16 CIR 401 (2010) 

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Entered January 20, 2010. 

APPEARANCES:

Before:  Commissioners Blake, Orr, and Burger.

BLAKE, C. 

NATURE OF THE PROCEEDINGS:

            The Fraternal Order of Police, Lodge No. 8, (hereinafter, "Petitioner" or “Union”) filed a Petition on July 14, 2009 pursuant to Neb. Rev. Stat. § 48-824(1), claiming that Douglas County and Jeffery L. Newton, (hereinafter, "Respondents" or “County”) committed a prohibited practice through their unilateral implementation of employing part-time corrections officers to perform bargaining unit work, without bargaining about that proposed implementation.  The Respondents filed an Answer on July 23, 2009, denying the Petitioner’s allegations and stating that Douglas County has, under management prerogative, the ability to hire part-time employees and to schedule work.

The Commission of Industrial Relations (hereinafter, the "Commission") conducted a Preliminary Proceeding on July 30, 2009.  The parties both submitted a statement of issues. The following issues were presented by the Petitioner:

1.                  Whether the Respondent’s conduct as alleged and admitted to in the pleadings with respect to its attempt to hire and employ part time employees to engage in correction officer work performed traditionally and by CBA (“Collective Bargaining Agreement”) by members of the bargaining unit represented by Petitioners constitutes a breach of the Respondent’s duty to bargain pursuant to Neb. Rev. Stat. Section 48-824(1).

2.                  Whether the Respondent’s conduct as alleged and admitted to constituted an intentional breach of the duty to bargain under the Industrial Relations Act or represented a willful pattern or practice of undermining the status of Petitioner entitling the Petitioner to an award of reasonable attorney fees pursuant to Rule 42 of the Rules of the Commission of Industrial Relations.

3.                  Whether the Petitioner is entitled to a cease and desist order making permanent the Status Quo order until such time as the parties negotiate different terms and conditions of employment.

The following issues were presented by the Respondents:

1.                  Whether or not the hiring of part time correctional officers is an action which requires negotiation under the Nebraska Industrial Act?

2.                  Whether or not the Respondents have contractually bound themselves to only assign correctional officer work to full time correctional officers? 

FACTS:

In March of 2009, the Director of the Douglas County Corrections approached the Union President; informing the Union that Douglas County was going to bring in part-time employees to cover overtime hours, rather than having full-time employees cover overtime hours in order to reduce budgetary exposure for overtime. Douglas County informed the Union that they believed the overtime issue was a management prerogative and not subject to negotiations. The Union then filed a grievance with the County on March 15^th, 2009. Then on April 7, 2009, relying on conversations with various County Commissioners, the Union withdrew the grievance because the County had not yet planned on employing any part-time workers. In June of 2009, the County recommitted to its pursuit in employing part-time employees to cover overtime hours.

Currently, significant overtime is incurred in the Corrections Department of Douglas County in order to meet minimum staffing requirements. Overtime occurs when an employee misses work and a fill-in employee is needed. The collective bargaining agreement spells out an elaborate system for how to distribute overtime hours among bargaining unit members. The agreement provides for a regular work week.  While the agreement does not state that it is mandatory to provide overtime, the Respondents have, through a long-standing practice, created a level of expectation beyond a regular work week. This expectation is evidenced both by the carefully detailed distribution of overtime system and the fact that full-time employees have been filling overtime shifts for at least the last nineteen years, and for some of the employees, at a significant percentage of the overall yearly salary.

The agreement also defines seasonal and part-time employees. Part-time and seasonal employees are not bargaining unit members.   The agreement states that temporary or seasonal employees cannot be used as a substitute for full-time permanent (bargaining unit) employees.    The agreement is silent about the use of part-time employees as a substitute for full-time permanent employees.

Absent direct language regarding the hiring of part-time employees to cover bargaining unit work in the agreement, the County decided it would be more cost effective to hire a number of part-time employees to reduce the cost of overtime. As a rebuttal, the Petitioner provided some evidence of the safety risks of allowing part-time employees who do not perform this type of work on a regular basis to respond to emergencies, and fights between inmates, or inmates attacking staff members.

