19
CIR 119 (2015)
NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS
INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 763, Petitioner, v. OMAHA
PUBLIC POWER DISTRICT, Respondent. |
) ) ) ) ) ) ) ) ) ) |
|
Case
No. 1372 FINDINGS
AND ORDER |
June 4, 2015
APPEARANCES:
For
Petitioner Robert
E. O’Connor, Jr.
2433
South 130th Circle
Omaha,
NE 68144
For
Respondent Patrick
J. Barrett
500
Energy Plaza
409
South 17th Street
Omaha,
NE 68102
Before
Commissioners Partsch, Lindahl, and Pillen
PARTSCH,
Commissioner
NATURE OF THE CASE
On June 6, 2014, the International
Brotherhood of Electrical Workers Local 763 (“Union” or “Petitioner”) filed a
Petition pursuant to Neb. Rev. Stat.
§ 48-824, alleging that the Omaha Public Power District (“OPPD” or “Respondent”)
committed a prohibited practice by refusing to bargain in good faith regarding
the creation and implementation of a backshift rotation for its employees at
the Fort Calhoun Nuclear Power Station. Respondent filed its Answer on June 23,
2014, alleging that creating and implementing a backshift rotation is a
permissive subject of bargaining, or alternatively, a management prerogative.
Respondent in its Answer also raised the affirmative defense that Petitioner
waived its right to bargain.
A trial was held on December 17,
2014 before the Honorable David J. Partsch to hear testimony and receive evidence.
Post-trial briefs have been filed and the case deemed submitted.
FACTS
The parties have a current
collective bargaining agreement (“CBA”) effective June 1, 2012 through May 31,
2015 for employees at the Respondent’s Fort Calhoun Nuclear Station (“FCNS”). Long
ago, Article 1, Section 4(E) was added to the CBA, which states that
“Notwithstanding anything in Sections 1, 2 and 4 of Article IV hereof to the
contrary, effective as of January 1, 1979, all employees covered by this
Agreement who are hired after that date may be assigned to an eight (8) hour
shift commencing and concluding at any time during the twenty-four hour day
when, in the opinion of the Company, such assignment will aid the more
efficient utilization of the Company’s facilities and equipment and its service
to its customers.”
The majority of workers at FCNS are
non-shift workers, or employees that work one day shift per day. The parties
had negotiated changes in shifts for non-shift workers in the past, and
memorialized those changes in Memorandums of Understanding (“MOU”). On February
8, 2010, the parties entered into an MOU to create a temporary staggered shift
for the non-shift employees called “Memorandum of Understanding Nuclear
Operations Division- Monday through Friday Staggered Shift Scheduling IBEW
Local #763” (“Staggered Shift MOU”). The Staggered Shift MOU set forth the
terms and conditions under which a staggered shift would be scheduled at FCNS,
addressed the Nuclear Regulatory Commission’s work hour rule change, and Respondent’s
desire to have employees work a shift outside the regular day shift set forth
in the CBA.
In August 2012, Respondent
contracted with Exelon Generation, LLC (“Exelon”) to manage nuclear operations
at FCNS while FCNS was shut down. When it was determined that the second shift
was no longer necessary, Respondent and Petitioner agreed to suspend the
Staggered Shift MOU on or about December 20, 2012.
On March 7, 2014, Union President
Charlie Perkins sent an email to Assistant Labor Relations Director Paula
Pittman which included an attachment listing several questions from the Union for
an upcoming meeting regarding potential changes about integration issues with
Exelon, including the possible creation of shift work for non-shift employees. A
meeting was held on March 10, 2014, where several topics were discussed. On
March 26, 2014, Ms. Pittman sent Mr. Perkins an email stating that she had been
contacted about creating a second shift for the non-shift employees. Mr.
Perkins responded that he would recommend that the suspended Staggered Shift
MOU be reinstated, and asked Ms. Pittman to set up a meeting for the parties to
discuss the issue.
