15 CIR 95 (2005)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 APPEARANCES:

Communication Workers of America, (hereinafter, "Petitioner") filed a Petition pursuant to Neb. Rev. Stat. §§ 48-811, 48-819.01, and 48-825 (Reissue 1998), claiming that Hall County (hereinafter, "Respondent") committed a prohibited practice by unilaterally implementing terms and conditions of employment without bargaining in good faith and without reaching impasse. The Petitioner seeks to have the Commission conclude that the Respondent violated §§ 48-816(5), 48-824(1), (2)(a), (e) and (f); order the Respondent to cease and desist from engaging in such prohibited practices; order the Respondent to engage in good faith negotiations with the Petitioner over items listed in the Petition; order the Respondent to make the Petitioner and all bargaining unit employees whole for any loss and expense incurred by them including, but not limited to, the reimbursement of the health care premium fees thus far withheld; order reimbursement of attorneys’ fees and costs; and finally, order the Respondent to post a notice to employees promising not to commit any of the found prohibited practices.

The Respondent’s Answer alleges that the Respondent has negotiated in good faith with the Petitioner on mandatory subjects of bargaining and then lawfully implemented changes in terms and conditions of employment after the parties had bargained to impasse.

The issue presented at trial was whether the Respondent’s actions constituted a prohibited practice under Neb. Rev. Stat. § 48-816(5), § 48-824 (1), (2)(a), (e), and (f) by refusing to negotiate in good faith and/or unilaterally implementing changes in the terms and conditions of employment before impasse had been reached. For the reasons stated below, the Commission finds that the Respondent declared impasse prematurely and that such declaration of impasse was a per se failure to bargain in good faith and was therefore a prohibited practice under Neb. Rev. Stat. § 48-816(5), § 48-424 (1), (2)(e), and (f).

The Commission certified the Union’s current bargaining unit on December 11, 1988. In the initial contract, the Union also bargained for other units including the veteran’s service office, the building and grounds department, and the parks department. However, the Union currently represents only the public works department in Hall County. The current bargaining unit consists of the job classifications of all employees of the Hall County Public Works Department which includes the following seven job classifications: Equipment Operator, Mechanic, Traffic Signs Supervisor, Gravel Staker, Janitor, Typist/Receptionist, and Construction Technician. The Union is excluded from representing the Public Works Director, the Assistant Public Works Director, the Mechanic Supervisor and the Grading and Bridge Foreman. Prior to the Respondent’s unilateral implementation of changes in terms and conditions of employment, the parties have successfully bargained during approximately the past fifteen years. The first negotiation session lasted approximately eighteen months and the other negotiation sessions have lasted between six and thirteen months, with five to eight sessions during those months. The last of these successful negotiations lasted for approximately ten sessions, and the contract was ratified in January of 2003, when the Union and the County executed a collective bargaining agreement for the period of July 1, 2002 through June 30, 2004. The bargaining for that contract began in May and lasted for approximately nine months.

In order to begin bargaining for the upcoming contract starting in July of 2004, the Union first received the County’s request to negotiate on approximately March 26, 2004. Along with this request, the County sent proposed ground rules for negotiating. The first negotiation session between the Union and the County occurred on April 27, 2004. At the April 27 meeting, the County and the Union exchanged proposals. The exchange of proposals took approximately two hours. The discussion on the proposals centered on brief explanations of each side’s changes in the 2002-2004 bargaining agreement. The Union’s first proposal did not deal formally with wages. However, the proposal discussed such items as drug testing, sick leave payout, overtime pay, health insurance language, safety and truck language and FMLA language. The County’s proposal included a change in health insurance premiums for employees hired prior to January 1, 2001 who pay two-party and family premiums. In the first fiscal year of July 1, 2004 through June 30, 2005, those employees would be required to pay 5% of their premium and in the following year those employees would be required to pay 10% of their premium. The employer offered a 1% raise in the first fiscal year and a 2% raise in the second fiscal year. At the end of the first negotiating session, the County asked questions about the Union’s information request. The County then responded to this request on April 29, 2004. The County also asked if the Union could bring a formal wage proposal to the second meeting. The parties spent little time "negotiating" and more time presenting their proposals, during the first session.

The second session occurred on May 11, 2004. The County and the Union spent approximately two hours at the session. The Union did not present a formal wage proposal. The parties discussed the Union’s proposal, and then the County caucused for approximately ten minutes. After the caucus, the County told the Union they felt that the Union should accept their April 27 proposal. The County did not give a written proposal to the Union at the second meeting.

Between the second and third negotiation session, several members of the bargaining unit attended a health insurance meeting. At the meeting, the County’s health insurance representative announced that every employee who had elected family coverage in Hall County would be paying for a portion of his or her family health insurance. This information was read from a memorandum prepared by the office of the County Clerk addressed to all [Hall] County employees, dated May 25, 2004. The employees asked for a copy of this memorandum from the health insurance representative. He allowed them to view his copy and told them if they wanted to receive their own copy they could contact the County Clerk. The employees contacted the County Clerk and received their own copy of the memorandum. The employees then contacted their union representative, because they were concerned that the health insurance benefits were to be changed without regard to the bargaining process.

