15 CIR 306 (2007) 

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 APPEARANCES:

Entered February 27, 2007.

Before: Judges Burger, Orr, and Cullan 

BURGER, J.

NATURE OF THE PROCEEDINGS: 

Service Employees International Union (A.F.L.-C.I.O.) Local 226, (“Petitioner”) filed a Petition pursuant to Neb. Rev. Stat. § 48-824(1) (Reissue 2004), claiming that School District Number 1, Sarpy County, Nebraska, and Dr. Doug Townsend (“Respondents”), committed prohibited practices by refusing to bargain over a mandatory subject of bargaining, and demoting one of its members, Sharon K. Smith, from Elementary Satellite Manager to Elementary Manager at a wage reduction of $.35 per hour because of her participation in the July 28, 2006 negotiating session. The Petitioner alleges the demotion interfered with, restrained, and coerced union members in the exercise of their rights guaranteed by the Industrial Relations Act.

The Respondents answered alleging that they had a legitimate business reason for restructuring the Elementary Satellite Manager Position. Respondent also asserted inter alia, that waiver, laches, and unclean hands bar the Petitioner’s claim.

FACTS:

The evidence is generally undisputed that Sharon K. Smith had been employed with the Bellevue School District for most of the past 21 years. From approximately 1998 until August of 2006, Sharon Smith was the satellite manager and cook for Two Springs Elementary School. As satellite manager, Sharon Smith cooked for the parochial schools of St. Matthew’s and St. Mary’s, as well as Two Springs.  Beginning in May of 2006, Sharon Smith was notified by her immediate supervisor, Mary Hansen, that the school district would likely be taking on a third satellite school (Bellevue Christian Academy), and that she would likely be assigned the additional duties. Sharon Smith was reassured again on July 19, 2006, in another meeting with Mary Hansen, that she would likely be assigned Bellevue Christian Academy in the fall. 

On July 28, 2006, the initial negotiating session for a new two-year collective bargaining agreement occurred between the union and the employer. The assistant union steward started by submitting the union’s proposals. At some point during the negotiations, the assistant steward turned over the discussion to Sharon Smith so she could present the proposal regarding increasing the elementary satellite manager pay. The testimony as to what occurred at this meeting is disputed past this point.   

The Petitioner’s evidence of what occurred on July 28, 2006, summarized, was that after the presentation by Sharon Smith proposing a pay increase for the elementary satellite manager position, the Respondents’ chief negotiator, Dr. Doug Townsend, became visibly upset, told Sharon Smith directly that she was here trying to better herself, and he would not have it, and refused to further discuss the satellite manager position at all, stating that the program would no longer be operated out of Two Springs School.

The Respondents’ evidence, summarized, was that Dr. Townsend had been personally studying the reorganization of the elementary satellite food service operation for several months before the negotiations, and had concluded earlier in the summer to split the responsibility among three new schools. He denied refusing to discuss elementary satellite manager pay, rather, responding that he did not agree to the proposed increase. What he testified that he had declined to discuss was the reorganization plan, on the basis that it was a management prerogative.

On August 8, 2006, Sharon Smith was informally advised that all of the satellite manager duties for the next school year were being reassigned to others. Effective August 14, 2006 her pay was reduced by $.35 per hour.

Obviously, resolution of this case requires a determination of the disputed facts. We note several facts that impact our decision, in generally ascending importance. First, although the evidence shows a total lack of complaints by the elementary satellite schools served over the prior eight years, the addition of Bellevue Christian supposedly precipitated a total reanalysis of operations, and reorganization of services.

Second, although the Respondents prepared a detailed and sophisticated defense of the reorganization after the fact, no data, memos, notes, or any other memorializion of any analysis of these factors exist from the period before the negotiating session. This, despite the testimony that the final decision to reorganize the program had already been made before these negotiations.

Third, despite the testimony of Dr. Townsend that he spoke almost daily concerning operations with the food service director, she was apparently unaware of any plans to reorganize satellite food services prior to the July 28, 2006 meeting.

The director of personnel for the Bellevue School District, a member of the management negotiating team, was totally unaware of any plans to reorganize the elementary satellite food services prior to the meeting with the union. Even though, the meeting was for the specific purpose of negotiating terms and conditions of employment for these elementary food service employees.

Finally, during the caucus of management representatives, Dr. Townsend admittedly asked the personnel director how many elementary satellite managers the school district had. Dr. Townsend testified that he had been engaged in an analysis of the elementary satellite food service program for months, had consulted with the superintendent concerning these matters, and that he had made the ultimate decision to reorganize the satellite services earlier in the summer.  We find that testimony irreconcilable with the fact that he did not even know that only one elementary satellite manager position existed, and by implication that he did not know that it was operated solely out of Two Springs Elementary.