The Petitioner appeared at the Douglas County Board meeting on July 14, 2009, stating its opposition to the hiring of part-time workers in part because of their safety concern and also because the Petitioner felt the part-time employees were performing bargaining unit work. The Douglas County Commissioners decided at their board meeting to hire part-time employees to cover overtime hours previously covered by full-time union employees. The Petitioner then filed a case with the Commission. The Union represents approximately 380 correctional officers in this case.

DISCUSSION:

The Petitioner argues that the Respondents failed and refused to negotiate a change in the terms and conditions of employment on a mandatory subject of collective bargaining, the transfer of bargaining unit work to non-bargaining unit, part-time employees. The Petitioner alleges this is a violation of Neb. Rev. Stat. § 48-824(1). The Respondents argue that they did not commit an unfair labor practice under the Nebraska Industrial Relations Act by hiring part-time correctional officers because overtime is a management prerogative.

Generally, the goal of labor law is to equalize the bargaining power between employer and employees. In order to equalize bargaining power, the Commission follows three categories of collective bargaining subjects: mandatory, permissive, and prohibited. Nebraska Public Employees, Local Union 251 v. Otoe County, 257 Neb. 50; 595 N.W.2d 237 (1999). 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). The distinction between the different categories of bargaining subjects is important.

Mandatory collective bargaining subjects are those which relate to "wages, hours, and other terms and conditions of employment, or any question arising thereunder." Neb. Rev. Stat. § 48-816(1). Additional mandatory subjects of bargaining are those which "vitally affect" the terms and conditions of employment. Allied Chemical & Alkali Workers Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971). Fraternal Order of Police Lodge 41 v. County of Scotts Bluff Nebraska, et. al., 13 CIR 270 (2000).

The Industrial Relations Act only requires parties to bargain over mandatory bargaining subjects. Neb. Rev. Stat. § 48-816(1). Permissive bargaining subjects are legal subjects of bargaining, which do not fit within the definition of mandatory subjects. See, NLRB v. Borg-Warner Corp., Wooster Div., 356 U.S. 342 (1958). Either party may raise a permissive subject during bargaining, but the non-raising party is not required to bargain over permissive subjects. Id. Finally, prohibited bargaining subjects are topics that the law forbids the parties from agreeing to bargain.

Additionally, some subjects are considered management prerogatives and may generally be altered at the will of the employer. See, Metropolitan Tech. Community College Educ. Ass'n v. Metropolitan Tech. Community College Area, 203 Neb. 832, 281 N.W.2d 201 (1979) (holding in a school case that the following subjects are management prerogatives: the right to hire; to maintain order and efficiency; to schedule work; to control transfers and assignments; to determine what extracurricular activities may be supported or sponsored; and to determine the curriculum, class size, and types of specialties to be employed). See also Seward Educ. Ass’n v. School Dist. of Seward, 188 Neb. 772, 199 N.W.2d 752 (1972).

In an effort to establish working guidelines as to what constitutes mandatory subjects of bargaining the Nebraska Supreme Court in Metro Technical Community College Educ. Ass’n, set forth the following test:

A matter which is of fundamental, basic, or essential concern to an employee’s financial and personal concern may be considered though there may be some minor influence of educational policy or management prerogative. However those matters which involve foundational value judgments, which strike at the very heart of educational philosophy of the particular institution, are management prerogatives and are not a proper subject for negotiation even though such decisions may have some impact on working conditions. However, the impact of whatever decision management may make in this or any other case on the economic welfare of employees is a proper subject of mandatory bargaining. 

Id at 842. 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. Conditions of employment have an economic impact on the employee’s job assignment. Omaha Police Union, Local 101 v. City of Omaha, 7 CIR 179 (1984). This does not include management prerogatives. Several negotiation terms and conditions that would seem to be management prerogatives have been included under the umbrella of mandatory subjects of bargaining, such as parking stall assignments. Id.  We must recognize that overtime certainly relates to wages and hours, and that it has a dramatic effect on the financial wellbeing of some of the members of the bargaining unit.  However, we must also recognize several of the Commission’s prior cases have treated overtime as management prerogatives.

