19 CIR 191 (2017)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, IBEW LOCAL 1536, Petitioner, v. LINCOLN ELECTRIC SYSTEM, a division of the City of Lincoln, a municipal corporation and political subdivision of the state of Nebraska, Respondent.

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Case No. 1427 FINDINGS AND ORDER

Filed March 6, 2017

APPEARANCES:

For Petitioner: John E. Corrigan

Dowd, Howard & Corrigan, LLC

1411 Harney Street, Suite 100

Omaha, NE 68102

For Respondent: Richard C. Grabow

Lincoln Electric System

P.O. Box 80869

Lincoln, NE 68501

Before Commissioners Pillen, Spray and Carlson

PILLEN, Commissioner

NATURE OF THE CASE

On September 26, 2016, the International Brotherhood of Electrical Workers, IBEW Local 1536 (“Union” or “Petitioner”) filed this action with the Commission, alleging that Lincoln Electric System (“LES” or “Respondent”) committed a prohibited practice in violation of the Nebraska Industrial Relations Act (“Act”), Neb. Rev. Stat. § 48-824(1) when Respondent unilaterally imposed mandatory random drug testing for certain employees without first bargaining with the Union. Commissioner Sarah S. Pillen presided over a trial on December 8, 2016. The parties then submitted post-trial briefs.

FACTS

The Commission accepts the following as true pursuant to the Joint Stipulation entered into by the parties. (Ex. 14). The Petitioner is a labor organization as defined in Neb. Rev. Stat. §48-801(7) and is the duly recognized Collective Bargaining representative for a unit of employees employed by Respondent. LES is a division of operations of city government of the City of Lincoln and is an employer pursuant to Neb. Rev. Stat. §48-801(12). The Petitioner and the Respondent engaged in collective bargaining in 2015 and ultimately entered into an agreement which is effective from March 1, 2015 to March 1, 2018. During the negotiation of that Collective Bargaining Agreement (CBA), Respondent proposed a company-wide random drug and alcohol testing program. The CBA in effect as of March 1, 2015 provided for a drug free workplace pursuant to Section V of Article III and states in pertinent part:

"All employees are subject to the provisions of LES Policy 402 - Drug and Alcohol Testing and Substance Abuse and Associated Programs. When reasonable suspicion exists that an employee is working impaired or is using drugs or alcohol while on duty in violation of Policy 402 and associated programs, such employee shall be subject to testing and all other provisions of the policy"

(Ex. 13, pg. 33).

On or about May 11, 2015, Administrator and Chief Executive Officer Kevin G. Wailes of LES executed Company Policy 402, which superseded a previous policy known as Policy Number 54 dated August 28, 2006. Policy Number 54 did not contain a provision allowing for company-wide random drug testing but did provide for pre-employment testing, reasonable suspicion testing and post-accident training. Policy Number 402, approved by Mr. Wailes on May 11, 2015, allowed for pre-employment testing, random drug and alcohol testing, reasonable suspicion drug and alcohol testing, and subsequent drug and alcohol testing. Program Number 402.02 was approved by Mr. Wailes on May 11, 2015. (Ex. 6). This policy called for all employees to be subject to quarterly drug and alcohol testing. On or about June 28, 2016, Mr. Wailes issued a superseding Program Number 402.02 providing that all LES employees whose positions have been identified as having a safety sensitive nature or can directly affect the safety of other employees will be subject to quarterly drug and alcohol testing. (Ex. 9). On or about July 28, 2016, Jim Rigg, Manager of Safety and Physical Security for LES, issued a memorandum to Mike Spadt, IBEW Local 1536 Unit Chair, wherein Rigg advised that LES "will begin conducting random drug and alcohol testing for those employees whose positions have been identified as having a safety sensitive nature or can directly affect the safety of other employees." (Ex. 12). Mr. Rigg also stated that there were 49 positions that would be affected by the random drug testing policy for safety sensitive positions of which the IBEW Local 1536 has 23 represented employees. On or about September 13, 2016, the Union, through counsel, made a demand that the Respondent cease and desist from making a unilateral alteration in the wages and terms and conditions of employment by implementing a random drug testing policy in conflict with the policy communicated to the Union by management at the bargaining table in the 2015 contract negotiations. The Union also demanded to bargain over the issue. LES did not agree to voluntarily cease and desist implementation of this program. LES did not agree to enter into collective bargaining with Petitioner over this issue and subsequently a petition was filed with the Nebraska Commission of Industrial Relations which is the operative petition in this matter.

DISCUSSION

Petitioners allege that the Respondent committed a prohibited practice in violation of Neb. Rev. Stat. § 48-824 when Respondent unilaterally implemented a new random drug testing program for safety sensitive positions. Respondent then refused Petitioner’s demand to cease and desist and refused to enter into collective bargaining over the matter. Respondent argues that it was not under an obligation to bargain and asserts that the parties have negotiated the subject of random drug and alcohol testing and the obligations of the parties when there is a conflict between the terms of the CBA and the law.

