16 CIR 28 (2008) 

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 APPEARANCES:

 Filed August 28, 2008.

Before: Commissioners Orr, Blake, and Lindahl

ORR, C.

 NATURE OF THE PROCEEDINGS: 

On February 1, 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)(c) claiming that the Omaha Airport Authority (hereinafter, “Respondent”), committed a prohibited practice by failing to negotiate over a five percent wage increase awarded to the three electricians in the bargaining unit. Furthermore, the Petition also alleged the Respondent committed a prohibited practice by allowing tow-truck drivers to plow the front drive of the airport in a snow emergency on two separate instances. On July 27, 2006, Respondent filed an Answer denying that the changes made by the Respondent were a prohibited practice, stating that its actions were because of emergencies and because of business necessity to prevent further resignations of skilled electricians.

The issues presented at trial were as follows:

1.     Whether the wage increase given to Omaha Airport Authority electricians in July 2007, without the permission of EULA, was justified by business necessity or constituted an unlawful prohibited practice.

2.     Whether the performance of snow plow duties on the front drive and other public access areas of the airport by non-bargaining unit tow-truck drivers constituted an unlawful prohibited practice.

FACTS:  

            On April 30, 2007, Employees United Labor Association was certified as the exclusive bargaining agent for all employees of the Omaha Airport Authority, who are regular, full-time employees and all part-time employees who are not supervisors, seasonal or temporary employees, employed in the Field Maintenance Department (excluding part-time tow-truck drivers). The Omaha Airport Authority serves as the base of operations for commercial and general aviation and cargo areas for air transportation in the City of Omaha.  

The Omaha Airport Authority is split into multiple departments. These departments include Field Maintenance, IT Technology, Building Engineer Communications Center, Fire/Rescue, Airport Police, Custodial, and Finance and Administration.

            The Petitioner is seeking a prohibited practice order on two separate issues. The first issue deals with whether the Respondent committed a prohibited practice by implementing a wage increase for three electricians in late June or early July of 2007. The second issue occurred when the Omaha Airport Authority utilized tow-truck drivers in two snow emergencies occurring in December of 2007 and February of 2008, which the Petitioner claims was not bargained over.

For the purpose of clarity, the two issues will be discussed and the facts will be presented separately in the findings and order.

Electricians

Electricians at the Omaha Airport maintain the electrical system for the air field and the buildings which support the field. This includes the airport’s runways and taxiway lighting circuits. The lighting acts as a guidance system for aircraft taking off and landing on the airport and it must function 24 hours a day, seven days a week.

The current airport lighting system was constructed through additions or renovations over the last 50 years, whereby the old system was reconnected to the more current technology, upgrading the complicated control systems during each renovation. There are thousands of miles of cables which are repaired daily by the Omaha Airport Authority electricians. The current system is inner-connected whereby if one cable burns up in the system, the rest of the cable lights on the runway will not work. Therefore, the electricians must go through a unique process of elimination to determine which cable is burnt. Accordingly, for a new employee to become familiar with the whole system would most likely take two to three years.

Sometime in early summer of 2007, Keith Hanna, an electrician, left the Omaha Airport Authority for private contract employment with Local 22, a local electrician’s union. At the time he left, the employee stated he was leaving the Omaha Airport Authority because of wages. At this time, due to the nature of the complex lighting system, the Respondent felt it necessary to take immediate action to ensure that the other two electricians stayed on with the Omaha Airport and did not leave for other local higher paying jobs.

The Respondent attempted to negotiate with the Petitioner, requesting an immediate five percent raise for the electricians. The Respondent was urgently concerned about airport safety and continuous functioning of the runway lighting, since the Respondent was fearful of losing the other electricians to higher Local 22 wages. The Union refused to negotiate the issues stating that unless everyone in the bargaining unit was getting the five percent raise they would not agree to an immediate raise for the electricians. After the Union refused, in either June or July of 2007, the Omaha Airport Authority approved and then implemented the raise. The five percent wage increase strongly influenced one of the electricians to maintain his employment with the Omaha Airport Authority. The Union, in its request for a remedy of the prohibited practice alleged, is not seeking the Commission to withdraw the raise.

