14 CIR 89 (2002)  Affirmed 265 Neb. 817, 660 N.W. 2d 480 (2003).


                                  Petitioner, ) FINDINGS AND ORDER
         vs. )
                                  Respondent. )



For Petitioner: Thomas F. Dowd
Dowd & Dowd
1905 Harney Street
Suite 620
Omaha, NE  68102
For Respondent: Roger K. Johnson
506 Main Street
P. O. Box 160
Plattsmouth, NE  68048

Before: Judges Orr, Blake, Burger, Council and Lindahl (EN BANC)



International Union of Operating Engineers Local 571, (hereinafter, "Petitioner") filed a Petition pursuant to NEB. REV. STAT. § 48-824(1) (Reissue 1998), claiming that the City of Plattsmouth (hereinafter "Respondent") committed a prohibited practice of refusing to bargain in good faith over the effects on the bargaining unit of the Respondent’s elimination of the Parks Department, which included the subsequent layoff of an employee for which the Petitioner was the recognized collective bargaining representative. Petitioner seeks "that the laid-off employee be reinstated with back pay, and that the Respondent be ordered to engage in good faith collective bargaining with Petitioner concerning the layoff of bargaining unit employees."

Respondent filed an Answer admitting that it did in fact eliminate the Parks Department and created the Street and Property Maintenance Department. It admitted that one full-time bargaining unit employee of the Parks Department was laid off. Respondent alleged that the Petitioner waived its right to bargain.

As discussed below, the Commission finds that the Respondent unilaterally determined to lay off a member of the recently organized bargaining unit, as a result of Respondent’s reorganization of its departments. No bargaining over the effects or impact of this reorganization upon the membership of the bargaining unit ever occurred. The evidence does not support a waiver of Petitioner’s right to bargain, and the Commission finds that the Respondent’s failure to bargain over the effects of this reorganization on the bargaining unit membership is a prohibited practice as defined in NEB. REV. STAT. § 48-824(1) (Reissue of 1998).


On or about July 16, 2001, Petitioner requested voluntary recognition of International Union of Operating Engineers Local 571 as the bargaining representative for a unit encompassing four departments, including Parks and Street Department employees. Petitioner presented cards to the City Council of Plattsmouth for a card check. At the July 16, 2001 City Council meeting, recognition was not granted. Instead, the City Council determined that the card check would be performed by an independent third party. This independent card check determined that the Petitioner in fact had cards representing a majority of the Respondent’s employees in the proposed unit. Representatives of the Petitioner again appeared at the August 6, 2001 City Council meeting to request recognition on the basis of the results of the card check. The Respondent did not grant the request of the Petitioner at the August 6, 2001 Council meeting. At the August 20, 2001 City Council meeting, the Respondent voluntarily recognized the Petitioner as the collective bargaining representative for these employees.

On September 24, 2001, the Respondent conducted a special meeting. At this meeting, Respondent eliminated the Parks Department, with its function transferred to the Street Department. On September 25, 2001, the Respondent laid off a Parks Department employee, who was a member of the bargaining unit, Randy Winters. He was provided severance benefits through October 9, 2001. No bargaining over the effects of the reorganization occurred. In fact the Petitioner had no advance knowledge of the September 24, 2001 meeting.

No collective bargaining agreement existed between the parties. No discussions had even commenced since recognition. At the October 1, 2001 City Council meeting, the Respondent appointed its first negotiating committee to bargain with the Petitioner. The first negotiating meeting between the Petitioner and the Respondent occurred on October 18, 2001.

On August 6, 2001, a City councilman of Respondent, John Porter, spoke briefly with Dean Hightree, Petitioner’s business manager, about the Parks Department. In this conversation, Porter told Hightree that "we have problems with the Parks Department, we need to do something about it." Hightree responded to Porter by remarking, "whatever you do, make sure you do it the right way." Other than this brief exchange, the parties did not further discuss the Parks Department, either after recognition, or before the action on September 25, 2001.


