17 CIR 195 (2011) Appealed August 23, 2011.
NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS
Entered July 25, 2011
Before: Commissioners Orr, Blake, and McGinn.
NATURE OF THE PROCEEDINGS:
Employees United Labor Association, (hereinafter, “Petitioner”) filed a Petition pursuant to Neb. Rev. Stat. § 48-824(1), claiming that the County of Douglas (hereinafter, “Respondent”), committed a prohibited practice by not negotiating the change in the health insurance plan nor negotiating the need for overtime due to several of the supervisors performing bargaining unit work. On January 12, 2011, the Respondent filed an Answer denying that the changes made by the Respondent were a prohibited practice.
The Commission of Industrial Relations (hereinafter, the "Commission") ordered the parties to submit a statement of issues to be presented at trial on March 2, 2011. The parties both submitted a statement of issues. The issues presented for the Petitioner were as follows:
1. Whether Respondent’s implementation of a medical and dental insurance benefits program without negotiation constituted a breach of duty to bargain pursuant to Nebraska Revised Statutes § 48-824(1).
2. Whether the Petitioner is entitled to be made whole by returning the parties to their status prior to the unilateral actions challenged herein until such time as the parties negotiate in good faith to reach terms and conditions of employment consistent with good faith negotiations.
3. Whether Respondent’s conduct as alleged demonstrates an intentional breach of the duty to bargain under the Industrial Relations Act or represents a willful pattern or practice undermining the status of the Petitioner, entitling the Petitioner to an award of reasonable attorneys fees pursuant to Rule 42 of the Rules of the Commission of Industrial Relations.
4. Whether the practice of management at the Register of Deeds to require members of management, in particular, the office manager and the chief deputy of the department, to work and perform duties within positions which are covered by the Petitioner’s collective bargaining agreement (CBA) with the Respondent is a violation of the Nebraska Industrial Relations Act. In particular, the duties performed by management which could be performed by the real estate recorders whose jobs are protected under the CBA with Respondent as well as the Clerk Typist II are violations of Nebraska Revised Statutes § 48-824(1) or § 48-824(2(a), (b), (e), and (f) of said section.
5. Whether such actions as alleged in paragraph 4 above are terms and conditions of employment which must be negotiated and, as such, violates Nebraska Revised Statutes § 48-824(1).
The issues presented for the Respondent were as follows:
1. Whether requiring bargaining unit employees to work overtime in December of 2010, was a unilateral change in the terms and conditions of their employment.
2. Whether the Commission of Industrial Relations has jurisdiction to hear disputes that concern the interpretation and application of contract provisions.
3. Whether the determination that an overtime situation exists – whether the overtime is needed and the amount of overtime that is needed to complete the work – is a matter of management prerogative.
4. Whether it is management’s prerogative for supervisors to assist as needed in order to maintain efficiency in the office.
5. Whether the parties have previously agreed that the increased costs in health insurance would be shared by the EULA employees and the County as set forth in the collective bargaining agreement.
6. Whether the Respondent committed an unfair labor practice when it passed on to the EULA employees their contractually specified share of the cost increase to the health care plan.
7. Whether the Petitioner waived its right to bargain over the cost of the health care plan.
8. Whether the Petitioner has stated a claim against the Respondent under NEB.REV.STAT. § 48-824.
The Commission then held a Trial on said issues on Monday April 18, 2011. The parties submitted post-trial briefs on May 2,
2011, after which the case was deemed submitted.
The Commission finds the following facts to be true. The employees within the bargaining unit perform work for the Douglas County Register of Deeds office. The office maintains the official recording of documents filed on behalf of property owners in Douglas County. The office essentially performs the first step in the taxation of property. The bargaining unit consists of the positions of Accounting Clerk I and II, Cashier, Clerk II, Clerk Typist I, Master Cashier, Scanner Operator I, VDT Operator II, Real Estate Recorder I, Real Estate Recorder II and Senior Real Estate Recorder. The office also consists of two management staff (the Office Manager and Assistant Chief Deputy), along with the elected official (Register of Deeds). Both of the management staff, as well as the Register of Deeds, all have previous experience as recorders. The Register of Deeds runs an efficient office.
