17 CIR 106 (2011) 

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Entered July 26, 2011 

APPEARANCES:

Before:  Commissioners Blake, Lindahl, and McGinn.

BLAKE, Commissioner 

NATURE OF THE PROCEEDINGS:

        The International Brotherhood of Electrical Workers Local 1483, (hereinafter, “Petitioner” or “Union”) filed a Petition on November 22, 2010 pursuant to Neb. Rev. Stat. § 48-824(1) and § 48-824 (1), (2)(e), and (f), claiming that Douglas County (hereinafter “Respondent” or “County”) committed various  prohibited practices including failure to bargain prior to re-assignment of bargaining work and failure to bargain about health insurance provisions.  The Petitioner seeks a cease-and-desist order, ordering Respondent to cease and desist from eliminating a job classification and assigning the work outside the bargaining unit and an order to bargain with regard to health insurance, including an award of attorney fees.

The Commission of Industrial Relations (hereinafter, the "Commission") conducted a Pretrial on April 11, 2011.  The parties each submitted a witness list and a statement of issues. The following issues were presented by the Petitioner:

            1.  Whether the employer may refuse to fill a bargaining unit position, instead creating a new exempt position which has substantially all of the unit positions, duties and responsibilities.

            2.  Whether the employer refused to bargain in good faith on a mandatory subject of bargaining when it refused to bargain over the inclusion of the Consumer Directed Health Care Plan or “CDHC” plan for the covered employees.

The following issues were presented by the Respondent:

1.                  Whether or not the Sheriff’s Office may create a new position of Crime Laboratory Director replacing the Criminalistics Manager, a bargaining unit position.

2.                  Whether or not the County acted properly when it refused to negotiate with the Union concerning the implementation of the Consumer Directed Health Care plan.

FACTS:

            The Union represents a bargaining unit comprised entirely of mid–level managers working at Douglas County, Nebraska. This bargaining unit included a “Criminalistics Manager”.

            In approximately the fall of 2008, the previous Criminalistics Manager was the subject of a federal investigation by the FBI which eventually led to indictments in Federal Court and charges at the state level for mishandling evidence and even the possible planting of evidence.  In March of 2010, the captain in charge of the Criminal Investigations Bureau determined that due to this break down in the current system, he needed to restructure the department.  In order to prevent the Criminalistics Manager from having an opportunity to plant evidence, the department felt that it needed to limit the manager’s access to the crime scene investigations.  In order to limit the access to the crime scene, the department determined it was best to change the position to a higher level management position, which also would strengthen the department’s accreditation powers.  The Respondent then created a “Crime Laboratory Director” in November of 2010 to accomplish its goals. The Director position requires a degree in hard sciences, and at least two years prior administrative responsibility and supervision in an American Society of Crime Lab Directors or “ASCLD” lab. The new Director position is also responsible for achieving, managing, and maintaining accreditation by the ASCLD. The Director is also now required to supervise at least one position within the bargaining unit in question. These additional requirements and responsibilities were not part of the previous Criminalistics Manager position.

Health Insurance Plan

            On July 21, 2010, Douglas County notified all bargaining unit agents that the County had developed a new Consumer Directed Health Care or “CDHC” plan and that several consultants would be recommending the new plan to the County Board for approval. The County’s Deputy Administrator stated that if anyone had any questions or concerns to contact him. On August 3, 2010, the Petitioner’s bargaining representative suggested that this new health care plan should be a mandatory subject of bargaining. The Respondent replied, stating that it was an optional plan and that logistically it would be a “nightmare” to bargain the new plan with ten unions (32 bargaining units and 16 contracts). The Petitioner then suggested the plan could be of mutual benefit to both parties, but that the structure of such plan was still a mandatory subject of bargaining and if the County was interested in bargaining over the plan, the Petitioner stood ready to negotiate it. The Respondent stated that the Petitioner was welcome to submit a proposal, and that the Respondent would consider the Petitioner’s legal position. The Respondent also stated that the plan had already been approved by the County Board and that the County would implement it effective January 1, 2011, suggesting that it will only be offered to employees not covered by the IBEW. The parties then participated in a series of negotiations relating to the new contract year, without specifically mentioning the CDHC issue.

            After a series of negotiations, the Petitioner brought up the issue of the CDHC plan on October 1, 2010 in an e-mail. In that e-mail, the Petitioner stated that the employees in Petitioner’s bargaining unit would not participate in the new CDHC Plan that the County had offered without bargaining over the issue. The Respondent stated on October 4, 2010, in response to the Petitioner’s e-mail that the County would not be offering the Consumer Directed Health Care plan to the IBEW represented employees.

