19
CIR 175 (2016)
NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS
OMAHA
POLICE OFFICERS ASSOCIATION, Petitioner, CITY
OF OMAHA, a municipal Corporation, CHIEF OF POLICE, TODD SCHMADERER, and JEAN
STOTHERT, mayor City of Omaha,
Respondents. |
) ) ) ) ) ) ) ) ) ) ) |
|
Case
No. 1401 FINDINGS
AND ORDER |
Filed February 12, 2016
APPEARANCES:
For Petitioner: Michael P. Dowd
Dowd,
Howard & Corrigan
1411
Harney Street, Suite 100
Omaha,
NE 68102
For
Respondents: Bernard
J. in den Bosch
Deputy
City Attorney
1819
Farnam Street, Suite 804
Omaha,
NE 68183
Before
Commissioners Pillen, Carlson and Blake
PILLEN,
Commissioner
NATURE OF THE CASE
On
August 15, 2015, the Omaha Police Officers Association (“Union” or
“Petitioner”) filed this action with the Commission, alleging that the City of
Omaha (“City”), Todd Schmaderer, and Jean Stothert (“Mayor”) (or collectively “Respondents”)
committed a prohibited practice in violation of the Nebraska Industrial
Relations Act (“Act”) § 48-824(1) and (2). Petitioner alleges the violation
occurred when the Mayor sent an email regarding the City’s bargaining proposals
to each member of the Union bargaining group. An Amended Petition was filed
August 18, 2015. A trial was held December 9, 2015, before the Honorable Sarah
S. Pillen.
FACTS
The Commission hereby accepts the
following facts as true pursuant to the Stipulation entered into by the
parties. (Ex. 506). The Petitioner is a labor organization as defined in Neb. Rev.
Stat. §48-801 and is the duly recognized bargaining group for the unit of
police officers, sergeants, lieutenants, and captains employed by the City and
has in force a collective bargaining agreement (“CBA”) with the City covering
such collective bargaining group. The City is a municipal corporation and
employer within the meaning of Neb. Rev. Stat. §48-801. Jean Stothert is the
duly elected Mayor of the City and in such capacity is responsible for
negotiating and maintaining the collective bargaining relationship with the
Union as a result of the delegation of such responsibility by City Council. The
City and the Union adopted procedural rules to control their negotiations for
wages and terms and conditions of employment on April 18, 2014. The City knew
the composition of the Union’s bargaining representatives at that time.
The
City Council, after a public hearing, approved a Final Offer to the Union by
Resolution No. 934 on July 21, 2015. Union members were asked to participate in
twelve informational meetings led by the Union to discuss the City's last best
and final offer between July 30, 2015 and August 4, 2015. (Ex. 7). On August 3,
2015, the Mayor sent a letter by group email to each member of the Union
bargaining group, including the bargaining representatives. (“Email”) (Ex. 8).
On August 14, 2015, the City filed a Petition with the Commission of Industrial
Relations against the Union to establish wages and terms and conditions of
employment for 2015. That case is Case No. 1400 and remains pending before the
Commission. On August 17 and 18, 2015, the membership of the Union turned down
the City's Final Offer by a vote of 527 to 11. On September 15, 2015, the City
Council rejected the Final Offer of the Union.
DISCUSSION
Petitioner
alleges that Respondents committed a prohibited practice when Respondents bypassed
the Union and attempted to engage in direct dealing with represented employees
concerning a mandatory subject of bargaining. Further, the Petitioner alleges
the actions of the Respondents constitute bad faith bargaining and interference
with the union role as the exclusive bargaining representative, and was an
attempt to interfere with and undermine the Union. The Commission has been
given jurisdiction to adjudicate alleged violations of the Act by virtue of
Neb. Rev. Stat. §§ 48-824 and 48-825.
Direct
Dealing
Direct
dealing occurs when an employer "undercuts" the authority of a collective
bargaining agreement by negotiating directly with an individual employee
regarding a mandatory subject of bargaining.
Crete Educ. Ass'n v. Saline Cty. Sch. Dist. No. 76-0002, 265 Neb. 8 (2002).
Under Neb. Rev. Stat. § 48-824(2) (a), (e),
and (f) it is a prohibited practice for any employer or the employer's
negotiator to:
(a)
Interfere
with, restrain, or coerce employees in the exercise of rights granted by the
Industrial Relations Act;
(e)
Refuse
to negotiate collectively with representatives of collective-bargaining agents
as required by the Industrial Relations Act; and
(f)
Deny
the rights accompanying certification or recognition granted by the Industrial
Relations Act.
Neb.Rev.Stat.
§ 48-824 (a), (e), and (f).
Decisions
under the National Labor Relations Act (NLRA) are helpful in interpreting the Nebraska
Industrial Relations Act, but are not binding. Crete
Educ. Ass'n v. Saline Cty. Sch. Dist. No. 76-0002, 265 Neb. 8, 22 (2002). The
United States Supreme Court has held that bypassing a certified or recognized collective
bargaining agent and dealing directly with a represented employee concerning a mandatory
subject of bargaining, such as wages and other terms and conditions of
employment, violates NLRA § 8(a)(1) and (5). J.I. Case Co. v. NLRB, 321 U.S. 332 (1944); Medo Phalo Supply Corp. v. NLRB, 321 U.S. 678 (1944).
