17 CIR 254 (2012) 

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Entered May 3, 2012

APPEARANCES:

Before:  Commissioners Blake, Burger, and Lindahl

BLAKE, Commissioner 

NATURE OF THE PROCEEDINGS:

             The American Federation of State, County and Municipal Employees Local Union No. 2468 (“Union” or “Petitioner”) filed this petition on September 7, 2011 and an Amended Petition on December 23, 2011 alleging that Lancaster County (“County” or “Respondent”) has committed a number of prohibited practices in violation of Neb. Rev. Stat. §§ 48-824(1) and 48-824(2)(a), (e), and (f), falling into three general categories:

1.      Refusal to negotiate in good faith;

2.      Interference, restraining, and coercing employees with respect to rights granted by the Industrial Relations Act; and

3.      Direct dealing with bargaining unit members.

On September 16, 2011, the County simultaneously filed a wage case, CIR Case No. 1277, and CIR Case No. 1278 to amend the bargaining unit.  Case No. 1277 has been held in abeyance pending the determinations of this case, and a decision in Case No. 1278 was issued on March 28, 2012.

 FACTS:

            Petitioner has been the exclusive collective bargaining representative for a bargaining unit consisting of several employee classifications of Respondent since 1974. The collective bargaining agreement was for August 14, 2008 through the first pay period of September 2011. The parties disagree as to whether this agreement was automatically extended for a year, but that is not at issue in this case. On May 19, 2010, Respondent gave Petitioner notice of its intent to negotiate about employee furloughs and hours of employment. Petitioner responded on May 24, 2010, stating that the Union would meet to discuss the County’s request to negotiate. On June 1, 2010, Petitioner sent notice to the County stating that the Union was willing to sit and discuss the negotiating topics presented by the County without renegotiating the entire contract.

            The parties began bargaining, but did not reach a new agreement.

DISCUSSION:

            We will not recount each prohibited practice allegation detailed in Petitioner’s amended petition. The evidence shows that difficulties between the parties began in 2009, with the County’s sale of Lancaster Manor. Evidence of much of this change, such as the treatment of union representatives and members, was largely a matter of how Petitioner’s witnesses felt about the changes, with rather vague and unsubstantiated conclusions regarding Respondent’s motives. We cannot doubt the feelings of the union representatives, but their feelings and beliefs about how Respondent can or should work with the Union does not establish a prohibited practice. In the same vein, a shift in policy that may be a legitimate exercise of management prerogative also does not necessarily constitute a prohibited practice.        

            As to the bargaining process, we do not hear prohibited practice issues for the purpose of guiding the parties through the bargaining process, but rather to decide whether the evidence establishes that the practice(s) of one or both of the parties was in bad faith or otherwise violated the provisions of § 48-824. We will not interfere with the exercise of management or union rights or with the methods or details of the bargaining process unless the evidence offers proof of bad faith bargaining or one of the other listed prohibited practices. We will not tell the parties how they should treat each other, how they should bargain, or how long they must follow any manner of dealing with one another without proof that they are acting in a prohibited manner.

Interference, Restraint, or Coercion of Employees

            Under Neb. Rev. Stat. § 48-824(2)(a), it is a prohibited practice for any employer or employer’s negotiator to (a) interfere with, restrain, or coerce employees in the exercise of rights granted by the Industrial Relations Act. To determine whether there has been a violation of § 48-824(2)(a), the employer must have “engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act.”  Employees United Labor Ass’n v. Douglas County, 16 CIR 22 (2008).

The evidence does establish that the president of the Union felt bullied and that changes in policy, scrutiny, and required forms were related to the fact that she was president. One union representative testified that he felt a disciplinary matter was handled contrary to what he had requested due to his union activity. We cannot question those feelings, but they do not establish that the practice was prohibited.

            There was much testimony as to leave granted to the Union president for conducting union business. This evidence was based on past practices and the interpretation of the bargaining agreement. We do not interpret or resolve ambiguities in bargaining agreements. See Transport Workers of America v. Transit Authority of the City of Omaha, 205 Neb. 26, 286 N.W.2d 102 (1979).

            An elected county official, however, did advise the union president that she could not talk to staff as part of her effort to investigate a disciplinary matter involving a union member. The official testified that she did so because she “did not see anything to be gained by it” and that “no good could come from it.” There was no effort to demonstrate a need to keep any information confidential or to explain any other business justification. The president was performing a function clearly allowed by the bargaining agreement, and this is not a matter of interpreting an ambiguous clause. If the ability of a union representative’s duties is dependent upon whether management believes ‘any good could come from it’, then it is tantamount to denying the bargaining unit of the ability to exercise the rights for which it bargained and denies the affected employees of a collective bargaining right. This was an act to restrain employees in the exercise of their rights under the Act in violation of § 48-824(2)(a).