The third and final negotiation session occurred on June 23, 2004. The County presented its proposal and the Union presented its proposal. Both sides asked questions regarding the opposing sides proposal. The County’s proposal included an additional increase in the first years pay from 1% to 2%. The Union’s proposal asked for a shorter pay scale in line with their wage study, as well as a one-year contract and a 3% pay increase. The Union asked a lot of questions regarding the County’s first proposal on June 23, because the proposal was in short form. The County then presented its wage study and told the Union that the Union would lose if it took the County to the Commission. The parties then caucused for less than half an hour. After the caucus, the County submitted its final offer to the Union, along with several other documents regarding the increasing cost of health care and comparability. The final offer was a paragraph in length and was unclear regarding proposed modifications that would be made to the current contract, which would expire on June 30, 2004. The Union did not ask many questions regarding the final offer because there was very little time before they were asked to leave. The Union was then advised that they had until 12:00 a.m. on the morning of June 29, 2004 to accept or reject the County’s final offer. The Union’s negotiator informed the County that she would not be able to meet with the Union for a formal vote prior to June 29, 2004 because of other scheduling conflicts and asked to reschedule the deadline. The County refused to consider an extension of the deadline in order to assist the Union in its vote on the County’s final offer. Until the end of the June 23, 2004 negotiation session, the Union was never notified that this would be the last bargaining session between the parties. There had been no such notice prior to that time. However, it is clear from the testimony that the County was determined to conclude its bargaining by its last June County board meeting.

The Union’s negotiators met with their committee and set up an explanation meeting for the bargaining unit employees on Wednesday, June 30, 2004 regarding the County’s final offer. In its committee meeting, the Union was confused about how to construe the employer’s final offer. The Union then drafted a letter asking additional questions regarding an explanation of the final offer, which was faxed to the County’s attorney. The County’s attorney responded with an additional explanation of the June 23 final offer, with changes to the language of Article 27 (Exhibit 22). After the meeting held on Wednesday, June 30, the Union voted, rejecting the County’s proposal. The Union then wrote a letter on July 9, requesting that the parties continue bargaining to resolve their differences. The County implemented its final offer at its board meeting on June 29, 2004 and notified the Union by a letter dated Tuesday, June 29, 2004. Sometime after the Union voted on the County’s final proposal as of June 25, 2004, on approximately July 1, 2004, the County sent a new final proposal, per the Union request, changing Attachment "B" to include a missing equipment operator, who had not been included in the June 25th final offer. On July 27, 2004, the Union’s representative attended the Hall County Board of Supervisors meeting and during an open forum stated that he felt the negotiations were not conducted in good faith, especially since they had always resolved their differences in the past.

The County also negotiated with three other unions in concurrence with this union. Of those three contracts, the County came to an agreement with one bargaining unit (the sheriff’s bargaining unit) and declared impasse with two other bargaining units (the public defender’s bargaining unit and the correctional officers bargaining unit). On November 22, 2004 the Union filed its prohibited practice petition with the Commission and previously on September 20, 2004, the correctional officers union had filed its prohibited practice petition with the Commission.

The Petitioner argues that the Respondent violated §§ 48-816(5), 48-824(1), (2)(a), (e) and (f), by unilaterally implementing terms and conditions of employment without bargaining in good faith and without reaching impasse. The Respondent argues that it lawfully implemented changes in terms and conditions of employment of those employees represented by the Union which were mandatory subjects of bargaining after (a) the parties had bargained to impasse, (b) the terms and conditions implemented were contained in a final offer, and (c) the implementation occurred before a petition regarding the year in dispute had been filed with the Commission. Both the Petitioner and the Respondent have cited past case law from the Commission and the National Labor Relations Board, (hereinafter, "NLRB") in support of their positions and both parties argue the Commission has the authority to use past NLRB case law in addition to past Commission case law.

The Commission has found in the past that the National Labor Relations Act, (hereinafter, "NLRA") and the Nebraska Industrial Relations Act, (hereinafter "NIRA" or "IRA") are similar. In Fraternal Order of Police, Lodge 41 v. The County of Scotts Bluff, et al., 13 CIR 270 (2000) the Commission found that the federal and the state statutes were substantially similar in dealing with prohibited practices. Section 8(a)(5) of the NLRA was found to be nearly identical to § 48-824(2)(e) of the IRA. Both statutes require all parties to bargain collectively in good faith with respect to mandatory subjects of bargaining. However, unlike the statutory comparison found in County of Scotts Bluff, in Ewing Education Ass'n v. Holt County School District No. 29, 12 CIR 242 (1996), the Commission analyzed whether § 48-824(2)(e) had been violated by a unilateral change in a term of employment found in an existing collective bargaining agreement. In determining whether federal cases could be used as guidance, the Commission found that § 8(d) includes at least one provision that is not included in the IRA. The Commission found that in Ewing Educ. Ass’n the difference in the statute related to whether the collective bargaining agreement was currently in existence. The Commission held that because this provision does not exist in the IRA, under Nebraska public sector labor law, a unilateral change in the terms and conditions of an existing collective bargaining agreement is not by definition a failure or refusal to bargain. The Commission concluded:

Prior to the passage of what has now become § 48-824 et seq., our Supreme Court held that a duty to bargain exists only after a Petition has been filed with this Commission or a request for bargaining has been made. Kuhl v. Skinner, 245 Neb. 794, 515 N.W.2d 641 (1994). While the addition of § 48-824 to the [IRA] may have extended the duty to bargain beyond that found in Kuhl, we are not prepared to find that a duty to bargain exists in this case.