Bargaining Unit Work/ Daily Staffing
The work at the Register of Deeds office must be completed in a timely manner because Nebraska is a race-to-record state. The volume of work fluctuates daily at the office, with the office experiencing both high and low workload volumes. With the constraints on completing the work in a timely manner (race-to-record), the office must deal with high volume workloads efficiently. Most often an increase in the volume of daily work is accomplished through the bargaining unit members performing extra work during their regular shift or with the Office Manager occasionally filling in to cover increased work volume. The Register of Deeds Office rarely uses overtime. The Register of Deeds regularly evaluates staffing to make sure the office is operating at its maximum potential so that the office may properly follow its procedures.
The contract between the parties began on January 1, 2009 and ended on December 31, 2010. The contract does not have a continuation clause and is not currently in effect. In November of 2010, the Respondent sent out a letter to its employees stating that there were going to be changes in cost with regard to the health insurance. The increase totaled approximately 16 percent, which the Respondent stated the parties would share pursuant to the 2010 rate-sharing structure. The Respondent stated that based “on the contract” they did not need to negotiate this increase. The changes would have been effective on January 1, 2011.
Bargaining Unit Work/ Daily Staffing
The Petitioner argues that the Respondent is utilizing management employees to perform bargaining unit work. The Respondent argues that it did not commit an unfair labor practice by allowing supervisors to assist with office duties occasionally. The Respondent argues this is a daily staffing issue instead of Petitioner’s characterization that the Respondent is assigning bargaining unit work to non-bargaining unit employees.
Issues related to daily staffing and overall staffing requirements are management prerogatives. See Professional Firefighters Ass’n of Omaha, Local 385 v. City of Omaha, 16 CIR 408 (2011). Issues of staffing related to “scheduling work such as daily staffing, staffing by rank, and overall staffing requirements are management prerogatives. See also School Dist. of Seward Educ. Ass’n v. School Dist. of Seward, 188 Neb. 772, 784, 199 N.W.2d 752, 759 (1972). In Professional Firefighters Ass’n of Omaha, Local 385, the Commission stated that these recognized staffing issues are management prerogatives because those staffing issues are more closely related to the assignment of work.
The work in the Register of Deeds office must be completed daily because Nebraska is a race-to-record state. The evidence adduced at trial does not indicate bargaining unit work is being taken away from bargaining unit employees. Instead, the evidence shows that the volume of workload fluctuates, in part due to increased filings or vacation/sick hours taken by employees and other unforeseen occurrences such as power outages. The Petitioner has not proven that the Respondent is taking bargaining unit work away from bargaining unit employees. Instead, this is clearly a daily staffing issue. The Petitioner has not proven that the Respondent’s Office Manager or the Assistant Deputy Chief are performing bargaining unit work consistently, in lieu of offering overtime work, or hiring additional employees. This work is performed only due to unforeseen fluctuations in the work load of the Register of Deeds Office. The Register of Deeds has the right to assign work, to schedule work hours, to staff the office, and to maintain office efficiently on a day–to–day basis. See School Dist. of Seward, supra. The Commission does not have the jurisdiction to order any changes to daily staffing. See Professional Firefighters Ass’n of Omaha, Local 385, supra. Therefore, the Petitioner’s claim on transferring of bargaining unit work should be dismissed.
The Petitioner argues the Respondent unilaterally increased the premium paid by the employees, without negotiating the issue. The Respondent argues that it did not commit a prohibited practice when it passed on the contractually specified percentage of a cost increase for the health care plan to bargaining unit employees.
There are three categories of collective bargaining subjects: mandatory, permissive, and prohibited. 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 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 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; See also Coleridge Educ. Ass’n v. Cedar County School Dist. No. 14-0541, a/k/a Coleridge Community Schools, 13 CIR 376 (2001).
