15 CIR 1 (2004)  Affirmed. Neb.App.470, 731 N.W.2d 901 (2007)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

REGINA DAVIS, DAWN RUSSELL- ) CASE NO. 1061
CUMMINGS, DANIELLE MATTHEWS, )
TINA MEYERS, DELORES SIMPSON, )
CHANTELLA WALLACE, JACK NELSON, )
and JOHNNIE MANN, )
)
                                  Petitioners, )
         vs. ) FINDINGS AND ORDER
)
FRATERNAL ORDER OF POLICE LODGE  )
NO. 8 OF DOUGLAS COUNTY, NEBRASKA, )
)
                                  Respondent. )

 APPEARANCES:

For Petitioners: Thomas M. White and C. Thomas White
White and Wulff
209 South 19th Street, Suite 300
Omaha, NE  68102
For Respondent: John E. Corrigan
Fahey and Corrigan, P.C.
1623 Farnam Street, Suite 850
Omaha, NE  68102

Before: Judges Orr, Blake, and Burger.

ORR, J.

NATURE OF THE PROCEEDINGS:

Regina Davis, Dawn Russell-Cummings, Danielle Matthews, Tina Meyers [sic], Delores [sic] Simpson, Chantella Wallace, Johnnie Mann and Jack Nelson, (hereinafter, "Petitioners") filed a Petition on October 31, 2003 pursuant to Neb. Rev. Stat. § 48-824, claiming that the Fraternal Order of Police Lodge No. 8 of Douglas County (hereinafter "Respondent") committed various prohibited practices. Petitioners seek a cease and desist order directed to the officers of the Respondent ordering them not to engage in prohibited practices, an order directing the officers of the Respondent to post a notice directed to the correction officers promising not to commit the prohibited practices, suitable attorney fees to Petitioners’ attorneys, complete books and records of the Respondent to be opened to the Petitioners for an inspection and audit, and a requirement that the Union leadership fully disclose to all members of the bargaining unit the terms and conditions of their demands to Douglas County and the progress of all bargaining discussions.

Respondent filed an Answer on November 20, 2003, denying the Petitioners’ allegations and claiming that the Commission lacked subject matter jurisdiction to hear the case, that the Petitioners failed to comply with the applicable statute of limitations under Neb. Rev. Stat. § 48-825(1) and that the Commission is without jurisdiction to enter some of the relief requested by the Petitioners.

The Commission of Industrial Relations (hereinafter, the "Commission") conducted a Preliminary Proceeding on January 12, 2004, and held a Pretrial Conference on April 19, 2004. At the Pretrial Conference, the parties agreed to the following issues to be presented at trial:

    1. Petitioners alleged the following issues:
    2. 1. Petitioners allege several controversies concerning the refusal of the Respondent to fairly represent the Petitioners in the negotiations of the collective bargaining agreement governing the terms and conditions of their collective employment as well as in matters of discipline and grievances which involve minority members of the bargaining unit.

      2. The Petitioners allege that the Respondent, through its officers and directors, have engaged in a prohibited practice in violation of Neb. Rev. Stat. § 48-824 as follows:

      a. By refusing to fairly bargain with the employer, Douglas County, in the matter of rule changes, with respect to:

      (i) the use of only female guards to supervise female prisoners,

      (ii) the subsequent denial of the normal seniority rights of female guards in the matters of bids for work shifts, vacation, forced overtime and similar matters.

      (iii) adequate relief for female guards so they can obtain timely relief to address various sanitary needs;

      b. By actively opposing and harassing female Petitioners in their efforts to obtain equal working conditions and opposing any attempt to secure changes in the terms and conditions of their employment;

      c. In refusing to represent, and in fact using the resources of the Respondent to oppose, the Petitioners’ efforts to obtain equal terms and conditions of employment in lobbying efforts before the Nebraska Legislature and Douglas County;

      d. In failing and refusing to advocate for female and minority members of the bargaining unit who are confronted with grievances and disciplinary matters. The Respondent thereby discouraged membership in the union by minorities and females. The Respondent then demands financially prohibitive retroactive dues payments by former union members to discourage reinstatement and changes in Union leadership and policy.

      3. The Petitioner, Jack Nelson, alleges that the Respondent engaged in a prohibited practice by denying to minority members of the bargaining unit representation in disciplinary matters. In one incident, after the Respondent refused to assist in the disciplinary hearing, Petitioner Jack Nelson as an individual successfully represented the minority employee. The Respondent, in retaliation, then removed him from the office of union steward as punishment for representing the employee.

      4. That the Respondent has failed and refused to make adequate disclosure to members of the bargaining unit of its initial demands and progress in contract negotiations with Douglas County. That the Respondent has a history of disclosing nothing of substance to the members of the unit until just before the vote of the members on the contract, thereby restricting the rights of individual members to understand and comment on contract proposals.

      5. That the acts of the Respondent are ongoing and continue within the six months immediately preceding the filing of this Petition.

      6. The Petitioners further allege on information and belief that improper and unauthorized expenditures are being made from Respondent funds.

    3. Respondent alleges the following issues:

1. Whether any of the Petitioners’ issues under Neb. Rev. Stat. § 48-825 (1) fall beyond the statute of limitations.

2. Whether the Commission lacks subject matter jurisdiction over the claims of the Petitioners as alleged in paragraphs 5(2), 5(3), 5(4), 6, 7, and 9 in the Petition and therefore those allegations ought to be dismissed.