            Additionally, the same county official testified that she did not inform the Union of letters sent to employees involving potential discipline and proposed meetings with those employees because they were not pre-discipline meetings as described in the Agreement. Based on the evidence and the clear and unambiguous language of the agreement, the meetings were clearly pre-discipline meetings. While the county official’s actions regarding these meetings may have been mere inadvertence, her failure to notify the Union of these proposed meetings was a prohibited practice under § 48-824(a) and (b).

 Refusal to Bargain in Good Faith

Neb. Rev. Stat. § 48-816(1) defines good faith bargaining as the “performance of the mutual obligation of the employer and the labor organization to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment…”. The Industrial Relations Act does not require parties to agree to the proposals put forth for discussions, only that the parties “confer in good faith” about those subjects which are negotiable.

There are three categories of collective bargaining subjects: mandatory, permissive and prohibited. Scottsbluff Police Officers Ass’n, Inc./F.O.P. Lodge 38 v. City of Scottsbluff, 16 CIR 478 (2010), aff’d in part and rev’d in part, 282 Neb. 262, 805 N.W.2d 320 (2011). The Industrial Relations Act only requires parties to bargain over mandatory subjects. Neb. Rev. Stat. § 48-816(1). The Commission has 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., citing Service Employees International Union, Local No. 226 v. School District No. 66, 3 CIR 514 (1978). Mandatory subjects of bargaining are not just subjects open for discussion during negotiation sessions. Unless clearly waived, mandatory subjects must be bargained for before, during, and after the expiration of collective bargaining agreements.

The Union alleges that the County violated § 48-824(1) by discussing the possibility of making changes to pension plans with the Legislature without first negotiating with the Union.  In 2011, the County attempted to persuade the Unicameral to change the County’s mandatory contribution from 150% to 100% of the employee’s contribution.  The County did so without bargaining with the unit.  At the same time, the bargaining agreement specifically called for the 150% match by the County.  The County was not successful in its effort to obtain a change in the contribution rate.

The County argues that the pension contribution is mandated by Neb. Rev. Stat. § 23-1118(1)(c), and therefore is actually a prohibited subject of bargaining. Any changes would have to come from the Legislature, and the County’s ability to petition the Legislature concerning the statute is a management prerogative. Additionally, the County argues, the draft legislation if adopted would only affect those employees hired after July 1, 2012.

The Commission has held pension increases to be a mandatory subject of bargaining. City of Omaha v. Omaha Police Union Local 101, 5 CIR 103 (1981). The NLRB has also held that changes to pension plans are a mandatory subject of bargaining, and that an employer’s refusal to bargain over pensions during the term of an agreement violates NLRA § 8(a)(5) unless the union has contractually waived its right to bargain. Jacobs Mfg. Co., 94 N.L.R.B. 1214 (1951), enforced, 196 F.2d 680 (2d Cir. 1952).  However, in City of Omaha v. Omaha Police Union Local 101, the ruling of the Commission was specifically that those portions of the pension not mandated by statute were matters for negotiation.  In that case, the pension contribution distribution was set forth in the City Charter.  The Commission ruled that other pension elements were negotiable.  In Jacobs Mfg. Co., the pension was not dictated by legislation.

In A.F.S.M.E. v. County of Lancaster, 200 Neb. 301, 263 N.W.2d 471 (1978), involved an alleged conflict between the Civil Service Act and the collective bargaining statutes.  The County argued that since certain subjects are covered by the Civil Service Act, negotiation on those subjects was precluded.  The Nebraska Supreme Court ruled that the county must bargain on all subjects which are terms and conditions of employment, unless a statute mandates a particular condition.  The result was that in areas, such as pensions, where less than all of the terms and conditions are mandated in the statute, care must be taken to bargain in those areas not mandated by statute, and to not bargain in those areas that are mandated by the statute.  The mere fact that a particular subject matter may be covered by legislation does not remove it entirely from the collective bargaining requirement if it bears on the question of wages, hours and conditions of employment.  The best rule to be gleaned from this is that if the statutory framework leaves discretion in determining a term or condition of employment, it is negotiable.  If the statute mandates a particular condition of employment, a negotiated agreement cannot contradict it.

Many aspects of the pension plan in this case were not covered by statute, and were therefore left to the parties to determine by bargaining.  However, the contribution match was not one of those aspects.  The level of pension contribution was not an item for negotiation, as it was specifically mandated by the statute, and the County did not commit a prohibited practice by not bargaining prior to seeking a legislative amendment.  Further, we must note that the County did not attempt to change the pension contribution as to any current employee.