Mandatory Subjects of Bargaining

We must first determine whether the effects resulting from the elimination and reorganization of Respondent’s department was in fact a mandatory subject of bargaining. There are three categories of collective bargaining subjects: mandatory, permissive, and prohibited. The IRA only requires parties to bargain over mandatory subjects. NEB. REV. STAT. § 48-816(1). Permissive 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 other party is not required to bargain over permissive subjects. Id. Finally, prohibited subjects are topics which the law forbids the parties from agreeing upon. The Commission in Service Employees International Union, Local No. 226 v. School Dist. No. 66, 3 CIR 514 (1978), used a relationship test in determining bargaining issues. "Whether an issue is one for bargaining under the Court of Industrial Relations Act depends upon whether it is primarily related to wages, hours and conditions of employment of the employees, or whether it is primarily related to formulation or management of public policy." Id. at 515; See also Coleridge Educ. Ass’n v. Cedar County School Dist. No. 14-0541, a/k/a Coleridge Community Schools, 13 CIR 376 (2001).

The Commission is required by the Industrial Relations Act to hear and determine charges of prohibited practices, and to craft an appropriate remedy if a prohibited practice is found. Failure to bargain over a mandatory subject of bargaining is a prohibited practice. Unfortunately, we do not find much guidance in the Act as to what is a mandatory subject of bargaining, or what is an appropriate remedy.

We find little Nebraska law on the issue of a duty to engage in effects bargaining. Metropolitan Technical Community College Education Association v. Metropolitan Technical Community College Area 203 Neb. 832, 281 N.W.2d, 201 (1979) contains a discussion of the distinctions between mandatory subjects of bargaining, and issues that are management prerogatives:

A matter which is of fundamental, basic, or essential concern to an employee’s financial and personal concern may be considered as involving working conditions and is mandatory bargainable even though there may be some minor influence on educational policy or management prerogative. However, those matters which involve foundational value judgments, which strike at the very heart of the educational philosophy of the particular institution, are management prerogatives and are not a proper subject for negotiations even though such decisions may have some impact on working conditions. However, the impact of whatever decision management may make in this or any other case on the economic welfare in this or any other case on the economic welfare of employees is a proper subject of mandatory bargaining.

Although in the strictest sense, this discussion was only dicta, it was relied upon by the Commission in Hastings Education Association v. School District of Hastings, County of Adams, 4 CIR 226 (1980). The Commission concluded that although structure of a reduction in force policy was a management prerogative and not bargainable, the impact of such a policy on the economic welfare of the employees was mandatorily bargainable.

This language was also cited by the Commission in Educational Service Unit No. 12 Education Association v. Educational Service Unit No. 12, 9 CIR 97 (1987) to reject the employer’s contention that its reduction in force policy was strictly a management prerogative, and the impact of the policy was not subject to bargaining.

In situations where our statutory provisions are substantially similar to the NLRA, and the issue is not definitively settled in Nebraska, we may look to the NLRB for guidance. NLRB and United States Supreme Court interpretation of "wages" and "conditions of employment" under the NLRA can serve as a guide to what constitutes negotiable subjects under Nebraska law. Norfolk Educ. Ass’n v. School Dist. of Norfolk, 1 CIR 30 (1971). The Nebraska Supreme Court has repeatedly held that "[d]ecisions under the NLRB are helpful where there are similar provisions under the Nebraska statutes", Nebraska Pub. Emp. v. Otoe City, 257 Neb. 50, 63, 595 N.W. 2d 237 (1999) (quoting University Police Officers Union v. University of Neb., 203 Neb. 4, 12, 277 N.W. 2d 529, 535 (1979)). We have also held that Sections 8(a), 9(a), and 8(d) of the NLRA are substantially similar to NEB. REV. STAT. § 48-824. See Fraternal Order of Police Lodge 41 v. County of Scotts Bluff, et. al., 13 CIR 270 (2000); and Crete Educ. Ass’n v. Saline Cty. School Dist. No. 76-0002, a/k/a Crete Public Schools, 13 CIR 361 (2001). Therefore, decisions interpreting the NLRA may be helpful as guidance interpreting NEB. Rev. Stat. § 48-824(1).