A Trial on the above listed issues was held on Tuesday, April 27, 2004, Wednesday, April 28, 2004, and Thursday, April 29, 2004. At Trial, the Petitioners did not present any evidence on behalf of Danielle Matthews or Johnnie Mann. Accordingly, pursuant to Respondent’s Motion to Dismiss raised at the close of the Petitioners’ evidence, both Danielle Matthews and Johnnie Mann were dismissed as Petitioners and Issues A2c, A4, and A6 were dismissed as well.

As discussed below, the Commission finds that it has jurisdiction on Respondent’s issue B2 and that the Petitioners’ allegations are not prohibited by any expiration of the statute of limitations under Respondent’s issue B2 and Petitioners’ issue A5. The Commission finds that the Respondent failed to meet its duty of fair representation with regard to issues A1 and A2a as listed above. However, with regard to issues A2b, A2d and A3, the evidence presented at trial does not support the Petitioners’ allegation that the Respondent failed to properly meet its duty of fair representation with regard to those issues as a prohibited practice defined under Neb. Rev. Stat. § 48-824.

FACTS:

Petitioners are all employees at the Douglas County Correction Center located in Omaha, Nebraska. The Petitioners’ job positions are all included in one bargaining unit. These job positions include Corrections Officer I, Corrections Officer II, Corrections Officer III, Corrections Officer IV, Control Room Operators, and the Classification Department employees, excluding all part-time, seasonal and temporary employees. This bargaining unit is represented by the certified bargaining representative Fraternal Order of Police Lodge No. 8 of Douglas County, or the Respondent in these proceedings, and out of the estimated 270 to 300 employees in the bargaining unit approximately 225 are members of the union.

The Petition in this case alleges multiple levels of conduct on the part of the Respondent, which allegedly violate Neb. Rev. Stat. § 48-824. Petitioners testified throughout the three-day trial that multiple issues exist between them and Douglas County, but the Respondent, despite numerous requests on the Petitioners’ part, has refused to present those issues to Douglas County. One of the issues is the Petitioners’ allegation that the lack of representation to the County occurs because of the Petitioners’ race and/or gender. This allegation includes the Union’s position to solely use female guards to guard female prisoners, the Union’s position to not promote the seniority rights of the female Petitioners, the Union’s stance on not advocating for relief of the sanitary needs of the female guards, and the Union’s position on refusing to actively lobby the Legislature for a change in the Neb. Rev. Stat. § 47-111 (1998), which provides:

In every county jail where there is a female prisoner, twenty-four-hour supervision shall be provided by a matron appointed by the county board, whose duty it shall be to have entire charge of the female prisoners, and the board may also in its discretion appoint such matron where there is a sick prisoner or one that is a minor under the age of sixteen. Such matrons shall be under the direction of the sheriff or such other person as may be charged with the administrative direction of the jail, shall take the necessary oath before entering upon the duties of the office, and shall be paid by the board from the county treasury only for the time actually engaged; Provided, that in counties having a population in excess of two hundred thousand inhabitants, a deputy or correctional officer shall be hired by the person whose duty it shall be to have charge of the female prisoners and perform those functions required of a deputy related to such duty, at a salary of not less than five hundred dollars per month, which salary shall be drawn out of the county treasury. Such matron, deputy or correctional officer shall, when required, report to the board or district judges.

The Petitioners also testified that these issues also include the active retaliation by the Respondent against the Petitioners who represent minority employees in grievance hearings, the Union’s failure to solicit views of all members of the bargaining unit in contract negotiation, the refusal by the Union to communicate information on issues in the negotiation process, and finally the Respondent’s alleged active discrimination against minority and female members of the bargaining unit.

Most of the testimony at trial surrounded the issues regarding the Union’s current and continuing interpretation of § 47-111 and all of the issues that are subsequent to the active implementation of that statute at the Douglas County Correctional Center. The Douglas County Correctional Center is composed of three female modules, F, G, and H. There are more male modules than female modules. A meeting to change the § 47-111 statute occurred on January 9, 2003 between the Respondent and the Douglas County administration, specifically Chief Deputy Ann O’Connor. This meeting resulted in a memo from Chief Deputy O’Connor, on January 29, 2004 in which she stated that the Respondent was and remains "adamantly" opposed to the attempted change in the state statute orchestrated by Douglas County administration. Furthermore, testimony throughout trial also supported Ms. O’Connor’s memo. Also in the January 9th meeting, the Respondent further explained to the administration of Douglas County that they "will do whatever they can" to make sure that a change in the state statute does not occur.

