16 CIR 12 (2008). Affirmed. 278 Neb. 572 (2009)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 APPEARANCES:

Filed November 14, 2008.

Before: Commissioners Burger, Orr, Blake, Lindahl, McGinn, (EN BANC)

 BURGER, C.

NATURE OF THE PROCEEDINGS:

South Sioux City Education Association, (“Petitioner”) filed a Petition pursuant to Neb. Rev. Stat. §§48-824 and 48-825 (Reissue 2004), claiming that the Dakota County School District No. 22-0011, a/k/a South Sioux City Community Schools (“Respondent”), committed a prohibited practice by designating Bethany Manning as a long-term substitute teacher, and compensating her other than as provided in the 2007-08 Collective Bargaining Agreement. The Petitioner asserts this was a unilateral deviation from the terms of the Collective Bargaining Agreement.

ISSUES:

1.  Whether the Respondent committed a prohibited labor practice in violation of Neb. Rev. Stat. §48-824 by failing to compensate an employee in accordance with the 2007-08 Negotiated Agreement.

2.  Whether Bethany Manning was a certificated employee, and a member of the bargaining unit represented by the Petitioner, and subject to the Negotiated Agreement for the 2007-08 contract year.

3.  Whether Bethany Manning was a “substitute teacher” outside the bargaining unit. 

4.  Whether the Commission lacks jurisdiction over the subject matter of the Petition.

5.  Whether the Petition is time barred.

6.  Whether the Petition fails to state a claim upon which relief may be granted.

7.  If a prohibited practice was committed, what is the appropriate remedy.

FACTS: 

On September 14, 2007, the parties entered into a collective bargaining agreement for the 2007-2008 contract year. The school district sought a teacher to fill the deaf educator position, which is the source of this dispute.

From August of 2003, Kathy Navrkal was South Sioux City’s teacher for the deaf and hard of hearing. In April or May of 2007, she tendered her resignation effective at the conclusion of the 2006-2007 school year. The Respondent then began the process of hiring a new teacher to fill the deaf educator position.

The school district advertised the deaf educator position, and received three applicants, two of whom did not have the requisite certification. The three applicants included Bethany Manning and Amanda Junck. Bethany Manning was employed by the Respondent as both a substitute sign language interpreter and a substitute teacher for the previous four years, holding certifications in Deaf Education, Elementary Education and ESL (English as a Second Language). Ms. Manning also has a Master’s degree from the University of Northern Colorado, with previous teaching experience in Colorado, Wyoming, and New Mexico. The other two applicants’ qualifications were not submitted into evidence.

Three school administrators were involved in evaluating the applicants for the position of deaf educator: Student Services Director Rozanne Warder, Assistant Superintendent David Hawkins and Principal Sheri Fillipi. Mrs. Warder conducted the interviews. After conducting the interviews, Mrs. Warder was concerned because she felt that Ms. Manning, even though she held the requisite certification, did not meet the district’s standards of employment. Without another certified candidate, Mrs. Warder and Mr. Hawkins considered the options, deciding to offer Ms. Manning the position as a long-term substitute. Mr. Hawkins and Mrs. Warder then recommended to Superintendent Steve Rector that Ms. Manning not be offered a teacher’s contract but be offered the position as a “long-term substitute”, although they knew she would not be substituting for anyone.

Policy 411.1 set by the South Sioux City Community School Board states that:

Substitute teachers are to be selected by the principals, or his/her designee from a list of substitutes previously approved by the Superintendent. The amount of pay is to be set periodically by the Board of Education.

In a letter to Ms. Manning on June 29, 2007 Mrs. Warder set forth Ms. Manning’s pay as a long-term substitute, at the rate of $95.00 per day for the first 20 days of substitute teaching. On the 21st day, her pay was adjusted to reflect her degree and experience on the Respondent school district salary schedule. Long-term substituting did not contractually bind her with the South Sioux City Schools.

The evidence reflected that the administrators could not recall in the past 24 years that the school district had ever hired someone at the commencement of the school year as a long-term substitute when they were not actually fulfilling the duties of another member of the staff on a leave-of-absence. Of the 34 new teachers hired by the school district for the 2007-08 school year, Ms. Manning was the only teacher not issued a teacher’s contract. The other 33 new teachers were issued contracts and were treated as members of the Collective Bargaining Unit represented by the Petitioner. The other 33 new teachers were compensated based on the negotiated Collective Bargaining Agreement between the parties. Ms. Manning also did not receive any fringe benefits, life insurance, personal leave benefits, or sick leave as provided to the other teachers.

