16 CIR 22 (2008) 

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 APPEARANCES:

Filed September 29, 2008

Before: Commissioners Blake, Orr and Lindahl

 BLAKE, C.

NATURE OF THE PROCEEDINGS:

On February 19, 2008, Employees United Labor Association, (hereinafter, “Petitioner” or “EULA”) filed a Petition pursuant to Neb. Rev. Stat. §§48-811, 48-816(1), 48-819.01, and 48-824(2)(a) and (c) claiming that the County of Douglas (hereinafter, “Respondent”), committed a prohibited practice by failing to negotiate over several mandatory topics of bargaining, including but not limited to longevity pay, percentages paid in health insurance premiums by the employer and a standard step pay increase rather than a “one-time” step pay increase.  On February 22, 2008, Respondent filed an Answer denying that any of its actions constitute prohibited practices, stating that its actions were supported by a prior wage case (Case 1098) between International Union of Operating Engineers, AFL-CIO, Local Union NO. 571 (the previous Union representing these employees) and Douglas County.

The parties both submitted numerous issues at Pretrial. However, the following issues were focused on at trial:

1.          Whether Douglas County has committed an unfair labor practice by not giving the Petitioner each and every economic and non-economic benefit that it gives to all other union and non-union employees. 

2.         Whether Douglas County has proposed better economic and non-­economic benefits to the Petitioner than it gives to non-union employees so that Petitioner is better situated than non-union employees. 

3.         Whether any actions of Douglas County constitute a violation of Neb. Rev. Stat. §48-824(2)(a), (c) and (g).

4.         Whether the actions alleged by the Petitioner were taken to discourage membership in Petitioner’s organization by attempting to interfere with, restrain, or coerce employees in their exercise of their rights granted by the Industrial Relations Act, in violation of Neb. Rev. Stat. §48-824(2)(a), or by discrimination in the hiring, tenure or terms and conditions of employment in violation of Sec. 824(2)(c). 

5.         Whether the Commission of Industrial Relations has the legal authority, in the context of a prohibited practice case, to determine the appropriate wages and benefits.  While this issue was contested by the parties, due to the Commission’s Findings in this case, we need not address this issue.  

FACTS:

            Employees United Labor Association was first certified in September of 2006 as the elected representative for non-uniformed employees in the Department of Corrections and employees in the Register of Deeds and General Assistance Departments. The Employees United Labor Association was also later certified in December of 2006 as the elected representative for the Department of the County Clerk. All of these bargaining units had previously been represented by the International Union of Operating Engineers, Local 571, prior to the decertification of the previous union and new certification of Employees United Labor Association in September of 2006 and December of 2006.

The International Union of Operating Engineers, Local 571 filed a wage case against Douglas County for nine separate bargaining units (including the four bargaining units now currently represented by the Petitioner). In its 2006 decision, the Commission concluded to only use the common array members and declined under the evidence presented at trial to include the City of Omaha. Based upon this array the Commission determined the issues of comparability, including the prevalency of various fringe benefits for the 2004-2005 contract year.

In the instant case, the Petitioner has filed a prohibited practice case alleging Douglas County’s refusal to bargain over three main issues presented in the Commission’s 2006 decision. Specifically, the Petitioner alleges prohibited practice violations occurred with regard to the issues of longevity pay, health insurance percentages paid by the employee, and step pay increases. The alleged ongoing prohibited practice violations occurred during current negotiation sessions between the parties.

The first negotiation session for all four bargaining units was held March 30, 2007. The parties agreed that they would work from the old contract between the old union, International Union of Operating Engineers, Local 571 and Douglas County for all of the bargaining units.  For ease of negotiations, since the Petitioner represents multiple bargaining units within Douglas County, it has been negotiating jointly with the County for the Clerk, Register of Deeds and General Assistance bargaining units. The bargaining units for the Clerk, Register of Deeds and General Assistance have met in approximately six negotiations sessions. The Petitioner and the Respondent have also been separately negotiating the contract for the Department of Corrections. The Department of Corrections has met for approximately eight negotiation sessions. The Petitioner alleges the same prohibited practices for all four bargaining units.

The first alleged prohibited practice is with regard to Douglas County’s treatment of longevity pay for the employees in the various bargaining units represented by the Petitioner. Prior to the Commission’s 2006 decision, longevity pay was paid to the employees in the nine bargaining units as a “flat rate” based on years of service. For example, after five complete years of service with Douglas County, an employee would make approximately $380 in longevity pay in addition to their regular salary. Accordingly, for each additional year of service, the employee would be paid more money on a tiered scale each year until year 20. The Commission’s 2006 decision found that this was not a prevalent practice in the chosen array for the 2004-2005 contract year. Bargaining unit employees currently receive this type of longevity pay.

The second alleged prohibited practice is with regard to Douglas County’s bargaining position on the percentage it pays for health insurance. The County pays 85% of the employee plus one dependent health insurance plan for non-union employees whereas for Employees United Labor Association employees the County pays 77%. The County also pays 95% for a single employee represented by the Petitioner and 93% percent for a non-union employee, but the Petitioner is not alleging this percentage is a prohibited practice. These percentages are based upon the array chosen in the Commission’s 2006 wage decision.