Id. at 245.

However, the Commission determined that the differences set forth in § 8(d), which is not found in the IRA, was not applicable to the set of facts in County of Scotts Bluff. In sum, the Commission noted that the legislative history of the IRA’s § 48-824 clearly states that the purpose of the section is to provide public sector employees with the same protection from unfair labor practices that most private sector employees enjoy under the NLRA and to make refusing to negotiate in good faith on mandatory bargaining topics a prohibited practice. LB 382, 94^th Leg., 1^stSess., 1995. Therefore, in County of Scotts Bluff, the Commission found that the corresponding sections of the IRA and NLRA making it unlawful for parties to refuse to negotiate in good faith over mandatory bargaining topics are sufficiently similar for the NLRB decisions to be useful as guidance in interpreting §§ 48-824 (1), (2)(a) and (e) of the IRA. While the Commission found in Crete Education Ass’n v. Saline County School District No. 76-0002, a/k/a Crete Public Schools, 13 CIR 361 (2001), affirmed in relevant part, 265 Neb. 8, 654 N.W. 166 (2002) that the provisions in the NLRA are not identical to § 48-824 (f), the Commission did determine that the concept of exclusive representation was fairly common between both Acts.

In reviewing these past decisions, we determine that it is appropriate for the Commission to refer to case law from the NLRB. NLRB cases as well as our own past case law will be utilized in determining whether or not the Respondent committed a prohibited practice in this case.

The Petitioner argues that it is the Respondent’s burden to prove whether or not an impasse, in fact, existed at the time of the unilateral implementation by the Respondent. The Commission has found in prior cases that the burden of proving impasse remains on the party claiming negotiations have reached impasse. County of Scotts Bluff, 13 CIR at 284; See also, PRC Recording Co., 280 NLRB 615 (1986), enforced, 836 F.2d 289 (7^th Cir. 1987); The Baytown Sun, 255 NLRB 154 (1981). Therefore, the Respondent has the burden of proving impasse in the instant case.

The Respondent argues that it was correct in implementing its final offer because the parties had indeed reached impasse. Conversely, the Petitioner argues the parties were not at impasse as they were willing to make additional concessions, had not had sufficient time or sufficient opportunities to negotiate their contract proposals or to understand the proposals set forth by the Respondent.

The duty to bargain does not require a party "to engage in fruitless marathon discussions at the expense of frank statement and support" of one’s positions. NLRB v. American Nat’l Ins. Co., 343 U.S. 395, 404, 30 LRRM 2147 (1952). In other words, where there are irreconcilable differences in the parties’ positions after good faith negotiations, the law recognizes the existence of an impasse. Furthermore, numerous NLRB cases have recognized that impasse is possible as to one but not all issues, triggering a continuing duty to bargain on other issues unless the issue precipitating the impasse is overriding enough to justify a finding of impasse as to all issues. See e.g., Patrick & Co., 248 NLRB 390, 103 LRRM 1457 (1980), enforced, 644 F.2d 889, 108 LRRM 2175 (9^th Cir. 1981); Providence Med. Ctr., 243 NLRB 714, 102LRRM 1099 (1979); Chambers Mfg. Corp., 124 NLRB 721, 44 LRRM 1477 (1959), enforced, 278 F.2d 715, 46 LRRM 2316 (5^th Cir. 1960); Pool Mfg. Co., 70 NLRB 540, 18 LRRM 1364 (1946), remanded, 24 LRRM 2147 (5^th Cir. 1949), vacated, 339 U.S. 577, 26 LRRM 2127 (1950); Television & Radio Artists v. NLRB, 395 F.2d 622, 627 n. 13, 67 LRRM 3032 (D.C. Cir. 1968), aff’g sub nom., Taft Broadcasting Co., 163 NLRB 475, 64 LRRM 1386 (1967).

The Commission defines impasse as when the parties have reached a deadlock in negotiations. County of Scotts Bluff, 13 CIR at 284; See, e.g., PRC Recording Co., 280 NLRB at 640 (for impasse to occur, both parties must be unwilling to compromise); Powell Electrical Mfg. Co., 287 NLRB 969, 973-74, enforced as modified, 906 F.2d 1007 (5^th Cir. 1990) (futility, not some lesser level of frustration, discouragement, or apparent gamesmanship, is necessary to establish impasse); D.C. Liquor Wholesalers, 292 NLRB 1234, 1235 (1989), enforced, 924 F.2d 1078 (D.C. Cir. 1991) (exhaustion of the collective-bargaining process is required for impasse to exist). The Commission found in County of Scotts Bluff that the factors to be considered in determining whether the parties are at impasse included: "number of meetings, length of meetings, period of negotiations, whether either party has expressed a willingness to modify its position, whether a mediator has been called in (a sign of deadlock), the importance of the issues over which the parties disagree (the more important the issue, the more likely an impasse), and the understanding of the parties regarding the state of negotiations." Douglas E. Ray et al., Understanding Labor Law 208 (Matthew Bender & Co. 1999)(citation omitted); See, David G. Epstein, Comment, Impasse in Collective Bargaining, 44 Tex. L. Rev. 769 (1966) as well as the additional factors that may include the parties’ bargaining history, continuation of bargaining, union animus, the extent of the difference or opposition, duration of hiatus between bargaining meetings, and other actions inconsistent with impasse. John T. Neighbours et al., The Developing Labor Law, 299, 300 (3^rd ed. 1998 Cum. Supp.)(citations omitted).

