19 CIR 13 (2014)



























Case No.  1335










January 31, 2014



For Petitioner                                                             Dalton W. Tietjen

                                                                                    Tietjen, Simon & Boyle

                                                                                    1023 Lincoln Mall, Ste 202

                                                                                    Lincoln, NE 68508


For Respondent                                                          Mark A. Fahleson

                                                                                    Tara Tesmer Paulson

                                                                                    Rembolt Ludtke LLP

                                                                                    1201 Lincoln Mall, Ste 102

                                                                                    Lincoln, NE 68508


Before Commissioners Spray, Blake, and McGinn

SPRAY, Commissioner




            This matter comes before the Commission upon the Petition filed by the Nebraska Association of Public Employees, Local 61 (“NAPE/AFSCME” or “Petitioner”) pursuant to Neb. Rev. Stat. §§ 81-1386 and 81-1387 alleging prohibited practices on the part of the Department of Correctional Services of the State of Nebraska (“Department” or “Respondent”) by implementing a new shift pilot program without first bargaining with Petitioner, and directly dealing with bargaining-unit employees. On July 8, 2013 the Commission entered an Order granting status quo during the pendency of the proceedings. A trial was held on September 4, 2013 to hear argument and receive evidence.


            Petitioner is the bargaining representative for employees in the Protective Services bargaining unit employed by Respondent. The parties have been covered by a collective bargaining agreement (“CBA”) for the period of July 1, 2011 through June 30, 2013 and July 1, 2013 through June 30, 2015. The CBA contains several sections of interest. Work schedules are defined under Article 7, including flex time, meals, travel time, and shift differential. Any work schedule provisions that differ for Department of Corrections employees are found in Appendix M, section M.3. Section M.3.1 states that “Employees scheduled work day shall ordinarily be eight (8) hours.” (Ex. 500 p. 90; Ex. 501 p. 93). Additionally, each CBA contains a management rights clause under Article 3:

“3.1 It is understood and agreed that the Employer possesses the right to operate and direct the employees of the State and its various agencies to the extent that such rights do not violate its legal authority, and to the extent such rights are not modified by this Contract. These rights include, but are not limited to:

3.4 The right to establish, allocate, schedule, assign, modify, change and discontinue Agency operations, work shifts, and working hours.”

(Ex. 500 p. 5; Ex. 501 p. 5).  

On April 22, 2013, Julie Dake Abel, Executive Director of the Union, and Robert Houston, Agency Director for Respondent, met to discuss Respondent’s plan to implement a new 12-hour shift pilot program (“Pilot Program”). The Pilot Program, a one-year program available for Protective Service bargaining unit members in Housing Unit 1 at Tecumseh State Correctional Institution (“TSCI”), gave employees the option of working a 12-hour shift rather than an eight-hour shift. Employees that volunteer for the Pilot Program could return to an eight-hour shift any time as long as the employee gives two week’s notice. Those employees that did not choose to sign up for the Pilot Program could possibly be moved to an alternate post if a shift with the same days off were not available in Housing Unit 1, but all other hours, terms and conditions of employment would remain the same. Mr. Houston indicated to Ms. Dake Abel that meetings would be held with employees on April 30, May 1, and May 2, 2013 to discuss the Pilot Program.

On April 22, 2013, Mr. Houston sent a memorandum to all employees outlining the Pilot Program. On April 30, May 1, and May 2, 2013, meetings were held with employees working at TSCI, including members of the bargaining unit, to discuss the Pilot Program. Employees who attended the meeting were given a written description of the program as well as a bid application form.

