19
CIR 157 (2016)
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. |
) ) ) ) ) ) ) ) ) ) ) ) ) ) |
|
Case
No. 1399 FINDINGS
AND ORDER |
Filed January 25,
2016
APPEARANCES:
For Petitioner: Dalton W. Tietjen
Tietjen,
Simon & Boyle
1023
Lincoln Mall, Suite 202
Lincoln,
NE 68508
For
Respondent: Mark
A. Fahleson
Rembolt
Ludtke LLP
3
Landmark Centre
1128
Lincoln Mall, Suite 300
Lincoln,
NE 68508
Before
Commissioners Partsch, Spray and Blake
PARTSCH,
Commissioner
NATURE OF THE CASE
On July 29, 2015, the Nebraska Association
of Public Employees, Local 61 of the American Federation of State, County and
Municipal Employees (“Union” or “Petitioner”) filed this action with the
Commission, alleging that the Department of Correctional Services of the State
of Nebraska (“Department” or “Respondent”) committed a prohibited practice in
violation of the State Employees Collective Bargaining Act (“Act”) when
Respondent implemented a change from 8-hour shifts to 12-hour shifts for certain
bargaining unit employees at the Tecumseh State Correctional Institution (TSCI)
following a May 10, 2015 riot. Commissioner David J. Partsch presided over a trial
on October 15, 2015. The parties then
submitted post-trial briefs.
FINDINGS
The
Union and the Department were parties to a collective bargaining agreement
(CBA) covering the period July 1, 2013 to June 30, 2015 (Ex. 1), and are now
parties to a new agreement covering the period July 1, 2015 to June 30, 2017.
The parties have stipulated that there are no differences between the two
agreements that are of any consequence to this matter. (Ex. 2). Both CBA's
contain the following language that one or both of the parties have deemed of
significance to the consideration of this matter:
ARTICLE 1-PREAMBLE
Section 1.3 The
parties acknowledge that during the negotiations which resulted in this Contract,
each had the right and opportunity to make demands and proposals with respect
to any subject or matter not removed by law from the area of collective
bargaining, and that the understandings and agreements arrived at by the
parties after the exercise of that right and opportunity are set forth in this
Contract. Therefore, the Employer and the Union, for the duration of this
Contract, each voluntarily and unqualifiedly waives the right, and each agrees
that the other shall not be obligated to bargain collectively with respect to
any subject or matter referred to, or covered in this Contract. This Contract
may only be amended during its term by the parties' mutual agreement in
writing.
Section 1.4 The
Employer agrees that prior to making any change in terms and conditions of employment
which are mandatory subjects of bargaining and not otherwise covered by this Contract,
to meet and bargain with the Union in an attempt to reach an agreement. If no agreement
is reached, the terms and conditions of employment shall not be altered, unless
the Employer has a compelling need to change a term or condition of employment.
When the Employer has a compelling need to change a term or condition of
employment and no agreement has been reached through bargaining, the Employer
may implement the change and the unresolved issue may by mutual agreement, at
the time of the dispute, of the parties be submitted to final and binding
arbitration. The losing party shall bear the cost of arbitration.
Notwithstanding the above, the Union and the Employer reserve their rights to enforce
this and any provision of the contract through the courts.
ARTICLE 7-WORK
SCHEDULES
Section 7.1 Work
Schedules: Work schedules are defined as an employee's assigned hours, days of
the week, days off and shift rotations.
APPENDIX M.I
DEFINITIONS
M.I.4 EMERGENCY -
Escape, riot, fire, hostage situation, natural disaster, or other unusual
situation, declared by the Director and/or designee, which threatens, or may
threaten the security of the institution, work area or safety of the public,
employees, inmates and/or others.
APPENDIX M.3 HOURS
OF WORK
M.3.1 Employees
scheduled work day shall ordinarily be eight (8) hours. A meal period shall be
considered time worked, as shift employees are considered on duty from the
beginning of their shift until they finish their shift. Meals shall be
expeditious and only the amount of time reasonable and necessary to eat shall
be used.
