1 CIR 41 (1971)

IN THE COURT OF INDUSTRIAL RELATIONS

OF THE STATE OF NEBRASKA

AMERICAN FEDERATION OF | CASE NO. 41
STATE, COUNTY AND |
MUNICIPAL EMPLOYEES, |
OMAHA CITY CIVILIAN |
EMPLOYEES, LOCAL 251, |
|
Plaintiff, |
|
v. | FINDINGS OF FACT,
| CONCLUSIONS OF
CITY OF OMAHA, a Municipal | LAW, AND ORDER
Corporation; EUGENE A. LEAHY, |
Mayor, FRED JACOBBERGER, AL VEYS, |
JOHN RITUMS, ARTHUR D. |
BRADLEY, JR., WARREN SWIGART, |
BETTY ABBOTT, and LESTER K. SMITH, |
City Councilmen of the City of |
Omaha, |
|
Defendants. |

July 14, 1971

GRADWOHL, J.:

This case came on for trial on June 8, 1971, and June 14, 1971, on the Petition, Answer and Reply of the respective parties, evidence was presented, oral arguments given, and briefs submitted.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

From the pleadings, evidence, arguments and briefs, the Court makes the following Findings of Fact and reaches the following Conclusions of Law.

1. Nature of the "industrial dispute". This case involves a long-standing concern of employees of the Permits and Inspection Division of the City of Omaha for increased automobile expense allowances. Section 48-801 (7) provides that "Industrial dispute shall include any controversy concerning terms, tenure or conditions of employment...." Inspectors must furnish their own cars in order to be able to move from site to site, for which they receive an automobile expense allowance from the City of omaha.

Prior to July 1, 1969, inspectors received a flat monthly allowance of $75.00 plus an additional $10.00 if the automobile was equipped with a city-furnished radio. The automobile expense allowance is intended to cover the various items of depreciation, maintenance, insurance, operations, and parking. The inspectors had complained to the city as early as September 1968 that the automobile expense allowance was too low.

From July 1, 1969, to the present time, the city has paid automobile expense rates for employees who use their own cars in performing city work at 40 cents per day of actual use (65 cents per day for cars equipped with a city-furnished radio) plus 13 cents per mile for the first 500 miles per month and 6 cents per mile for all miles in excess of 500 miles per month. These rates were promulgated by a memorandum of the city finance director. The inspectors continued to be dissatisfied with the automobile expense allowances and their grievance was taken up by the city Personnel Board.

On November 25, 1969, the Personnel Board recommended that the city should investigate the possibility of furnishing vehicles to the inspectors, and that during such investigation, the inspectors should be reimbursed at the rates of $3.00 per working day, plus 11 cents per mile for all miles driven and $10.00 per month where a city-owned radio is installed in the vehicle.

All of the above took place before the effective date of LB 15 (1969), December 25, 1969. On December 30, 1969, the city recognized the plaintiff as the bargaining agent for the inspectors and certain other city employees under the provisions of Chapter 48, Article 8 of the Nebraska Statutes. From that date, the parties have acted under the state statutes effectuated by this Court.

A proposal identical to the recommendation of the Personnel Board was included by the Union in its contract demands submitted to the city in March, 1970 (Article XXI, General Provisions, Section 9, Car Allowance). The item was mentioned during a negotiating session on November 6, 1970, but the session, itself, resulted in a suspension of negotiations because of disagreement over a bargaining unit issue.

The subject of automobile expense allowances next appears in negotiations held on March 3, 1971, and March 8, 1971, by which time the parties had apparently greed upon most contractual issues. At those meetings, the city refused to agree to pay increased automobile expense allowances. The city said it would investigate the subject. The Union's bargaining committee caucused on the issue of whether to pursue the matter further. A majority of the Union's bargaining committee voted not to condition the collective bargaining agreements on an increased automobile expense allowance. The Union requested a written statement that the city would study the matter and the city agreed that it would prepare such a writing. By the conclusion of the meeting on March 8, 1971, all elements of a contract between the parties had been tentatively agreed upon. On March 10, 1971, P. Raymond Nielson, the City Personnel Director, supplied the following Memorandum:

"This memorandum is to serve as the recognition that a point of concern was raised by the Civilian Employees' Union Negotiating Committee that some employees were dissatisfied with the amount of the automobile allowances provided for those using their personal cars for official City business. It is recognized further that the resolution of this point of concern requires a considerable amount of study, which could not be concluded by the time the balance of the negotiated contract provisions were tentatively agreed upon.