            The facts show that Ms. Dake Abel sent both email communications and written letters to Mr. Houston to protest Respondent moving forward with the program without bargaining with the Union. In her correspondence dated April 23, 25, and 29, 2013, Ms. Dake Abel requested that implementation of the program be halted to allow the parties an opportunity to bargain about the issue. (Exs. 2, 3, 4). No negotiation meetings were scheduled. On May 7, 2013, Respondent sent bargaining unit employees an email containing frequently asked questions and answers regarding the Pilot Program. Respondent did not include Petitioner in the creation of this document and did not inform Petitioner that the email would be sent to employees. Ms. Dake Abel met with Mr. Houston again on May 8, 2013 to request that the Pilot Program not be implemented without negotiation with the Union. On May 9, 2013, Petitioner filed this action with the Commission.



            Petitioner alleges that Respondent committed a prohibited practice by failing to negotiate with the Union regarding the new scheduling program and meeting with employees regarding the new scheduling program without notifying the Union. Respondent contends that this is a breach of contract issue to be settled by the courts and not this Commission. In the alternative, Respondent argues that its actions do not constitute a prohibited practice because the implementation of the Pilot Program is a management prerogative and Petitioner waived its right to bargain over the proposed program with the inclusion of the management rights clause in Article 3 of the CBA.



We must first answer the question of jurisdiction. Respondent argues that the Commission lacks jurisdiction over the present case because the dispute presents a breach of contract claim, citing Transport Workers of America v. Transit Authority of the City of Omaha, 205 Neb. 26 (1979). Petitioner contends that even if Respondent’s actions constituted a breach of contract, the Commission would have jurisdiction to determine whether those same actions constitute a prohibited practice under the State Employees Collective Bargaining Act (“SECBA”).

Transport Workers does stand for the proposition that this Commission does not have subject matter jurisdiction over breach of contract claims. Any action for breach of contract must be brought in a court of general jurisdiction. Id. In Ewing Educ. Ass’n v. Ewing Public Schools, 12 CIR 242 (1996)(en banc), the Commission found that it had jurisdiction to find that an unfair labor practice has occurred even though the same actions may constitute a breach of contract. Additionally, in South Sioux City Educ. Ass’n v. South Sioux City Public Schools, 16 CIR 12 (2008), aff’d 278 Neb. 572 (2009), the school district argued that the Commission did not have jurisdiction to rule on the case because it was a breach of contract claim that should be decided by the courts. The Nebraska Supreme Court upheld the Commission’s determination that it had subject matter jurisdiction over the prohibited practice allegations brought forth by the Union. Citing Ewing, the Court concluded that the Commission had properly exercised its jurisdiction under Neb. Rev. Stat. § 48-824.

The facts in this case could very well constitute a breach of contract, and this Commission would not have jurisdiction to determine whether a breach of contract has occurred. However, the facts in this case could also constitute a viable prohibited practice claim, which this Commission has been given jurisdiction to adjudicate. We therefore find that the Commission has jurisdiction to make such a determination. Following the reasoning in Ewing and S. Sioux City, we shall exercise our jurisdiction to determine whether Respondent has committed a prohibited practice under § 81-1836.


Prohibited Practice Allegations

Neb. Rev. Stat. § 81-1386(1) states that it is a prohibited practice “for any employer…to refuse to negotiate in good faith with respect to mandatory subjects of bargaining.” Petitioner argues that Respondent committed a prohibited practice when it refused to negotiate with the Union about the implementation of the new Pilot Program and discussing the program directly with employees. Respondent counters that any change that the Department makes with employee work schedules is management prerogative and not a prohibited practice.

            There are three categories of collective bargaining subjects: mandatory, permissive, and prohibited. Under SECBA, mandatory subjects of bargaining are those subjects of negotiation that employers must negotiate pursuant to the IRA. Neb. Rev. Stat. § 81-1371(9). Under the IRA, mandatory collective bargaining subjects are those which 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 are those which “vitally affect” the terms and conditions of employment. Fraternal Order of Police Lodge 41 v. County of Scotts Bluff, 13 CIR 270 (2000). Mandatory subjects of bargaining are not just topics for discussion during negotiation sessions, but must be bargained for before, during, and after the expiration of collective bargaining agreements unless clearly waived. Washington County Police Officers Ass’n/F.O.P. Lodge 36 v. County of Washington, 17 CIR 114 (2011). Permissive subjects are those which parties are lawfully authorized to bargain in good faith should they both determine to do so, and prohibited subjects are those subjects which the law forbids or does not authorize the parties to bargain.