The Petitioners opened their testimony with a former employee of the Douglas County Correction Center, Art Marr. Art Marr was employed by the county from May of 1990 to October of 1998. He was president of the F.O.P. Lodge No. 8 between 1995 and 1996. At the end of 1996, Mr. Marr was offered a position as the administrative assistant to Warden Larry Johnson in charge of security and logistics. He accepted the position and became a member of the administration and was no longer a member of the union. As president of the union between 1995 and 1996 Mr. Marr had meetings with administration as well as during his time as an administrative assistant in 1997 and 1998. These meetings usually occurred once a week on Friday afternoons. Mr. Marr claims that during these meetings the union and the administration discussed targeting black males. Mr. Marr allegedly helped the union and the administration target black officers through the inmate phone system in the jail by taping their phone conversations with outside individuals. Furthermore, right before he left the union as president, Art Marr testified that he was asked by Christina Lustgarten, County Attorney assigned to the Corrections Department, and Bill McPhillips, who was the Chief Deputy Warden during part of Art Marr’s employment, to do what he could to elect Ross Stebbins as the next union president, allegedly because of Mr. Stebbins’ stance against African American employees. Throughout his testimony, Mr. Marr testified of numerous instances where the County and the Union colluded to target minority and female employees. Mr. Marr then testified that in October of 1998 his administrative position was eliminated and he was offered four other positions in the current bargaining unit, all of which he turned down. Subsequently, Mr. Marr left employment with the Douglas County Correctional Center.

Petitioners’ witness Walter Cummings testified that he is a member of the African-American Correctional Officer Association (hereinafter, the "AACOA"), which was formed to foster communication between the officers and the board of commissioners on issues within the jail with regard to inconsistencies in promotions, disciplinary practices and other labor issues. During the formation of the AACOA, Mr. Cummings was also a member of Lodge No. 8 but he left in approximately October of 1999. In sum, Mr. Cummings’ testimony was based on his belief that the Union was unwilling to communicate with the AACOA to resolve important issues to the membership of the AACOA.

Petitioners’ witness Dwand Hall testified that he has worked at the Douglas County Correctional Center for over thirteen years. At some point during his tenure he was a member of Lodge No. 8, although he left the union in 1997 or 1998 because of his sentiment that the Union was not representing all members equally and fairly. Mr. Hall then became a member of the AACOA and is currently the vice-president of that organization. Mr. Hall’s testimony surrounded an incident that occurred while he was assigned to the clothing area. When Mr. Hall was assigned to the clothing area he had complete access to all parts of the jail. While in the clothing area, Mr. Marr told him that the administration and the union were watching Mr. Hall for selling drugs in the correctional center. Mr. Marr also commented in his testimony that the reason for placing Mr. Hall in the clothing area was to isolate Mr. Hall from the rest of the jail population. Upon finding out the alleged intentions of the administration, Mr. Hall requested a transfer out of the clothing area. Mr. Hall received the transfer and was never disciplined for any drug involvement resulting from his time in the clothing area.

The Petitioners next presented the testimony of Regina Davis. Ms. Davis is a correctional officer, with the rank of sergeant for the past five years at the correctional center. During her past twenty years of employment, she was a member of Lodge No. 8 from approximately 1984 until 2001. In 2001 Ms. Davis left the union because she felt they were not fairly representing females and African-Americans. Ms. Davis discussed § 47-111 and its past impact on female employees. In 2000, Ms. Davis testified that females were having a hard time receiving adequate bathroom breaks because they were told that they could not be relieved by males any longer, only by females. Ms. Davis, prior to being a supervisor, had to personally wait up to three or four hours before she received a bathroom break and was forced to use inmates’ restrooms. Ms. Davis testified that since 2000, and continuing to the present day, she has attempted through her best effort to get the union to address the issue of females in the workplace at the Douglas County Correctional Center. Ms. Davis detailed varying experiences of female officers that she had observed over the past few years in receiving fewer preferential shifts because of the rules currently at place in Douglas County, as well as more overtime hours required of females than less senior male employees. Furthermore, Ms. Davis detailed a meeting at Senor Matias in 2000, with the union’s executive board, in which a group of female officers approached the union for help in changing these work rules and asked to address the union membership on those pressing female issues. After this meeting in front of the union leadership, the female employees where not allowed any opportunity to address the entire union membership, nor did the union make any additional attempts to solve the female employees’ issues. Ms. Davis also testified that during her first 15 years of employment, when males were allowed to break and guard female prisoners, the working conditions were significantly better. She remarked that under her supervision, both males and females received bathroom breaks expeditiously. However, she witnessed male supervisors in her same position not allowing females to receive bathroom breaks. Ms. Davis also testified that this occurred and is still ongoing for females guarding female housing modules as well as females guarding male housing modules.

Petitioner Jack Nelson testified that he has worked for Douglas County Department of Corrections for almost six years, holding the rank of Correctional Officer II. Mr. Nelson was a member of Lodge No. 8 from September of 1998 until February of 2003. During his time as a member of the union, Mr. Nelson served both as a union steward and on the grievance review board. Mr. Nelson, through his involvement in the Union as well as his individual involvement, testified to situations in which the union chose not to represent employees. After the Union declined to represent these employees, he took on their cases as those employees’ representative, winning several appeals for employees. He testified that in February of 2003 he received a letter from the union, stating that the union executive board voted to remove him as union steward and grievance review board member. After his removal as union steward, Mr. Nelson began having what he considered hate crimes committed against him. These hate crimes included graffiti written on bathroom walls in an employee-only access area of the jail, stating that Mr. Nelson was a racist and a Black Panther. Both the union and the administration agreed that the statements written on the bathroom wall were not racist. Other incidents included more writing on the bathroom wall, receiving in his mailbox, a picture of a monkey holding a banana, and finally in November of 2003, shortly after this case was filed in the Commission, Mr. Nelson received a death threat. Mr. Nelson also testified that it was his opinion, in his capacity as both an employee and as a union steward, that the union consistently treated certain females different than certain male employees.