M.3.1.1 Labor and
Management agree to establish an agency-wide Labor Management Committee to meet
and discuss alternative work shifts. The Union and Management shall select four
(4) representatives each, from their respective sides, to form this committee.
The Labor Management Committee will report its findings and recommendations by
July 1, 2003. Any alternative work shift recommended shall guarantee the
employer's ability to provide services, meet all work demands as defined by the
employer, and to the extent practicable, meet employee personal scheduling
preferences.
M.3.2 Employees
shall not be unreasonably denied rest periods not to exceed a total of thirty (30)
minutes during each work day. The Employer retains the right to respond to
emergency situations by not allowing a rest period. Lack of relief staffing is
considered a reasonable reason for denying rest periods.
M.3.3 Work
Schedules and Changes - Correctional Officers, Correctional Corporals, and Correctional
Unit Caseworkers will be assigned to permanent shifts and permanent days off. This
is subject to the Agency providing ten work days written notice to the affected
employees prior to making changes in their permanent work schedules, except
when requested or agreed to by the Employee or in cases of emergency as defined
in M.I.4. Subject to Institutional needs, Sergeants will be assigned to a
permanent shift and days off, and will rotate from post to post on that shift
every six months; except for Sergeant positions designated as an exempt post.
When making assignments or conducting the bidding process for shift/days off
seniority will be taken into considerations; however, Institutional needs will be
the determining factor. Sergeants may be temporarily assigned to a different
shift and/or days off, to fulfill Institutional needs or for training purposes.
M.4.2 is not applicable to Sergeants; however the provisions of M.13.l do
apply.
(Ex. 1).
On
May 10, 2015, inmates rioted at TSCI resulting in a loss of control at the
facility for approximately ten hours.
During the riot, inmates caused extreme property damage and many
injuries to inmates and staff.
Tragically, during the chaos of the riot, two inmates were killed. Due to the riot, Department of Correctional
Services Director Scott Frakes declared an "emergency" at TSCI. Director
Frakes temporarily instituted 12-hour shifts for some employees represented by
the Union. (93:5-94:2; Ex. 4). These
employees normally worked 8-hour shifts.
The 12-hour shifts continue to be utilized at TSCI.
Upon
learning of the schedule changes, Union Executive Director Mike Marvin
contacted Department representatives to discuss the situation. He informed them
of his concern regarding the lack of notice and negotiation, but allowed the
situation to remain unchanged while short-term efforts were made to stabilize
TSCI. (22:16-25:13) On June 1, 2015, Mr. Marvin contacted Director Frakes to
request a meeting regarding the 12-hour shift issue. Mr. Marvin and Director
Frakes met on June 2, along with several other individuals. At the meeting, Mr.
Marvin expressed his concern on behalf of the Union that the schedule change
could not be maintained without negotiation with the Union. (26:1-27:12).
Director
Frakes expressed to Mr. Marvin that TSCI was short-staffed and the 12-hour
shift pattern helped to deal with that problem. (33:6-10). It is generally
uncontested that TSCI has been short-staffed since it first opened many years
ago. (29:1-8; 58:4-59:15; 158:3-25). In
fact, the Department has raised the concept of 12-hour shifts to alleviate
short-staffing at TSCI in past years. (29:9-31:5). In response to the
Department's staffing concerns, the Union made a proposal during the
negotiations for the 2015-2017 CBA to allow for the use of 12-hour shifts at
TSCI. (18:20-21:24; 31:6-14; Ex. 7).
Being
regularly short-staffed was only exacerbated by the riot. During and
immediately following the riot inmates were placed on total lockdown, meaning
all movement of prisoners from their cells was forbidden. As of the time of
trial, approximately five months after the riot, the facility was still on
modified lockdown with highly restricted movement of prisoners. During the total lockdown, TSCI needed
increased staff to complete tasks normally performed by inmates, such as
cooking and serving meals, cleaning, etc. Increased staffing is also necessary
during modified lockdown, as staff must monitor inmate movement with increased
security for cleanup and construction crews. (86:14-89:7).