On April 2, 2014, the Parties met to
discuss the Staggered Shift MOU and Exelon integration issues, described during
trial as a contentious meeting. No written documents or offers were exchanged,
but Respondent verbally told Petitioner of about seven changes that it wanted
to make to the shift. Petitioner requested that Respondent send its proposed
changes to the Union in writing. On April 24, 2014, Petitioner received an
email from Respondent inquiring on the status of the creation of the new shift.
That same day, Petitioner sent a letter to Respondent stating that Petitioner
was not interested in negotiating any changes to the Staggered Shift MOU until
the parties negotiated a new CBA in 2015 and it would recommend that Respondent
follow the suspended MOU. According to testimony at trial, Mr. Perkins and Ms.
Pittman continued to have informal conversations after other meetings at least
once a week in March, April, and May, 2014.
On May 15, 2014, Mr. Perkins emailed
Ms. Pittman to inquire about the status of the staggered shift issue and what
changes Respondent wanted to make. Ms. Pittman replied on May 18, stating that
Respondent wanted to create a separate backshift under the 24 Hour Coverage
Clause of the CBA that would not be implemented until June. Ms. Pittman also
asked Mr. Perkins to let her know if he wanted to meet and discuss the issue. No
meetings were scheduled. On May 21, 2014, Respondent emailed to FCNS employees
its “first take” on the backshift rotation, which was then passed on to Mr.
Perkins. According to the document, the new backshift would begin at 3:00 p.m.
and end at 11:30 p.m. Monday through Friday, and would not include crew
leaders. Respondent informed Petitioner that it would implement the new shift
on June 2, but did not implement the new shift until June 9. Petitioner filed
its Petition with the Commission on June 6, 2015.
DISCUSSION
Petitioner alleges that Respondent
violated Neb. Rev. Stat. §§
48-824(1), (2)(a), (e), and (f) when it refused to bargain in good faith
regarding the creation and implementation of the new backshift rotation and
then unilaterally implemented the new backshift rotation after Petitioner filed
its Petition with the Commission.
Duty
to Bargain
Section 48-824(1) states that it is
a prohibited practice for any public employer to refuse to negotiate in good
faith with respect to a mandatory subject of bargaining. In NLRB v. Katz, the U.S. Supreme Court
held that unilateral changes to mandatory subjects of bargaining before impasse
are per se violations of the party’s duty to bargain in good faith. 369 U.S.
736, 737 (1962). The question as to whether OPPD had a duty to bargain with the
Union regarding the creation and implementation of the second shift hinges on
whether the topic is a mandatory subject of bargaining.
There are three categories of
bargaining subjects: mandatory, permissive, and prohibited. Mandatory subjects
are those subjects that relate to “wages, hours, and other terms and conditions
of employment, or any question arising thereunder.” Neb. Rev. Stat. § 48-816(1)(A). Additional mandatory subjects
of bargaining are those which “vitally affect” the terms and conditions of
employment. Fraternal Order of Police,
Lodge No. 8 v. Douglas County, 16 CIR 401 (2010). The Nebraska Industrial
Relations Act only requires parties to bargain over mandatory subjects. Neb. Rev. Stat. § 48-816(1)(A).
Permissive subjects are legal subjects of bargaining that 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 a permissive subject. Id. Finally, prohibited bargaining subjects are those topics that
the law forbids the parties from agreeing to bargain. In addition, some
subjects are considered management prerogatives. “Management prerogatives, such
as the right to hire, to maintain order and efficiency, to schedule work, and
to control transfers and assignments, are not mandatory subjects of
bargaining.” Scottsbluff Police Officers
Ass’n v. City of Scottsbluff, 282 Neb. 676, 683 (Neb. 2011).
Mandatory subjects of bargaining are
not just topics for discussion during negotiations. Unless clearly waived,
mandatory subjects must be bargained for before, during, and after the
expiration of a collective bargaining agreement. Omaha Police Union Local 101 v. City of Omaha, 15 CIR 292 (2007). In
order to establish working guidelines as to what constitutes a mandatory
subject of bargaining, the Nebraska Supreme Court in Metro Technical Community College Education Ass’n set forth the
following test:
“A matter which is
of fundamental, basic, or essential concern to an employee’s financial and
personal concern may be considered as involving working conditions and is
mandatorily bargainable even though there may be some minor influence on
educational policy or management prerogative. However, those matters which
involve foundational value judgments, which strike at the very heart of the
educational philosophy of the particular institution, are management
prerogatives and are not a proper subject for negotiations even though such
decisions may have some impact on working conditions. However, the impact of
whatever decision management may make in this or any other case on the economic
welfare of employees is a proper subject of mandatory bargaining.”