The National Labor Relations Board also considers additional factors, for the existence of an impasse is very much a question of fact. Carpenter Sprinkler Corp v. NLRB, 605 F.2d 60, 102 LRRM 2199 (2d Cir. 1979). These may include a strike by the union; the fluidity of a party’s position; continuation of bargaining; statements or understanding of the parties concerning impasse; union animus evidenced by prior or concurrent events; the nature and importance of the issues and the extent of difference or opposition; past bargaining history; a demonstrated willingness to consider the issue further; the duration of hiatus between bargaining meetings; the number and duration of bargaining sessions; and other actions inconsistent with impasse.

For example, usually the more meetings had by the union and the employer, the better the chance of a finding that an impasse has occurred. Fetzer Television v. NLRB, 317 F.2d 420, 53 LRRM 224 (6^th Cir. 1963). See also, Servis Equip. Co., 198 NLRB 266, 80 LRRM 1704 (1972) (no impasse on wages when parties met only twice and union was not given enough advance notice of employer’s action to respond); Supak & Sons Mfg. Corp., 192 NLRB 1228, 78 LRRM 1289 (1971), enforced 470 F.2d 998, 82 LRRM 2560 (4^th Cir. 1973) (no impasse on wages when employer did not make its counteroffer until last regular bargaining session); American Automatic Sprinkler Sys., 323 NLRB 920, 155 LRRM 1195 (1997) (no valid impasse where employer declared impasse after only three meetings and misled union during bargaining); Microdot, Valley Mould Div., 288 NLRB 1015, 128 LRRM 1134 (1988) (no bona fide impasse when employer made "final offer" that included proposals requiring further study, gave union only 3 days to respond, and stated it would accept no counteroffers).

In County of Scotts Bluff the Commission set forth the general factors in determining whether impasse existed at the time of unilateral implementation, and also set forth our interpretation on public policy in encouraging parties to settle bargaining between themselves. The Commission stated:

The collective bargaining process is a continuing process, which the parties must learn to use to supplement or replace litigation before the Commission. It remains the Commission’s position that good faith negotiation is the preferred method for resolution of differences concerning wages, hours and other terms and conditions of employment. Public employers and the bargaining agents for their employees have a duty to bargain in good faith in an attempt to resolve their differences both before, and after, they bring their disputes to the Commission. Successful collective bargaining is less expensive for the parties, less disruptive of public service, more flexible in terms of available solutions, and more likely to promote harmony between public employers and their employees. The public interest is not served by public officials and administrators or the agents of public employees who are unwilling or unable to pursue collective bargaining in good faith.

The Commission also cited NLRB v. Katz, 369 U.S. 736 (1962) (equating pre-impasse unilateral changes to flat refusals to negotiate), stating that unilateral changes to mandatory terms and conditions of employment made before impasse are per se violations of the party’s duty to bargain in good faith. In other words, the Commission determined that a finding of actual bad faith is not necessary.

The Commission also found in County of Scotts Bluff, that the distinction between the different categories of bargaining subjects is important, because rules allowing parties to bargain in good faith to impasse, and then to unilaterally implement changes, apply only to mandatory bargaining subjects and not to management prerogatives. In sum, the Commission determined that an employer may lawfully implement changes in terms and conditions of employment which are mandatory topics of bargaining only when three conditions have been met: (1) the parties have bargained to impasse, (2) the terms and conditions implemented were contained in a final offer, and (3) the implementation occurred before a petition regarding the year in dispute is filed with the Commission. See, Geneva Education Ass’n v. Fillmore County School District 75, 10 CIR 238 (1989); General Drivers & Helpers Union, Local No. 554 v. Saunders County, 6 CIR 313 (1982); Lincoln County Sheriffs’ Employees Ass’n Local 546 v. County of Lincoln, 5 CIR 441 (1982). If any of these three conditions are not met, then the employer’s unilateral implementation of changes in mandatory bargaining topics is a per se violation of the duty to bargain in good faith.

In applying the above set forth factors in County of Scotts Bluff, the Commission found the parties were at partial impasse. The parties had bargained over wage increases, vacation leave, educational incentives, and longevity for more than one year. As to these terms, the Commission found that the parties were at impasse. The Commission commented that in International Board of Electrical Workers, Local No. 1536 v. City of Fairbury, 9 CIR 317, 318:

The Commission encourages parties to bargain and settle disputes themselves[,] and if it appears that further bargaining would be fruitful, we will send them back to the bargaining table as we are authorized to do under Section 48-816(1).

Having bargained for over a year on these terms, the Commission found that further bargaining would be futile and would further frustrate the public policy of timely resolution of disputes. The parties were found to have reached impasse on wage increases, vacation leave, educational incentives, and longevity because they were reasonably comprehended within respondent’s pre-impasse proposals. The Commission, however, found that the respondent in that case had raised numerous other mandatory subjects of bargaining for the first time in its June 15, 1999 proposal.

