15 CIR 75 (2005)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 APPEARANCES:

International Union of Operating Engineers Local 571, (hereinafter, "Petitioner") filed a Petition pursuant to Neb. Rev. Stat. § 48-824(1) (Reissue 1998), claiming that Douglas County and its Assessor, Roger Morrissey (hereinafter, "Respondents"), committed a prohibited practice by unilaterally terminating a policy of furnishing vehicles to appraisers in connection with the performance of their duties. The Petitioner seeks to restrain and enjoin the Respondents from requiring them to use their personal vehicles in performance of such duties until or unless the Petitioner has agreed to the same or the Commission of Industrial Relations has entered an order in connection with a Section 48-818 proceeding.

The Respondents Answer admitted it eliminated the practice of providing a county vehicle to assessor employees, and alleged the use of such vehicles was not, and has never been, a reasonably expected benefit, term or condition of employment to which the employees were entitled via contract, statute or any other means.

The issue presented at trial was whether the Respondents’ unilateral change in the policy of furnishing vehicles to appraisers was a prohibited labor practice, a reserved management prerogative as a matter of law, or a permissible action under the collective bargaining agreement. For the reasons stated, the Commission finds that the issue of eliminating county vehicles was a mandatory subject of bargaining, which was not bargained over in good faith to impasse. The Petitioner did not waive the right to bargain over the elimination of the county vehicles. The Respondents action was a violation of Neb. Rev. Stat. § 48-424(1).

On or about September 8, 2004, the Douglas County Fleet Management Council (acting as an agent of the County of Douglas) voted to reallocate all county-owned automobiles that had been assigned to the office of the assessor for the use of the assessor’s employees, to other county departments. The employees of the assessor’s office were notified of this decision in a memo from the Douglas County Assessor Roger Morrissey on approximately September 9, 2004. The memo stated that the employees in the office of the assessor who previously had access to a county-owned vehicle were required to use their personal vehicles to perform their appraisal duties and were to be paid for the use of their personal vehicles at the statutory rate set forth in Article 22 of the Collective Bargaining Agreement between the parties. The Petitioner requested temporary relief in the form of a status quo order to prevent the Respondents from implementing its September 9^th memorandum. The Commission of Industrial Relations granted this relief.

At trial, the witnesses testified about the past history surrounding the use of county vehicles in the County Assessor’s Department. Historically, from approximately 1960 until 1975 the appraisers in the Assessor’s office were furnished county vehicles. These vehicles were picked-up every morning at a garage in downtown Omaha and then brought back to the garage overnight for storage again until the next workday. Then, beginning in 1975, the appraisers were allowed to take the county-furnished vehicles home with them, if they signed a contract maintaining responsibility for the vehicle. This practice continued until approximately 1999, when not all the appraisers were able to use the county vehicles because the office was short of cars. The vehicles were then assigned to the appraisers based on their seniority in the department. During this time period, whenever an appraiser was interviewed for a job, they were told they would be furnished a county vehicle to drive back and forth to work. Both past and present county employees testified to the advantages of the system of allowing the assessor employees a county vehicle. With the unlimited access to the county vehicle, the employees were able to remain at work in the field until quitting time. The ability to use the county vehicle was asserted to be a considerable benefit to the county assessor employees. The assessor employees would not have to purchase additional insurance coverage because they used a vehicle fully insured by the county and not their own personal vehicle. Employees of the assessor’s office also testified that out-of-pocket expenses for fuel driving to and from work would be a considerable loss of benefits. One witness testified that several appraiser’s employees only have one car in their family, and would have to purchase an additional car if they were required to use their own personal vehicle. Another witness testified that the county considers the cars a fringe benefit, because, the county issued documents requiring the assessor employees to report income tax based on the use of the county vehicles.

These practices continued to occur without a contract or a union until 2001. In 2001, a union was formed and voluntarily recognized. During the next three years, the Union and the County negotiated a one-year contract, and a subsequent two-year contract. The Petitioner’s witnesses testified that the Union negotiated for collective bargaining language on use of county vehicles to protect the assessor employees’ rights to use a county vehicle, and that the County wanted to include a provision on vehicles in order to limit the amount of mileage paid to the assessor’s employees who used their own vehicles. Out of nine contracts the Union employees have with Douglas County, only this unit’s contract contains the automobile provision. Both sides stated they are in negotiations for the next contract year because their current agreement expired on June 30, 2004. The Petitioner and the Respondents agree that the union was not approached prior to the letter received by the assessor’s employees. In the process of contract negotiations, the County has developed job descriptions for the assessor employees, the Real Estate Lister Assessor, who is an assistant to an appraiser, is required to have a valid driver’s license and their own mode of transportation. The job descriptions of appraisers only require a valid driver’s license. The County stated that they did not consider job descriptions in changing its policy of furnishing vehicles to the assessor’s office. Instead, the Respondents witnesses stated that the County was implementing this change to save money, and extend the life of each vehicle.