Neb. Rev. Stat. § 23-1118(1)(c) states in relevant part that a county with a population of at least 200,000 to 300,000 inhabitants “shall contribute at least an amount equal to each employee’s mandatory contribution, if any, to the cost of any such retirement program…” in an amount of 150% of each employee’s mandatory contribution. The statute further states that the combined contributions of both county and employee to the retirement program shall not exceed 13% of the employee’s salaries.

The evidence shows that the parties attempted to reach an agreement, that effective bargaining was difficult due to the differences in what the parties demanded and expected to achieve, but that neither side refused to negotiate in good faith.  The only evidence is that the union president felt bullied.  The Union complained of the County’s unrealistically short bargaining period. This may be accurate, but the evidence shows that a similar time frame has been successfully followed for many years.

Unfair Bargaining

Much was also made of the inability to agree on what the ground rules for negotiating should be. The Union alleges that the County attempted to dictate the ground rules without listening to the Union’s proposals. There is no requirement that the parties agree on ground rules or that there must be any ground rules at all. Rather, the requirement for both sides is to bargain in good faith, and any finding of bad faith bargaining in relation to the insistence or absence of ground rules has been found while looking at the totality of the circumstances surrounding negotiations between the parties. See Beacon Sales Acquisition, Inc. d/b/a Quality Roofing Supply Company and International Union of Operating Engineers Local 542, AFL-CIO, 357 N.L.R.B. No. 75, footnote 13 (2011)(citing examples of cases where repudiation or violation of ground rules was found to be indicative of bad faith bargaining). In the instant case, the totality of the circumstances does not support the Union’s contention that the County’s attempt to dictate ground rules for negotiation somehow undermined the negotiation process. Therefore, we will not find that the County has committed a prohibited practice in this regard. 

Direct Dealing with Union Members

            Finally, Petitioner alleges that Respondent further violated § 48-824 in several instances, including by failing to allow for union representation during meetings which may result in discipline.

            The United States Supreme Court has long held that bypassing a certified or recognized collective bargaining agent and dealing directly with a represented employee concerning a mandatory subject of bargaining, such as wages and other terms and conditions of employment, violates NLRA § 8(a)(1) and (5). J.I. Case Co. v. NLRB, 321 U.S. 332 (1944); Medo Photo Supply Corp. v. NLRB, 321 U.S. 678 (1944).    At a minimum, good faith bargaining requires recognition that the statutory representative is the one whom the employer must deal in conducting negotiations, and the employer can no longer bargain directly or indirectly with employees. General Elec. Co., 150 N.L.R.B. 192, 194 (1964), enforced 418 F.2d 736 (2d Cir. 1969), cert. denied 397 U.S. 965 (1970)).

            The NLRB uses the following criteria in determining whether direct dealing has occurred: (1) the employer communicated directly with its union-represented employees; (2) the communication was for the purpose of establishing or changing the wages, hours, and terms and conditions of employment or undercutting the union’s role in bargaining; and (3) such communication was to the exclusion of the union. Southern Cal. Gas Co., 316 N.L.R.B. 979 (1995).

In this case, the bargaining agreement grants employees the right to have union representation at pre-disciplinary meetings between management and the employee. The County scheduled meeting with employees for the purpose of discipline which could result in a change in the terms and conditions of that employee’s employment. There were instances of notices of meetings sent directly to employees without informing the union, but it was quickly corrected and appeared merely inadvertent. This does not rise to the level of a prohibited practice.

Remedial Authority:

            Petitioner requests that the Commission find that Respondent violated § 48-824(1), (2)(a), (e) and (f); order Respondent to negotiate in good faith; cease and desist from engaging in prohibited practices; reimburse the Union president for any leave amounts due; and pay attorney fees and costs.

            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 a violation to bargain in good faith, as well as other appropriate remedies to effectuate the policies of the Industrial Relations Act, adequately provide relief to the injured party, and lead to the resolution of industrial disputes. See United Food and Commercial Workers, Local Union No. 22 v. County of Hall, 15 CIR 55 (2005). In this case, we have not found that Respondent has committed a prohibited practice which would justify the issuance of a bargaining order. Therefore, no such remedy will be ordered. Additionally, we will not order reimbursement of any leave amounts due to the Union president. We will, however, order Respondent to cease and desist from engaging in the prohibited practices detailed in this Order.

Finally, 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 did not find any evidence that Respondent has been willfully refusing to bargain with Petitioner. Therefore, we do not award attorney fees in the instant case.

IT IS THEREFORE ORDERED that:

1.      Respondent shall cease and desist from refusing to allow union representatives to conduct investigations of disciplinary matters involving union members.

2.      Respondent shall cease and desist from neglecting to inform union representatives of pre-disciplinary meetings involving union members.

3.      No attorney fees or leave reimbursement shall be awarded. 

All panel Commissioners join in the entry of this Order.