Mandatory subjects of bargaining are not just topics for discussion during negotiations sessions. Unless clearly waived, mandatory subjects must be bargained for before, during, and after the expiration of collective bargaining agreements. In Rockwell Int’l Corp., 260 N.L.R.B. 1346, 109 L.R.R.M. 1366 (1982), the National Labor Relations Board found that the duty to bargain continues during the existence of a bargaining agreement concerning any mandatory subject of bargaining, which has not been specifically covered in the contract and regarding which the union has not clearly and unmistakably waived its right to bargain. In Rockwell, the Respondent, a manufacturer of nuclear weapon components, maintained a cafeteria for its employees in part because of its remote location in the Rocky Flats near Golden, Colorado. The Respondent refused to bargain over food price increases in cafeteria items. In Rockwell, the Board overturned the administrative law judge’s finding that a zipper clause in the collective bargaining agreement constituted an effective waiver of the Union’s right to request bargaining about cafeteria and vending machine prices for the duration of the contract. Citing Ford Motor Co. (Chicago Stamping Plant) v. N.L.R.B., 441 U.S. 488 (1979), the Board stated that the Respondent had violated Section 8(a)(5) of the National Labor Relations Act by refusing to bargain about unilateral increases in food prices made during the terms of a collective-bargaining agreement which did not specifically cover the subject of those prices. In sum, the Board found that the Respondent had a continuous duty to bargain over the matter of increases in the in-plant food prices. The Board concluded that the Respondent’s refusal to bargain over the price increases violated 8(a)(5) and (1) of the Act.
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. The Commission has previously held on multiple occasions that health insurance is a mandatory subject of bargaining. See Scottsbluff Police Officers Ass’n Inc., F.O.P., Lodge 38 v. City of Scottsbluff, 16 CIR 478 (2010); Fraternal Order of Police Lodge 21 v. City of Ralston, 12 CIR 59 (1994); and Communication Workers of America, AFL-CIO v. County of Hall, 15 CIR 95 (2005).
Health insurance is unequivocally a mandatory topic of bargaining, and as such, an employer has a duty to bargain with the union over changes in such mandatory topics of bargaining. In the instant case, the economic impact is apparent in the increased monthly premium costs (as seen in the $80 increase in Exhibit 2 for employee plus one dependent). The Respondent mistakenly believes that under the old contract it has the right to pass along this premium increase. The law is abundantly clear that health insurance changes must be discussed at the bargaining table and not unilaterally implemented before, during, or after a contract year. The duty to bargain is continuous and the Respondent’s violation flies directly against well-settled law. We find that the Respondent violated Neb. Rev. Stat. § 48-824(1), by not bargaining over health insurance increases in cost. We note that during trial there was an issue with health insurance changes regarding other issues such as co–pays and out–of–pocket maximums; however, the evidence presented by the Respondent clearly shows no changes were made. Instead, the evidence indicates that the Respondent only changed the insurance premium (dollar amount). Therefore, the Commission’s findings related only to the issue of the premium increase in dollar amount.
The Petitioner seeks an order returning the Petitioner to the status quo until the parties negotiate in good faith to reach terms and conditions of employment consistent with good faith negotiations. The Petitioner, in its brief, 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 County of Hall, the employees were reimbursed such health insurance premiums improperly withheld, since July 1, 2004 plus interest at the rate of 4.63%, which was the Nebraska judgment rate in effect. Furthermore, a review of F.D.I.C. v. Federal Labor Relations Authority, indicates that the appropriate remedy in a plan design change case returns the parties to the status quo ante. In that case, the FLRA found that the remedy was perfectly appropriate: ‘because when an agency makes unilateral changes and refuses to bargain over them, the typical remedy is for the FLRA to order a “make whole” or status quo ante remedy.’ The Respondent shall return the parties to the status quo ante and the parties shall recommence good faith negotiations over these issues within thirty (30) days.
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. The Respondent’s conduct borders on the line between repetitive misconduct and overtly creative contract interpretation (even though no contract exists between the parties in the instant case for the 2011 contract year). We can find no direct evidence in the record of repetitive, egregious, or willful conduct. Therefore, the Commission finds the Respondent should make all employees whole for any and all losses incurred as a result of the Respondent’s unlawful unilateral implementation of its final offer. We did not find any direct evidence that the Respondent has been willfully refusing to bargain over health insurance, instead the Respondent was under the mistaken belief that it was not required to bargain over health insurance. 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 that:
1. The Petitioner’s cause of action relating to bargaining unit work being done by supervisors is dismissed.
2. The Respondent shall cease and desist from implementing changes in the Petitioner’s health premium dollar amounts.
3. The Respondents shall reimburse the bargaining unit members for any health insurance benefits improperly withheld, plus interest as set by § 45-103, which is the Nebraska judgment rate of 2.218% now in effect. Adjustments resulting from this order shall be paid in a single lump sum payable within thirty (30) days.
4. The parties shall recommence good faith 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 panel commissioners join in the entry of this order.