NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Filed March 27, 2008. 

Before: Commissioners Lindahl, Orr and Burger

LINDAHL, C: 

NATURE OF THE PROCEEDINGS: 

Employees United Labor Association, (hereinafter, “Petitioner”) filed a Petition pursuant to Neb. Rev. Stat. §48-824(2)(a), (b), (c), and (g) (Reissue 2004), claiming that the County of Douglas (hereinafter, “Respondent”), committed a prohibited practice by remodeling the Administrative Offices of the Department of Corrections in Douglas County without negotiating the remodeling with the Petitioner. On August 21, 2007, the Respondent filed an Answer denying that the changes made by the Respondent were a prohibited practice.

The issues presented at trial were as follows:

1)                  Whether the remodeling project which took place in the Administrative Offices of the Department of Corrections was an action which required negotiation between management and labor pursuant to the Nebraska Industrial Relations Act.

2)                  Whether or not a remodeling and improvement project to a work area at the Douglas County Correctional Center is considered a “condition of employment” under Nebraska law and, thereby, a mandatory bargaining subject under the Industrial Relations Act.

FACTS: 

            The Commission finds the following facts to be true. Employees United Labor Association became the elected collective bargaining representative for all non-uniformed regular full-time and part-time employees in the Douglas County Department of Corrections in the fall of 2006. As the newly recognized bargaining representative, the Union sent its first proposal to bargain with the County in December of 2006. Negotiation sessions began within the next several months. The parties are still bargaining as no current contract exists between the parties.

            Apart from the above begun negotiation sessions, in early spring of 2007, Douglas County made the initial decision to renovate the records technician area in the Douglas County Department of Corrections. The County decided that the space should be renovated to provide the records office manager with a private space in the records office where he could have confidential conversations with staff. Proceeding with this decision, during the month of July 2007, the County received bids for the upcoming renovation of the records technician area at the Douglas County Department of Corrections. On July 23, 2007, the County entered into a contract between itself and Cormaci Construction Inc. to renovate the records technician area in the Douglas County Department of Corrections. Notice of the construction was sent to all the records technicians on July 31, 2007. The construction of the new manager’s office began on August 14, 2007. The construction was completed early in September, 2007.

            The renovation created a walled office space and removed an overflow area. The overflow area had been previously used when a significant number of inmates were released at once allowing the records technicians more space to spread out inmate bags and sort inmate mail. The overflow area also previously housed half of the employee and inmate mailboxes, which were also moved to accommodate the new office. The evidence was that the rest of the office space remained mostly unchanged. The office stations of the two employees who are assigned to work in the area every day, and the third floater employee’s office station, remained relatively unchanged. The County has never previously negotiated with this union or any other union for any type of physical improvements done to any employee area. 

            On December 18, 2006, the Union negotiator, Ms. Ignowski, requested a meeting with Director Newton to discuss the affected work area of the records technicians with the removal of the overflow room. Mr. Newton responded stating that he would get back to Ms. Ignowski upon consultation with his staff. Ms. Ignowski again asked for an opportunity to meet with Director Newton via an e-mail on February 9, 2007. Ms. Ignowski also sent a letter to the Assistant County Administrator, Mr. Patrick Bloomingdale, which included a request to discuss the working area of the records technicians. In this letter, the Union negotiator admitted that while she “understands that the construction is County business the employees would like a chance to share their concerns with management about the reduced working area size the construction will leave them with.”

DISCUSSION:

            The primary issue in this case is whether the County of Douglas’s elimination of the overflow room in the Douglas County Department of Corrections is a mandatory subject of collective bargaining. In the past, we have held that there are three categories of collective bargaining subjects: mandatory, permissive, and prohibited. Omaha Police Union Local 101 v. City of Omaha, 15 CIR 292 (2007). 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 Dist. No. 66, 3 CIR 514 (1978), developed 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, conditions of employment of the employees, or whether it is primarily related to formulation or management of public policy.”

            In the past, generally, in prohibited practice cases the Commission compared the language of the Nebraska Industrial Relations Act and the National Labor Relations Act. However, in Omaha Police Union Local 101, IUPA, AFL-CIO v. City of Omaha and Chief of Police Thomas Warren, 274 Neb. 70, 736 N.W.2d 375 (2007), the Nebraska Supreme Court compared §48-824(2) to the Federal Service Labor-Management Relations Act (“FLRA”) and did not compare the Nebraska statute to the National Labor Relations Act (“NLRA”) because the scope of the NLRA coverage was limited in that it applied to only private sector employment. In this case, the language of the Nebraska Industrial Relations Act does not follow exactly the language of the NLRA, 29 U.S.C. 158(d), which requires good faith negotiations regarding “other terms and conditions of employment.” Nor does the Nebraska Industrial Relations Act follow all the specificity set forth in the FLRA, which was modeled after the NLRA. For example, under the FLRA, §7101 balances the right of public employees to organize and bargain collectively with the need of federal management to exercise exclusive authority to render those decisions necessary to insure effective public services. While this portion of the Act is substantially similar to Nebraska’s Industrial Relations Act, the Federal Labor Relations Act also imposes a broad duty to bargain over conditions of employment, but subjects this duty to express statutory exceptions. 5 U.S.C. §§7103 (a)(12), 7106. Furthermore, the FLRA contains a management rights section which enumerates specific rights reserved to the federal agency, unless the agency elects to submit these rights to negotiation. 5 U.S.C. §7106. While neither the NLRA nor the FLRA are identical to the Nebraska Industrial Relations Act, the Commission will generally consider case law in the instant case from both acts as simply guides to help define Nebraska law.