The petitioner in County of Scotts Bluff was found not to have been able to adequately respond to any of these subjects. Since virtually no bargaining had occurred on the terms raised on June 15, 1999, and the parties were not at impasse thereon, the Respondent’s unilateral implementation of these changes constituted a refusal to bargain in violation of §§ 48-824(1) and (2)(e).

In using those same factors, the NLRB in Marriott In-Flite Service, 258 NLRB 755, 108 LRRM 1287 (1981), found no impasse when premium pay and free meal benefits were instituted after 37 negotiation sessions, since neither party had made a wage offer and there were still 26 open items, many of which had not been seriously discussed. The NLRB found it persuasive that few, if any, economic proposals had been made as well as the fact that the unilateral changes were implemented less than two weeks after the employer insisted that no further meetings would be held unless and until the Union agreed to employer’s "final offer."

Generally, under the NLRB, once a genuine impasse is reached, the parties can concurrently exert economic pressure on each other. The union can call for a strike; the employer can engage in a lockout, make unilateral changes in working conditions if they are consistent with offers the union has rejected, or hire replacements to counter the loss of striking employees. Such economic pressure usually breaks the stalemate between the parties, changes the circumstances of the bargaining atmosphere, and revives the parties’ duty to bargain. Thus, in the overall ongoing process of collective bargaining, it is merely a point at which the parties cease to negotiate and often resort to forms of economic persuasion to establish the primacy of their negotiating position. Hi-Way Billboards, Inc., 206 NLRB 22, 23 (1973). However, under Neb. Rev. Stat. § 48-802, no public employee in the State of Nebraska may disrupt the proper functioning and operation of government service by strike, lockout, or other means.

While the Commission need not continue to force the parties to engage in fruitless marathon discussions at the expense of frank statement and support of their positions, collective bargaining is less expensive for the parties, less disruptive of public service, more flexible in terms of available solutions, and more likely to promote harmony between public employers and their employees. As stated above, a union in Nebraska does not have the ability to strike and cannot exert economic pressure on the employer, so the Commission must be very mindful of each set of circumstances to determine whether an impasse has indeed been reached. Whether a bargaining impasse exists is a matter of judgment and will be different based on the facts of each case. The bargaining history, the good faith of the parties in negotiations, the length of the negotiations, the importance of the issue or issues as to which there is disagreement, and the contemporaneous understanding of the parties as to the state of negotiations are all relevant factors to be considered in deciding whether an impasse in bargaining exists.

The Respondent argues in the instant case that impasse does indeed exist. The Respondent also argues that its inflexible position is not in bad faith but is instead considered as "hard bargaining." The Respondent suggests that further bargaining on any of the issues would be futile, as the Union did not present the County with a single counterproposal that would have suggested future bargaining would be fruitful. The Respondent also states that the Commission should not eviscerate the County’s right to implement at impasse, described by the Respondent as one of its powerful economic tools for achieving its contract terms.

The Petitioner argues that the Respondent took a predetermined and inflexible position to achieve acceptance of all of its own proposals as quickly as possible, regardless of whether there was legitimate impasse. The Petitioner states that certain statements made by the Respondent after one of the bargaining sessions indicate independent union animus. The Petitioner contends that if the Commission finds the parties were at impasse on one issue, that impasse does not suspend obligation to bargain on further issues. The Petitioner further argues that the Respondent failed to supply all of the information requested by the Petitioner and that the Respondent injected entirely new proposals at the third and last bargaining session. Finally, the Petitioner argues that the Respondent’s offer was incomprehensible.

Some difficulty exists in establishing the "inherently vague and fluid… standard" applicable to an impasse reached by hard and steadfast bargaining, as distinguished from one resulting from an unlawful refusal to bargain. Nevertheless, the real issue in this case is whether or not impasse did, in fact, exist when the Respondent implemented its final offer.

As stated above, in reviewing the evidence to determine whether an impasse exists, the Commission considers a number of factors designed to measure whether bargaining has run its course. Several factors used in deciding this issue clearly point to a lack of impasse between the parties in the instant case. The first factor is the lack of meetings between the parties. The County and the Union had only three meetings before the County declared impasse. The County and the Union had a clear past history of bargaining for at least five negotiation sessions to iron out their differences, and these sessions lasted well into the new bargaining year. The parties had never before declared impasse and had always vigorously attempted to resolve their differences at the bargaining table rather than through the use of economic pressures or taking a case to the Commission.

The second factor suggests that the length of the bargaining meetings was sorely inadequate, not only because of the quantity of hours spent in negotiation, but also because of the quality of use of those hours to negotiate. The parties met for a total of approximately six hours for a two-year contract negotiation. The first session lasted two hours and lacked little actual negotiation, but was rather more akin to an information session. The second session also lasted two hours and the parties spent the majority of the time reviewing the Union’s proposal, which did not include a wage proposal. The Union’s proposal was completely dismissed by the County, not because of hard bargaining, but because of what must be seen as an unwillingness to listen to the Union’s position. Before the third and final meeting the employees were informed that their health insurance premiums would be increasing. The employees felt that because of the concurrent negotiation sessions, the County was usurping the Union’s bargaining authority. The facts clearly indicate the County had decided by May 25, 2004 to implement its proposal on health insurance, although no formal action was taken by the County until its June 29 board meeting. The third and final negotiation session was the first time the parties spent any substantive time on wage proposals. After a brief caucus, the County presented its final offer, which was unclear at best. The Union’s bargaining team spent significant time after negotiations trying to decipher the one-paragraph document. The lack of time afforded to the Union to decipher the County’s proposal contributed to the Union’s inability to understand the County’s final offer. The Union sent several letters to the County for further explanation of the County’s proposal. The County responded to these letters, changing its final offer each time to deal with the discrepancies. This back and forth exchange occurred prior to, and after, the County implemented its last best offer.