            The issue of whether overtime and the scheduling of hours worked is a management prerogative has been decided by the Commission a number of times, although not in the context of the claim of a prohibited practice.   See Lincoln Firefighters Ass’n Local Union No. 644 v. City of Lincoln 12 CIR 248 (1997), Aff’d. 253 Neb. 837, 572 N.W.2d 369 (1998) (Hours of work per cycle and overtime are management prerogatives); Fraternal Order of Police Lodge No. 81 v. City of Grand Island, 14 CIR 81 (2002) (Overtime practices are management prerogatives and CIR should not limit management authority); General Drivers and Helpers Union, Local 554 v. County of Gage, 14 CIR 170 (2003) (Number of hours worked per day and per week determined to be management prerogatives, including overtime); and International Ass’n of Firefighters, Local Union No. 647 v. City of Grand Island, 15 CIR 324 (2007) (Commission declined to address overtime policies, as overtime falls under hours worked in a day and week, or a scheduling procedure,  so therefore a management prerogative).

Furthermore, the Commission may look to the National Labor Relations Board for guidance, as to issues not definitively settled in Nebraska.  Norfolk Educ. Ass’n v. School Dist. of the County of Madison, a/k/a Norfolk Public Schools, 1 CIR 40 (1971) & (1973). Nevertheless, the National Labor Relations Board is guidance, not controlling, and does not override areas decided by the Commission, the Nebraska Supreme Court, or statutorily mandated by the Nebraska Legislature.  Under NLRB rulings, overtime would be treated as a mandatory subject of bargaining, but we have a long-standing line of decisions wherein we have determined it to be management prerogative. In reviewing this issue we cannot interpret contracts or write them, and we do not issue declaratory judgments.   See Transport Workers of America v. Transport Authority of the City of Omaha , 205 Neb. 26, 286 NW2d 102 (1979) and City of Grand Island v. International Union of Firefighters, Local Union No. 647, 15 CIR 378 (2007).

We will not interpret an ambiguous contract as it is not within our jurisdiction. However, the contract is clear in that it provides a carefully crafted and detailed system for scheduling/assigning overtime, and there could be no reasonable explanation for the contract clause in question unless based on the understanding of both sides that there would be substantial overtime. This overtime practice was followed until the unilateral decision by the employer. We do not need to decide whether overtime is a management prerogative or mandatory subject of bargaining in this case. Overtime is a longstanding method extensively used by the employer to cover shifts, so elaborate that no one would go to such a great effort to allocate it, if it could be so easily extinguished. Ultimately, for the Commission to hold otherwise in this case would promote cleverness over fairness. Therefore, we find the Respondents committed a prohibited practice by unilaterally deciding to hire part-time employees in violation of Neb. Rev. Stat. § 48-824(1).

Remedial Authority

            The Petitioner seeks an order requiring the Respondents to keep its current practice of using only full-time employees to cover potential overtime shifts.  The Petitioner also requests attorney fees.

            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 to issue bargaining orders following findings of prohibited practices and has done so in the past. See United Food and Commercial Workers, Local Union No. 22 v. County of Hall, 15 CIR 55 (2005). Having found that the Respondents have engaged in a prohibited labor practice, we find that the Respondents are required to negotiate with the Petitioner in good faith.

In ordering an appropriate remedy, pursuant to Neb. Rev. Stat. § 48-825(2), we note that the rules of the Commission were recently amended to authorize an award of attorney fees when the Commission finds that a prohibited practice has occurred. Neb. Com. Ind. Rel. R. 42. Such an award would not be appropriate in all cases, but should be reserved for cases where the employer’s misconduct was flagrant, aggravated, persistent, and pervasive. J.P. Stevens & Co., 244 N.L.R.B 407, 102 LRRM 1039 (1979), enforced and remanded, 668 F.2d 767, 109 LRRM 2345, 2352 (4th Cir. 1982); J.P. Stevens & Co. v. N.L.R.B, 458 US 1118, 110 LRRM 2896 (1982). As to the request for attorney fees, we find that the evidence does not establish a willful pattern or practice of violation of behalf of the Respondents.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that 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 commissioners assigned to the panel in this case join in the entry of this Order.

G. Peter Burger, Concurring:

 I concur in the Findings and Order.  It is my opinion though, that even accepting for the sake of argument, the Respondents’ contention that the decision to transfer work out of the bargaining unit to part-time employees is a management prerogative, the Respondents still had a duty to bargain in good faith over the impact of the action on the bargaining unit members, see International Union of Operating Engineers Local 571 vs. City of Plattsmouth, 14 CIR 89 (2002), and Stevens International, Inc. and International Union United Automobile, Aerospace and Agricultural Implement Workers of America, and its Local Union No. 1688, 337 N.L.R.B. 143 (2001).