DISCUSSION:

The Petitioner argues that Omaha Airport Authority committed a prohibited practice by unilaterally implementing a five percent wage increase for three electricians in the bargaining unit of the field maintenance department. The Respondent argues that it increased the wages out of business necessity and therefore did not commit a prohibited practice.

            The Commission first must determine if it has jurisdiction over this alleged prohibited practice. Neb. Rev. Stat. §48-825(1) (Reissue 2004) provides that “a proceeding against a party alleging a violation of section 48-824 is commenced by filing a complaint with the Commission within one hundred eighty days after the alleged violation thereby causing a copy of complaint to be served upon the accused party.” 

The Nebraska Supreme Court has previously examined the issue of jurisdiction under Neb. Rev. Stat. §48-825(1). In Davis v. Fraternal Order of Police, 15 Neb. App. 470 (2007), the Appellant argued that the Commission had committed an error when it found that appellees’ claims were not barred by the applicable statute of limitations. The Nebraska Supreme Court disagreed, agreeing with the finding of the Commission that appellees’ claims were not barred by the statute of limitations, because the FOP’s conduct as alleged in appellees’ claims constituted a continuing violation of their rights.

            The Commission does not find any continuing violations in the instant case. The wage increase occurred once and the Petitioner was clearly on notice because the Respondent attempted to bargain for the wage increase. In this case, the limitation period began to run when the Omaha Airport Authority implemented the wage increase. The burden is on the Petitioner to prove that the implementation of the wage increase occurred after August 19, 2007 or within the 180 days prior to the February 19, 2008 filing of the Petition. The record indicates that the alleged wage increase for the electricians occurred prior to August 19, 2007. Therefore, the Commission does not have jurisdiction over the alleged prohibited practice.

SECOND ISSUE: 

Facts for Tow-truck Drivers

         The Respondent argues that it did not commit any prohibited practice because the tow-truck drivers were only used in two emergency situations.

On or about December 6, 2007 and on or about February 5, 2008, the Omaha Airport Authority instructed a part-time tow-truck driver to plow the snow on the “land side” of the airport because all of the Field Maintenance workers who normally plow the “land side” were busy keeping the “air side” clear of snow. On or about December 6, an ambulance overturned on the “land side” of the airport, while the Respondent had one Field Maintenance worker sanding the “land side” of the airport. The Respondent determined because of the emergency weather conditions that they immediately needed another truck to plow and sand the perimeter roads to keep up with the snow and ice accumulation. The Respondent then instructed a tow-truck driver to help plow the “land side.”

On both occasions, there was a shortage of field maintenance employees due to absences. Also on both occasions, the field maintenance workers were working on a 12-on\12-off schedule, so the Omaha Airport Authority was not able to call in additional plowing from the bargaining unit employees not on duty. Evidence at trial indicates that no bargaining unit members lost any hours of work.

In approximately November of 2005, prior to the certification of Employees United Labor Association, the previous union (representing the field maintenance employees) and the Respondent had entered into an agreement regarding the use of tow-truck drivers. The agreement states that the tow-truck drivers would be permitted to plow snow in perimeter areas, during snow emergencies when the field maintenance employees were fully occupied plowing on the air side of operations. No new agreement has been entered into by Employees United and the Omaha Airport Authority. The agreement was used occasionally by the Omaha Airport in emergency situations since 2005. In current contract negotiations between the parties on September 12, 2007, October 19, 2007, December 18, 2007 and January 22, 2008, the Respondent proposed that tow-truck drivers should continue to be allowed to plow snow in perimeter areas, during snow emergencies. The Petitioner refused to accept this proposal. 

DISCUSSION:

            The Petitioner argues that when the Respondent instructed the non-unit tow-truck drivers to plow the front drive they committed a prohibited practice because plowing the front drive was bargaining unit work. The Petitioner further argues that the Respondent could have shut down a runway in order to plow the front drive, since they have shut runways down in the past.

