19
CIR 126 (2015)
NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS
FRATERNAL ORDER OF POLICE, LODGE #45B
Petitioner, v. GAGE
COUNTY, NEBRASKA,
Respondent. and SHERIFF
OF GAGE COUNTY, NEBRASKA,
Respondent, and GAGE
COUNTY BOARD OF SUPERVISORS,
Respondent. |
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) |
|
Case
No. 1385 FINDINGS
AND ORDER |
May 28, 2015
APPEARANCES
For
Petitioner Thomas
P. McCarty
Keating,
O’Gara, Nedved & Peter, P.C., L.L.O.
530
South 13th Street
Lincoln,
NE 68508
For
Respondent Jerry
L. Pigsley
Woods
& Aitken LLP
301 South 13th
Street
Lincoln,
NE 68508
Before
Commissioners Lindahl, Carlson and Partsch
LINDAHL,
Commissioner
NATURE OF THE CASE:
On December 12, 2014, the Fraternal
Order of Police Lodge #45B (“Union” or “Petitioner”) filed this action with the
Commission, alleging that the Sheriff of Gage County, the Gage County Board of
Supervisors and Gage County (“Sheriff,” “Board,” and “County,” together
“Respondents”) committed a prohibited practice by unilaterally eliminating a
policy of furnishing county patrol vehicles for employee take-home use. In
their Answer, Respondents contend that the take-home vehicle policy is
management prerogative, the current collective bargaining agreement does not
provide for take-home vehicles, and the current collective bargaining agreement
contains a zipper clause which waives the parties’ bargaining rights.
FACTS:
Gage County has provided county
patrol vehicles for employee’s take-home use since at least 2007. According to
testimony, take-home vehicles are patrol cars that employees can take home at
the end of a shift and then use to drive back to work the next day. The County
is responsible for the cost of gasoline, maintenance, and insurance for the
vehicles. The collective bargaining agreement (“CBA”) in effect July 1, 2013
through June 30, 2017 does not include a provision regarding this take-home
vehicle policy.
In November 2014, the Sheriff and
Chief Deputy Sheriff met and decided to eliminate the policy of allowing
Deputies and Investigators to take patrol cars home effective December 15,
2014. The Union President was informed of the decision. On December 2, 2014, an
email was distributed to employees regarding the elimination of the take-home
vehicle policy. Subsequent to the email, the Union held a meeting and passed a
vote to demand negotiations on the elimination of the policy. On December 4,
2014, the Board and the Sheriff were each given a written demand to bargain
from Union representatives. On December 10, 2014, the Board in its meeting
discussed the Union’s bargaining demand letter. The Board voted unanimously to
disapprove reopening the collective bargaining agreement (“CBA”) and entering
into negotiations.
DISCUSSION:
The issue before the Commission is
whether Respondents’ elimination of take-home vehicles 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).
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).
A topic can be established as a
bargainable subject if it has been a past practice between the parties. “An
employer has a duty to not change past practices for employees who are
represented by a union until it has bargained to impasse on that subject with
the union.” NLRB v. Katz, 369 U.S.
736, 745-747 (1962). To establish past practice, the practice must have
occurred “with such regularity and frequency that employees could reasonably
expect the ‘practice’ to continue or reoccur on a regular and consistent
basis.” Sunoco, Inc., 349 N.L.R.B.
240, 244 (2007); Philadelphia Coca-Cola
Bottling Co., 340 N.L.R.B. 349, 353 (2003), enfd. Mem. 112 Fed.Appx. 65
(D.C. Cir. 2004). 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.
In Local Union 571 International Union of Operating Engineers v. County of
Douglas, 15 CIR 75 (2005), the Commission held that the practice of
providing take-home vehicles is a mandatory subject of bargaining. See also Omaha Police Union Local 101 v. City of
Omaha, 15 CIR 292 (2007). As in County
of Douglas and City of Omaha, the
ability for Deputies and Investigators to drive a county vehicle to and from
work is an economic benefit, especially for those employees who do not live in
Beatrice where the Sheriff’s office is located. Exhibit 5 details the yearly
total expense for each employee based upon round trip mileage at $.575 per
mile, which for some employees could be a substantial added expense to the
upkeep of their personal vehicles should take-home vehicles no longer be
available.
In County of Douglas and City of
Omaha, this benefit was not established as a result of bargaining. However,
once clearly established, this benefit was found to be a mandatory subject of
bargaining of which neither Douglas County or the City of Omaha could change
without any notice to the union or bargaining. Such is the case in Gage County
as well. Testimony during trial established that neither party submitted
proposals or initiated discussions regarding the take-home vehicle policy
during negotiations for the current CBA, but the practice continued after the
CBA went into effect.
Respondent argues that eliminating
the policy in the present case is a management prerogative due to the inclusion
of CBA Article 31, Waiver of Bargaining Rights, and Article 3, Management
Rights, which give the County the right to control the use of “office
property.” However, there was testimony which stated that no changes were made
to either Articles 3 or 31, as the majority of the CBA was carried over from
the previous CBAs. The take-home vehicle policy has been in place since at
least 2007, and those same Articles were in place granting Respondents the
right to control the use of “office property.” As the Commission stated in City
of Omaha:
“The Commission
will not be persuaded by vague, all inclusive statements in bargaining
agreements that employers may do whatever they please, which if taken to their
logical conclusion under the Respondents’ arguments, would negate the entire
agreement and the bargaining process established by the Industrial Relations
Act. Broad statements to the effect that the public employer maintains the
right to manage all operations of that entity and maintains the right to change
or discontinue any regulations or procedures do not override the requirement of
bargaining in good faith regarding subjects of mandatory bargaining.”
Omaha Police Union Local 101 v. City
of Omaha, 15 CIR 292, 300 (2007).
Petitioner has clearly established
that the benefit of providing take-home vehicles to certain employees of the
Gage County Sheriff’s Office has a significant economic impact on the employees
that receive the benefit. We therefore find that the practice of providing
take-home patrol vehicles was a mandatory subject of bargaining, and
Respondents committed a prohibited practice when the practice was unilaterally
eliminated without bargaining with the Union.
Remedial Authority
The
Commission has the authority to issue cease and desist orders following
findings of prohibited practices and has done so in the past. See Local Union 571 International Union of
Operating Engineers v. County of Douglas, 15 CIR 75 (2005); Ewing Education Ass’n v. Holt County School
District No. 29, 12 CIR 242 (1996)(en banc). Ordering Respondents in the
instant case to cease and desist from committing the prohibited practice is
appropriate. In order to preserve the status quo as it existed prior to the
prohibited practice, the Respondents should be ordered to cease and desist from
its unilateral change to its take-home vehicle policy for employees of the Gage
County Sheriff’s Department. Further, the Respondents should cease and desist
from implementing changes to this policy without submitting the matter to the
Petitioner as part of the collective bargaining process.
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 find that the Respondents’ actions do not meet that
standard. Petitioner’s request for attorney fees is denied.
IT IS THEREFORE ORDERED
that:
1. Respondent
shall cease and desist from enforcing any implementation of changes in the
furnishing of county patrol vehicles as take-home vehicles for employees of the
Gage County Sheriff’s Department.
2. Respondent
shall cease and desist from implementing changes to its take-home vehicle
policy without submitting the matters to the Petitioner as part of the
collective bargaining process.
3.
All
panel Commissioners join in the entry of this Order.