The Petitioners next presented the testimony of Chantella Wallace. Ms. Wallace has worked for eight years at the Douglas County Department of Corrections and currently holds the position of Correction Officer III. Ms. Wallace was a member of Lodge No. 8 until January of 2001, leaving the union as a result of lack of minority officers including race and gender. Ms. Wallace testified that because of their gender, the female officers are forced to work the same housing areas, time after time, without rotating through the jail as required by the automatic rotation in place at the jail. Furthermore, Ms. Wallace testified that female officers have been forced to work overtime based on their gender and are not allowed adequate bathroom breaks. Ms. Wallace testified that since Ann O’Connor’s memo in 2003, the administration has been supportive of the efforts of the females in the Department of Corrections in both changing the current working conditions and seeking a change in the state statute § 47-111. However, upon the administration’s issuance of this memorandum, the workplace has become more hostile and male supervisors expressed their dissatisfaction by not allowing males to give females restroom breaks under any circumstances. Finally, Ms. Wallace testified that in her experiences she has seen more female officers terminated for having relationships with male inmates than male officers terminated for relationships with female inmates.

Petitioner Tina Myers testified with regard to females receiving restroom breaks. Up until a week before her testimony, Ms. Myers has had to wait anywhere from 30 minutes to an hour for a restroom break. Ms. Myers also testified to a very humiliating experience in which she had to wait so long for a restroom break in a male housing unit that she soiled herself. Ms. Myers also testified to being required to work forced overtime because of her gender. Ms. Myers further testified that she believed some of the problems with regard to female issues could be solved through bargaining for more appropriately scheduled employees to fill all of the positions at the jail during any particular shift.

The Petitioners also presented the testimony of Delois Simpson, an employee at Douglas County Corrections Center for approximately fifteen years. Ms. Simpson testified that she has been called out of a module in order to give bathroom breaks or to search incoming inmates. Ms. Simpson also testified that ninety percent of the time women do not receive timely restroom breaks.

Finally, Ms. Dawn Russell-Cummings testified on behalf of the Petitioner. Ms. Russell-Cummings testified to waiting for a bathroom break anywhere from an hour to an entire shift, causing her great discomfort. Ms. Russell-Cummings further testified that she had placed herself in danger by using an inmate’s toilet to relieve herself. She talked a great deal about being ordered to work forced overtime out of turn over less senior male employees. Ms. Cummings sent an e-mail to the union president requesting talk-time at a union meeting to address some of the female issues, which was denied.

At the close of the Petitioners’ evidence the Respondent renewed its Motion to Dismiss and Judge Orr sustained the motion with regard to A2(c), A4, and A6 and overruled the rest of the Respondent’s objections. The Respondent then presented numerous witnesses to dispute the testimony of Art Marr. Some of the witnesses claimed that the meetings Art Marr said allegedly occurred did not occur and other witnesses claimed that a few of those meetings did occur but the discussions did not center on discriminatory conduct. The Respondent also presented employee testimony to refute the testimony of the African-American and female employees. David Chamberline testified that the union held a vote on changing Neb. Rev. Stat. § 47-111. As the secretary of the Union, Mr. Chamberline testified that out of the 225 members, only 30 voted on the issue of changing § 47-111, 28 voting in favor of keeping the statute and 2 voting to change the statute. The Respondent also included two Caucasian female members of the bargaining unit and active members of Lodge No. 8. Kristin Banning testified that as an executive board member of the union, she has never had to wait excessive amounts of time for a bathroom break. Ms. Banning also testified as to a vote by the union and its members in which she voted against changing the state statute because getting breaks had never been a problem for her currently or in the past. Ms. Sandra Riha, a member of the union, testified that she had waited up to an hour and 15 minutes for a restroom break. Ms. Riha testified that during the vote by the Union regarding a change in the state statute, she and Mr. Nelson voted yes for the union to support the change in the state statute and the rest of the union that voted, voted no.

Finally, the Union presented the testimony of the union president, Ross Stebbins. Mr. Stebbins testified that he was "adamantly" opposed to a change in the state statute because of past experiences with female inmates accusing male guards of inappropriate sexual contact. Mr. Stebbins also testified that the Union has allowed non-members to address the union membership on many occasions.

Mr. Stebbins also testified that the union had been bouncing around the idea of offering amnesty to non-members around the time mediation first began in June of 2003. However, the vote for offering amnesty did not occur until after this case was filed. The union members voted unanimously to allow non-members back into the union for free during the month of February, 2004.

Currently, the Respondent and Douglas County are in negotiations for their next two-year contract for the years of 2003 to 2005. The parties’ current contract expired in July of 2003 and they are operating under a contract continuation clause in the 2001 to 2003 contract.

After a review of the testimony of Art Marr, we find his testimony to be less credible than the testimony presented by the Respondent’s witnesses. The evidence at trial demonstrated a strong difference in events between the testimony of Mr. Marr and other administrative employees. Mr. Marr also testified that the administration’s placement of Mr. Hall in the clothing area isolated him from the rest of the jail population when in fact such placement allowed Mr. Hall access to most parts of the jail. Therefore, we will accordingly disregard Mr. Marr’s testimony.