Some subjects are considered management prerogatives and may generally be altered at the will of the employer. See Metropolitan Tech. Community College Educ. Ass’n v. Metropolitan Tech. Community College Area, 203 Neb. 832 (1979). 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.” See Coleridge Educ. Ass’n v. Cedar County School Dist. No. 14-0541, a/k/a Coleridge Community Schools, 13 CIR 376 (2001).

            We find that the Pilot Program proposed by Respondent is the type of work schedule change which would be primarily related to an employee’s hours and would “vitally affect” the terms and conditions of employment. As such, a new scheduling program such as the Pilot Program proposed by Respondent is a mandatory subject of bargaining. Respondent’s failure to bargain with Petitioner regarding the Pilot Program is a per se violation of the IRA and a prohibited practice.

            Respondent notes that the program is voluntary for employees at TSCI and that those employees that sign up have the option to return to an 8-hour shift at any time with two week’s notice. There is nothing improper with giving employees this option. However, the voluntary nature of the Pilot Program does not change the fact that employee work hours are a matter for negotiations.

            Petitioner also alleges that Respondent committed a prohibited practice by having meetings directly with employees about the Pilot Program without Union involvement. Respondent argues that the facts do not support Petitioner’s direct dealing allegation, as Respondent’s meetings with the employees were not held in order to negotiate the details of the Pilot Program.

The United States Supreme Court has held that bypassing a certified or recognized collective bargaining agent and directly dealing with represented employees regarding a mandatory subject of bargaining violates NLRA § 8(a)(1) and (5). J.I. Case Co. v. NLRB, 321 U.S. 332 (1944). The following criteria is used to determine 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. Crete Education Association v. Saline County School Dist. No. 76-0002, 13 CIR 361 (2001).

In the present case, all three criteria have been met. First, the Department communicated directly with bargaining unit employees about the Pilot Program in the April 30, May 1, and May 2 employee meetings as well as its email communication to employees dated May 8, 2013. Secondly, the employee meetings were held for the purpose of informing employees about the program and allowing employees an opportunity to sign up for the new Pilot Program Pilot Program. Signing job bid sheets allowed employees to apply for the program, establishing new shifts and hours which differ from those negotiated for in the CBA. Finally, the Department did not involve the Union in scheduling or conducting meetings with the bargaining unit employees. These actions meet all three criteria to establish that direct dealing with employees took place. Therefore, the Commission finds that Respondent’s actions constituted a prohibited practice.



            Respondent argues that Petitioner waived its right to bargain over the Pilot Program by agreeing to the terms of the CBA. Petitioner counters that its repeated verbal and written requests to negotiate about the Pilot Program illustrate that the Union did not waive its right to bargain.

The duty to bargain continues during the existence of a bargaining agreement concerning any mandatory subject of bargaining unless the right to bargain has been waived by the Union. See Fraternal Order of Police Lodge 21 v. City of Ralston, 12 CIR 59 (1994). The Nebraska Supreme Court has defined waiver as “the voluntary and intentional relinquishment or abandonment of a known existing legal right or such conduct as warrants an inference of the relinquishment of such right…to establish a waiver of a legal right, there must be clear, unequivocal, and decisive action of a party showing such a purpose, or acts amounting to estoppels on his part.” See Crete Educ. Ass’n, 265 Neb. 8. The burden of proof to establish a waiver is on the party asserting the waiver. International Union of Operating Engineers Local 571 v. City of Plattsmouth, 14 CIR 89, aff’d 265 Neb. 817 (2003).

