16 CIR 394 (2009)
NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS
Entered December 14, 2009.
Before: Commissioners Orr, Blake, and McGinn.
NATURE OF THE PROCEEDINGS:
The International Brotherhood of Electrical Workers Local 763 and the International Brotherhood of Electrical Workers Local 1483, (hereinafter, "Petitioners") filed a Petition on July 7, 2009 pursuant to Neb. Rev. Stat. § 48-824(1) and § 48-824(2)(a),(b), and (f), claiming that the Omaha Public Power District (hereinafter "Respondent" or “OPPD”) committed various prohibited practices through its implementation of the Tobacco Free Workplace Policy. Petitioners seek a cease-and-desist order, ordering Respondent to terminate the implementation of the Tobacco Free Workplace Policy; award attorneys’ fees and costs; make whole any employees who have suffered any economic loss under the Tobacco Free Workplace Policy, and expunge files of any employees disciplined under this policy. Respondent filed an Answer on July 16, 2009, denying the Petitioners’ allegations and stating that OPPD unilaterally implemented the Tobacco Free Worksite Policy only after reaching an impasse in negotiations with Petitioners.
The Commission of Industrial Relations (hereinafter, the "Commission") conducted a Preliminary Proceeding on July 28, 2009. Each submitted a witness list and together the parties submitted a joint statement of issues on September 17, 2009. The following issues were presented in the joint statement:
1. Whether OPPD committed a prohibited practice under Neb. Rev. Stat. § 48-824(a), which forbids interference with, restraint, or coercion, of employees in the exercise of rights granted under the Industrial Relations Act, when OPPD unilaterally implemented the Tobacco Free Worksite Policy after reaching an impasse in negotiations with Petitioners, International Brotherhood of Electrical Workers Locals 1483 and 763. 2. 2. Whether OPPD committed a prohibited practice under Neb. Rev. Stat. § 48-824(b), which forbids domination or interference in the administration of any employee organization, when OPPD unilaterally implemented the Tobacco Free Worksite Policy after reaching an impasse in negotiations with Petitioners, International Brotherhood of Electrical Workers Locals 1483 and 763.
3. Whether OPPD committed a prohibited practice under Neb. Rev. Stat. § 48-824(f), which forbids the denial of rights accompanying certification or recognition granted by the Industrial Relations Act, when OPPD unilaterally implemented the Tobacco Free Worksite Policy after reaching an impasse in negotiations with Petitioners International Brotherhood of Electrical Workers Locals 1483 and 763.
In February of 2008, the Governor signed the Nebraska Clean Indoor Air Act which codified Nebraska Revised Statutes § 71-5716 to § 71-5734. The implementation of this new law gave rise to OPPD’s notification letter, which notified its three unions on May 28, 2008 that it planned to implement a new 2009 policy concerning a Tobacco Free Worksite to comply with the new law.
In May of 2008 OPPD believed that the tobacco policy was not a subject of mandatory bargaining. However on December 12, 2008 and December 23, 2008, OPPD received a letter from each of the unions which both stated that the unions believed the Tobacco Free Worksite policy was a mandatory subject of bargaining. Agreeing with the unions, OPPD conceded that the tobacco policy was a mandatory subject of bargaining and in February of 2009 opened up negotiations on the policy.
On February 26, 2009, the parties held the first of four negotiation meetings between OPPD and the unions. OPPD started negotiations by presenting the parties with an initial draft Memorandum of Understanding. (See Exhibit19). The parties met a second time on March 12, 2009. At this negotiation meeting between the parties the unions presented a “Joint Union Proposal” which contained several changes, including an extended implementation date, designated smoking areas, exceptions for smokeless tobacco, and a provision regarding the use of cessation medication and sick leave for the purpose of quitting smoking. One week later on March 19, 2009, the parties held a third meeting where OPPD presented its counter-proposal. The counter-proposal agreed to the unions’ requests regarding the use of tobacco during “unpaid time” and smoking cessation medication and use of sick leave for the purpose of quitting smoking.
The parties held their fourth and final meeting on April 13, 2009. At this meeting, OPPD stated that this was its final proposal. As a follow-up to the final offer, on April 17, 2009, OPPD sent its final offer as a Memorandum of Understanding to all of the unions. The letter instructed the unions to notify OPPD by April 30, 2009 with regard to their position. International Brotherhood of Electrical Workers Local Union 1483 and International Brotherhood of Electrical Workers Local Union 763 both declined to accept the last, best and final offer made by OPPD as evidenced in their May 5, 2009 letters to OPPD. With these rejections of the final offer, on May 11, 2009 OPPD sent a letter notifying all of the three unions that OPPD would unilaterally implement the policy on June 1, 2009. The tobacco policy was implemented on June 1, 2009. All the parties stipulated at trial that they were at impasse regarding negotiations of this issue.