The third factor we consider is whether either side indicated a willingness to modify its position. The evidence strongly suggests the Union’s willingness to modify its position. The Union reiterated its desire to continue negotiations even after the County declared impasse with the Union. While this expression occurred after the County declared impasse, prior to impasse the County gave the Union very little opportunity to present its position or to present a willingness to modify its position. At trial, the Union’s representative stated that they were willing to negotiate on the wage increase if the employer would reconsider the pay scale. A genuine impasse in negotiations is synonymous with a deadlock: the parties have discussed a subject or subjects in good faith, and, despite their best efforts to achieve agreement with respect to such, neither party is willing to move from its respective positions. See Hi-Way Billboards, Inc. However, it is clear that in the instant case the Union was never afforded the opportunity to move from its respective position because of the strict timetable established by the County.

The final and most decisive factor in this case was the understanding of the parties regarding the state of negotiations. The evidence demonstrates with clarity that the driving force throughout this entire negotiation process centered around the County’s timetable or the expiration of the past contract. The County’s desire to reach an agreement or impasse before the end of the contract year was never expressed directly to the Union prior to the last negotiation session. The parties had repeatedly bargained past the end of the contract year in prior contract negotiations. The County’s desire to end the negotiations on June 30, 2004 was also not expressed in their proposed ground rules or request to bargain. Furthermore, the conclusion is inescapable from the evidence that, for all practical purposes, by May 25, 2004 the County intended that all County employees would contribute to health insurance. Health insurance is a mandatory subject of bargaining and the County cannot usurp the Union’s authority as the sole bargaining representative for its employees. Impasse is a deadlock in negotiations with both sides unwilling to compromise. It is not futility, not just frustration or gamesmanship. County of Scotts Bluff, 13 CIR 270 (2000). The instant case demonstrates the County’s use of gamesmanship, or the calendar, to achieve its goals. The County suggests that this is a refusal to agree case. However, the facts indicate that this is, indeed, a refusal to bargain case. The parties do not have to bargain ad infinitum, but rather they must enter into meaningful negotiations without a predetermined "end" date.

For example, in Mary Ann’s Bakery, 267 NLRB 992, 994 (1997), the NLRB found that impasse did not occur, since the employer’s contract offer was not accepted or rejected by the union membership. The NLRB further concluded that the Respondent seemed intent upon rushing to implement its proposal. The decision stated that it has long since been settled that an employer may not unilaterally implement "rejected" proposals until they have, in fact, been rejected. See also Royal Himmel Distilling Co., 203 NLRB 370 (1973). In the instant case, the Respondent also rushed to implement its proposal. The Respondent was unwilling to give the Petitioner several additional days in order to meet with its membership to accept or reject the Respondent’s final offer. The Union’s membership was unable to vote until June 30, 2004, rejecting the County’s proposal, which the County had already voted to implement on June 29, 2004. Clearly, the County unilaterally implemented its proposal prior to its rejection. While the County attempted to convey at trial that the Union was dilatory in arranging a meeting, the County gave the Union five days to arrange a meeting for all the membership, two days of which were weekend days. Furthermore, the Union’s representative clearly told the County such a meeting would be impossible prior to the County’s pre-scheduled board meeting. The Union was given no prior warning that the County was to conclude its negotiation by the expiration of the previous contract. The County clearly violated the Industrial Relations Act in its rush to implement its proposal.

The Respondent argues that its position of "hard bargaining" by seeking to modify, alter and eliminate positions in the old contract is not contrary to past Commission case law and past NLRB law. To support its decision, the Respondent cites the case of Roman Iron Works, 275 NLRB 449 (1985) and International Brotherhood of Electrical Workers v. McCook Public Power District, 3 CIR 117, 119 (1976).

At the outset, it is noted that the Industrial Relations Act, which defined the duty to bargain in Neb. Rev. Stat. § 48-816(5), does not compel either party to a collective bargaining relationship to agree to a proposal or to make a concession. Thus, insofar as mandatory subjects of bargaining are concerned, the IRA does not require either party to yield or compromise its position. While the Commission does not disagree that hard bargaining is lawful under both the NLRB and the Commission, hard bargaining is essentially defined as a situation where one of the parties takes a position and maintains it. In further reviewing the Respondent’s cite case Roman Iron Works, we note the delicate balance between hard bargaining verses sham bargaining or bargaining without good faith. Roman Iron Works states:

Although it is not illegal for a company to engage in hard bargaining, Section 8(a)(5) of the Act nevertheless requires the company to bargain in good faith which is essentially defined as a willingness to enter into a contract. NLRB v. Insurance Agents Union, 361 U.S. 477 (1960). Thus, although a company, may use its relative strength to press for contract terms favorable to itself, it may not use its strength to engage in futile or sham negotiations with the intention of never reaching an agreement.