DUTY OF FAIR REPRESENTATION:

Jurisdiction

The Respondent argues the Commission lacks subject matter jurisdiction over claims of the Petitioners. The Petitioners argue that the Commission does have subject matter jurisdiction over the claims presented at trial under Neb. Rev. Stat. §§ 48-838(4), 48-824 and 48-825. While the Commission has had several cases in the past that briefly mention the duty of fair representation, the issue of whether the Commission can decide cases regarding the duty of fair representation in the context of a prohibited practice is one of first impression.

In situations of first impression, where our statutory provisions are substantially similar to the National Labor Relations Act (hereinafter, the "NLRA"), and the issue is not definitively settled in Nebraska, we may look to the National Labor Relations Board (hereinafter, "NLRB") decisions 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 Education Ass’n v. School District 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 [sic], 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 Education Ass’n v. Saline County School District 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).

When a union becomes the exclusive representative of employees in a bargaining unit under the NLRA, it also incurs a duty to represent fairly all employees in the unit or craft or class. A union representative in the organized workplace negotiates with management exclusively on behalf of all employees in the bargaining unit, allowing individual rights to be sacrificed for collective reasons. Because of this potential tyranny of the majority, individual employees have a right to fair representation under Section 8(b)(1)(A) of the National Labor Relations Act. See Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1975). Although couched in terms of statutory construction, the law of fair representation or duty of fair representation is essentially judge-made and primarily Supreme Court-fashioned as largely a creature of federal common law.

The Supreme Court first recognized the duty of fair representation in Steele v. Louisville & Nashville Railroad, 323 U.S. 192, 15 LRRM 708 (1944). Several black locomotive firemen alleged that the union representing them had agreed to a series of modifications of their collective bargaining agreement with the express purpose of eliminating the jobs of black workers. The Supreme Court determined that Congress clearly intended a duty of fair representation by conferring on the duly selected representatives the "plenary power… to sacrifice for the benefit of its members rights of the minority of the craft. 323 U.S. at 199, 15 LRRM at 711.The Court found that the use of the word "representative" in all contexts throughout the statute to plainly connote the duty of that representative to act on behalf of all the employees it represents.

From the outset, the Court indicated that the duty of fair representation was not limited to a duty to refrain from racial discrimination. In Wallace Corp. v. NLRB, the Court commented on the union’s duties as exclusive agent:

By its selection as bargaining representative it has become the agent of all the employees charged with the responsibility of representing their interests fairly and impartially; otherwise employees who are not members of a selected union at the time its chosen by the majority would be left without adequate representation.

323 U.S. 248, 255, 15 LRRM 697, 701 (1944). In subsequent cases, the Supreme Court reiterated that the duty of fair representation was broader than a duty to refrain from racial discrimination. See e.g., Railway Employees Department v. Hanson, 351 U.S. 225, 232 38 LRRM 2099, 2101 (1955); Radio Officers v. NLRB, 347 U.S. 17, 47-48, 33 LRRM 2417, 2429 (1954). In Ford Motor Co. v. Huffman, 345 U.S. 330, 31 LRRM 2548 (1953), the Court considered, for the first time, the merits of a duty of fair representation claim arising under the NLRA which did not involve race discrimination. In addition, Huffman was a turning point in the development of the duty of fair representation case law, because it was the first time the Court had occasion to consider union actions not involving intentional misconduct. Huffman’s major import is its emphasis on the discretion of the bargaining representative to make reasonable distinctions among employees without running afoul of its statutory duty. The Court further indicated that in most cases it would not evaluate the substantive merits of the union’s decisions. The Court concluded:

Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents subject always to complete good faith and honesty of purpose in the exercise of its discretion.

The Supreme Court in Vaca v. Sipes, 386 U.S. 171, 64 LRRM 2369 (1967) decided the standard for measuring a union’s duty of fair representation. The Court held that "a breach of duty of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." The Court’s standard of a duty to avoid arbitrary, discriminatory, or bad faith conduct followed logically from its prior decisions which exhorted unions to exercise good faith, honesty, and reasonable, to act without hostility or arbitrary discrimination, and to base decisions on relevant considerations which were not invidious, capricious, or arbitrary.

With regard to Nebraska law on the issue of duty of fair representation, the Commission has mentioned the issue in two past cases. In In re South Sioux City Municipal Electrician’s Association, 3 CIR 318 (1977), the Commission commented that, a bargaining representative has an obligation to fairly represent all members of a unit without discrimination. See Ford Motor Co. v. Huffman, 345 U. S. 330 (1953). If the interests of the members of a unit were so diverse that performance of this obligation was a practical impossibility, such a variegated unit might well be improper. Through its analysis, the Commission determined that pursuant to the allegation of the union breaching its duty of fair representation, while there was some complaint about the representation the electricians had received, none of it rose to the dignity of a breach of the duty of fair representation.

