15 CIR 355 (2007) 


                                  Petitioner, )
         v. ) FINDINGS AND ORDER
CITY OF OMAHA, a municipal corporation, )
                                  Respondents. )


For Petitioner: Thomas F. Dowd
Dowd Howard & Corrigan, L.L.C.
1411 Harney Street
  Suite 100
Omaha, Nebraska  68102
For Respondents: Bernard J. in den Bosch
Assistant City Attorney
804 Omaha/Douglas Civic Center
  Omaha, Nebraska  68183

Entered August 29, 2007.

Before: Judges Burger, Orr, and Blake



            Omaha Police Union Local 101, IUPA AFL-CIO (hereinafter, “Union” or “Petitioner”) filed a petition alleging that the City of Omaha and the Omaha Chief of Police (hereinafter, “Respondents”) had refused to provide relevant information when requested by the Union, in order to process two grievances for members of the Unit under the Collective Bargaining Agreement. The Union asserted that these acts constituted a refusal to bargain in good faith in violation of Neb. Rev. Stat. §48-824 (1).

            The issues presented were:

            1.  Whether the Respondents engaged in bad faith bargaining in violation of Neb. Rev. Stat. §48-824 (1) (Reissue 2004) by refusing to provide the Petitioner with documentation requested relevant to their investigation of grievances filed on behalf of two bargaining unit members.

            2.  If the Respondents engaged in bad faith bargaining by virtue of their refusal to provide the requested information necessary for Petitioner to properly investigate and evaluate the grievances, does such conduct in light of previous adjudicated prohibited practices constitute a pattern of repetitive, egregious, or willful prohibited conduct entitling the Petitioner to an award of reasonable attorney fees?

            3.  Whether the two grievances which are the basis of this action are of the nature and type that they may be grieved under the collective bargaining agreement between the Omaha Police Union Local 101, IUPA, AFL-CIO and the City of Omaha.

            4.  Whether the Respondents had any obligation to provide the Petitioner with any more information than they did at the times sought and in the manner sought by the Petitioner.

            5.  Whether the information requested by the Petitioner was necessary and relevant in order to make the initial decision to proceed with pursuing the type and nature of grievances brought here.


            The Union is the duly recognized collective bargaining representative for the unit consisting of officers, sergeants, lieutenants, and captains employed by the police department of the City of Omaha. In January 2007, two members of that unit were the subjects of employment actions.

            One officer was indefinitely suspended from service as a Field Training Officer, which paid a $75.00 per week salary supplement. Approximately two weeks prior to his suspension, this officer wrote an article published in the Union newspaper, the Shield, which was described as critical of management, and which had received media attention. The second officer was given a job performance interview, relating to allegations of the use of excessive force in the apprehension of a suspect. The Union claims the written documentation from the job performance interview did not contain a thorough explanation as to why Officer Taylor was found to have committed safety violations. The Respondents claim the job performance interview was not a disciplinary action but simply oral counseling. Based upon these instances on behalf of both officers, the Union filed grievances (a disagreement regarding the interpretation of the provisions of the current agreement).

            The Union requested from Chief Warren all documentation pertinent to the decisions of management in each instance. The Chief summarily denied the grievances without providing the information requested. The Union again requested the documents they claimed to be necessary to investigate and evaluate the grievances from Chief Warren, and he again declined. The Union appealed the denied grievances to the City’s acting Labor Relations Director as provided in the collective bargaining agreement. They were summarily denied by the acting Labor Relations Director.

            The Union filed the Petition in this case complaining that the City’s failure to provide the requested information was a prohibited labor practice, and requested a temporary order preserving the employment status of the subject employees, and restraining the City from further processing the grievances until the final determination in the case. The City consented to such an order, and the Temporary Order was entered by the Commission.


            Neb. Rev. Stat. §48-824(1) declares that it is a prohibited labor practice for any employer … to refuse to negotiate in good faith with respect to mandatory topics of bargaining. We are unaware of any Nebraska decision interpreting this statute as it applies to a duty of an employer to furnish information upon request in the context of investigating, or processing a grievance under an existing collective bargaining agreement. Decisions of the NLRB, and federal decisions interpreting the NLRA are helpful, but not binding precedent when the statutory provisions are similar. Nebraska Public Employee Local Union 251 v. Otoe County, 257 Neb. 50, 595 N.W.2d 237 (1999). See also International Union of Operating Engineers, Local 571 v. City of Plattsmouth, 265 Neb. 817, 660 N.W.2d 480 (2003). We conclude that the provisions of Section 48-824(1) are sufficiently similar to Section 8(A)(5) of the National Labor Relations Act and for that reason we can use federal decisions for guidance in interpreting the scope, and application of our statutes.