The employer engaged in hard bargaining in Roman Iron Works by a reduction of the wage offer during bargaining, denial of a union request for employee addresses, insistence on a right to subcontract, and a demand for significant cost reductions. The Board found, however, that the employer also met frequently with the union, made complete contract proposals, and made several significant concessions, and concluded that the employer did not engage in bad faith bargaining.

The Respondent did not engage in hard bargaining in the instant case. Instead, the Respondent was driven by the calendar, with little recognition to the Petitioner’s positions. Under federal law, hard bargaining is an economic pressure tool used by the employer. Likewise, the economic pressure tools of striking or boycotts can be used by the union employees under federal law. However, it is clear that public employees in Nebraska do not have the same ability to exert pressure upon the employer through the use of the strike. The Respondent argues that the Petitioner can exert similar economic pressure to achieve the changes it desires for the current fiscal year by filing a wage petition. While the Commission agrees that a wage case can exert direct economic pressure on the parties, both parties can use that pressure equally, as the employer and the union are both allowed to file petitions in front of the Commission. In the instant case, the Respondent used this tool by threatening the Petitioner that if the parties went to the Commission the Petitioner would lose its case.

The Commission is mindful that it is not eviscerating the Respondent’s right to hard bargaining. Employers must walk a fine line between hard bargaining and bad faith bargaining. Hard bargaining is strenuous, tedious and frustrating, but as seen in Roman Iron Works, is earnest with frequent meetings with the Union and complete contract proposals. Often in cases where the employer has successfully utilized hard bargaining to justify its rigid position, there is a clear failure of the Union to recede from its position or to grant concessions. The Petitioner in the instant case offered to grant concessions and was never afforded an adequate opportunity to present any of its positions in the first instance. Therefore, we decline to find the Respondent did, in fact, use hard bargaining effectively in the instant case to create impasse. Clearly, impasse never existed because the Petitioner was never afforded an adequate opportunity to discuss its proposal, since the Respondent was intent on finishing before the expiration of the past contract.

Hard bargaining is not a tool the Respondent can use to cut short negotiations by predetermining that negotiations will end at a certain time, regardless of the length or nature of those negotiations. Hard bargaining is not bargaining in bad faith, and inflexibility in a position is not always bad faith bargaining. However, bargaining must be based upon a good faith effort and not a predetermined agenda set by one side in the negotiation. While hard bargaining and unilateral implementation are tools which can be used, they are not weapons to be used in place of actual bargaining. Public policy strongly encourages the parties to settle their differences. The public interest is not effectively served by public officials and administrators who are unwilling or unable to pursue collective bargaining in good faith.

Ultimately, the County’s premature declaration of impasse was a per se failure to bargain in good faith and was therefore a prohibited practice under Neb. Rev. Stat. 48-824 (1), (2)(e) and (f). Accordingly, while we have not specifically addressed all of the Petitioner’s claims, a finding of bad faith bargaining makes such an extensive further discussion unnecessary.

The Petitioner seeks to have the Commission conclude that the County violated §§ 48-816(5), 48-824(1), (2)(a), (e) and (f); order the Respondent to cease and desist from engaging in the prohibited practices; order the Respondent to engage in good faith negotiations with the Petitioner over items listed in the Petition; order the Respondent to make the Petitioner and all bargaining unit employees whole for any loss and expense incurred by them including, but not limited to, reimbursement of the health care premium fees thus far withheld; order reimbursement of attorneys’ fees and costs; and finally, order the Respondent to post a notice to employees promising not to commit any of the found prohibited practices.

Under the NLRB, the usual remedy for an employer’s refusal to bargain in violation of Section 8(a)(5) is an order (1) to cease and desist from refusing to bargain, and (2) upon request, to bargain collectively regarding rates of pay, hours, and other conditions of employment. See e.g. Power Inc., 311 NLRB 599, 145 LRRM 1198 (1993), enforced, 40 F.3d 409, 147 LRRM 2833 (D.C. Cir. 1994); Burgie Vinegar Co., 71 NLRB 829, 19 LRRM 1055 (1946). In addition to ordering the employer to bargain on the matters in issue, the Board usually will order that the status quo ante be restored and that employees be made whole for any benefits that the employer has unilaterally discontinued. Beacon Journal Publ’g Co. v. NLRB, 401 F.2d 366, 69 LRRM 2232 (6^th Cir. 1968) and 417 F.2d 1060, 72 LRRM 2639 (6^th Cir. 1969); General Tel. Co. of Fla., 144 NLRB 311, 316, 54 LRRM 1055 (1963), enforced as modified, 337 F.2d 452, 57 LRMM 2211 (5^th Cir. 1964); American Lubricants Co., 136 NLRB 946, 947-48, 49 LRRM 1888 (1962). On the other hand, if the change involved the granting of a benefit, the Board’s order will require rescission of the beneficial change only if the union seeks such rescission. Great W. Broadcasting Corp., 139 NLRB 93, 51 LRRM 1266 (1962).

