3 CIR 117 (1976)


Plaintiff, |
Defendant. |

Appearances: For Plaintiff, David D. Weinberg and

Bruce Pauley

For Defendant, Dayton O. Rasmussen, Jr. and

Edward R. Freeberg

Before: Judges Wall, Kratz and DeBacker


In this action, the Plaintiff, International Brotherhood of Electrical Workers (Union) petitioned the Court of Industrial Relations to hear and determine a dispute between it and the Defendant, McCook Public Power District (McCook) concerning wages, hours and conditions of employment. In his opening statement, counsel for the Union also claimed that Defendant has refused to bargain in good faith, and he asked the Court to determine wages and conditions, under Section 48-818. The presentation of the evidence produced two additional issues: the admissibility of testimony by Dayton Rasmussen, counsel for Defendant, and the question of whether or not the court should take judicial notice of a document distributed to the court by Defendant, but not offered in evidence.

On June 7, 1974, this Court ordered the Defendant to bargain with the Plaintiff for employees within a prescribed bargaining unit. Since that date, the parties have met at infrequent intervals, with only a single representative present for each party, and exchanged demands. Plaintiff's claim of bad faith bargaining is based on (1) the fact that Defendant conducted all negotiations with only one man, Dayton Rasmussen, and refused Plaintiff's request that Plaintiff be allowed to meet with a full committee, (2) the fact that the parties met infrequently, and (3) the fact that Defendant took a firm and unalterable position on its demand that the collective agreement contain a clause which would authorize specific payment from Plaintiff to the Defendant in the event of a strike.

Neither party in a collective bargaining arrangement has a right to dictate the bargaining representatives for the other party. If one party chooses to delegate to a single individual the authority to bargain in its behalf, this is not improper, so long as that individual does, in fact, engage in legitimate bargaining. Nor does one party have to accede to the demands by another party to bring into the negotiations a full committee.

Infrequent meetings are also not sufficient alone to constitute refusal to bargain. If one party refuses to meet, or does meet, but without any intent to actually attempt to reach agreement, that would be bad faith bargaining. In this case, there is no showing that Defendant was solely responsible for the infrequency of the meetings. Apparently neither party pushed for continuous meetings and the Plaintiff suffered the dilemma of resisting the alternative to unsuccessful negotiations, [1] though realizing the negotiations were not progressing.

The facts do show that Defendant was rather inflexible on its proposal for compensation in the event of a strike (reimbursement clause). Defendant was willing only to negotiate the amount of the compensation in the clause, but not the language of the clause itself. Bargaining in good faith, however, does not require the parties to give up their demands, and we, therefore, conclude that Defendant's inflexible position on this item does not constitute bad faith bargaining. The National Labor Relations Board sometimes uses the term "hard bargaining". This refers to a situation where one of the parties takes a position and maintains it. The Board has frequently held that "hard bargaining" is not unlawful. M.R. & R. Trenching Co. v. NLRB (CA-5, 1970), 64 LC 11, 308; Chevron Oil Co., Standard Oil of Texas Div. v. NLRB , (CA-5; 1971), 65 LC 11,730.

Plaintiff's argument, however, that the reimbursement clause is not a negotiable item, inasmuch as it is not a condition of employment, has merit. In Norfolk Education Association v. School Dist. , 1 CIR 40-1 (1971), this Court said as follows:

"Since it seems apparent the Nebraska Legislature had the same purpose in mind as the Federal Congress in determining what should be considered mandatory subjects for collective bargaining, the Court and Board interpretations of "wages" and "conditions of employment" under the National Labor Relations Act can serve as a guide for our interpretation of what constitute negotiable subjects under the Nebraska Law. In City of Grand Island v. American Federation of State, County and Municipal Employees , 186 Neb. 711, 185 N.W. 2d 860 (1971), the Nebraska Supreme Court gave "consideration to...decisions under the Federal law" in resolving an appropriate bargaining unit issue."

In the case of Lathers, Local 42 & Lathing Contractors Assn. , 223 NLRB No. 8, decided March 11, 1976, the NLRB affirmed a decision of an Administrative Law Judge which concluded that a performance bond was not a mandatory subject of collective bargaining. Said bond would require the employer to guarantee, inter alia , "payment of wages, contributions for Health & Welfare Plans, Pension Plan, Lathing Institute Trade Promotion Plan (and) Apprenticeship Plan..." This clause is similar to the one proposed herein by the Defendant. It does not constitute a condition of employment and we hold that it is not a mandatory subject for collective bargaining. See also: Covington Furniture Mfg. Corp. , 212 NLRB No. 56, 514 F. 2d 995.

Next we turn to Defendant's claim for a determination by the Court of wages and conditions. The record shows clearly that the parties are unable to agree on wages and conditions. Consequently, we have a "controversy concerning terms, tenure, or conditions of employment" and thus an industrial dispute, in accordance with Section 48-801 (7), and the parties, therefore, may submit their dispute to this Court for determination. Plaintiff and Defendant were ordered to negotiate on June 7, 1974. They have been negotiating, therefore, for 18 months, without success. The record shows clearly that they are far apart on several items. Defendant argues that the parties have not reached impasse and thus they should be allowed to continue to bargain without interference from this Court. This argument is without merit. The statute doesn't specifically require an impasse in bargaining before this Court can entertain jurisdiction, and if it did, the condition precedent has been met. The parties clearly are at impasse and we find it rather incredible that Defendant would suggest otherwise under the facts of this case.

Though we clearly have an industrial dispute and jurisdiction to set wages and conditions, we do not have sufficient evidence in this record to determine the wages and conditions. Russell Mundorf, Plaintiff's business representative, testified regarding the wages paid to "linemen" by various other power districts. [2] His testimony regarding the similarity of skills of the employees under similar working conditions at these other facilities, however, is incomplete, and he admits that there are many other employee classifications, other than "linemen", at Defendant's facility and at the other power districts he used for comparison.

Defendant's evidence of wages and conditions of comparable employees consisted of a motion that the Court take judicial notice of a document which showed some wages at other Nebraska power districts. The document was undated and contained no explanation of its source or author. There was no evidence, either, that the employees at these listed power districts had similar skills and worked under similar working conditions as those employed by the Defendant, and the only wage listed appeared to be wages of supervisory personnel. We will not take judicial notice of this document because it would not be relevant without supporting testimony which ties it to the criteria set out in Section 48-818, and it furthermore does not contain wages of employees in similar classifications as those in the bargaining unit.

Another issue raised at the hearing relates to the testimony of Dayton Rasmussen. There was objection to his testimony on the ground that he was counsel of record for the Defendant in this case. We reserved ruling on this motion, but now conclude that in order to submit other than routine testimony in a case, the attorney cannot serve as counsel for one of the parties. Section DR 5-102 (a) of the Code of Professional Responsibility and Code of Judicial Conduct of the American Bar Association provides as follows:

"If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he should withdraw from the conduct of the trial and his firm, if any, shall not continue the representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in BR 4-101 (B) (1) through (4)."

Consequently, the objection voiced by Plaintiff to the testimony of Dayton Rasmussen will be sustained and his testimony in this matter will be disregarded.

Since we do not have sufficient evidence to determine the wages and conditions, we must dismiss the case, but we urge the parties to either immediately commence effective bargaining or return to this Court with specific evidence of comparable wage rates for employees performing similar work with similar skills under similar working conditions.

Case dismissed.

Entered April 2, 1976.

NOTE: Footnotes deleted.