            Respondent cites Article 3 of the CBA as the written relinquishment by the Union of its right to now request bargaining over the Pilot Program. Under Article 3, management has the right to “establish, allocate, schedule, assign, modify, change and discontinue Agency operations, work shifts, and working hours.” Respondent argues that this language has allowed the Department to schedule some employees to a work day that may have more than 8 hours and that the Union has not made any requests to bargain over any scheduling changes in the past. However, the standard to prove that a party has waived their statutory right to bargain is that the waiver must either be “clear, unequivocal, and decisive,” or their behavior is such that waiver of the right to bargain can be strongly inferred.

The language of Article 3 does not constitute any “clear, unequivocal, and decisive” waiver of the Union’s statutory right to bargain over the implementation of an entirely new work scheduling program like the one Respondent has developed. The parties in drafting Article 3 prefaced the provision with the language that gives the Department management rights “to the extent that such rights do not violate its legal authority, and to the extent such rights are not modified by this Contract.” Article 7 of the CBA details general work hour information, which is further modified in Appendix M specifically for Correctional Services Employees. The plain language of Appendix M does not include any language which could be considered a “clear, unequivocal, and decisive” waiver of the right of either party to bargain over mandatory subjects of bargaining.

There are also not enough facts to support an inference of waiver on the part of Petitioner. The Union made requests to bargain about the Pilot Program as soon as it was made aware of the program and made several requests to bargain before filing this case. Testimony also showed that the Union has requested bargaining whenever any possible predecessors of the Pilot Program at issue here has come up over the years for development and/or implementation. Therefore, we do not find enough evidence to support Respondent’s contention that a clear and unmistakable waiver has occurred.


Remedial Authority

            In its Petition, Petitioner prays that the Commission order Respondents to cease and desist implementation of the Pilot Program, retract statements and publications in a forum and manner as conspicuous as that in which they were originally made, post a notice to employees promising to not commit the same prohibited practices, agree to requests to negotiate any future desired changes in the CBA, and order Respondent to compensate attorney fees to Petitioner.

The Commission has authority pursuant to SECBA to issue appropriate remedies following a finding that a prohibited practice has occurred. Our authority to order appropriate remedies is limited to ordering those remedies that will effectuate the policies of the Act, adequately provide relief to the injured party, and lead to the resolution of the industrial dispute. In Ewing Educ. Ass’n v. Holt Co. School Dist. No. 29, 12 CIR 242 (1996)(en banc), the Commission ordered a school district to cease and desist from charging insurance fees. In IAFF Local 831 v. City of North Platte, 215 Neb. 89 (1983), the Nebraska Supreme Court upheld the Commission’s award of interest against a party who had bargained in bad faith. Under Crete Educ. Ass’n, 265 Neb. 8, the Court found that an order to post a notice is not in line with the public policy underlying the IRA and reversed the Commission’s decision to require the parties to post such a notice.

In the present case, the Commission finds that an order requiring that the offending party cease and desist from committing the prohibited practice found by the Commission is clearly within its authority and will therefore be ordered. The Commission finds that an order requiring the employer to post a notice promising to not commit the same prohibited practice is clearly not within the Commission’s authority and will therefore not be ordered.

The Commission has authority to award attorney’s fees, but has found it to be an appropriate remedy in cases where an employer’s misconduct was flagrant, aggravated, persistent, and pervasive. See Fraternal Order of Police, Lodge No. 8 v. Douglas County, et. al., 16 CIR 401 (2010). Respondent’s actions in this case do not rise to the level deemed appropriate for the award of attorney fees. Therefore, attorney fees shall not be awarded.


IT IS THEREFORE ORDERED that Respondent, the State of Nebraska, Nebraska Department of Correctional Services, shall:

1.     Cease and desist from failing and refusing to bargain in good faith with the Nebraska Association of Public Employees, Local 61 of the American Federation of State, County and Municipal Employees regarding mandatory subjects of bargaining.

2.     Cease and desist from unilaterally implementing its pilot scheduling program without first bargaining to impasse.


All panel Commissioners join in the entry of this Final Order.