The Commission’s authority to issue remedies after finding a failure or refusal to bargain in good faith can be seen in County of Scotts Bluff, wherein the Commission entered a cease and desist order and ordered a recommencement of good faith negotiations.

The Supreme Court has interpreted the Commission’s remedial authority broadly. In IAFF Local 831 v. City of North Platte, 215 Neb. 89, 337 N.W.2d 716 (1983), the Court upheld the Commission’s award of interest against a party who had bargained in bad faith. The Court held that § 48-819.01 provided the Commission’s authority to award interest even though it does not specifically mention awarding interest. In International Operating Engineers Local 571 v. City of Plattsmouth, 265 Neb, 817 (2003), the Supreme Court found that the Commission was correct in returning the union employee to the status quo by ordering reinstatement and the payment of his normal wages, including interest from the date he was laid off, less any net interim earnings. However, under Crete Educ. Ass’n v. Saline Cty. School Dist. No. 76-0002, 265 Neb. 8, 654 N.W.2d 166 (2002), the Supreme Court found that an order to post a notice is not in line with the public policy underlying the Nebraska Industrial Relations Act and likewise reversed the Commission’s decision to require the parties to post such a notice.

The Commission has authority to issue status quo orders under §§ 48-816, 48-819.01, 48-823, and 48-825(2) and to issue a remedy following a finding of a violation to bargain in good faith. These statutes authorize the Commission to issue appropriate remedies that will effectuate the policies of the Industrial Relations Act, adequately provide relief to the injured party, and lead to the resolution of the industrial dispute. An order requiring that good faith bargaining resume and that the offending party cease and desist from committing the prohibited practice found by the Commission is clearly within its authority, and will be therefore ordered. An order requiring the employer to post a notice is clearly not within the Commission’s authority according to the Supreme Court in Crete Educ. Ass’n. Therefore, the Commission will not require the Respondent to post a notice.

With regard to the issue of attorney’s fees, the Respondent’s misconduct was not flagrant, aggravated, persistent, and pervasive. See International Union of Operating Engineers 571 v. Cass County, 14 CIR 259 (2004). The Respondent was the party to seek timely commencement of negotiations, and the Respondent was responsive to the Petitioner. The Respondent’s negotiations did not rise to the level of flagrant bad faith to justify an award of attorney’s fees. Accordingly, attorney’s fees are not awarded.

The last remedy not previously addressed by the Commission is the Petitioner’s request for the reimbursement of benefits including, but not limited to, health insurance premiums paid out by the employees upon the Respondent’s unilateral implementation. In order to return the parties to the status quo, the Commission would have to rescind all of the County’s unilateral changes. This would include both benefits which were discontinued such as health insurance, and the granting of benefits, such as the employees’ wage increase. While the discontinuation of benefits does not pose a practical or public policy concern, the retroactive decrease of granting such benefits as the employees’ wages does pose such a concern.

The Commission has pointed out the complexity of practical problems and public policy considerations in requiring employees to repay back wages. See Nebraska Public Employees Local Union 251 v. Otoe County, 12 CIR 177 (1996). In Otoe County, the Commission stated that it has found in the past that for employees to be required to repay excessive wages or to require future wages to be still further reduced by the already paid excess would create severe hardships on employees and place severe strain on the employer-employee relationship. The Commission also cautioned that the lowering of wages should not be lightly undertaken. Furthermore, the NLRB clearly does not decrease wages unless asked to do so, and does not require rescission of the beneficial change unless the Union seeks such rescission.

While the Respondent’s conduct was not flagrant, aggravated, persistent and pervasive, it was a clear violation of its duty to bargain in good faith. Therefore, the Commission finds the Respondent should make all employees whole for any and all losses incurred as a result of the Respondent’s unlawful unilateral implementation of its final offer. The Respondent shall transmit all fringe benefit withholdings, with interest at the legal rate in effect for judgments entered on this date, except as agreed upon in the previous collective bargaining agreement. The Commission does not require the employees to reimburse the Respondent for any benefits they have received since the unilateral implementation. Furthermore, the Respondent shall not rescind the wage increase granted to the employees until a good faith agreement has been reached between the Petitioner and the Respondent.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that:

The Respondent, County of Hall, shall

1. Cease and desist from:

1. Failing and refusing to bargain in good faith with the Union Local 22 as the collective bargaining representative of its employees in the certificated unit.
2. Unilaterally implementing any so-called "final" proposal without first bargaining to impasse.
3. Unlawfully withholding any benefits as a result of the County’s prohibited practices including, but not limited, to the health insurance premium percentage from employees who were employed prior to July 1, 2000.
4. In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed under the Industrial Relations Act.

2.  Take the following affirmative action necessary to effectuate the policies of the Industrial Relations Act:

            a.  Reimburse such health insurance premiums improperly withheld, since July 1, 2004 plus interest at
                 the rate of 4.63%, which is the Nebraska judgment rate now in effect.

            b.  Continue to pay the wage increase granted to the employees as of July 1, 2004 until a good faith
                  agreement has been reached between the Union and the County.

3.  The parties shall recommence negotiations over these issues within thirty (30) days, and shall negotiate in
      good faith until an agreement has been reached or further order of the Commission.

All panel judges join in the entry of this Order.

Entered March 24, 2005.