During the fall semester of 2007, the Respondent again advertised and solicited applications for the deaf educator position. Ms. Manning applied for the position, along with Amanda Junck, who had received her degree and certification since her initial interview.  Ms. Junck was then offered the position as a full-time teacher with a contract, commencing her employment at the beginning of the second semester.

On December 11, 2007, Ms. Manning was notified that her services were no longer needed for her present assignment as a long-term substitute ending December 13, 2007. Upon her impending dismissal, the Association filed a grievance arguing that the school district should have issued Ms. Manning a probationary teacher’s contract as required by law. The grievance stated the school district failed to issue Ms. Manning a teacher’s contract and compensate her accordingly. On December 14, 2007, the Respondent denied the Association’s grievance, which the Association then appealed to the Board of Education and that appeal was also denied.

Following her dismissal, Ms. Manning was encouraged to remain on the active substitute list, and was retained as a substitute teacher. Ms. Manning was later removed from the substitute list following the initiation of these proceedings.

DISCUSSION:

Subject Matter Jurisdiction

            The Respondent argues that the Commission lacks subject matter jurisdiction because the Petitioner’s remedy is in reality for breach of contract. The Petitioner responds that the Respondent’s actions constituted a prohibited practice, and it seeks a redress for the damage caused to its status, and effectiveness as the exclusive bargaining agent.

            In support of its argument, the Respondent argues that Transport Workers of America v. Transport Authority of Omaha, 205 Neb. 26, 286 N.W.2d 102 (1979) and Central Nebraska Educ. Ass’n v. Central Tech. Comm. College Area, 6 CIR 237 (1982) control our decision. However, both cases predate the legislative adoption in 1995 of §48-824.

            In Ewing Educ. Ass’n v. Ewing Public Schools, 12 CIR 242 (1996), the Respondent argued that the Petition filed was simply a breach-of-contract case, and the Commission lacked jurisdiction. The Commission found that a unilateral change in a term or condition of employment contained in a collective bargaining agreement may be a breach of contract and actionable as such. But, the same facts may also constitute a prohibited practice. The Petition in the instant case alleges facts that squarely place jurisdiction before the Commission as a prohibited practice.

Ewing follows the legislative adoption of the prohibited practice statutes. We are cognizant of the limits of our jurisdiction, but, the subsequent legislative action giving to the Commission express prohibited practice jurisdiction substantially undermines the holding in Transport Workers of America, which the Respondent bases its argument upon. Notwithstanding the requested remedy of reimbursement of pay and benefits, the Petitioner has plead this case as a prohibited practice which impacted the Association. We have not been asked to determine whether a breach of contract occurred, but, whether the Respondent’s acts constituted a prohibited practice. The Commission has subject matter jurisdiction.

Failure to State a Claim

            The Petition references Neb. Rev. Stat. §48-824 (a) and (f), which do not exist. Therefore, Respondent argues the Petitioner has not alleged that the Respondent’s actions actually violated any prohibited practice statute. The Respondent also argues that in Ewing Educ. Ass’n v. Ewing Public Schools, 12 CIR 242 (1996), the Industrial Relations Act does not have similar provisions as found in the National Labor Relations Act that holds “a unilateral change in the terms and conditions of an existing collective bargaining agreement is a violation of the employer’s duty of bargaining in good faith.” The Respondent further argues that Ewing states that the unilateral change was a “focal point” of negotiations and that Ms. Manning’s payment was not a focal point at negotiations.

            In Omaha Police Union Local 101, AFL-CIO v. City of Omaha and Chief of Police Thomas Warren, 15 CIR 292 (2007) the Commission found that the unilateral act of reassigning parking stalls was a prohibited practice. In Omaha Police Union Local 101, the unilateral change was not a focal point of negotiations. In fact the provision was not included in the bargaining contract. Under Nebraska law, parties must bargain over all mandatory topics of bargaining, whether or not those terms are specifically set forth in the contract. Id at 296.

The instant case deals with whether a member of the bargaining unit can be unilaterally dealt with, and paid off of the negotiated salary schedule. The salary schedule is clearly a mandatory subject of bargaining. The reference in Ewing to the health insurance provisions being a focal point of negotiations was dicta. Ewing is not applicable to the Respondent’s “focal point” argument.