The Petitioners allege a violation of Neb. Rev. Stat. § 48-824(1) and (2)(a), (b), and (f) when the Respondent unilaterally implemented the Tobacco Free Worksite Policy after reaching an impasse in negotiations with the Petitioners. The Respondent argues that it did not refuse to negotiate in good faith with respect to the mandatory topic of bargaining (the Tobacco Free Worksite Policy). The Respondent argues it did not commit a prohibited practice because it met multiple times with the Petitioners and did in fact reach impasse prior to its unilateral implementation of the tobacco policy.
Neb. Rev. Stat. § 48-824(1) declares that it is a prohibited labor practice for any employer … to refuse to negotiate in good faith with respect to mandatory topics of bargaining. As affirmed by the statute’s legislative history, the purpose of Neb. Rev. Stat. § 48-824 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., 1st Sess., 1995. All parties in the instant case agree that this is a mandatory subject of bargaining.
In the past, the Commission has dealt with cases regarding impasse and unilateral implementation of final offers. See General Drivers and Helpers Union Local 554 v. Saunders County , 6 CIR 313 (1982); Lincoln County Sheriffs Employees Ass'n, Local 546 v. County of Lincoln , 5 CIR 441 (1982), 216 Neb. 274, 343 N.W. 2d 735 (1984). In these cases, the Commission found that an employer may unilaterally implement its final offer if it does so after impasse and before any proceeding has been initiated in the Commission.
In Fraternal Order of Police Lodge 41 v. County of Scotts Bluff, 13 CIR 270 (2000), 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 also 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 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). In City of Omaha, the Commission concluded that the provisions of Section 48-824(1) were 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. N.L.R.B., 501 U.S. 190, 198, 111 S.Ct. 2215, 2221, 115 L.Ed.2d 177 (1991). Under the National Labor Relations Act as stated in N.L.R.B. v. Cambria Clay Prod. Co., 215 F.2d 48 (6th Cir. 1954), once a genuine impasse has been reached on a mandatory subject of bargaining, the employer may initiate unilateral implementation of its proposals and/or abstain from further negotiations on that subject until the conditions resulting in impasse have changed. See also Transport Co. of Texas, 175 N.L.R.B. 763, 71 L.R.R.M. 1085 (1969).
In looking to the NLRB for guidance, the NLRB has clearly held that after bargaining to impasse the employer may make unilateral changes that are reasonably comprehended within his pre-impasse proposals. Taft Broadcasting Co., 163 N.L.R.B. 475, 64 LRRM 1386 (1967). The NLRB emphasizes that an impasse must in fact exist or a unilateral change will be considered an unlawful refusal to bargain. See Taft Broadcasting, supra . N.L.R.B. v. Katz , 369 U.S. 736, 82 S.Ct. 1107 (1962); N.L.R.B. v. Crompton-Highland Mills , 337 U.S. 217, 69 S.Ct. 960 (1949); Winn-Dixie Stores v. NLRB , 567 F.2d 1343 (2d Cir. 1978). The Commission has held many times that National Labor Relations Board decisions are helpful, and may be looked to for guidance, but are not controlling. City of Grand Island v. AFSCME , 186 Neb. 711, 185 N.W.2d 860 (1971); AFSCME v. County of Lancaster , 196 Neb. 89, 241 N.W.2d 523 (1976), Nebraska Association of Public Employees v. State of Nebraska , 204 Neb. 165, 281 N.W.2d 544 (1979).
As stated in N.L.R.B. v. Cambria Clay Prod. Co., 215 F.2d 48 (6th Cir. 1954), once a genuine impasse has been reached on a mandatory subject of bargaining, the employer may initiate unilateral implementation of its proposals and/or abstain from further negotiations on that subject until the conditions resulting in impasse have changed. See also Transport Co. of Texas, 175 N.L.R.B. 763, 71 L.R.R.M. 1085 (1969). 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 N.L.R.B. 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.
In Communication Workers of America, AFL-CIO v. County of Hall, 15 CIR 95 (2005), the Commission carefully noted that 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.
In the instant case, the parties have both stipulated that impasse does indeed exist. The parties thoroughly negotiated for four bargaining sessions and in those bargaining sessions the Respondent made several concessions before arriving at its final offer. Under these facts and the stipulation of the parties, the law stated in Nebraska is simple: an employer may unilaterally implement its final offer if it does so after impasse. The Respondent has clearly bargained to impasse. Therefore, OPPD may make unilateral changes that are reasonably comprehended within its pre-impasse proposals.
THE COMMISSION HEREBY FINDS, under the evidence presented, that Petitioners have failed to prove Respondent's act of unilaterally implementing the Tobacco Free Worksite Policy constitutes a violation of § 48-824, constitutes a restraint, or coercion of employees in the exercise of rights, constitutes domination or interference in the administration of any employee organization or otherwise violates Nebraska's public sector labor laws. Therefore, the Commission holds that the Respondent did not commit a prohibited practice in unilaterally implementing the Tobacco Free Worksite Policy.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the Petitioners’ causes of action are ordered dismissed.
All commissioners assigned to the panel in this case join in the entry of this Order.