Accordingly, it is agreed that the City will conscientiously pursue the resolution of this matter as promptly as possible."

Following adjustment of some language on March 12, 1971, the union ratified the agreement on March 14, 1971. On March 30, 1971, the Union initiated this suit in this Court. Following adoption of a resolution of the City Council on April 6, 1971, the formal Agreement was executed on April 22, 1971, and remains in effect for an initial period until December 31, 1971.

The City Engineer is presently making a study of the feasibility of providing leased automobiles for use by the inspectors. His report will be submitted to the Mayor.

2. The Union's request for relief. At the conclusion of the trial, the Union requested that the Court should, in the alternative, adjudicate one of three things: (a) order the recommendations of the Personnel Board into effect by judicial decree; (b) direct the city to negotiate further with the Union on the subject of automobile expense allowances; or (c) order the city to take definitive action with respect to its study of automobile expenses. For the reasons discussed below, we determine that none of these requests are allowable under the provisions of Chapter 48, in this Case.

Section 48-818 contains the requirements by which this Court "may establish or alter the scale of wages, hours of labor, or conditions of employment, or any one or more of the same." The record does not contain sufficient evidence from which the statutory determinations could be made. There is no evidence as to "the overall compensation presently received by the employees, having regard not only to wages for time actually worked but also to wages for time not worked, including vacations, holidays, and other excused time, and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees." There is, additionally, no evidence with respect to "the prevalent wage rates paid and conditions of employment maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions." Because there is no evidence upon which the Court could act under Section 48-818, we do not determine the issue raised by the city whether the executed Agreement precludes the Union from asserting a claim for relief under this Section.

There is no basis shown in the record that it would be either proper or desirable for the Court to act under any other statutory provision in this case. The subject of automobile expense allowances had a long history and was presented during the course of the negotiations. It was intentionally omitted from the final Agreement by a majority vote of the Union bargaining committee. The city refused to pay increased automobile allowances during the negotiations. The city did not agree to negotiate further on the item. The Union ratified the Agreement despite its long concern for increased automobile expense allowances. The city represented that it would study the matter further and is studying the subject. Both parties acted fairly during the negotiations and with a full knowledge of all relevant fact. It was acceptable to the Union negotiating team and to the Union which ratified the actions of the negotiating team and to the Union which ratified the actions of the negotiating team that the city would study the matter. By filing this suit on March 30, 1971, the Union is, in effect, asking this Court to go beyond the considered and negotiated Agreement entered into. From the evidence presented at the trial in this case, it is clear that that which was intended and designed by the parties during the negotiations is being done. The Court must, therefore, deny the claim of the Petition.

ORDER

NOW, THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED that the Petition of the Plaintiff be, and it hereby is, dismissed.

CONCURRING OPINION

July 14, 1971

JOHN R. BAYLOR, JUDGE

I think a judge's responsibility demands a fuller development of the evidence and the reasoning of the court.

A full summary of the evidence of negotiations with respect to automobile allowances is as follows:

The City's minutes of meetings March 3, 1971, and March 8, 1971:

"The union men brought out that there was dissatisfaction in some areas on the automobile mileage allowance. The statement was made the City had made promises of reimbursement to employees who had two-way radios installed in their cars. The union states that these promises were not kept. Rather than slow down negotiations, Mr. Eitel (a member of the union's negotiating team) suggested that both the City and the Union check into the matter to get the facts and come back at a later date for a resolution."

Mileage: The Union requested a report as to what progress had been made on this problem. The City indicated that investigation was being made on this problem and that it would be resolved when all data had been accumulated. The City pointed out that if the study indicated that the cost was too high under the present mileage system, it could well end up with the City leasing cars."