Under the NLRA, a layoff of an employee effects a material, substantial, and significant change in the affected employee’s working conditions. NLRB v. Katz, 369 U.S. 736, 747 (1962); Warehouse & Office Workers Local 512 v. NLRB, 795 F.2d 705, 710-11, 9 CIR (1986). Accordingly, under the NLRA where there is a layoff scenario, certain requirements must be met in order to observe the good-faith bargaining obligation of Section 8(a)(5). Thus, although we believe that the decision to make an economic layoff falls within the employer’s exclusive discretion, the rules under which layoffs are to be made are a mandatory subject of bargaining. See Odebrecht Contractors of California, Inc. v. International Union of Operating Engineers, Local 12, AFL-CIO, 324 NLRB No. 74, 156 LLRM 1123 (1997). It is also clear under the NLRA that where a preexisting collective bargaining agreement has not established the rules for layoffs, an employer who wishes to make changes which will result in a layoff must at the very least provide timely notice to the Union that a layoff decision has been made, giving the Union the opportunity to bargain about how it will change the circumstances of the affected employees. Specifically, in Clements Wire, 257 NLRB 1058, 1059 (1981), the Board said: "Although an employer may properly decide that an economic layoff is required, once such a decision is made the employer must nevertheless notify the Union, and upon request, bargain with it concerning the layoffs, including the manner in which the layoffs and any recalls are to be effected."

This principle was revisited in Porta-King Building Systems v. NLRB, 14 F.3d 1258, 8 CIR (1994), enfg. 310 NLRB 539 (1993). There, an employer had opened a new plant on a nonunion basis, relying on a past practice in effect at its older, unionized plant. The employer laid off five employees without notice to the union, although the union had been recently certified at the new plant. The court observed, using that fact pattern as its context, "layoffs are a compulsory subject of bargaining and therefore a unilateral layoff by Porta-King violates Section 8(a)(5)."

With these decisions in mind, we conclude that the Respondent had a duty to bargain with Petitioner over the manner in which any layoffs were to be effected. At the September 24, 2001 special meeting, the Parks Department was eliminated, with its functions transferred to the Street Department. Then, the Respondent unilaterally decided to lay off Randy Winters, effective September 25, 2001. As a result, the Union never had the opportunity to discuss the criteria for choosing which employees were to be laid off (or conversely, kept). After reviewing these NLRB cases, we conclude that the Respondent had a duty to bargain with Petitioner over the effects of the action taken September 24, 2001.


The Respondent asserts that the Union waived its right to bargain over this issue because of the conversation between Mr. Porter and Mr. Hightree. Respondent asserts that the Petitioner waived its right to bargain when Dean Hightree said, "whatever you do, make sure you do it the right way."

This conversation occurred on August 6, 2001, prior to recognition, and the existence of the Union’s right to bargain about such a layoff. A waiver of a statutory right must be clear and unmistakable. Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983). The Commission has accepted the clear and unmistakable standard as the proper standard for proving waiver of a statutory duty to bargain. The burden is on the party asserting waiver. Fraternal Order of Police, Lodge No. 21 v. City of Ralston, Nebraska, 12 CIR 59, 66 (1994).

We conclude that the brief conversation between two old acquaintances on August 6, 2001, was not such a clear and unmistakable notice of planned layoffs by Respondent as to trigger the Petitioner’s duty to demand bargaining. Notwithstanding its questionable legal impact due to it occurring before recognition, Mr. Porter’s comments could have reasonably been inferred to have any number of other unrelated meanings (e.g. the possibility of disciplinary terminations). Respondent has not met its burden of proving a waiver by Petitioner of its right to effect bargaining.

Remedial Authority

The Petitioner requests that Randy Winters be reinstated with back pay as the appropriate 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) point out certain limitations in the Commission’s authority to issue prohibited practice remedies. In University Police Officers, the Court held that in an administrative agency, the power must be limited to the expressed legislative purpose and administered in accordance with standards described in the legislative act. 203 Neb. 4, 13. The Court further felt that the limitations of the power granted and the standards by which the granted powers are to be administered must be clearly and definitely stated and such powers may not rest on indefinite, obscure, or vague generalities or upon extrinsic evidence not readily available.