            The decisions interpreting Section 8(A)(5) have made it clear that the employer has a duty to furnish relevant and necessary information upon request to the Union, not only in the process of  bargaining for a new agreement, but, within the administration of the collective bargaining agreement by the Union. See Aluminum Ore Co. v. NLRB, 131 F2d 485(7th Cir. 1942); NLRB v. Acme Industrial, 385 U.S. 432, 87 S. Ct. 565 (1967). The information must be requested in good faith, and the requested information must be relevant and necessary to the Union’s obligation to police and administer the existing collective bargaining agreement. J.I. Case Co. v. NLRB, 253 F2d 149 (1958). Once relevance is determined, the employer’s refusal to honor the request is a per se violation of the Act. Curtis-Wright Corporation, Wright Aeronautical Division v. NLRB, 347 F2d 61 (1965).

            In determining whether the employer is obligated to supply particular information in connection with the labor Union’s performance of its duties, the Board need only find that the information is relevant, and that it will be of use to the Union in carrying out its statutory duties; relevance in that context is determined under a “discovery-type” standard, not a trial-type standard. NLRB v. Pfizer, Inc. 763 F2d 887 (1985). An employer’s suggestion that it had fulfilled its bargaining obligation to the Union because the information was available from other sources provides no basis for relief. To refuse to furnish relevant information violates the Act, regardless of the employer’s good or bad faith, because it conflicts with the statutory policy to facilitate effective collective bargaining. Proctor and Gamble, Mfg. Co. v. NLRB, 603 F2d 1310 (1979).

            With these principles in mind, we turn to an examination of the employer’s two separate refusals to provide the requested information. In doing so, we note that we are not charged with determining the legitimacy, or likelihood of success of the Union’s grievances. Those are determined pursuant to the provisions of the collective bargaining agreement, and are outside our jurisdiction. Neither are we attempting to enforce the collective bargaining agreement, which authority is outside our jurisdiction. We do, however, need to interpret the collective bargaining agreement to the limited extent necessary to determine the Union’s rights to the requested information.

Officer Taylor Grievance

            With respect to the officer who was required to undergo a job performance interview, we note that the grievance in question challenges the sufficiency of the documentation. The challenge is directed to whether the documentation is complete. In NLRB v. Pfizer, Inc., 763 F2d 887 (1985), the U.S. Court of Appeals found that unions should be given, from the employer, a broad range of potentially useful information. The broad range of information enables the union to complete the Act’s requirement that a union must fulfill its statutory obligations as a representative of bargaining unit employees. See also Mary Thompson Hosp., 943 F.2d at 745 (internal quotation marks omitted); see also NLRB v. Acme Indus. Co., 385 U.S. 432, 435-37 (1967); Gen’l Elec. Co. v. NLRB, 916 F.2d 1163, 1168 (7th Cir. 1990). The Board is therefore required to balance a union’s need for relevant, but assertedly confidential information against an employer’s legitimate and substantial need for confidentiality. That notwithstanding, an employer cannot prevent production of this information simply by asserting that it is “confidential.” Pfizer, 763 F.2d at 891.

A job performance interview is an oral interview between two parties which is then reduced to a written document. The grievance addressed whether the job performance interview record was complete in documenting supposed violations of policy. While a job performance interview is not a disciplinary action and the interview is not appealable under the collective bargaining agreement, the information requested by the Petitioner existed, and would have assisted the Union in evaluating the merits of filing a grievance. We find that the information requested was relevant and necessary for the Union to carry out its obligation to investigate and evaluate the validity of the potential grievance. As such, we find the City’s failure to respond was a violation of Neb. Rev. Stat. §48-824(1).