DISCUSSION:

Criminalistics Manager

            The Petitioner argues that Douglas County engaged in a prohibited practice when it created a new exempt position, rather than filling an existing bargaining unit position. The Respondent argues that it did not create the new Crime Lab Director position to remove bargaining unit work from the bargaining unit. In the instant case, the evidence does not establish that Douglas County, with regard to the Criminalistics Manager position, committed a prohibited practice.

            The Agreement in question, Exhibit 1, expired December 31, 2007.  Exhibit 7 extends that Agreement until a new agreement is reached.  Exhibit A extends it until December 31, 2009, and until a new agreement is reached.  Both parties treated the Agreement expiring December 31, 2007 as the bargaining agreement under which we are operating in this case.  There is no evidence of a later agreement.

            The Agreement, Exhibit 1 and Exhibit 12, states at Article 15, Sec. 1, on page 13, regarding management rights, that:

Except where limited by expressed provisions of this Agreement, nothing herein shall be construed or interpreted to restrict, limit or impair the rights, power of authority of the county and the elected official/department head and his/her designee heretofore possessed and heretofore granted by virtue of law, regulations or resolution.  These rights, power of authority include but are not limited to, the right to manage and supervise all of its regulation and establish work rules, regulations, and other terms and conditions of employment not inconsistent with the specific terms of this Agreement.

            At Article 19, Sec. 1, on page 15, the Agreement provides that management can change job descriptions, or create new job classifications, and will notify and discuss such changes, but “shall not be required to negotiate potential changes in job descriptions prior to implementing the changes.”

Under the Commission’s case law, it is clear that replacing bargaining unit work is a mandatory subject of bargaining. See Service Employees Int’l Union, Local Union No. 226 v. School Dist. No. 17 of Douglas County, 10 CIR 140 (1989) (citing Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203 (1964)).

 In Service Employees Int’l Union, Local Union No. 226, the Commission stated that in Westinghouse Electric Corp. and Local 711, International Union of Electrical, Radio and Machine Workers, AFL-CIO , 150 N.L.R.B. No. 136 (1965), the Board said Fibreboard "was not intended as laying down a hard and fast new rule to be mechanically applied regardless of the situation involved." It is not "a per se unfair labor practice in all situations for an employer to let out unit work without consulting the unit bargaining representative." Westinghouse established the following guidelines for bargaining about subcontracting of bargaining unit work:

In sum--bearing in mind particularly that the recurrent contracting out of work here in question was motivated solely by economic considerations; that it comported with the traditional methods by which the Respondent conducted its business operations; that it did not during the period here in question vary significantly in kind or degree from what had been customary under past established practice; that it had no demonstrable adverse impact on employees in the unit; and that the Union had the opportunity to bargain about changes in existing subcontracting practices at general negotiating meetings--for all these reasons cumulatively, we conclude that Respondent did not violate its statutory bargaining obligation by failing to invite union participation in individual subcontracting decisions.

            While the use of management’s power to thwart its mandatory bargaining requirements under the Act is unlawful under Neb. Rev. Stat. § 48-824, the evidence does not establish that there was such purpose or intent in this case.  The establishment of a new supervisory job classification was not a sham or a pretext to cover “union busting” against the Union.  The County’s action was a response to a very real and well publicized problem.  The County needed to take steps in controlling the process of criminal investigation to increase and protect objectivity and public trust.  This Commission does not have the authority to decide how best to do this within the personnel framework. It is not a prohibited practice just because the Commission, or the Union, disagrees with the method selected.  The Agreement in this case provides very clearly that the County maintains the right to create new job classifications, subject only to the requirement that the County discuss the matter with the Union.  The County informed and subsequently discussed the change with a Union representative, without the need to seek an agreement. The change in position was carefully considered by the County.

            Captain Glandt testified regarding the change of positions between the former Criminalistics Manager position and the new Crime Lab Director position.  While many of the duties are the same, there are important and legitimate distinctions.  The new position is part of an overall effort to upgrade crime scene investigation capabilities of the County.  Part of this is to have direct oversight by a person who is in a supervisory position, over the crime scene investigators.  See the descriptions at Exhibits 4 and 5.  Captain Glandt described the serious problems that needed to be solved by the County and he explained the steps taken to assure that those problems would not reoccur.  The primary differences in the past position and the new is that the new crime laboratory manager is in a supervisory position.  Here, there is no contracting out of work done, or which may be done, by employees in a bargaining unit which is a subject of mandatory bargaining. The facts clearly indicated that the work in this new position cannot be done by a bargaining unit employee.  There is no evidence upon which this Commission could say that the County’s response to the situation was anything other than legitimate, and not the result of an intent to undertake an act prohibited by Sec. 48-824.