As previously found, the Nebraska Legislature had the same purpose in mind as Congress had in determining what should be considered mandatory subjects for collective bargaining. The federal interpretations of terms and conditions of employment under the National Labor Relations Act can serve as a guide in determining what may constitute subjects for collective bargaining under the Nebraska law. City of Grand Island v. American Federation of State, County, and Municipal Employees, 186 Neb. 711, 185 N.W.2d 860 (1971).

While “terms and conditions of employment” have been given a broad and inclusive interpretation, a condition of employment should normally have an effect and an economic impact on the employee’s job assignment. Conditions of employment do not include certain subjects normally considered prerogatives of management. These include but are not limited to: business schedules, company policy, plant locations, or supervisors, because management decisions lie at the core of management control. See Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964). A condition of employment should normally have an effect and an economic impact on the employee’s job assignment. See Omaha Police Union Local 101, IUPA, AFL-CIO v. City of Omaha and Chief of Police, Thomas Warren and Mayor Michael Fahey, 15 CIR 292 (2007). Further, the distinction between conditions of employment and management prerogatives in the school setting was set forth in School Dist. of Seward Educ. Ass’n v. School Dist. of Seward, 188 Neb. 772, 199 N.W.2d 752 (1972). In Seward, the Nebraska Supreme Court defined management prerogatives as: “The right to hire; to maintain order and efficiency; to schedule work; to control transfers and assignments; to determine what extra curricular activities may be supported or sponsored; and to determine the curriculum, class size, and types of specialists to be employment.”

Management prerogatives have also been defined in the NLRB. See Fibreboard Paper Products Corp. In Fibreboard Paper Products Corp., the Supreme Court said that “nothing the court holds today should be understood as imposing a duty to bargain collectively regarding such management decisions which lie at the core of entrepreneurial control…” In determining whether there was a condition of employment, the Supreme Court examined whether there was a “link” or “nexus” between the matter and the worker’s employment. American Federation of Government Employees, Local 2761, AFL-CIO v. FLRA, 866 F.2d 1443, 1447 and 1149 (D.C. Cir. 1989) (Local 2761). The Court found that where a matter has a “direct effect on the work relationship[,]” it concerns a condition of employment.

In American Federation of Govt. Employees, Local 1812 v. Broadcasting Board of Governors, Washington, D.C., 59 FLRA 69 (2003), the union, in negotiations, proposed partitions between current side-by-side seating and having those partitions be at least five feet in height. The union also proposed that partitions should be erected between cubicles facing each other. The employer claimed that the proposals of whether to use partitions, or the size of those partitions chosen, in configuring its work space were outside the duty to bargain because they concerned the technology, methods, and means of performing work, matters about which the employer was not required but may elect, to bargain under §7106(b)(1). Specifically, the employer maintained that the lower partitions that were currently used between work stations have a technological relationship to the accomplishment of the employer’s work and were integrally related to its operations.

            As stated in Broadcasting Board of Governors, the  FLRB developed a test to determine if  a matter concerns the methods and means of performing work under §7106 (b)(1). Under the showing in that test, the proposal must concern a “method” or “means” as defined by the Board in this case as a “method” to refer to the way in which, or how, the agency performs its work and the term “means” refers to “any instrumentality including an agent, tool, device, measure, plan, or policy used by an agency for the accomplishment or furtherance of the performance of its work.” It also must show that: (1) there is a direct and integral relationship between the particular method and means the agency has chosen and accomplishment of the agency’s mission; and (2) the proposal would directly interfere with the mission-related purpose for which the method or means was adopted.

            In Broadcasting Board of Governors, the Board determined that the proposals concerned the methods and means whereby the employer accomplished its operations. Further, the Board found that the employer had shown that there was a direct and integral relationship between the use of lower partitions and the accomplishment of its work, namely, those partitions facilitate the supervision of, and the rapid communication required by, its news broadcast operations. Therefore, the Board concluded that the proposals were only negotiable at the election of the employer.

The Nebraska Industrial Relations Act only requires parties to bargain over mandatory subjects. See §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.  

             In the instant case, the decision of the Respondent lies at the core of entrepreneurial control. The Respondent’s desire to provide an office with walls and a door, in order for management to have confidential conversations with staff, has a direct relationship to its control over its employees. Furthermore, the Respondent’s witness testified that the office was built to accomplish its goal to provide such a private space. While the removal of the overflow area somewhat crowds and certainly frustrates the records technicians, the removal of the space is a management prerogative. There is also no economic impact (by removing the overflow space) on the employees. The facts of this case indicate that the building of the office in the records technicians area is indeed a permissive subject of bargaining. While the Respondent may decide to bargain over the issue, the Respondent under the facts of this case is not required to bargain over the removal of the overflow area and subsequent creation of the manager’s office under Nebraska law. Even the union negotiator understood that the request was a permissive subject of bargaining as evidenced in her letter to the Assistant County Administrator. We find that the removal of the overflow area and creation of the manager’s office is a permissive subject of bargaining and only bargainable by the agreement of both parties. Therefore, the Respondent did not commit a prohibited practice by refusing to bargain over the removal of the overflow area and creation of the manager’s office.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that: 

1.   The Petitioner’s cause of action is ordered dismissed. 

All panel judges join in the entry of this order.

 

           Commissioner G. Peter Burger, Concurring:

            I concur in the panel’s findings and order. I am of the opinion though, that the holding in Omaha Police Union Local 101, IUPA, AFL-CIO v. City of Omaha and Chief of Police Thomas Warren, 274 Neb. 70, 736 N.W.2d 375 (2007) was limited to the determination that guidance from decisions interpreting the FLRA was more appropriate than NLRA decisions when dealing with questions concerning protected speech issues involving public employees, and arguably limited to those involved in maintaining public safety.