Also, the duty of fair representation was discussed in Marcy Delperdang v. United Electrical, Radio, and Machine Workers of America, 13 CIR 400 (2001). In that case, the Respondent asserted that the Commission could not amend the Bargaining Unit unless the Commission finds the Respondent has breached its duty of fair representation. In Delperdang, the Commission did not find any evidence that would indicate a breach of the duty of fair representation by the Respondent. Moreover, the Petitioner had not alleged breach of representation duties and likewise had not produced any evidence that the Respondent had breached its duty of representation. The Commission, when amending a bargaining unit, stated it did not consider the factor of breaching the duty of fair representation, citing Sheldon Station. Nonetheless, the Commission found that the evidence in the Delperdang case did not point to a breach in representation. The Respondent had tried to represent all members in the group. Therefore, the Commission concluded the Respondent’s actions were not wholly irrational or arbitrary. See Air Line Pilots Ass’n Int’l v. O’Neill, 499 U.S. 65, 111 S. Ct. 1127, 113 L.Ed.2d 51 (1991).

The statutory provisions and case law of both federal and Nebraska law are comparable and should be followed. With regard to the jurisdiction issue, it is clear that the Commission has the authority to determine prohibited practices with regard to the specific issue of the duty of fair representation. Therefore, the Commission finds it does not lack subject matter jurisdiction and can proceed to the merits of this case, after we determine the statute of limitations question presented by the Respondent.

Statute of Limitations for Duty of Fair Representation Claims

The Respondent also argues that the Commission cannot hear any of the Petitioners’ issues under Neb. Rev. Stat. § 48-824 because they fall beyond the statute of limitations set forth under Neb. Rev. Stat. § 48-825 (1). Petitioners, on the other hand, allege that the acts of the Respondent are ongoing and continue within the six months immediately preceding the filing of this Petition.

Neb. Rev. Stat. § 48-825 (1) states:

A proceeding against a party alleging a violation of section 48-824 is commenced by filing a complaint with the Commission within one hundred eighty days after the alleged violation thereby causing a copy of the complaint to be served upon the accused party.

 

The issue of the statute of limitations under any duty of fair representation in Nebraska is one of first impression. Like the issue of jurisdiction above, the Commission will look to the NLRB for guidance in cases where its statutes are comparable or similar.

In Del Costello v. Teamsters, 462 U.S. 151, 113 LRRM 2737 (1983), the Supreme Court determined that Section 10(b) of the National Labor Relations Act applies to duty of fair representations claims. Section 10(b) of the NLRA provides that "no complaint shall issue based upon any unfair labor practice occurring more than six month prior to the filing of the charge with the Board and the service of the copy thereof upon the person against whom such a charge is made…"

The limitation period for duty of fair representation claims begins to run when the cause of action accrues. Many federal courts have determined that accrual occurs when the employee discovered, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged violation. See e.g., Galindo v. Stoody Co., 793 F.2d 1502, 1509, 123 LRRM 2705, 2709 (9th Cir. 1986); Howard v. Lockheed-Georgia Co., F.2d 612, 614, 117 LRRM 2784, 2785 (11th Cir. 1984); Farr v. H.K. Porter Co., 727 F.2d 862, 864, 115 LRRM 3606, 3609 (5th Cir. 1984). Courts have been generally consistent in concluding that accrual occurs when the employee learns of the duty of fair representation breach rather than when the breach adversely affects the employee. However, in the instant case, the Petitioners allege that the Respondent has committed continuing violations that have occurred for years in the past and have continued up until the filing of this Petition and in certain instances still occur. Often, petitioners who find their claims barred by the statute of limitations allege that there is no real bar because they are victims of "continuing violations". They contend that each time a union and/or an employer acts in a way contrary to their interests, the breach continues. In cases of continuing conduct, "the statute of limitations ordinarily runs from the occurrence of each [discriminatory] act." Hernadez Jimenez v. Calero Toledo, 604 F.2d 99, 101 (1st Cir. 1979). The continuing violation theory, however, cannot be used to defeat a statute of limitations defense where there clearly is a discrete act, which establishes damages accruing to the plaintiff. Delaware State College v. Ricks, 449 U.S. 250, 24 FEP Cas. 827 (1980); United Air Lines v. Evans, 431 U.S. 553, 14 FEP Cas. 1510 (1977). Courts have accepted the continuing violation theory in the duty of fair representation context, but predominately in cases where the union has discriminated on the basis of sex or race. For example, in Jamison v. Olga Coal Co, 335 F. Supp. 454, 4 FEP Cas. 532 (S.D. W. Va. 1971), an employee sued his employer and his union alleging that the employer had continuously failed to promote him because of his race, and the union failed to protest such practices or take any action to ensure equal job opportunities for its black members. The U.S. District Court for Southern West Virginia observed that since the employee had alleged "numerous instances of unfair or discriminatory representation of Black employees," the evidence may prove "continuing discriminatory conduct on the part of the defendant unions …[and] may very well involve instances of unfair representation as recent as the time of the filing of this complaint." Similarly, in Marlowe v. General Motor Corp., 489 F.2d 1057, 6 FEP Cas. 1083 (6th Cir. 1973), the Sixth Circuit accepted as true an employee’s claim of continuing violation in a suit alleging Title VII and duty of fair representation causes of action and denied the defendant’s motion to dismiss the action as untimely. The employee had alleged a conspiracy between his employer and union to establish and preserve a seniority system that limited employment and promotional opportunities of Jewish employees, "continuously occurring over the plaintiff’s period of employment … and up to and including the present time or after the filing of the original complaint."