Metropolitan Tech. Community College
Educ. Ass’n v. Metropolitan Tech. Community College Area,
203 Neb. 832, 842 (Neb. 1979). Once a topic has been found to be a mandatory
subject of bargaining, the burden of proving a waiver falls on the party
asserting the waiver.
Petitioner argues that the creation
and implementation of the backshift rotation at FCNS and its effect on
employees is a mandatory subject of bargaining. Respondent’s argument is
two-fold in that the creation and implementation of the new shift was either a
permissive subject of bargaining or, in the alternative, management prerogative
which did not require negotiation with the Union.
First, Respondent argues that the
staffing issue in this case should be considered a permissive subject of
bargaining, citing § 48-816(1)(b). Under § 48-816(1)(b), staffing issues
related to scheduling work such as daily staffing, staffing by rank, and
overall staffing requirements are permissive subjects of bargaining in
negotiations between a municipality, municipally owned utilities, or county and
a labor organization. Respondent reasons that, although OPPD is a political
subdivision and not a municipally owned utility, it should be treated the same
under the statute because the issue is identical no matter the ownership of the
utility. Although that reasoning may have merit, the Commission is not in the
position to expand on the clear language contained in § 48-816(1)(b). If the
Nebraska Legislature intended § 48-816(1)(b) to apply to political
subdivisions, it would have said so. As such, we decline to follow Respondent’s
reasoning.
Decisions of the National Labor
Relations Board (“NLRB”) are instructive but not controlling. The NLRB has long
held that hours are a mandatory subject of bargaining. NLRB v. Borg-Warner Corp., Wooster Div., 356 U.S. 342, 349 (1958).
The term “hours” has been held to mean work schedules and whether there should
be Sunday work. See Timken Roller Bearing
Co., 70 N.L.R.B. 500 (1946), enforcement denied on other grounds, 161 F.2d
949 (6th Cir. 1947). The NLRB has specifically held work schedules
to be mandatory subjects of bargaining. T-West
Sales & Service, 346 N.L.R.B. 132 (2005); Pepsi-Cola Bottling Company of Fayetteville, Inc., 330 N.L.R.B. 900
(2000) (employer unilaterally changed starting time for an employee in
violation of NLRA…unilateral schedule changes unlawful where it affected how
employees could arrange their workday); Our
Lady of Lourdes Health Center, 306 N.L.R.B. 337, 339 (1992).
The Commission, however, has decided
on several occasions that the scheduling of hours worked is a management
prerogative. See County of Hall v. United
Food and Commercial Workers District Local 22, 15 CIR 167 (2006)(Scheduled
hours per day, scheduled hours per week and scheduled work cycle were
management prerogatives); General Drivers
and Helpers Union, Local 554 v. County of Gage, 14 CIR 170 (2003)(Number of
hours worked per day and per week determined to be management prerogatives); Lincoln Firefighters Ass’n Local Union No.
644 v. City of Lincoln, 12 CIR 248 (1997), aff’d 253 Neb. 837 (Neb.
1998)(Hours of work per cycle and overtime are management prerogatives); Yutan Educ. Ass’n v. Saunders County School