The third alleged prohibited practice deals with a 2.5% overall step pay plan increase versus the proposal for a one-time 3% bonus for the Petitioner’s bargaining unit members. Currently, non-union employees received a 2.5% overall step pay plan increase. Wage increases varied between the various unions and non-union employees. This proposal by the County is not based upon the Commission’s 2006 wage decision. 

DISCUSSION: 

The Petitioner alleges the Respondent violated Neb. Rev. Stat. §§48-811, 48-816(1), 48-819.01, and 48-824(2)(a) and (c) by failing to negotiate over several mandatory topics of bargaining, including but not limited to longevity pay, percentages paid in health insurance premiums by the employer and a standard step pay increase rather than a “one-time” step pay increase. The Petitioner alleges the same prohibited practices for all four bargaining units. The Respondent argues that none of its bargaining positions were in bad faith.

The Industrial Relations Act only requires parties to bargain over mandatory subjects. Neb. Rev. Stat. §48-816(1). The Commission in Service Employees International Union, Local No. 226 v. School District No. 66, 3 CIR 514 (1978), used a relationship test in determining bargaining issues. “Whether an issue is one for bargaining under the Court of Industrial Relations Act depends upon whether it is primarily related to wages, hours and conditions of employment of the employees, or whether it is primarily related to formulation or management of public policy.” Id. at 515; See also Coleridge Education Ass’n v. Cedar County School District No. 14-0541, a/k/a Coleridge Community Schools, 13 CIR 376 (2001).

Under Neb. Rev. Stat. §48-824(2)(a), it is a prohibited practice for any employer or the employer’s negotiator to: (a) Interfere with, restrain, or coerce employees in the exercise of rights granted by the Industrial Relations Act. In determining whether the Respondent violated §48-824(2)(a), the test is “whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act” Nebraska Pub. Employees Local Union 251 v. Otoe County, 13 CIR 79, 93 (1998). The legislative history of the Industrial Relations Act’s §48-824 affirms that the section’s purpose is to provide public sector employees with the protection from unfair labor practices that most private sector employees enjoy under the National Labor Relations Act, by making refusals to negotiate in good faith regarding mandatory bargaining topics a prohibited practice. LB 382, 94th Leg., 1^st Sess., 1995.

Insofar as mandatory subjects of bargaining are concerned, the Industrial Relations        Act does not require either party to yield or compromise its position. See Communication Workers of America, AFL-CIO v. County of Hall, 15 CIR 95 (2005). In County of Hall, the Commission 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. In County of Hall, the Commission determined that hard bargaining defined is where one of the parties takes a position and maintains it. Citing Roman Iron Works, 275 NLRB 449 (1985), the Commission noted the delicate balance between hard bargaining versus sham bargaining or bargaining without good faith.

While the Commission did not find that the Respondent in County of Hall engaged in hard bargaining, the Commission noted that it is not illegal to engage in hard bargaining, Section 8(a)(5) of the Act nevertheless requires bargaining 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).

The Commission also found it noteworthy in Roman Iron Works, that the Respondent 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.

Ultimately in County of Hall while the Commission found that the Respondent did not engage in hard bargaining, the Commission was mindful that employers may engage in hard bargaining. In sum, the Commission found that employers must walk a fine line between hard bargaining and bad faith bargaining.

In the instant case, the County’s negotiation position is that longevity pay should not be included in a new contract because of the Commission’s previous 2006 decision. The Petitioner feels this is a refusal to negotiate the issue of longevity pay in good faith. Secondly, the County desires to continue 77% for health insurance for employee plus one dependent based upon the Commission’s 2006 wage decision. The Petitioner feels this is a refusal to negotiate the issue of health insurance premiums in good faith. Finally, the County desires to give the Petitioner’s bargaining units a 3% one-time bonus rather than a 2.5% step increase, which would serve as a base for increases in future years. The Petitioner feels this is a refusal to bargain in good faith because other employees have received increases that would serve as a base for future years.

The Respondent’s position in the instant case is unyielding and mostly based upon the Commission’s 2006 decision. The Industrial Relations Act does not require the Respondent to yield to the Petitioner’s position, nor does the Act compel either party to agree to a proposal or to make a concession. The Respondent has met with the bargaining units including the Clerk, Register of Deeds and General Assistance for approximately six negotiation sessions and with the Department of Corrections for approximately eight negotiation sessions. These sessions indicate a willingness to bargain with the Petitioner. The chief negotiator for the Respondent indicated a continued willingness to consider proposals by the Petitioner.

At the time this prohibited practice case was filed there was no wage case before the Commission between these two parties. The Commission takes judicial notice that wage cases were filed on June 27, 2008. A filed wage case would be determined based upon the evidence presented in trial, since array determinations are factual; the use of a particular array in one case does not require that the same array be appropriate in a different case. See Crete Educ. Ass’n v. School Dist. of Crete, 193 Neb. 245, 255, 226 N.W. 2d 752, 758 (1978).

The Respondent’s position, while it is a hard, unyielding position that walks a tight line of good faith bargaining, is nonetheless a legitimate position. The Petitioner’s arguments might be better served as a prevalency argument with a new proposed array in a wage case. Therefore, based upon the facts presented at trial, we find that the Respondent did not bargain in bad faith.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that:

1.   The Petitioner’s causes of action are ordered dismissed. 

All panel commissioners join in the entry of this order.