The issue presented is whether the Respondents unilateral action in terminating the County policy of furnishing vehicles to appraisers employed by the assessor’s office for performance of their duties constituted a prohibited labor practice, was a reserved management prerogative as a matter of law, or a permissible action under the collective bargaining agreement. The first question is whether the elimination of furnishing vehicles to appraisers 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). Affirmed. 265 Neb. 817 (2003). The IRA only requires parties to bargain over mandatory subjects. Neb. Rev. Stat. § 48-816(1). Permissive subjects are legal subjects of bargaining, which do not fit within the definition of mandatory subjects. See, NLRB v. Borg-Warner Corp., Wooster Div., 356 U.S. 342 (1958). Either party may raise a permissive subject during bargaining, but the other party is not required to bargain over permissive subjects. Id. Finally, prohibited subjects are topics, which the law forbids the parties from agreeing upon. The Commission in Service Employees International Union, Local No. 226 v. School 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).

In situations where our statutory provisions are substantially similar to the National Labor Relations Act ("NLRA"), and the issue is not definitively settled in Nebraska, we may look to the National Labor Relations Board ("NLRB") for guidance. The 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 No. 40 (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 Public Employees v. Otoe City, 257 Neb. 50, 63, 595 N.W. 2d 237 (1999) (quoting University Police Officers Union v. University of Nebraska, 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). In this case, decisions interpreting the NLRA may be helpful as guidance interpreting Neb. Rev. Stat. § 48-824(1).

The Commission has also had several cases that have discussed terms and conditions of employment, and mandatory subjects of bargaining. The first case which discussed terms and conditions of employment was the case of Seward Education Ass’n v. School District of Seward, 1 CIR 34 (1971). Affirmed. 188 Neb. 772, 199 N.W. 2d 752 (1972). In Seward, the Commission did not adopt a general legal definition or rule interpreting the phrase "terms and conditions of employment." Instead, the Commission based its determination on the issues presented through evidence at trial as proper subjects of bargaining. The Commission found from the evidence that the subjects of salary schedule, professional leave and dues to professional organizations (related to subject area), noon duty, dress code, and school calendar, constituted a pending industrial dispute at this time, and were proper subjects for negotiations between the parties under the statutes.

In Omaha Police Union Local 101 v. The City of Omaha, 7 CIR 179 (1984), the Union contended that the assignment of parking stalls constituted a condition of employment and the police chief’s decision to reallocate the stalls should therefore have been bargained with the Union. According to the Union, the assignment of these stalls without the agreement and approval of the Union constituted a unilateral change in conditions of employment in violation of Neb. Rev. Stat. § 48-816. In Omaha Police Union Local 101, we determined that the assignment of parking stalls was a term or condition of employment. The Commission reasoned that while the language of the Industrial Relations Act did not follow exactly the language of the National Labor Relations Act (29 U.S.C. 158(d)), which requires good faith negotiations regarding "other terms and conditions of employment", the Act did refer specifically to conditions of employment or conditions of work in §§ 48-801(6), 48-801(7), 48-837, and 48-816. Analyzing past case decisions, the Commission looked at Norfolk Educ. Ass’n, 1 CIR No. 40, where the Commission states that "our state statutes ... resemble the National Labor Relations Act ... on the issue of negotiable subjects," and "Since it seems apparent that the Nebraska Legislature had the same purpose in mind as the Congress in determining what should be considered mandatory subjects for collective bargaining, held that court and board interpretations of ‘wages’ and ‘conditions of employment’ under the National Labor Relations Act can serve as a guide for interpretation of what constitute negotiable subjects under the Nebraska law." The Commission in Omaha Police Union Local 101 also considered the case of City of Grand Island v. American Federation of State, County and Municipal Employees, 186 Neb. 711, 185 N.W. 2d 860 (1971). In the City of Grand Island, the Nebraska Supreme Court gave consideration to ... decisions under the federal law in resolving an appropriate bargaining unit issue.

There is no definition of "conditions of employment" in the National Labor Relations Act, but the courts and National Labor Relations Board have given this language a broad interpretation, so as to include such remote subjects as maintenance of trucks, lease arrangements between employers and owner-drivers, issuance of an employees manual, the size and composition of a grievance committee, and employee payment system. "Conditions of employment" has also been interpreted to be more inclusive than the term "working conditions" as used in the Railway Labor Act, Inland Field Co. v. NLRB, 170 Fed.2d 347, and in Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 8 LC 51, the United States Supreme Court stated that the statutory collective bargaining duty includes bargaining "about the exceptional as well as the routine" matters affecting wages, hours, and other conditions of employment.

Although less experienced than the NLRB in this area of interpretation, the CIR has determined that the following subjects are conditions of employment: dues to professional organizations, Noon duty, and dress code, grievance procedures; Contact time (time actually spent by an instructor with a student); and subcontracting of janitor work.