The mistaken statutory reference was clearly a typographical error; intending to reference Neb. Rev. Stat. §48-824 (2)(a) and (f). The case was clearly tried upon that question, and no evidence of any surprise, or misunderstanding of the issues before the Commission exists. We understand the Petitioner’s claim, and the parties clearly did too. The case was tried over whether the Respondent’s actions interfered with restrained or coerced employees in the exercise of rights or denied the rights accompanying recognition under the Industrial Relations Act. The factual allegations of the Petition state a claim of a prohibited practice; the typographical error had no impact on that fact.

Statute of Limitations

            The Respondent argues that the Petition was not filed within 180 days after the alleged violation, and is time-barred. The claim is that the cause of action started to accrue when Ms. Manning accepted the position as a long-term substitute. The Petitioner responds that the burden of proof is on the Respondent, and the Respondent failed to prove that the Association became aware prior to filing the grievance on December 10, 2007, and that the alleged change did not occur until Ms. Manning was paid on September 21, 2007.

            Neb. Rev. Stat. §48-825(1) (Reissue 2004) provides in part that (a) proceeding against a party alleging a violation of Section 48-824 is commenced by filing a complaint with the Commission within 180 days after the alleged violation. In Davis v. Fraternal Order of Police Lodge No. 8, 15 CIR 1 (2004), aff’d, 15 Neb. App. 470 (2007) the Commission interpreted the 180-day statute of limitations in a prohibited practice cause involving continuing conduct. In Davis, the Commission found that Section 10(b) of the National Labor Relations Act was sufficiently similar to Neb. Rev. Stat. §48-825(1) to provide guidance. Under Section 10(b) of the National Labor Relations Act, the NLRB has held that the statute does not begin to run until the date the unilateral change is implemented, notwithstanding whether the employer announced the changes more than six months before the change. See Harvard Filling Box Co., 273 N.L.R.B. 113 (1984); Elmac. Corp., 225 N.L.R.B. 1188 (1976); and Swift Service Stores, 169 N.L.R.B. 359 (1968). We conclude that the cause of action first arose when the Respondent actually implemented the deviation from the salary schedule, and not when Ms. Manning was offered the position.

            The Petition specifically asserts that the alleged prohibited practice was the unilateral deviation from the salary schedule. This first occurred on September 21, 2007. The case was filed on January 16, 2008, this action was timely filed, and is not barred.

Member of the Bargaining Unit

            The question of whether Bethany Manning was a member of the bargaining unit is critical. It determines whether she was entitled to be paid under the salary schedule, and thus whether paying her on a different basis was a unilateral deviation from the economic terms in the agreement. The Collective Bargaining Agreement reflects the recognition of the Petitioner as the bargaining representative for all regular certified teachers employed by the District. The Agreement is silent as to substitute teachers. The pay of substitute teachers is unilaterally set periodically by the Board of Education.

            Under Neb. Rev. Stat. §48-824, it is well established that it is a prohibited labor practice to unilaterally deviate from economic terms of a collective bargaining agreement. See Ewing Educ. Ass’n v. Ewing Pub. School, 12 CIR 242, 245 (1996). As stated in Crete Educ. Ass’n v. Crete Pub. Schools, 13 CIR 361 (2001), rev’d in part on other grounds, 265 Neb. 8, 654 N.W.2d 166 (2002). Just as direct dealing is a violation of the an employer’s duty to bargain in good faith with the employees’ exclusive representative, an employer’s unilateral implementation of a term or condition of employment contrary to the collective bargaining agreement may also be a violation of that duty to bargain.

            Neb. Rev. Stat. §79-824 et. seq. (Reissue 2003) states that: “Certificated employee means and includes all teachers and administrators as defined in Section 79-101, other than substitute teachers, who are employed one-half time or more by any class of school district;”. The term “substitute teacher” is not defined statutorily. Instead the statute provides that: “A certificated employee who has been hired to fulfill the duties of another certificated employee who is on a leave-of-absence shall not accrue rights under Sections 79-824 to 79-842 during the period the employee is fulfilling such duties. Webster’s Ninth New Collegiate Dictionary defines substitute as a person or thing that takes the place or function of another.

            The common sense implication is clear; a person cannot substitute for an open position. In the instant case, the Respondent designated Ms. Manning as a long-term substitute arbitrarily. By definition, Ms. Manning was never a substitute teacher, and labeling her as such does not change reality. The effect of accepting Respondent’s designation would permit Respondent to unilaterally control the composition of the bargaining unit.