Health Insurance Plan

The Petitioner argues that the County refused to bargain in good faith on a mandatory subject of bargaining when it refused to bargain over inclusion of the CDHC Plan.      The Respondent argues it did not commit a prohibited practice. The health insurance benefit is a matter of mandatory bargaining.  We have recently issued an opinion discussing this at some length. See Washington County Police Officers Association/F.O.P. Lodge 36 v. County of Washington,  17 CIR 114, Case 1247 (2011).

            In the present case, the County was not attempting to replace an existing health care plan, nor was it unilaterally implementing a reduction in benefits.  The County was attempting to implement an optional alternative plan which could be selected by any County employee.  There is no harm in this. Neither is it necessarily improper to insist that any such plan be consistent as to all County employees.  However, to refuse to make such benefit a matter of negotiations is improper.  The plan will have a significant financial impact on the members of the bargaining unit, which can be addressed in any number of ways in the bargaining process.

            The Bargaining Agreement, Exhibit 1, regarding health insurance benefits, at Article 12, Sec. 1, (4) on page 11, that “The County reserves the right to select the method by which health insurance benefits are provided.”  This is not carte blanche authority to make unilateral decisions regarding health insurance coverage.

            Article 12 provides that the County will publish a rate sheet to show the dollar contribution for each plan for the County and the employee according to a percentage table which deals with the years 2005 and 2006.  The Agreement does nothing to describe the benefits to be received or the total cost to either employer or employee.  However, health insurance is a mandatory subject of bargaining.  The County did attempt to unilaterally undertake a fundamental change in its offering of health insurance coverage to the members of the bargaining unit.  This cannot be described as a matter of selecting the method of providing coverage. 

            Although the new plan is an optional plan to be selected by the employee, and is not required to be selected by any employee, it is quite clear that:

1.                  Health care insurance will have a very great financial impact upon the employee, and

            2.         This cannot be said to be merely selecting a method of providing coverage.  Indeed, it goes to the fundamental question of what coverage will be provided.

            While the Union representative, Mark Salerno, clearly stated in an email to Patrick Bloomingdale on October 1, 2010, that the employees in IBEW 1483 will not participate in the new CDHC plan that the County has offered, this does not end our inquiry.  The County, according to an email from Patrick Bloomingdale entered October 4, 2010, in response to Mr. Salerno’s email, stated that the County would not be offering the Consumer Directed Health Care plan to the IBEW represented employees.

            The County did commit a prohibited practice when it attempted to implement the health care alternative plan without prior negotiations with the bargaining unit.  We appreciate the statement of Mr. Bloomingdale regarding the administrative challenges in dealing with multiple bargaining units. Nonetheless, the County must negotiate with each of the bargaining units. The need for such negotiations is clear under the framework with which we all must work given the current Industrial Relations Act.  We are not here requiring any number of plans or ruling out one plan, which is for the bargaining process.

            The County having attempted to implement a plan regarding a mandatory subject of bargaining, and the Union then having requested bargaining before implementation, the County’s reaction of simply not offering the new alternative plan to members of any unit wishing to bargain, must be seen as a prohibited practice.  To refuse to bargain over a mandatory subject of bargaining, and instead using the threat of not offering a benefit to those who wish to stand on their rights to bargain, most certainly fits the definition of a prohibited practice.

            The problem in this case is fashioning the appropriate remedy.  The County has already said it will not implement the new alternative plan as to the members of this unit.  Therefore, the only adequate remedy available is to order the County to negotiate with the members of IBEW Local 1483 with regard to the optional CDHC plan. The Respondent shall recommence good faith negotiations over this issue within thirty (30) days.        

Attorney Fees 

Not every prohibited practice will result in an award of attorney fees. To support an award of fees, under CIR Rule 42(b)(2a), it must be found that the party in violation has undertaken a pattern of repetitive, egregious, or willful prohibitive practice. We are not satisfied that there is sufficient evidence before us to find that the Respondent has been willfully refusing to bargain over health insurance. We do note the emerging pattern of Douglas County and its refusal to negotiate over mandatory subjects of bargaining. This issue of attorney fees is a close call in this case, especially when the evidence in successive cases starts to show a pattern of practice. Nonetheless, we can find no direct evidence of repetitive, egregious or willful behavior. Therefore, since no evidence of repetitive, egregious, or willful behavior exists, we do not award attorney fees in the instant case. 

 IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED :

1.      The Petitioner’s cause of action relating to the Criminalistics Manager position is dismissed.

2.       The parties shall recommence good faith negotiations over the issue of the CDHC plan within thirty (30) days and shall negotiate in good faith until an agreement has been reached or by further order of the Commission.

All commissioners assigned to the panel in this case join in the entry of this Order.