Jurisdiction

The Commission has been given jurisdiction to adjudicate alleged violations of the Act by virtue of Neb. Rev. Stat. §§ 48-824 and 48-825. Respondent contends that the Commission lacks jurisdiction, as the claim amounts to a breach of contract claim which requires the Commission to interpret and apply terms and conditions of an existing CBA. It is true that the Commission does not have subject matter jurisdiction over a breach of contract claim. However, the Commission has jurisdiction over prohibited practice claims even if the same facts constitute a breach of contract claim. See, Lamb v. Fraternal Order of Police Lodge, 293 Neb. 138 (2016); 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). The facts in this case constitute a viable prohibited practice claim. Therefore, the Petitioner has invoked the jurisdiction of the Commission.

Prohibited Practice Allegations

There is no dispute between the parties that random drug testing is a mandatory subject of bargaining. At the time of negotiations, random drug and alcohol testing was discussed in the context of all employees being subject to the random testing. The issue of what constitutes a “safety sensitive” position and defining which selected positions are to be subject to the random testing was not collectively bargained. (Testimony of Michael Spadt). The CBA has no provision regarding mandatory random drug and alcohol testing for safety sensitive positions. Further LES Policy 402, did not provide for mandatory random drug and alcohol testing at the time the CBA was ratified.

Neb. Rev. Stat. § 48-824(1) states that it is a prohibited practice for any public employer to refuse to negotiate in good faith with respect to a mandatory subject of bargaining. 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 NLRB v. Katz, the U.S. Supreme Court held that unilateral changes to mandatory subjects of bargaining before impasse are per se violations of the party’s duty to bargain in good faith. 369 U.S. 736, 737 (1962).

“The Commission determined that an employer may lawfully implement changes in terms and conditions of employment which are mandatory topics of bargaining only when three conditions have been met: (1) the parties have bargained to impasse, (2) the terms and conditions implemented were contained in a final offer, and (3) the implementation occurred before a petition regarding the year in dispute is filed with the Commission.(internal citations omitted) If any of these three conditions are not met, then the employer’s unilateral implementation of changes in mandatory bargaining topics is a per se violation of the duty to bargain in good faith.”

Communication Workers of America, AFL-CIO v. County of Hall, Nebraska, 15 CIR 95 (2005). See also Service Employees International Union (AFL-CIO) Local 226 v. Douglas County School District 001, 286 Neb. 755 (2013).

The Nebraska Supreme Court, in Douglas Cty. Health Ctr. Sec. Union v. Douglas Cty., 284 Neb. 109, (2012), adopted the “contract coverage standard” to determine whether a topic is “covered by” a CBA. The contract coverage rule treats the issue of whether there has been a failure to bargain as a simple matter of contract interpretation; if the issue was covered by the CBA, then the parties have no further obligation to bargain the issue.

“[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)).

Applying this standard, the Commission must address the threshold question of whether the issues are "covered by" the CBA by examining whether it "fully defines the parties' rights" as to the topics. Id. The Commission finds that random drug and alcohol testing for safety sensitive positions was not “covered by” the CBA, as Section II of the CBA does not fully define the rights of the parties as to how the CBA is to be modified in the event that a conflict arises between provisions of the CBA and the law. The Commission finds that LES Program 402.02 (Ex. 9) unilaterally implemented by Respondents would “vitally affect” the terms and conditions of employment. Therefore, the Commission agrees with the parties that drug testing is a mandatory subject of bargaining. Respondents had a duty to bargain in good faith with Petitioner regarding implementation of a random drug and alcohol testing policy that applies only to safety sensitive positions.

Article II of the CBA states that when there is a conflict between the law and the CBA, "It is agreed that should any of the above circumstances occur, this document shall be modified to the extent necessary to comply with the law…” (Ex 13, pg. 8). Respondent’s assertion that a general provision stating laws will take precedence over conflicting CBA provisions negates the duty to bargain over mandatory subjects of bargaining completely without merit. The Respondent did not argue, nor provide evidence, that the Petitioner waived its right to bargain over potential modifications that may arise due to a conflict between provisions of the CBA and the law. Instead, Respondent asserted that since the CBA allows for modification in the case of a conflict, they can modify as they see fit. As the Commission has previously stated:

“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).

Therefore, Respondent’s failure to bargain with Petitioner regarding the Program is a per se violation of the Industrial Relations Act and a prohibited practice.

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). In the present case, the Commission finds that the Respondent has committed a prohibited practice under the Nebraska Industrial Relations Act. Therefore, an order requiring that the Respondent cease and desist from committing the prohibited practice is clearly within the authority of the Commission and will be ordered.

IT IS THEREFORE ORDERED that Respondent shall:

1. Cease and desist from failing to bargain in good faith with the International Brotherhood of Electrical Workers, IBEW Local 1536 regarding mandatory subjects of bargaining.

2. Cease and desist from unilaterally implementing its random drug and alcohol testing program without first bargaining to impasse.

All Panel Commissioners join in the entry of this Order.