            The Commission in F.O.P. Lodge 41 v. County of Scotts Bluff, 13 CIR 270, 287 (2000), stated:

 The reason why the law disfavors unilateral changes in the unit descriptions is as simple as it is fundamental: if an employer could vary unit descriptions at will, it would have the power to sever the link between a recognizable group of employees and its union as the collective bargaining representatives of these employees. This in turn would have the effect of both undermining a basic tenant of union recognition in the collective bargaining context and greatly complicating coherence in the negotiation process.

With regard to the issue of whether Ms. Manning was only one-half time because she only served 83.5 service days out of a total of 188 teacher service days in 2007-08, we find little merit. The Respondent unilaterally decided to let Ms. Manning go in December.  She had taught nearly every day from the first day of school. To permit the Respondent to employ this device, and allow otherwise probationary teachers to unilaterally be designated long-term substitutes undermines the authority of the representative, and its rights under the act. Ms. Manning was hired to fill a full-time position, and Respondent’s designation of her as a long-term substitute had the effect of unilaterally removing Ms. Manning from the bargaining unit. We conclude that Ms. Manning was not a long-term substitute, but, in reality performing as a probationary certificated employee, and thus a member of the bargaining unit.

Having concluded that Bethany Manning was in reality not a substitute teacher, and was a member of the unit, we find that the act of unilaterally paying her on a basis other than as provided in the Collective Bargaining Agreement, and without bargaining with Petitioner over such a unilateral change, was a violation of Neb. Rev. Stat. §48-824.

Remedial Authority

            The Petitioner seeks an order requiring the Respondent to cease and desist from unilateral deviations from the Collective Bargaining Agreement and its compensation provisions for members of the bargaining unit represented by the Petitioner. The Petitioner also seeks an order awarding Ms. Manning back pay in an amount equal to the difference between the amount received by her from the Respondent and the amount which she is entitled to under the Collective Bargaining Agreement. Finally, the Petitioner seeks to be awarded the taxable costs of this action as provided by Commission Rule 29(c).

            Neb. Rev. Stat. §48-825 states: “If the commission finds that the party accused has committed a prohibited practice, the commission, within thirty days after its decision, shall order an appropriate remedy.” 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.

It is clear that 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. See Ewing Educ. Ass’n v. Holt Co. School Dist. No. 29, 12 CIR 242 (1996). Having found that the Respondent has engaged in a prohibited labor practice, we find that it must be ordered to cease and desist.

The Petitioner specifically requests that the Commission should appropriately order back pay to Ms. Manning. In International Union of Operating Engineers Local 571 v. City of Plattsmouth, 14 CIR 89 (2002), Aff’d 265 Neb. 817, 660 N.W. 2d 480 (2003) and Service Employees Int’l Union v. School Dist. No.1, Sarpy County, 15 CIR 306 (2007), the Commission ordered reinstatement and back pay as an appropriate remedy under Neb. Rev. Stat. §§48-816, 48-819.01, and 48-823. In City of Plattsmouth, the Supreme Court citing Transport Workers v. Transit Auth. of Omaha, 216 Neb. 455, 344 N.W.2d 459 (1984), stated that they had previously determined that the Commission has authority to enter orders preserving the status quo until a dispute is resolved. 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. The Supreme Court concluded that the Commission had authority to order the employee reinstated to the position he held prior to Plattsmouth’s prohibited actions, and that the Commission did not exceed 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. We find that back pay is an appropriate remedy under the Act, and probably the only meaningful way to address the facts presented in this case.

The total difference between the amount Ms. Manning was paid, and would have been paid as provided under the Collective Bargaining Agreement is $6,321.37. The Respondent does not dispute this amount.

The Petitioner has also requested an award of attorney fees as part of the remedy. There is certainly no evidence that the conduct of the Respondent was persistent, or pervasive. We decline to find that the conduct in the case was flagrant. A fair reading of the evidence does not suggest intent to interfere with the Petitioner’s rights. What happened may have occurred without any consideration of that impact. The use of the long-term substitute designation may have been evaluated under the continuing contract law, without thinking of its impact under the IRA. The evidence does not support a willful violation, and was not flagrant. Attorney fees are not an appropriate remedy in this case.  

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that: 

1.         The Respondent shall cease and desist from implementing unilateral deviations from the provisions of the Collective Bargaining Agreement, including its compensation provisions, in dealing with members of the bargaining unit.

2.         The Respondent shall reimburse Ms. Manning back pay in the amount of $6,321.37, which is equal to the difference between the amount received by her from the Respondent for her bargaining unit duties and the amount to which she would be entitled under the Collective Bargaining Agreement.

All panel commissioners join in the entry of this order.