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 public employer to take any more action than is necessary to preserve and protect the statutes 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.

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 desist from charging insurance fees, to reimburse the fees withheld, and to post a notice to employees promising not to commit the same prohibited practices.

The Commission also found a prohibited practice in State Law Enforcement Bargaining Council v. State of Nebraska, 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 subsequently interpreted the Commission’s remedial authority much more 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 acknowledged that § 48-819.01 was enacted as a result of its decision in University Police Officers, and found the Commission’s award of interest to be within its statutory authority despite no express reference in the Statute.

Finally, the Supreme Court approved of what was de facto 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 Neb. Rev. Stat. §§ 48-816, 48-819.01, and 48-823 to issue appropriate remedies that will effectuate the policies of the Act, 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. Therefore, having found that the Respondent has engaged in prohibited labor practices, we find that it must be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the IRA.

However, the Petitioner specifically requests that the Commission should appropriately order reinstatement of Randy Winters with back pay. The Commission has never ordered reinstatement, or back pay as an appropriate remedy under Neb. Rev. Stat. §§ 48-816, 48-819.01, and 48-823.

In this type of case before the NLRB, the power to order reinstatement and back pay is specifically set forth in Section 10(c).

Section 10(c) provides:

If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including the reinstatement of employees with or without back pay, as will effectuate the polices of this Act: Provided, that where an order directs reinstatement of an employee, back pay may be required of the employer or labor organizations, as the case may be, responsible for the discrimination suffered by him …

With respect to back pay, the NLRB requires that the amount of back pay be computed under what is known as the Woolworth formula. F.W. Woolworth Co., 90 NLRB 289, 26 LRRM 1185 (1950). The back pay period normally begins with the discharge of the employee. The back pay period normally terminates upon the offer of reinstatement to the employee. The Board deducts interim earnings from the back pay award. F.W. Woolworth Co., 90 NLRB 289, 26 LRRM 1185 (1950). Furthermore, where the employer unlawfully failed to bargain about the effects of its decision, the remedy will ordinarily include an order to bargain about such matters. Atlantic Brands, 297, NLRB No. 22, 132, LRRM 1310 (1989). Finally, the Board also requires the payment of interest on back pay. See New Horizons for the Retarded, 283 NLRB 1173 (1987).

Clearly under the NLRA, the reinstatement with back pay is a proper and traditional remedy for a violation of 8(a)(5). We find that a violation of 8(a)(5) is sufficiently similar to a violation of Neb. Rev. Stat. § 48-824(1), to seek guidance from NLRB decisions. With such guidance, the only appropriate remedy in this instance appears to be reinstatement with back pay, and Respondent proposes no alternative remedy.




1. Respondent shall cease and desist from unilaterally implementing changes in terms and conditions of employment which are mandatory subjects of bargaining, and which shall include the effects of layoffs within the Petitioner’s bargaining unit.

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


3. The Respondent shall make whole the employee, Randy Winters, who was laid off from the Parks Department effective at the termination of severance benefits on October 9, 2001, by paying him his normal wages from the date of the layoff until the earliest of the following conditions are met.

a. the return to work date contained in an unconditional good faith offer of reinstatement to Randy Winters; or


b. mutual agreement between Petitioner and Respondent as to the manner, method, and effects of layoffs; or


c. good faith bargaining resulting in a bona fide impasse; or

d. failure of the Petitioner to commence such negotiations within 30 days of the Respondent’s notice of its desire to bargain with the Petitioner; or


e. the subsequent failure of the Petitioner to bargain in good faith.


4. Back pay shall be based on the earnings the laid-off employee normally would have received during the applicable period, less any net interim earnings, and shall be computed in the manner set forth in F.W. Woolworth Co., 90 NLRB 289 (1950), plus interest as set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987).


All panel judges join in the entry of this order.


Issued April 23, 2002.