Dist. No. 0009, 12 CIR 68 (1994)(right to schedule work is management
prerogative). However, the Commission has also recognized that “an employer’s
practices, even if not required by a collective bargaining agreement, which are
regular and longstanding, rather than random and intermittent, become terms and
conditions of unit employee’s employment, which cannot be altered without
offering their collective-bargaining representative notice and an opportunity
to bargain over the proposed change.” Service
Employees International Union Local 226 v. Douglas County School District 001,
17 CIR 428 (2012), aff’d 286 Neb. 768 (2013)(citing Sunoco, Inc., 349 N.L.R.B. 240, 244 (2007)).
In the present case, the employees
affected by Respondent’s shift change are those employees designated as
non-shift employees. According to the CBA, shift employees work nights,
evenings and weekends, while non-shift employees work Monday through Friday
between 7 a.m. and 4:30 p.m. The change proposed and implemented by Respondent changed
those hours to Monday through Friday, 3:00 p.m. to 11:30 p.m., a drastic change
in start and stop times as designated by the CBA. The parties have historically
negotiated and agreed to changes to the shift start and stop times as evidenced
by the various MOUs entered into by the parties. Respondent argues that it has
management prerogative to create and implement the backshift for its employees
based upon the 24 Hour Clause in the CBA. However, whenever the parties wanted
to make a change to this start and stop time, they have done so at the
bargaining table. This bargaining history and the “vital effect” on the
employees’ terms and conditions of employment is enough to find that OPPD could
not create and implement a new shift for these employees without notice to the
Union and an opportunity to bargain.
Waiver
The Commission has found that the
duty to bargain can be waived. The burden of proving waiver was on the party
asserting the waiver. Washington County
Police Officers Ass’n/F.O.P. Lodge 36 v. County of Washington, 17 CIR 114
(2011). In Fraternal Order of Police
Lodge 21 v. City of Ralston, 12 CIR 59 (1987), the Commission stated that
the standard of proving waiver of a statutorily protected right must be clear
and unmistakable. Additionally, once a union has notice of a proposed change in
a mandatory subject of bargaining, it must make a timely request to bargain. “A
union cannot charge an employer with refusal to negotiate when it has made no
attempts to bring the employer to the bargaining table.” Id. (citing NLRB v. Alva
Allen Indus., Inc., 369 F.2d 310, 321 (8th Cir. 1966)). “It is
well settled Board law that ‘when an employer notifies a union of proposed
changes in terms and conditions of employment, it is incumbent upon the union
to act with due diligence in requesting bargaining.’” Id. (citing Haddon Craftsmen,
Inc., 300 N.L.R.B. 789, 790 (1990)). Notice from the employer does not have
to be formal, and it is not unlawful for the proposed change to be presented as
a fully developed plan. Id. The NLRB
has held that unilateral changes to working hours where employers have notified
the union of the proposed change and the union made no reasonable attempt to
bargain was upheld as a lawful unilateral change. K-Mart Corp., 242 N.L.R.B. 855 (1979), enforced 626 F.2d 704 (9th
Cir. 1980); Western Electric Co., 233
N.L.R.B. 86 (1976)(after employer provided union with such information, union
made only vague and ambiguous requests for information and declined to engage
in meaningful bargaining).
In this case, Petitioner was
informed in March 2014 that Respondent was looking into making a change to the
shift schedule currently in place for non-shift employees. Whether the shift
was a “staggered” shift or a “backshift” does not change the fact that Respondent
made it clear to Petitioner that it was contemplating shift changes. Early
discussions between the parties centered around possible changes to the
Suspended Staggered Shift MOU, to which Petitioner made clear in its April 24,
2014 letter that it was not interested in negotiating any shift changes during
the term of the collective bargaining agreement. In the email exchange of May
15 and 16, 2014, Respondent notified Petitioner of its intention to instead
create a backshift and possibly implement the new shift in June 2014, before
bargaining about any new collective bargaining agreement. By Petitioner’s own
admission, the parties communicated about the shift proposals, but did not
engage in any formal negotiations. Petitioner clearly had notice that
Respondent wanted to change the shift schedule currently in effect, yet
Petitioner indicated an unwillingness to bargain and subsequently never made a
request to bargain despite open communications with Respondent. We therefore
find that Respondent has met its burden to show that Petitioner waived its
right to bargain about the creation and implementation of the new shift, and
thus Respondent did not violate § 48-824 when it implemented the shift
change.
We therefore find that Respondent
did not violate § 48-824. The Petition is hereby dismissed.
IT IS THEREFORE ORDERED that:
1. The
Petition is hereby dismissed.
All
panel Commissioners join in the entry of this Final Order.