19
CIR 13 (2014)
NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS
NEBRASKA
ASSOCIATION OF PUBLIC EMPLOYEES, LOCAL 61 of the AMERICAN FEDERATION OF
STATE, COUNTY AND MUNICIPAL EMPLOYEES,
Petitioner, v. THE
STATE OF NEBRASKA, NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES,
Respondent. . |
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|
Case
No. 1335 FINDINGS
AND ORDER |
January 31, 2014
APPEARANCES:
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
NATURE
OF THE CASE
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.
FACTS
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.
DISCUSSION
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.
Jurisdiction
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.
Waiver
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.