In the instant case, the Petitioners have presented a significant amount of evidence that establishes a clear and continuing pattern of activity on the part of the union. Furthermore, the Respondent and Douglas County are currently in negotiations for their next two-year contract for the years of 2003 to 2005. The parties’ current contract expired in July of 2003 and they are operating under a contract continuation clause in the 2001 to 2003 contract. The union continues to have the ability to negotiate any issues that are mandatory subjects of bargaining. Therefore, no cause of action has accrued with regard to any negotiable issues. Furthermore, the issues are ongoing. The evidence presented at trial, like in Marlowe, clearly established that the union’s actions or lack thereof have continuously occurred over the petitioners’ employment … and up to and including the present time or after the filing of the original complaint. Therefore, we find that the remaining Petitioners’ allegations are not barred by any expiration of the statute of limitations under Neb. Rev. Stat. § 48-825(1).

Lack of Representation for Collective Bargaining (Issue A1 and Issue A2a)

The Petitioners claim that the Respondent has consistently refused to fairly represent the Petitioners in negotiations of the collective bargaining agreement governing the terms and conditions of their collective employment, as well as in matters of discipline and grievances which involve minority and female members of the bargaining unit. The Petitioners also argue the Respondent has failed to represent them in bargaining with respect to the use of female guards to supervise female prisoners, the subsequent denial of the normal seniority rights of female guards in the matters of bids for work shifts, vacation, forced overtime and similar matters, and for adequate relief for female guards so they can obtain timely relief to address various sanitary needs. The Respondent argues all of the Petitioners’ issues are a result of staffing of the jail, a problem of management and one over which the Respondent claims it has no control.

With regard to the female relief issues, the evidence presented at trial demonstrates a complete lack of concern on the part of the Respondent to address and try to remedy the clearly abhorrent and discriminatory situation these women face on a daily basis. As the sole bargaining representative to all members of the bargaining unit, the Respondent is charged with the responsibility of representing their interests fairly and impartially. In finding that the Respondent has been discriminatory in its actions, the Commission is mindful that the union will never enjoy the complete satisfaction of all who are represented and accordingly, a wide range of reasonableness must be allowed to a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion. However, in exercising its discretion, the Respondent cannot arbitrarily ignore female and/or non-member females that have valid reasonable concerns, especially those concerns about basic human needs and safety issues. Furthermore, the Respondent does have control over bargaining with Douglas County with respect to all mandatory subjects of bargaining, which include the basic working conditions such as timely restroom breaks and seniority rights. It is clear from the testimony that females have been disproportionately affected with regard to seniority rights because of the impact of § 47-111 and the Respondent has never attempted to find a workable solution. The female employees’ lack of opportunity to rotate throughout the jail and to be promoted within the facility has severely impacted their working conditions, without much representation from the union. The testimony of the Respondent’s witnesses demonstrated that the female members of the union have fewer problems with regard to restroom breaks than the female non-members of the union; yet, nonetheless all female members of the bargaining unit, both members and non-members of the union, have disproportionately been affected. The evidence also demonstrated that the female non-members were not afforded the same consideration to speak in front of the union membership as other non-members. Therefore, because the evidence demonstrates that female issues have largely been ignored in bad faith on the part of the Respondent, the Commission finds the Respondent breached its duty of fair representation to the female Petitioners.

Actively Opposing and Harassing Female Petitioners (Issue A2b)

The Petitioners also allege that the Respondent, through its officers and directors, have engaged in prohibited practice violations of Neb. Rev. Stat. § 48-824 by actively opposing and harassing female Petitioners in their efforts to obtain equal working conditions and opposing any attempt to secure changes in the terms and conditions of their employment. The Respondent denies this allegation.

After careful review of the evidence in the instant case, the Petitioners did not prove that the Respondent was actively opposing or harassing female Petitioners in their efforts to obtain equal working conditions and any attempt to secure changes in the terms and the conditions of their employment. Instead, most of the evidence surrounds the Respondent’s inaction, as opposed to any active opposition or harassing efforts. Therefore, we find the Petitioners’ evidence did not prove any breach of duty of fair representation or any action on the part of the Respondent with regard to active opposition or harassment.

Lack of Advocacy For Grievances and Disciplinary Matters and Discouragement of Membership (Issues A2d and A3)

The Petitioners allege that the Respondent, through its officers and directors, have engaged in prohibited practice violations of Neb. Rev. Stat. § 48-824 in failing and refusing to advocate for female and minority members of the bargaining unit who are confronted with grievances and disciplinary matters, as well as discouraging membership in the union by minorities and females.

The Respondent argues that with regard to issue A3, Mr. Nelson has failed to state a breach of a duty of fair representation or prohibited practice on the part of the Union with respect to any right he holds under the Industrial Relations Act both within and outside the time limitations for this Petition.

In review of the evidence presented at trial, the Petitioners did not prove the issue of discouragement of membership on the part of the Respondent. The Petitioners argue that the Respondent discouraged membership and then demanded financially prohibitive retroactive dues payment. The evidence demonstrates the opposite. The union president’s testimony indicated that the union voted to send an olive branch of amnesty to all employees. Furthermore, the Petitioners presented no evidence that certain employees were required to pay back past dues and other non-members were not required to pay past dues. Therefore, we find no breach of duty of fair representation with regard to the issue of membership.