Witness Sam Albino, Secretary-Treasurer of plaintiff and a member of the negotiating team, testified that Mr. Mahr, member of the negotiating team, had brought up on March 3, 1971, the question of car mileage and that the City had replied, "We ain't gonna talk;" and that Mr. Jordan (a member of the City's negotiating team) had said that, since the City Council didn't act and the question was still in the Study Commission, the issue was dead now and would have to be done by ordinance; and that Mr. Dowd and Mr. Nielson had both said that it was not negotiable at this time; that the portion quoted above from the minutes of March 3rd was correct except as to what Mr. Eitel had said. Nevertheless there was no evidence that Mr. Eitel had not said anything and no evidence of what did correctly reflect what Mr. Eitel had said.

Mr. John Mahr testified that on March 3rd Mr. Nielson said that the item of car mileage wasn't bargainable; that he himself during the meeting of March 3rd with reference to car allowances had said that the inspectors wanted an increase or the City's furnishing of cars but would be satisfied with the recommendations of the Personnel Board; and that Mr. Jordan, the Public Works Director, had replied that the Personnel Board's recommendation was a dead issue because the City Council hadn't acted on the Personnel Board's report; and that he, the witness, had brought up in the Union executive committee meeting the question of "whether to press the matter of car allowances and not to close until we got it;" that the executive committee had voted to go ahead providing they got a letter from the City, but that he, the witness, had voted not to sign the contract until they got the increased allowance in it.

Raymond Nielson, Personnel Director and member of the City's negotiating team, testified that in March, "we felt the cost of the Union's demands respecting mileage would have been exorbitant;" but that since March considerable study, cost estimates, and varieties of analyses have been prepared principally by the "Systems Engineer" although the Personnel Department and the witness were not concerned with them and know nothing of their content.

All witnesses and documentary evidence agree that by the conclusion of the March 8, 1971, meeting all elements of a contract between the parties had been tentatively agreed upon. On March 10, 1971, Mr. A.B. Pattavina, City Safety Director and member of the negotiating team, delivered to Mr. Bernard Finnegan, Executive Secretary of the Union, a document in full as follows:

"March 10, 1971

"TO WHOM IT MAY CONCERN:

"This memorandum is to serve as the recognition that a point of concern was raised by the Civilian Employees' Union Negotiating Committee that some employees were dissatisfied with the amount of the automobile allowances provided for those using their personal cars for official City business. It is recognized further that the resolution of this point of concern requires a considerable amount of study, which could not be concluded by the time the balance of the negotiated contract provisions were tentatively agreed upon.

"Accordingly, it is agreed that the City will conscientiously pursue the resolution of this matter as promptly as possible.

"Signed

P. Raymond Nielson

Personnel Director."

and, according to Mr. Finnegan's testimony, at the time of such delivery said, "I'll see you in court."

Following some adjustments of some language of the contract on March 12, 1971, the Union ratified it on March 4, 1971, the Union ratified it on March 14, 1971, and commenced this action in the Court of Industrial Relations on March 30, 1971. Pursuant to resolution of the City Council on April 6, 1971, the written contract between the City and the Union was executed on April 22, 1971. Said contract makes no mention of compensation to be paid to City employees for the use of their private automobiles and furthermore contains no provision to the effect that all elements of compensation and working conditions are provided for by the contract.

The Union asks that the Court in the alternative;

A. Order the recommendation of the Personnel Board into effect by judicial decree;

B. Order the City to negotiate with the Union on the subject of automobile expense allowances; or

C. Order the City to take specific action (although the specific action desired or suggested in no way is delineated) with respect to its study of automobile expenses.

A. The record contains by stipulation of the parties a document entitled "personnel Board Committee Report; Subject: Automobile Expense Allowances, " but is absolutely devoid of even basis for inference as to qualifications of the members of the committee, the mental, procedural, or evidentiary processes by which the conclusions set forth in the report were formulated, or as to standards by which the recommendations may be judged, evaluated, or considered in any respect. Accordingly, we do not reach any question of the power of this Court to adopt or otherwise incorporate in a judicial decree the findings of some other political body, for, as triers of fact, having seen the witnesses and heard the testimony, we, on this record, do not give said document any consideration, weight, or effect.

