17 CIR 247 (2012) 

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Entered March 1, 2012

APPEARANCES:

Before:  Commissioners Burger, Blake, and McGinn

BURGER, Commissioner

NATURE OF THE PROCEEDINGS: 

            The Fraternal Order of Police Lodge 48 (“FOP,” “Union” or “Petitioner”) filed a Petition pursuant to Neb. Rev. Stat. § 48-824(2)(e) (Reissue 2004), alleging that the County of Saunders (“County”) and County Supervisors Doris Karloff, Scott Sukstorf, Craig Breunig, James Fauver, Dave Lutton, Darren Martin, and Leroy Hanson, and Saunders County Sheriff Kevin Stukenholtz (together with County, “Respondents”) committed a prohibited practice by refusing to negotiate with the Union’s designated bargaining representative.  Respondents filed an Answer denying the allegations and asserting that Petitioner has unlawfully refused to bargain with Respondents and has unlawfully attempted to coerce Respondents to bargain with the General Drivers and Helpers Union, Local No. 554 (“Teamsters”) as the Union’s designated bargaining representative during a pending Teamster’s organization drive involving certain employees of the County.

            Issues presented at trial were as follows:

1.      Whether Respondents violated Neb. Rev. Stat. § 48-824(2)(e) by failing to bargain with the collective bargaining representative of Petitioner.

2.      Whether Petitioner violated Neb. Rev. Stat. § 48-824(3)(b) and (c) by refusing to negotiate with Respondents.

FACTS:

            Petitioner was certified in 1991 as the exclusive bargaining agent for all full-time and regular part-time employees of the Saunders County Sheriff’s department below the rank of Lieutenant, including Deputies, Dispatchers, Corrections Officers and office personnel excluding the Secretary to the Sheriff, Administrative Assistant, and any member of the management team.  In August 2011, Petitioner sought the assistance of the Teamsters in negotiating the new collective bargaining agreement for the period of July 1, 2011 through June 30, 2012.  Petitioner and the Teamsters signed a service agreement to that effect, which outlined the Teamster’s role in the negotiating process and retained Petitioner’s rights as the certified bargaining representative for the bargaining unit.  The Teamsters assigned Mr. Patel to assist Petitioner during negotiations with Respondents.

On September 7, 2011, a meeting was held at the Saunders County courthouse.  Present for the Union were Union President Cindy Hightshoe, Bryan Patel, and Daniel Avelyn, vice-president of the Teamsters.  The County was represented by Mark McQueen, County Attorney Scott Tingelhoff, Sheriff Stukenholtz, and three members of the Saunders County Board.  During the meeting, the Union gave written notice of Mr. Patel’s designation as its collective bargaining representative.  County representatives stated that the County would not recognize the Teamsters as the sole and exclusive bargaining agent for Petitioner.  Mr. Patel informed the County that he was only to assist the Union during negotiations, and that the Teamsters were not seeking recognition as the sole and exclusive bargaining agent for the bargaining unit.  The County maintained its position that it would only bargain with members of the Union, and requested that the Union present the County with its bargaining proposals.  No written proposals were exchanged between the parties, and Mr. Patel declared the meeting to be over.  The Union then filed this action with the Commission.

 DISCUSSION:

            Petitioner argues that Respondents violated § 48-824(2)(e) in refusing to bargain with Mr. Patel serving as Petitioner’s duly appointed representative in negotiations.  Respondents deny that they have refused to bargain in good faith, and allege that Petitioner is seeking to force Respondents to unlawfully bargain with the Teamsters, a union different from Petitioner, during a pending Teamsters organization drive involving Respondents’ road and maintenance work employees.

            Statutes in the Industrial Relations Act (IRA) are similar to federal statutes found in the National Labor Relations Act (NLRA).  The Nebraska Supreme Court has declared that “decisions under the National Labor Relations Act are helpful but not controlling” on this Commission.  City of Grand Island v. AFSCME, 186 Neb. 711, 714 (1971).  The Court has further stated that NLRA decisions are helpful where similar provisions exist in Nebraska statutes.  University Police Officers Union v. University of Nebraska, 203 Neb. 4, 12 (1979).  Since IRA provisions regarding prohibited practices are similar to NLRA provisions regarding unfair labor practices, the Commission shall look to federal decisions under the NLRA for guidance. 