In the instant case, with regard to the issue of lack of representation for grievances and disciplinary hearings, the Petitioners simply did not provide any evidence that showed certain employees were treated differently than other employees in hearings for representation for grievances or disciplinary hearings. Therefore, we find no breach of the duty of fair representation for lack of representation for grievances and disciplinary hearings.

Membership in the Union

The union is not required to treat members and non-members the same with respect to union meetings. Employees who are members of the union have certain benefits by virtue of their union membership; such as the right to manage and represent the union, attend meetings, vote for officers, and ratify contracts. Furthermore, non-members do not have a right to vote on what proposals or interests a union will bring to the bargaining table. Participation in the union’s decision-making process that defines the proposals or interests that a union brings to the bargaining table is a benefit of being a dues-paying member. However, the proposals or interests of the union cannot discriminate against non-members because the union has a duty to represent all employees in the bargaining unit without discrimination and without regard to union membership. Furthermore, in those circumstances where a union has the final decision on what a particular condition of employment will be, the union must treat members and non-members the same in the union’s internal decision-making process. Basically, an exclusive representative may not treat non-union unit employees differently from dues-paying union members in matters over which the union has exclusive control and where the non-members have no other choice for representation. Fort Bragg Association of Educators, National Education Association, Fort Bragg, North Carolina, 28 FLRA No. 118, 28 FLRA 908 (1987) (Fort Bragg).

The Petitioners in the instant case have chosen not to be members of the Respondent’s Union. That choice has consequences that prevent the Petitioners from being effective in their efforts to obtain equal working conditions for all employees. While it is clear that the Respondent cannot treat the Petitioners differently in certain situations because of their lack of union membership, race, or gender, the Petitioners are foregoing their right to be decision-makers in the union’s governing process.

Remedial Authority

The Petitioners request that the Commission enter an order requiring the Respondent to cease and desist from continuing to discriminate and the Respondent shall not oppose, but instead must actively support, equal working conditions for male and female members of the bargaining unit. The Petitioners’ also request an award of attorney’s fees. The Respondent argues the Petitioners’ request for attorneys fees should be stricken from the prayer in the Petition because there are no provisions allowing for the award of attorneys fees in the Industrial Relations Act.

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 Education Ass’n v. Holt County School District 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 federal courts have developed significant case law dealing with the issue of remedies in duty of fair representation cases. The Supreme Court addressed this issue in Vaca v. Sipes, 386 U.S. 171, 64 LRRM 2369 (1967). Vaca states, that the "appropriate remedy for a breach of a union’s duty of fair representation must vary with the circumstances of the particular breach." 386 U.S. at 196. The NLRB also has numerous cases dealing with remedies for breaches of the duty of fair representation. To remedy instances of breach of the duty of fair representation, the NLRB has entered broad orders requiring the union to cease and desist from its improper conduct and to take affirmative steps to make the charging party whole; and it has regularly ordered the offending union to process or arbitrate grievances that it has wrongfully refused to handle. Marine Engineers, Unlicensed Div. Dist. 1 (Mormac Marine Transp.), 312 NLRB 944, 145 LRRM 1059 (1993). For example, in an unfair labor practice proceeding brought against only the union, the NLRB ordered the union to pay the charging party for all lost earnings that resulted from the union’s failure to process the grievance. It also ordered a union: (1) to ask for reinstatement of an employee whose grievance it failed to process; (2) to ask that the employer waive any time limitations barring the processing of the grievance; (3) to process the grievance diligently and in good faith; and (4) to make the employee economically whole until the employee is reinstated, or obtains substantially equivalent other employment, or until the grievance is processed to a proper conclusion. Chemical Workers Local 190 (FMC Corp.), 251 NLRB 1535, 105 LRRM 1504 (1980).

While the federal case law has not provided the Commission with a similar factual scenario to which the Commission could easily determine the appropriate remedy, it does provide the Commission with basic guidelines. As shown above, federal remedies with the circumstances of the particular breach allow the Courts to make the aggrieved parties whole again. In the instant case, 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. Furthermore, the female Petitioners’ also should be allowed an opportunity to present their grievances directly to the Union membership, because the Union has treated these women differently than other non-members. The Union should in good faith discuss a workable solution with the female bargaining unit members. Therefore, having found that the Respondent has engaged in prohibited labor practices by ignoring females and/or non-member females that have valid reasonable concerns for basic human needs, safety issues, seniority rights, and shift rotations, we find that it must be ordered to cease and desist therefrom and to take certain affirmative actions designed to effectuate the policies of the Industrial Relations Act. In taking the affirmative action in meeting with these aggrieved employees, the Union should be mindful to treat the females the same as the male bargaining unit employees and attempt in good faith to find a solution, recognizing the problems these female employees face on a ongoing basis and considering the negative impact of § 47-111 on the general working conditions for these female employees. Finally, the Commission declines to determine an award of attorney’s fees based upon the facts presented in this case.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that:

    1. Respondent shall cease and desist from any further discrimination in its representation of women.
    2. The Union shall uphold its duty to fairly represent women whether or not they are members or non-members.
    3. Respondent shall allow a fair opportunity for the women to present their issues to the union membership as a whole.

All panel judges join in the entry of this order.

Issued September 20, 2004.