32 establishes that the Respondents received the petition and that it was sent to the Petitioner, and that recognition was being unilaterally and immediately withdrawn because a majority of the bargaining unit members no longer desired to be represented. Request No. 34 establishes that the Petition "indicated" that a majority of the members no longer wished to be represented. These requests, fairly read together, do not establish an actual Petition clearly indicating that the Union members do not wish to be represented by the Union, since Request No. 33 clearly shows on its face that it is simply a request for a re-vote. It cannot be read, even in light of Requests Nos. 32 and 34, as a request for unilateral decertification. No fair and reasonable reading of the clear language of the Petition could lead to the conclusion that it was a request for unilateral decertification. We do not find that the Requests for Admission can be deemed to firmly establish a petition for Respondents to unilaterally withdraw certification.

Even if the petition signed by the employees could be read as such a request for unilateral action by the employer, it can have no such effect under Nebraska law. The Nebraska Industrial Relations Act provides for certification of the bargaining unit by the Commission, with negotiations then to take place between the employer and the Union. If the employer or bargaining unit members no longer desire to have the union represent the bargaining unit, then the rules of the Commission provide for a decertification procedure, as authorized by the Industrial Relations Act. We are aware that the decisions of the National Labor Relations Board do allow such unilateral withdrawal of recognition by an employer under certain limited circumstances. However, we do not find that such is permitted by the laws of Nebraska. This case provides a perfect example of why such unilateral action is not to be permitted under our Industrial Relations Act. Almost exactly one year after certification of the unit, unit members began circulating a petition requesting a re-vote. To allow such a request to result in anything other than a Petition for Decertification in accordance with the Commission’s rules for notification and voting, would invite abusive practices. The Commission’s rules provide for the type of fair process wherein intelligent and voluntary decisions can be more fairly assured. Public interests are not served if, every time a group of employees expresses dissatisfaction with the results obtained or not obtained by its representatives through the negotiation process, the process is subjected to a potentially self-serving determination by the employer as to whether it is sufficient for the employer to unilaterally withdraw recognition. The process of collective bargaining established by the Industrial Relations Act is better protected by requiring that the procedures established by the Commission, be followed. In sum, 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 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, 94^th Leg., 1^stSess., 1995.

Therefore, we find that the Respondents, County of Cass; and Boyd Linder, Louis Allgayer, Robert Clancy, Joe Solomon, and Paul McManis, Cass County Commissioners, refused to negotiate in good faith with respect to mandatory topics of bargaining, interfering with the employees’ exercise of rights granted by the Industrial Relations Act, refusing to negotiate collectively with representatives of the collective bargaining agents as required by the Industrial Relations Act, and denying the rights accompanying certification or recognition granted by the Act, in violation of Neb. Rev. Stat. § 48-824(1), (2)(a),(c),(e), and (f) (Reissue 1998). Respondents are required to negotiate with Petitioner in good faith until or unless decertification proceedings have been held in accordance with the Industrial Relations Act and the rules of this Commission.

Due to our findings above, we do not need to make a determination or voice an opinion regarding the question of whether Petitioner’s claims were time-barred under Neb. Rev. Stat. § 48-825(1).

In ordering an appropriate remedy pursuant to Neb. Rev. Stat. 48-825(2), we note that the rules of the Commission were recently amended to authorize an award of attorney fees when the Commission finds that a prohibited practice has occurred. Neb. Comm. Ind. Rel. R. 42. Such an award would not be appropriate in all cases, but should be reserved for cases where the employer’s misconduct was flagrant, aggravated, persistent, and pervasive. J.P. Stevens & Co., 244 NLRB 407, 102 LRRM 1039 (1979), enforced and remanded, 668 F.2d 767, 109 LRRM 2345, 2352 (4^th Cir. 1982); J.P. Stevens & Co. v. NLRB, 458 US 1118, 110 LRRM 2896 (1982). In the instant case, the evidence shows that Respondents’ attempts to unilaterally withdraw recognition from the Petitioner may have met this standard, but the Petitioner did not request such relief in its Petition, nor did Petitioner request such relief at the Pre-trial conference.

IT IS THEREFORE ORDERED THAT:

1. Respondents are required to negotiate with Petitioner in good faith until or unless decertification proceedings have been held in accordance with the Industrial Relations Act and the rules of this Commission.   

2. The parties shall commence good faith negotiations over those items enumerated in paragraph one (1) within thirty (30) days.

All panel judges join in the entry of this order

Issued January 28, 2004