Having heard and observed the witnesses testify, we accept the Petitioner’s version of the events that occurred on July 28, 2006, and expressly reject the Respondents’ version of events as not credible. We specifically find that, on July 28, 2006, Dr. Townsend apparently became angry, and that he made the statement to Sharon Smith, which she testified about, regarding her trying to better herself. We find that he refused, as a representative of the school district, to discuss the pay for the elementary satellite manager position, and reject the contention that it was only the subject of the supposed reorganization plan he refused to discuss.

We reject, as not credible, the contention that a good faith reorganization had been studied for months, and decided in advance of the negotiations.

The most logical and credible conclusion, which is what we find, is that the idea of reorganizing elementary satellite food services first occurred to Dr. Townsend at the meeting of July 28, 2006 as a direct response to apparently becoming upset at the proposal of Sharon Smith to raise the pay for the elementary satellite manager position at the negotiations. We further find that the subsequent reorganization had the effect, and intent, of reducing the pay of Sharon Smith as a direct consequence of her advocating a pay increase for elementary satellite managers in the bargaining session, and not for the reasons put forth by the Respondents.

DISCUSSION: 

Having determined the disputed facts the first question is whether the district’s refusal to discuss the alignment of the bargaining unit position of elementary satellite manager with the pay scale of a secondary manager is a management prerogative, or, a mandatory subject of bargaining. There are three categories of collective bargaining subjects: mandatory, permissive, and prohibited. International Union of Operating Engineers Local 571 v. City of Plattsmouth, 14 CIR 89 (2002). Aff’d. 265 Neb. 817 (2003). The Industrial Relations Act only requires parties to bargain over mandatory subjects. Neb. Rev. Stat. § 48-816(1). The Commission in Service Employees International Union, Local No. 226 v. School District 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 Education Ass’n v. Cedar County School District No. 14-0541, a/k/a Coleridge Community Schools, 13 CIR 376 (2001).

The wage scale of the elementary satellite manager is clearly a mandatory subject of bargaining because the term “wages” are expressly listed under the Act. The Respondents are required under the Act to engage in collective bargaining regarding the elementary satellite manager wages and should not have refused to discuss the subject at the July 18, 2006 meeting.

We recognize that ordinarily, isolated misconduct does not necessarily give rise to a finding of a failure to bargain in good faith. The total conduct of a party in bargaining is considered. In this case, the evidence shows that the proposal of the Respondents resulting from the July 28, 2006 meeting was taken to the membership of the union, and rejected. The evidence further suggests a subsequent session of negotiations right before the trial. We decline to speculate either why the proposal was rejected, or what was discussed at the second session, months later. We find that the Respondents violated § 48-824(1) by refusing to discuss the alignment of the bargaining unit position of elementary satellite manager with the pay scale of secondary manager.

48-824(2)(a)

            This case is really about the Petitioner’s claim that the Respondents violated Neb. Rev. Stat. § 48-824(2)(a)(c) (Reissue 2004) by reducing Sharon Smith’s salary and position from that of elementary satellite manager to elementary manager, with a wage reduction of $.35 per hour because of her engagement in union activities during negotiations.

            Under Neb. Rev. Stat. § 48-824(2)(a), it is a prohibited practice for any employer or the employer’s negotiator to: (a) Interfere with, restrain, or coerce employees in the exercise of rights granted by the Industrial Relations Act. In determining whether the Respondents violated § 48-824(2)(a), the test is “’whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act’” Nebraska Pub. Employees Local Union 251 v. Otoe County, 13 CIR 79, 93 (1998). Actions which normally could be validly done are prohibited when the result is that they interfere with, restrain or coerce employees in the exercise of their rights under the Industrial Relations Act. Business decisions which interfere with the rights of public employees as set forth in the Act, violate § 48-824(2)(a) only when the business justification does not outweigh the rights of public employees.

We have found that the Respondents presented no credible evidence to support the claim that the district had been analyzing the restructuring of the program since May. We conclude the Respondents violated Neb. Rev. Stat. § 48-824(2)(a) and (c) (Reissue 2004) by reducing Sharon Smith’s salary and position from that of an elementary satellite manager, with a wage reduction of  $.35 per hour solely because of her engagement in union activities during negotiations.

Waiver

            A waiver of a statutory right must be clear and unmistakable. Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983). The Nebraska Supreme Court in Shelter Ins. Companies v. Frohlich, 243 Neb. 111, 498 N.W.2d 74 (1993), stated that a waiver is a voluntary and intentional relinquishment of a known right, privilege, or claim and may be inferred from a person’s conduct. Frohlich, 498 N.W.2d at 83. The Court further concluded that in order to establish waiver of a legal right, there must be clear, unequivocal, and decisive action of a party showing such purpose, or acts amounting to estoppel on his part. Frohlich, 498 N.W.2d at 83; Schoemaker v. Metropolitan Utilities Dist., 245 Neb. 967, 515 N.W.2d 675 (1994).