B. In our opinion filed May 18, 1968, in Public Service Employees Council et al. v. Metropolitan Utilities District, Case No. 21, after exhaustive analysis of the statute and its legislative history, we held that the Court's power to order bargaining is discretionary and would be exercised only when there was evidence that such bargaining might eliminate, define,and simplify controversies or might encourage a voluntary settlement of an industrial dispute. Here the evidence affirmatively shows that neither party has done at this time analysis and investigation of this controversy sufficient to raise even a hope that any of those ends might be effected at the bargaining table.

C. On a sufficient record this Court has the duty to determine the legal effect, if any, of the document dated and delivered by the City to the Union on March 10, 1971. International Brotherhood of Electrical Workers Local Union No. 1525 vs. City of Beatrice, Case No. 27, Opinion 10-15-70; Safeway Cabs Inc. vs. Drivers Union, Case No. 18, pp. 8-10 of Opinion 3-6-64. A statement of the common law is set forth at 48 AmJur 2d 760, Labor and Labor Relations §1208 as follows:

"A collective bargaining agreement is not an ordinary contract to which apply the principles of law governing ordinary contracts. It must be construed liberally rather than narrowly and technically, and it must be read as a whole and in the light of the law relating to it when made. The law of labor agreements cannot be based upon abstract definitions unrelated to the context in which the parties bargained and the basic regulatory scheme underlying that context.

"In order to interpret a collective bargaining agreement, it is necessary to consider the scope of other related collective bargaining agreements as well as the practice, usage, and custom pertaining to all such agreements. Words in particular collective bargaining agreements are like words in a statute, in that the same word may have different meanings in different contests, and the language in each agreement should be construed with reference to the particular practices, background, and milieu which gave rise to its use.

"The industrial common law--practices of the industry and the shop--is equally a part of the collective bargaining agreement although not expressed in it. In some collective bargaining agreements, gaps may be left to be filled in by reference to the practices of the particular industry and of the particular shops covered by the agreement, notwithstanding that many of the specific practices which underly the agreement may be unknown, except in hazy form, even to the negotiators. Where past practice has established a meaning for language used by the parties in a collective bargaining agreement, the language will be presumed to have the meaning given to it by the past practice. An employee's claim does not necessarily fail where he cannot point to a specific contract provision on which the claim is founded, because there are too many people, too many problems, and too many unforeseeable contingencies to make the words of the contract the exclusive source of rights and duties."

No authorities have been pointed out to us in either oral argument or brief. Having now herein summarized all the evidence in the record and all the law which my own research discloses to be even conceivably apposite, it seems to me that the Court at this time can find nothing from which to formulate a legal decision as to the effect of said document or an order that the words thereof be carried out in any respect.

D. On pages 6 through 21 of our Findings and Order filed May 5, 1967, in International Brotherhood of Electrical Workers Local Union No. 507 vs. The City of Hastings, Case No. 17, we set forth detailed guide lines for the nature, type and extent of evidence or other record to support the Court's establishment or alteration of the scale of wages, hours of labor, or conditions of employment or any one or more of the same under §48-818. The record here does not contain any evidence from which the Court can establish or alter the compensation of Omaha City employees for the use of their private automobiles within those guidelines of any other interpretation of §48-818. There is no evidence with respect to "the prevalent wage rates paid and conditions of employment maintained" nor of the similarity of work, skills, or working conditions of others to which those of the City of Omaha's Inspectors might be compared. We do not reach the question of whether any inferences in these respects might be drawn from the testimony of one of the plaintiff's witnesses to the effect that the United States Internal Revenue Service allowed a greater deduction for the business use of his car than he had been paid by the City of Omaha; this testimony was based on heresay and memory unsupported by any records whatsoever, and accordingly is given no weight by us as triers of fact.