On
June 17, 2015, Mr. Marvin transmitted a document prepared by the Union
bargaining committee as an offer to prevent their filing of a prohibited
practice case. (Ex. 12). The document contained provisions whereby the
Department could negotiate to keep its 12-hour shift practice at TSCI for a
period of time until management's post-riot concerns were resolved. On July 22,
2015, Mr. Marvin was notified the Department would not engage in negotiations
on the issue. (Ex. 13). Mr. Marvin authorized the filing of this prohibited
practice case the same day.
DISCUSSION
Petitioner alleges that
Respondent committed a prohibited practice by unilaterally changing terms and conditions
of employment that are outlined in the parties' CBA. Specifically, that the Respondent has changed
the length of employees’ work shifts from 8-hour shifts to 12-hour shifts
without negotiating with the Union. Respondent argues that the Commission lacks
jurisdiction to hear the case as the parties have previously negotiated the
topic, and the result of that bargaining is encompassed in the CBA, therefore
no further bargaining is required.
Jurisdiction
The
Commission finds that it has jurisdiction to determine whether the Respondent
has committed a prohibited practice. Respondent contends that the Commission
lacks jurisdiction to hear this case as it amounts to a breach of contract
claim which requires the Commission to interpret and apply terms and conditions
of an existing CBA. The facts in this case may very well establish a breach of
contract claim of which the Commission has no jurisdiction to determine. The legal
claims made in this case shall only be reviewed as prohibited practice claims,
which this Commission has been given jurisdiction to adjudicate by virtue of
Neb. Rev. Stat. §§ 81-1386, and 81-1387. See Nebraska Ass’n of Public Employees, Local 61 v. State of Nebraska Dep’t
of Correctional Services, 19 CIR 13 (2014); South Sioux City Educ. Ass’n v. South Sioux City Public Schools,
16 CIR 12 (2008), aff’d 278 Neb. 572 (2009); Ewing Educ. Ass’n v. Ewing Public Schools, 12 CIR 242 (1996).
Respondent
suggests that if jurisdiction is exercised, then the Commission will have to
determine whether an emergency exists or how long an emergency continued. Here
the parties agree that an emergency existed at least at the time of the riot.
While the Petitioner agrees that an emergency did exist, it cannot give a
definitive answer to when it believes the emergency ceased. The Commission
declines to determine that date independently, nor is it necessary for the
consideration of the prohibited practice claim as is demonstrated below.
Prohibited
Practice Allegations
Neb.
Rev. Stat. § 81-1386 provides in relevant part:
“(1) It shall be a
prohibited practice for any employer, employee, employee organization, or
exclusive collective-bargaining agent to refuse to negotiate in good faith with
respect to mandatory topics of bargaining.
(2) It shall be a prohibited
practice for any employer or the employer's negotiator to:
(e) Refuse to negotiate
collectively with representatives of exclusive collective-bargaining agents as
required in the Industrial Relations Act and the State Employees Collective
Bargaining Act;
(f) Deny the rights
accompanying certification or exclusive recognition granted in the Industrial
Relations Act or the State Employees Collective Bargaining Act;”
Neb. Rev. Stat. § 81-1386.
In a previous prohibited
practice case between the same Petitioner and Respondent, Nebraska Ass’n of Public Employees, Local 61 v. State of Nebraska Dep’t
of Correctional Services, 19 CIR 13 (2014), the Commission found that the
Department committed a prohibited practice when it unilaterally implemented a
new scheduling program that allowed employees to voluntarily opt-in to working
12-hour shifts. The Commission ordered Respondent to cease and desist “from failing
and refusing to bargain in good faith with the Petitioner regarding mandatory
subjects of bargaining” and “from unilaterally implementing its pilot
scheduling program without first bargaining to impasse.”
At first blush one would
assume that if creation of a voluntary, opt-in program for employees to work
12-hour shifts is a prohibited practice when unilaterally implemented by an
employer, the same employer would certainly not be able to unilaterally
implement a requirement that all employees work 12-hour shifts. However, upon a careful review of precedent,
the Commission does find that the Department has not committed a prohibited
practice with its unilateral implementation of 12-hour work shifts under the
current circumstances.
Unlike
the new scheduling program the Department created previously, temporary shift
changes are covered by the parties’ CBA.