            The Petitioner has a statutory right to file a prohibited practice case, and its tentative approval of a negotiated proposal does not waive that right. See Neb. Rev. Stat. § 48-810 (An industrial disputes. . . shall be settled by invoking the jurisdiction of the Commission of Industrial Relations.) There is no unequivocal relinquishment of this right in the Tentative Agreement. We find the Petitioner has not waived its right to file a prohibited practice case.

            Assuming, without deciding, that Respondents’ asserted equitable defenses of laches, and unclean hands have any applicability to these proceedings, we find a lack of evidence to support them.

Remedial Authority

            The Petitioner requests that Sharon Smith be reinstated to the position of elementary satellite manager, with the increase in pay, and the restoration of those duties in order to maintain the status quo that existed prior to the alleged prohibited practices, and attorney’s fees. The Commission’s authority to issue a remedy after a finding of interference with bargaining is provided under § 48-819, which states:

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

Also, § 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. at 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.

            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.

            In International Union of Operating Engineers v. City of Plattsmouth, 14 CIR 89 (2002), the Commission ordered the reinstatement of an employee with back pay. The Commission had never previously ordered reinstatement or back pay as an appropriate remedy under Neb. Rev. Stat. §§ 48-816, 48-819.01, and 48-823. The Commission found that a violation of 8(a)(5) was sufficiently similar to a violation of Neb. Rev. Stat. § 48-824(1). This decision was affirmed by the Nebraska Supreme Court in International Union of Operating Engineers v. City of Plattsmouth, 265 Neb. 817, 660 N.W.2d 480 (2003). In City of Plattsmouth, the Supreme Court stated that they had previously determined that the Commission has authority to enter orders preserving the status quo until a dispute is resolved. Citing Transport Workers v. Transit Auth. of Omaha, 216 Neb. 455, 344 N.W.2d 459 (1984). Giving a liberal interpretation to the authority to effectuate the public policy of § 48-802, the Supreme Court determined that it was appropriate for the Commission to order the parties to return to the status quo following a finding of a prohibited practice under the IRA. Therefore, the Supreme Court concluded that the Commission had authority to order that Winters be reinstated to the position he held prior to Plattsmouth’s prohibited actions and that the Commission did not act in excess of its powers when it ordered such reinstatement with back pay.

            In the instant case, the Commission has the authority 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 the parties return to the status quo, and that the offending parties 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 from interfering with, restraining, coercing, or harassing Sharon Smith’s rights granted under the Industrial Relations Act.

In order to return the parties to the status quo, the Commission will order the Respondent to restore Sharon Smith to the title of Elementary Satellite Manager, and determine that the Respondents should increase Sharon Smith’s pay to that of an elementary satellite manager from August 14, 2006 through the period originally under negotiation, August 31, 2008. We are not ordering Respondents to change the process of providing satellite services, which was implemented at the beginning of the 2006-2007 school year. Such an order is unnecessary to provide relief to the injured party, and likely would needlessly interfere with the operations of Respondents. Sharon Smith will be paid at the elementary satellite manager scale she previously held. 

We noted some confusion in the record concerning the amount of pay requested as a remedy. If the Petitioner was requesting the remedy of bringing the pay scale of the elementary satellite managers to the level of the secondary managers (who make $.30 cents per hour more than the elementary satellite managers), the Commission has no evidence with which to determine whether or not this would have occurred. Therefore, in order to properly return the parties to the status quo, the Commission will order the Respondent to restore Sharon Smith to the pay scale of an elementary satellite manager. The remedy ordered restores Sharon Smith to the former pay scale she held prior to August 14, 2006.

            The Petitioner has also requested an award of attorney fees as part of the remedy. We find that the conduct of the chief negotiator which violated the Act to have been impulsive, and disingenuous. Although it may be characterized as flagrant, it was not persistent and pervasive.  We decline to include reimbursement of attorney fees as part of the remedy. See County of Hall v. United Food and Commercial Workers Dist. Local 22, 15 CIR ___ (2006).

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that:

1.      The Respondents shall cease and desist from interfering with, restraining, or coercing Sharon Smith from her exercise of the rights granted under the Industrial Relations Act. 

2.      The Respondents shall restore Sharon Smith to her title of Elementary Satellite Manager and increase her pay to that of an Elementary Satellite Manager through August 31, 2008 including any increases in pay subsequently granted to Elementary Satellite Managers in a new Collective Bargaining Agreement, or otherwise. The back pay due from August 14, 2006 shall be paid in a lump sum at the earliest possible pay date after the effective date of this Order, and each installment of back pay shall be paid with interest from its original due date until the date of payment at the current judgment interest rate of 7.094%. 

All panel judges join in the entry of this order.