ORDER OVERRULING MOTION FOR NEW TRIAL

September 8, 1971

JOHN M. GRADWOHL, JUDGE

On August 17, 1971, this matter came on for hearing on the Motion For New Trial filed on July 20, by the Plaintiff. The Motion For New Trial hereby is overruled.

We have carefully considered the arguments and authorities set out in Plaintiff's Brief on Motion For Retrial. Paragraph 2 of the Findings of Fact, Conclusions of Law and Order entered July 15, 1971 contains a proper determination of Plaintiff's three alternative requests following the trial. (1) With respect to the request that the Court order into effect the recommendations of the Personnel Board, the Court could grant such relief only by application of section 48-818. The prayer in the petition appears to be primarily interested in this particular relief. At the commencement of the trial, plaintiff relied upon this section. Plaintiff now concedes that the evidence does not sustain an order under section 48-818. The evidence does not sustain the entry of an order placing in effect the recommendations of the Personnel Board. (2) With respect to the request that the Court order further negotiations, the last paragraph of the Findings contains the basis for the decision that it would be an extremely poor exercise of the Court's authority and discretion to enter such an order based upon the record in this case. Plaintiff now contends that the Court's Order precludes the issue from becoming bargainable in the future. Counsel for the City of Omaha conceded during oral argument that the item will become bargainable with respect to the period beginning January 1, 1972, if the Union properly presents the issue for negotiation. We have decided this case on the basis of a petition filed March 30, 1971, before the present contract was ratified, upon evidence presented June 8, 1971, and June 14, 1971. As to Plaintiff's claim that this precludes either future negotiations or future petitions before this Court, the matters precluded by the Order entered July 15, 1971, would appear to be only those issues presented by the evidence then before the Court. (3) With respect to the request that the Court order the City to take definitive action on the study of automobile allowances, the Plaintiff chose to file this suit without giving the City a chance to study the matter. The evidence at the trial was that the city was studying the matter. As of the time the petition was filed, the City had not had a chance to study the issue and at the time of the trial the matter was being studied.

Paragraph 3 on pages 4 to 6 of Plaintiff's Brief deals with issues of labor contract law which four Judges have determined are not necessary to decide in this case. These Judges are of the continued opinion that the proper basis for the decision is contained in the Findings of Fact, Conclusions of Law and Order filed July 15, 1971. For the same reasons stated in the last paragraph of the Findings, it would not be proper for the Court, itself, to undertake the independent study under section 48-816 requested by the Plaintiff's Brief, or to consider reformation of the written agreement voluntarily entered into by the parties requested in the Plaintiff's Brief.

CONCURRING OPINION ON OVERRULING

MOTION FOR NEW TRIAL

JOHN R. BAYLOR, JUDGE

I concur in the opinion that the Motion for New Trial should be overruled. The other four Judges of the court have concluded that it is "not necessary to decide in this case" the legal significance of the document executed and delivered by the defendant on March 10, 1971. On the other hand, it is my opinion, set out more fully in my concurrence of July 15th, that it is not possible to decide such significance in the absence of evidence of the parties' intention respecting that document's relationship to the written contract later formally executed in April.

In summary I have the impression that the plaintiff's interpretation of Chapter 48, Article 8 R.R.S. Neb. is this: all a plaintiff must do is allege in conclusionary terms the existence of a controversy between a governmental defendant and its employees, the subject matter of the controversy, and the fact that the employees are very much upset and concerned about the matter, whereupon the court should discover under its investigative authority all the evidence, educe the testimony, and do all the research and analysis of the law. If by any chance that impression of mine has any foundation, then the governmental employers, employees, and their attorneys should be informed unmistakably that the court does not agree with that view of the law, and that, under both the present and proposed appropriations for this court, it would not be able to implement such a view even if it wished to. At the present time, except in the event of a most extraordinary public emergency, the court will decide cases only on the basis of fully prepared record with respect to both the facts and the law.

likewise it should be abundantly clear that the court's views of the record, either that view set forth in the majority opinion or that set forth in the concurring opinion of July 15th, does not imply in any way the court's acceptance or even consideration of the theories and contentions advanced by the defendant with respect to the legal significance of the document of March 10, 1971.

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