The Respondent argues that the sporadic emergency snow plowing work done by the non-unit tow-truck drivers is not a prohibited practice. The Respondent argues that temporarily reassigning unit work does not result in a material or substantial change in employment which would give rise to a mandatory subject of bargaining.

In Omaha Police Union Local 101 v. City of Omaha, 15 CIR 339 (2007), the Commission found that the decisions of the NLRB and federal decisions interpreting the NLRA are helpful, but not binding precedent when the statutory provisions are similar. See also Nebraska Public Employee Local Union 251 v. Otoe County, 257 Neb. 50, 595 N.W.2d 237 (1999). See also International Union of Operating Engineers, Local 571 v. City of Plattsmouth, 265 Neb. 817, 660 N.W.2d 480 (2003). In City of Omaha, the Commission concluded that the provisions of Section 48-824(1) was sufficiently similar to Section 8(A)(5) of the National Labor Relations Act.

Under section 8(a)(5) of the NLRA, an employer commits an unfair labor practice by “refus[ing] to bargain collectively with the representatives of his employees.” 29 U.S.C. §158(a)(5). The obligation to “bargain collectively” requires an employer to “confer in good faith with respect to wages, hours, and other terms and conditions of employment.” Id. §158(d). An employer thus violates section 8(a)(5) by unilaterally changing an existing term or condition of employment without first bargaining to impasse.  Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 198, 111 S.Ct. 2215, 2221, 115 L.Ed.2d 177 (1991).

            In North Star Steel Co., 347 NLRB 119 (2006), the Board found that the Respondent had no duty to bargain with the Union about its transferring of bargaining unit work. Under 8(a)(5), generally, an employer has a duty to bargain with the exclusive representative of a unit of its employees before making a change in wages, hours, or other working conditions. However, that duty arises only if the change is a “‘material, substantial, and a significant’ one affecting the terms and conditions of employment of bargaining unit employees.” Millard Processing Services, Inc., 310 NLRB 421, 425 (1993), citing Angelica Healthcare Services Group, 284 NLRB 844, 853 (1987).

In North Star Steel Co., the Board found that the moving party bore the burden of establishing that the change was material, substantial and significant. In North Star Steel Co. no evidence was submitted that the transfer of 175 tons of steel production adversely affected any employee, as no evidence was offered concerning the number of employees or the number of work hours involved in processing the steel. Therefore, the Board found that there was no duty to bargain about the insubstantial amount of steel production transferred. Accordingly, the Board dismissed the 8(a)(5) and (1) allegations pertaining to the Respondent’s failure to notify the Union or to bargain with it over the transfer of 175 tons of steel production.

            In the instant case, no bargaining unit member lost any wages as a result of the plowing done by the tow-truck drivers during the two emergency snowfalls. The Petitioner did not provide any evidence that this change was material, substantial or significant. Petitioner cites no legal authority to support its position. The parties have not entered into any new contracts since the new election certifying EULA. The parties still operate under the wage contract negotiated by the previous union. The previous union also entered into an agreement which allows the Respondent to use tow-truck drivers in emergencies, which like the wage agreement is arguably still in effect. The Respondent also attempted to negotiate the issue with the Petitioner at the bargaining table, but the Petitioner refused to allow such work to be done by the tow-truck drivers.

Furthermore, the Neb. Rev. Stat. §48-802 states that it is the duty of the State of Nebraska to exercise all available means and every power at its command and to prevent any substantial impairment or suspension of the operation of governmental service, so as to protect its citizens from any dangers, perils, calamities, or catastrophes which would result therefrom. The Respondent exercised its responsibility to the public by trying to prevent any peril to befall its planes on the runways or the motor vehicle traffic on the front drive. Clearly, since an ambulance had overturned on the front drive, the Respondent needed to take immediate action to protect the public from further danger. It would be against the Industrial Relations Act for us to hold otherwise. Also, under Neb. Rev. Stat. §48-802 the Commission must carry out the public policy of the State of Nebraska which maintains the continuous, uninterrupted and proper functioning and operation of the governmental service. A holding otherwise would be against the creation of the Commission. Therefore, the Commission finds that the Respondent did not commit a prohibited practice in allowing the tow-truck drivers to plow during emergencies.

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.