In the prior case, the Commission specifically found that the change
made by the Department was “the implementation of an entirely new work
scheduling program” which was not included in the CBA. The Commission therefore analyzed whether the
Union had clearly, unequivocally and decisively waived its statutory right to
bargain over such a mandatory topic of bargaining. While the Commission did not spend a lot of
time in the 2014 opinion on whether the program was “covered by” the CBA,
presumably because it was apparent that the program implemented was entirely
new, we must always first cross the hurdle of CBA coverage before leaping to
the analysis of waiver.
“[T]he
"covered by" and "waiver" inquiries . . . are analytically
distinct. A waiver occurs when a union knowingly and voluntarily relinquishes
its right to bargain about a matter; but where the matter is covered by the
collective bargaining agreement, the union has exercised its bargaining right
and the question of waiver is irrelevant. . . .
Where
the contract fully defines the parties' rights as to what would otherwise be a
mandatory subject of bargaining, it is incorrect to say the union has 'waived'
its statutory right to bargain; rather, the contract will control and the
'clear and unmistakable' intent standard is irrelevant."
Douglas Cty. Health Ctr. Sec. Union v. Douglas Cty., 284 Neb. 109, 116, (2012) (citing Dep't of Navy v. FLRA, 962 F.2d 48 (D.C.
Cir. 1992)).
The
Nebraska Supreme Court adopted the “contract coverage standard” to determine whether a topic is “covered by” a CBA. Id. Applying this standard, the
Commission must address the threshold question of whether shift durations are "covered by" the CBA. In conducting this
inquiry, we examine whether the CBA "fully defines the parties'
rights" as to this topic. Id.
The
CBA provides that “Employees scheduled work day will ordinarily be eight hours.” (Ex.
1, M.3.1) (emphasis added). The CBA also includes a notice provision when
permanent schedules are to be changed, with an exception to the notice
requirement in cases of emergency. (Ex.
1, M.3.3). The parties’ agreed upon definition of “Emergency” includes riots or
an “unusual situation, declared by the
Director and/or designee, which threatens, or may threaten the security of
the institution, work area or safety of the public, employees, inmates and/or
others.” (Ex. 1, emphasis added).
Chronic
staff shortage at TSCI is not an unusual situation in itself. However, the
Respondent presented sufficient evidence that the aftermath of the May 2015
riot has created an unusual situation which threatens, or may threaten the
security of the institution, work area or safety of the public, contractors,
employees, inmates and/or others. As such, the CBA specifically grants the
Director discretion to declare an emergency and to change work schedules in an
emergency without notice. The Commission will not second guess or disturb the Director’s
determination, nor will we insert the Commission into a debate over
interpretation of these or any other contract provisions. Whether the current
state of affairs at TSCI falls within the CBA’s definition of “Emergency” is
one of contract interpretation that is not for this Commission to decide, nor
are we called to decide whether the CBA provisions have been breached by the
Department.
The
Commission finds that the topics of duration of work shifts and the process for
schedule changes in an emergency are covered by the CBA which fully defines the
parties’ rights as to this topic. While
not all contingencies are detailed in the CBA, the parties certainly have
already bargained for the language they did agree upon. Holding the parties to a standard that would
require the CBA to specifically address all possible scenarios that might arise
with shift scheduling is “both unrealistic and impermissible.” See, Id.
(citing Dept. of Navy, Marine Corps Logistics Base, supra. Further, the parties bargained to give the
Director broad discretion to declare when an emergency exists. The Respondent
was under no duty to bargain again about whether or how temporary schedule
changes should be implemented. We therefore find that Respondent did not commit
a prohibited practice in violation of Neb. Rev. Stat. § 81-1386, and the
Petition should therefore be dismissed.
Dismissal
of this Petition does not remove the Respondent’s obligations to bargain in
good faith regarding changes to mandatory subjects of bargaining not covered by
the CBA. Nebraska Ass’n of Public
Employees, Local 61 v. State of Nebraska Dep’t of Correctional Services, 19
CIR 13 (2014). However, in this case the specific issue at hand has been
negotiated and is “covered by” the parties’ current CBA.
All
panel Commissioners join in the entry of this Order