Officer Frodyma Grievance

            The other grievance involved the indefinite suspension of an officer from serving as a Field Training Officer, resulting in a loss of $75.00 per week of supplemental pay. The evidence reflected that, two weeks prior to suspension, he had authored an article in the Shield, the Union’s newspaper. The article itself was not offered into evidence, but was described as critical of management. Concurrent with the request for information, the Union president and the Chief of Police had two conversations concerning the subject. The Union provided testimony that the Chief told the president that the Field Training Officer suspension was the result of an ongoing disciplinary investigation of a November 2006 incident, and another unspecified incident. The Chief of Police testified he was more specific about the nature of the second incident.

            Article 14 of the Collective Bargaining Agreement, in summary, prohibits interference with the right of employees to join or assist labor organizations. We find the information requested was relevant and necessary for the Union to investigate and evaluate the grievance. A threshold question clearly had to be dealt with by the Union. Was the employment action truly taken for the reasons suggested by the Chief of Police, or, was it action taken in contradiction of the express provisions of Article 14?

            The circumstances existing at this point in time were as follows: the close proximity between the article authored by the officer, the very recent litigation before the Commission in Case No. 1099, the findings of the Commission in that case concerning Chief Warren’s conduct, and the vague reference by the Chief to another investigation. Those circumstances make it clear that the request for the documentation relating to the decision of the Chief to take this employment action was relevant, necessary, and requested in good faith for the purpose of carrying out the Union’s obligation to administer the collective bargaining agreement.

            The request for information noted the article entitled “Gun Crime We’re Working On It” as a concern that the employment action had occurred for an impermissible reason, but, it simply requested “all pertinent documentation … with regard to the decision to remove” … the officer as a Field Training Officer. It had no such limitation tied to the article. It sought the documentation necessary to evaluate the validity of the grievance.

            The intent of the Chief is somewhat unclear but seems to suggest that he either misread the request, or, perhaps refused to read beyond the expression of concern that he had acted in retaliation for the article. The evidence is clear that the Chief refused to provide the information requested, because he unilaterally determined no right of the Union existed to obtain such information. 

            The requested information did exist, and was not provided. The fact that the officer was provided the disciplinary reprimand for the November 2006 incident after the request for information is not disputed. The Union previously had been advised that another pending investigation was also the basis of the suspension. They had a reasonable need for the information requested to determine whether this employment action was retaliation in violation of Article 14. We find that the refusal of the Respondents to provide this information was a breach of the duty of the employer to negotiate in good faith with the Union in violation of Neb. Rev. Stat. §48-824(1).


            The Petitioner urges reimbursement of attorney fees as a component of the remedy. The rules of the Commission provide for such a remedy when the conduct of the party found to have committed a prohibited practice reflects a pattern of repetitive, egregious, or willful prohibited conduct.

            In examining this question, we note the relatively minor nature of the prohibited conduct in this case, and the consent by counsel for the Respondents to a temporary order mitigating damage to the impacted members of Petitioner pending resolution of this case. We also note that this decision appears to be the first interpretation of the application of the statute to this set of circumstances.

            We further note the recent decisions of the Nebraska Supreme Court in Omaha Police Union Local 101 IUPA, AFL-CIO v. City of Omaha, 274 Neb. 70 (2007). This decision remanded a previous finding of a prohibited practice by Chief Warren to the Commission for application of a new legal standard to the facts in that case. Until such time as the facts in Case No. 1099 are reviewed under the new standard, it is presently not a finding of a prohibited practice. Under the unusual facts existing at this time, we decline to find that this conduct was either egregious, or repetitive.


1.  The Respondents shall comply with the request for information by the Petitioner regarding Officer Taylor’s grievance. Evidence at trial suggested that the exhibits at trial constituted the only documents meeting the substance of the requests. If this remains the case, a representative of the Respondents shall certify this fact to Petitioner in writing within ten (10) days of this Order. 

2.  The Respondents shall comply with the request for information regarding Officer Frodyma’s grievance within ten (10) days of this Order. Evidence at trial suggested that the exhibits at trial constituted the only documents meeting the substance of the requests. If this remains the case, a representative of the Respondents shall certify this fact to Petitioner in writing within ten (10) days of this Order. 

            3.  The Respondents shall cease from refusing to furnish relevant and necessary information requested by the Union for the purpose of investigating potential grievances.

All panel judges join in the entry of this order.