The
Nebraska Supreme Court adopted the three-part test set out in Permanente Medical Group, Inc., 332
N.L.R.B. No. 106 (Oct. 31, 2000) to determine whether direct dealing occurred.
“[T]he NLRB
identifies the elements of direct dealing as follows: (1) The employer was
communicating directly with union-represented employees; (2) the discussion was
for the purpose of establishing wages, hours, and terms and conditions of
employment or undercutting the collective bargaining unit's role in bargaining;
and (3) such communication was made to the exclusion of the collective
bargaining unit.”
Crete Educ. Ass'n v. Saline Cty. Sch.
Dist. No. 76-0002, 265 Neb. 8, 22 (2002).
The first and third part of the test
set out above can be quickly addressed. As to the first part, there is no
dispute that the Respondents communicated directly with union-represented
employees. As to the third part, the Email was sent to all Union members, including
the bargaining representatives, so the communication was not made to the
exclusion of the collective bargaining unit. The Commission need not address
the second prong which relates to the purpose of the communication as it is not
necessary to the disposition of this case. All three prongs must be present;
therefore the Commission finds that direct dealing did not occur.
Petitioner specifically alleges that
Respondents attempted to interfere with the Union’s role as the exclusive bargaining
representative, and undermine the Union; or in the language of the Permanente Medical Group test, undercut
the collective bargaining unit's role in bargaining. Respondents argue that they
are allowed to express their views under Neb. Rev. Stat. § 48-824(4). This is a
case of first impression for the Commission applying Neb. Rev. Stat. §
48-824(4). Neb. Rev. Stat. § 48-824(4) is substantially similar to the NLRA's §
8(c), codified at 29 USCS § 158(c); therefore decisions interpreting § 8(c) are
instructive.
(4)
The expressing of any view, argument, or opinion, or the dissemination thereof,
whether in written, printed, graphic, or visual form, is not evidence of any
unfair labor practice under any of the provisions of the Industrial Relations
Act if such expression contains no threat of reprisal or force or promise of
benefit.
Neb. Rev. Stat. §
48-824(4).
(c) Expression
of views without threat of reprisal or force or promise of benefit. The expressing
of any views, argument, or opinion, or the dissemination thereof, whether in
written, printed, graphic, or visual form, shall not constitute or be evidence
of an unfair labor practice under any of the provisions of this Act, if such
expression contains no threat of reprisal or force or promise of benefit.
29 USCS § 158.
The Commission finds the reasoning
in Americare Pine Lodge Nursing &
Rehab. Ctr. v. NLRB, 164 F.3d 867 (4th Cir. 1999) applying 29 USCS § 158(c)
particularly applicable to the instant case.
“An employer is …
free to communicate its views "so long as the communications do not
contain a threat of reprisal or force or promise of benefit." NLRB v. Gissel Packing Co., 395 U.S.
575, 618 (1969). … Drawing the line between an employer's freedom to speak and
direct dealing produces a relatively straightforward standard of permissible
conduct. An employer may speak freely to its employees about a wide range of
issues including the status of negotiations, outstanding offers,
its position, the reasons for its position, and objectively supportable,
reasonable beliefs concerning future events. (Internal citations omitted) But,
under § 8(c) the employer cannot act in a coercive manner by making separate
promises of benefits or threatening employees. Thus the employer may freely
communicate with employees in noncoercive terms, as long as those
communications do not contain some sort of express or implied quid pro quo
offer that is not before the union. See, e.g., Selkirk Metalbestos v. NLRB, 116 F.3d 782, 788 (5th Cir. 1997)
(noting that the promise of benefit need be only reasonably inferable from the
conduct); NLRB v. Garry Mfg. Co., 630
F.2d 934, 943 (3d Cir. 1980) ("It is firmly established that an employer
violates section 8(a)(1) by his solicitation of grievances, if accompanied by
an express or implied promise to remedy the grievance . . . ."). This
standard recognizes the right of represented employees to negotiate
exclusively through the union, while protecting the right of employers to tell
their side of the story.”
Americare Pine Lodge Nursing & Rehab.
Ctr. v. NLRB, 164 F.3d 867, 875 (4th Cir. 1999).
The Commission received into
evidence the affidavits of Mayor Stothert and John Wells, President of the
Union (Ex. 500 & Ex. 14). As there was no live testimony, there was no
opportunity for the Commission to observe the affiants or to hear cross examination.
The Mayor attests that her email was “intended to provide a fact-based
description of the City's last and best offer” and “to make sure that people
had correct information as they moved forward.” (Ex. 500). Mr. Wells attests his
belief that the Mayor “went beyond simply expressing a view, argument or
opinion without the threat of reprisal, force or promise of benefit.” (Ex. 14).
The Commission received insufficient
evidence to support a finding that the Mayor’s email was an attempt to undercut
the collective bargaining unit's role in bargaining. Further, the Commission is
not persuaded that the email contained a threat
of reprisal, force, promises of benefit or coercion on the part of the
Respondents. The email does not contain an express or implied quid pro quo
offer that is not before the union. The Commission finds that the Mayor’s Email
was not direct dealing, but a permissible expression under Neb. Rev. Stat. §
48-824(4).
All
panel Commissioners join in the entry of this Final Order