As stated in Omaha Police Union Local 101, a condition of employment should have an effect and an economic impact on the employee’s job assignment. It does not include certain subjects normally considered prerogatives of management, such as business schedules, company policy, plant locations, and supervisors. In Omaha Police Union Local 101, the Commission also quoted the NLRB decision of Fiberboard Paper Products Corp. v. NLRB, 379 U.S. 203, 50 LC 19, 384, which states the Supreme Court said that "nothing the court holds today should be understood as imposing a duty to bargain collectively regarding such management decisions which lie at the core of entrepreneurial control..."

In sum, the Commission reasoned in Omaha Police Union Local 101, that the police chief’s unilateral decision to reserve parking stalls to certain members of the bargaining unit (captains and lieutenants) had some economic impact on the members of the bargaining unit though the impact was not as great as is suggested by the Union at trial. Nevertheless, the Commission found that though the effect of this parking stall assignment might be slight, it dealt directly with the relationship between the employer and the employees, affecting the employees’ job benefits, and did not involve a decision which lay at the core of entrepreneurial control. The Commission found it to be a condition of employment.

Although this case was decided in the context of a complaint that this action was a failure to bargain in good faith, as required by Neb. Rev. Stat. § 48-816, its analysis of what is a term and conditions of employment remains valid.

The NLRB has also held that the use of company vehicles for transportation to and from work involves working conditions, and therefore is a mandatory subject of bargaining. Eagle Material Handling of New Jersey, 224 NLRB 1529, 1532-33 (1976) and Ford Motor Co. v. NLRB, 441 U.S.488, 99 SCT 1842, 60 Led. 2d 420 (1979). Other public labor relation boards have also found the use of company vehicles a mandatory subject of bargaining. See Teamsters Local Union No. 48 v. Town of Jay, Maine Labor Relations Board, No. 80-02 (1979) and Town of Wilton v. Wilton Municipal Employees Union Local 1303-160 of Council 4, AFSCME, AFL-CIO, Connecticut Board of Labor Relations, Dec. No. 2779 (1990).

The provision of county vehicles to assessor employees was a mandatory subject of bargaining, and not a management prerogative.

The Respondents next argue that the management rights clause in Article 15 allows the County to reallocate the use of the county vehicles without discussing it with the Union prior to implementation. The management rights clause states:

Except where limited by express provisions of this agreement, nothing herein shall be construed or interpreted to restrict, limit, or impair the right, powers and authority of the county and assessor heretofore possessed and hereinafter granted by virtue of law, regulations or resolution. These rights, powers and authority include, but are not limited to, the right to manage and supervise all of its operations and establish work rules, regulations and other terms and conditions of employment not inconsistent with the specific terms of this agreement.

The Petitioner argues that the history, the union contract, and current lack thereof, as well as the job performance programs, all indicate that the subject of eliminating the furnishing of county vehicles is indeed a mandatory subject of bargaining. The job performance program issued by Roger Morrissey states what management expects of its assessors and what the assessors can expect of their management. "The administration will provide access to a county car, computer and access to building permit data." Article 22 in the automobile provision of the last negotiated agreement states:

Assessor employee will share assigned county cars for filed work in the real and personal property departments. When approved in advance by management, employees may use their personal vehicles to complete work assignments. When using personal vehicles, employees will complete forms prescribed by management and submit same for mileage reimbursement. The reimbursement rate will be the standard current rate as established by Douglas County.

For approximately forty-four (44) years, the County has furnished vehicles to the majority of employees in the assessor’s office. This has clearly been established by the Petitioner as a benefit to its union members and makes a significant economic impact on their employment with the Douglas County Assessor’s Department. We find the unilateral elimination of furnishing county vehicles was indeed a mandatory subject of bargaining which the Respondents changed without any notice to the Union, or bargaining between the parties.

The Petitioner requests that the Respondent be ordered to maintain the status quo until such time as we have ruled, and after such ruling, provide attorney’s fees to the Petitioner.

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).

Finally, in International Union of Oper. Engrs. Local 572, 265 Neb 817 (2003), the Supreme Court found the Commission’s cease and desist order fully appropriate.

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 our authority. The Respondent shall reinstate and maintain the practice of providing vehicles at its pre-September 9^th level, unless and until the Respondent has negotiated a change in the practice with the Petitioner.

Although the failure to bargain with Petitioner over a mandatory subject of bargaining can undermine the bargaining process, the evidence does not reflect that Respondent’s action was taken with that purpose, and intent. Rather, it appears to have been action which was taken without consideration of its obligation to bargain over the issue. Accordingly, we deny the Petitioner’s request for assessment of attorney’s fees as a part of the remedy.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that:

1. Respondent shall cease and desist from enforcing any implementation of changes in the furnishing of county vehicles to assessor employees within the Petitioner’s bargaining unit, which we find is a mandatory subject of bargaining.
2. The Respondent shall reinstate and maintain the practice of providing vehicles at its pre- September 9^th level, until the Petitioner and Respondent have negotiated a resolution of the practice, or a subsequent order of the Commission.
3. The parties shall recommence good faith negotiations over these issues within thirty (30) days.

All panel judges join in the entry of this order.

Entered January 20, 2005.