PETITIONER’S CLAIMS AGAINST RESPONDENTS:

            Neb. Rev. Stat. § 48-824(2)(e) states that “It is a prohibited practice for any employer or the employer’s negotiator to…(e) refuse to negotiate collectively with representatives of collective-bargaining agents as required by the Industrial Relations Act.”  In Fraternal Order of Police, Lodge 41 v. County of Scotts Bluff, et al., 13 CIR 270 (2000), the Commission found that the federal and state statutes were substantially similar in dealing with prohibited practices and that NLRA § 8(a)(5) is nearly identical to § 48-824(2)(e) of the IRA.  As such, we shall look to federal decisions for guidance on this issue.

In general, parties are free to choose their own bargaining representatives free from coercion and restraint.  General Electric Co. v. NLRB, 412 F.2d 512 (2d Cir. 1969).  In General Electric, the Second Circuit enforced the NLRB’s findings that the company had committed an unfair labor practice by refusing to bargain with one of its unions where the union chose a representative from each of the company’s seven other unions to participate on the negotiating committee.  In holding that parties have the right to choose their bargaining representatives, the court recognized that this right is not absolute:

“There have been exceptions to the general rule that either side can choose its bargaining representatives freely, but they have been rare and confined to situations so infected with ill-will, usually personal, or conflict of interest as to make good-faith bargaining impractical. Thus, the freedom to select representatives is not absolute, but that does not detract from its significance. Rather the narrowness and infrequency of approved exceptions to the general rule emphasizes its importance. Thus, in arguing that employees may not select members of other unions as ‘representatives of their own choosing’ on a negotiating committee, the Company clearly undertakes a considerable burden, characterized in an analogous situation in NLRB v. David Buttrick Co., 399 F.2d 505, 507 (1st Cir. 1968), as the showing of a ‘clear and present’ danger to the collective bargaining process.”

General Electric, 412 F.2d at 517.  The Eighth Circuit held similarly in Minnesota Mining and Manufacturing Co. v. NLRB, 415 F.2d 174 (8th Cir. 1969), finding that a company was not excused from bargaining with a union panel which included a member of a different union which represented employees at a different plant. 

Courts have found exceptions to the right to choose one’s bargaining representatives, including the placement of an ex-union official on an employer negotiating team for the express purpose of “putting one over” on the union (NLRB v. International Ladies’ Garment Workers’ Union, 274 F.2d 376 (3d Cir. 1960)), and a union bargaining team which included a representative from an outside union that represented employees from the employer’s competitors during negotiations where the employer intended to reveal trade secrets in its bargaining proposals (International Brotherhood of Electrical Workers v. NLRB, 557 F.2d 995 (2d Cir. 1977)).  These exceptions have rarely been found, and have only been held in cases where the ill will or conflict of interest was so great that negotiations could not reasonably occur.  Absent persuasive evidence of ill-will or other exceptional circumstance, a union can select whomever they wish to be part of their bargaining team and the employer is under a duty to bargain with those individuals.  It matters not that the bargaining team consists of members wholly from one union, a separate union altogether, or if the bargaining representative is not a member of any union at all.  Courts have recognized that even certified bargaining representatives have the right to delegate bargaining authority to “whomever it wants.”  See Advanced Const. Services, Inc. v. NLRB, 247 F.3d 807 (8th Cir. 2001); Whisper Soft Mills, Inc. v. NLRB, 754 F.2d 1381 (9th Cir. 1984).

In the present case, the County was under a duty to bargain with the Union and its chosen representatives absent any showing of an exceptional circumstance to warrant deviation from the rule in General Electric.  As stated in General Electric, the County also had the burden to show such ill will or conflict of interest so great as to present a ‘clear and present’ danger to bargaining with the Union.  Upon review of the evidence presented, we are of the opinion that Respondents have failed to show that there is ill will or exceptional circumstance to excuse its refusal to bargain with the Union and Mr. Patel.  Exhibit 8 makes clear that the Union chose Mr. Patel to represent and advise the Union during contract negotiations, and did not rescind its rights as the certified bargaining agent to the Teamsters.  The fact that the Teamsters were conducting an organization drive of a separate group of Saunders County employees is not a strong enough justification for the County’s refusal to bargain with Mr. Patel.

Respondents argue that, in refusing to bargain with Mr. Patel, they were respecting their duty to bargain exclusively with Petitioner.  Respondents are correct that a duty to bargain exclusively with Petitioner exists; however, this duty works in conjunction with the right of either party to choose who will sit at the bargaining table on their behalf.  The Union was as free to accept assistance from the Nebraska or National Fraternal Order of Police as it was to accept assistance from Mr. Patel and the Teamsters, and the Union clearly made their choice.  We therefore find that Respondents’ refusal to bargain with Petitioner’s appointed bargaining representative constitutes a violation of § 48-824(2)(e). 

RESPONDENTS’ CLAIM AGAINST PETITIONER:

Respondents allege that Petitioner violated Neb. Rev. Stat. § 48-824(3)(b) and (c) by not presenting a bargaining proposal to Respondents when requested during the September 7, 2011 meeting.  The relevant statutes state that it is a prohibited practice for any employee, employee organization, or bargaining unit or for any representative or collective-bargaining agent to:

(b) Interfere with, restrain, or coerce an employer with respect to rights granted by the Industrial Relations Act…and

(c) Refuse to bargain collectively with an employer as required by the Industrial Relations Act.

We again look to NLRB case law for guidance.

In NLRB v. Insurance Agents’ Union, the United States Supreme Court recognized that “collective bargaining…is not simply an occasion for purely formal meetings between management and labor while each maintains an attitude of take it or leave it, it presupposes a desire to reach ultimate agreement, to enter into a collective bargaining contract.”  361 U.S. 477, 485-486 (1960).  Similarly, the Supreme Court in NLRB v. Katz held that parties must refrain not only from behavior “which reflects a cast of mind against reaching agreement,” but from behavior “which is in effect a refusal to negotiate or which directly obstructs or inhibits the actual process of discussion.”  369 U.S. 736, 747 (1962).  Courts will evaluate a party’s overall conduct during negotiations, both at and away from the bargaining table, when determining whether a party has engaged in good faith bargaining.

The NLRB has held that the failure and refusal to provide proposals and/or counterproposals is an indication of bad faith bargaining.  See Taurus Waste Disposal, Inc., 263 N.L.R.B. 309, 314 (1982); Research Products/Blankenship Company, 258 N.L.R.B. 19, 25 (1981); Southside Electric Cooperative, Inc., 243 N.L.R.B. 390 (1979).  In each case, the refusal or failure to provide proposals without delay was not considered a per se violation of one’s duty to bargain in good faith, but was one of several factors considered during the course of a party’s conduct in determining whether a party was bargaining in good faith.

            In looking at the totality of the Union’s conduct in this case, we do not believe that the Union’s refusal to offer a bargaining proposal during the September 7, 2011 meeting was in and of itself a prohibited practice.  The evidence shows that prior to the September 7, 2011 meeting, the Union told the County that it was willing to sit down with the County for face to face negotiation sessions, but the County stood firm in its position that it would only bargain with representatives of the Union excluding Mr. Patel.  The County again made it clear during the September 7, 2011 meeting that it was refusing to recognize Mr. Patel as the bargaining representative for the Union.  The County’s refusal to bargain was verbalized repeatedly, and we believe that the Union was not unreasonable in its belief that negotiations would be futile from that point forward.    Therefore, we find that the Union did not violate § 48-824(3)(b) and (c). 

REMEDIAL AUTHORITY

            Petitioner requests that the Commission conclude that Respondents violated § 48-824(2)(e); order Respondents to cease and desist from engaging in the prohibited practice; order Respondents to engage in good faith negotiations with Petitioner and Petitioner’s duly appointed representative, Mr. Bryan Patel, or other such designated representative as Petitioner may designate; and order reimbursement of attorney’s fees and costs.

            Under the NLRA, the usual remedy for an employer’s refusal to bargain in violation of § 8(a)(5) is an order to cease and desist from refusing to bargain and, upon request, to bargain collectively regarding rates of pay, hours, and other conditions of employment.  See e.g. Power Inc., 311 N.L.R.B. 599, 145 LRRM 1198 (1993), enforced, 40 F.3d 409 (D.C. Cir. 1994).  The Commission’s authority to issue remedies after finding a failure or refusal to bargain in good faith can be seen in Fraternal Order of Police, Lodge 41 v. County of Scotts Bluff, et al., 13 CIR 270 (2000), wherein the Commission entered a cease and desist order and ordered a recommencement of good faith negotiations.  An order requiring good faith bargaining to resume and that the offending party cease and desist from committing the prohibited practice is clearly within the Commission’s authority, and will therefore be ordered.

            With regard to Petitioner’s request for attorney’s fees, such an award is appropriate where an employer’s misconduct was flagrant, aggravated, persistent and pervasive. See International Union of Operating Engineers Local 571 v. Cass County, 14 CIR 259.  Respondents’ conduct did not rise to the level necessary to justify an award of attorney’s fees.  Accordingly, attorney’s fees are not awarded. 

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that:

1.      Respondents shall cease and desist from refusing to bargain with Petitioner and Petitioner’s duly appointed representatives.

2.      Respondents shall commence good faith negotiations with Petitioner and Petitioner’s duly appointed representatives within the next 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.