4 CIR 132 (1979)


Plaintiffs, |
A Municipal Corporation, |
Defendants. |


For the Plaintiffs:J. Murry Shaeffer

For the Defendant:William A. Harding

Before: Judges McGinley, Gradwohl and Orr.


Plaintiffs seek to have Detective Lieutenant E. Clyde Paul's salary increased by the 8% raise and 2% hazardous duty pay increase received generally by North Platte sworn police officers under the current year's collective bargaining agreement. The City claims that Detective Paul was previously frozen at a rate of pay in excess of the maximum pay for a Detective Lieutenant and is not entitled to an increase at this time. Plaintiffs' case is predicated not on the terms of the collective bargaining agreement, but on an allegation that the City did not bargain in good faith as required in Section 48-816(1) (1979 Supp.). This Commission has jurisdiction of the parties and of the subject matter of this industrial dispute by virtue of Sections 48-819.01 (1979 Supp.), 48-810 (1979 Supp.), 48-801(7) (1979 Supp.), and 48-823 (1979 Supp.).

The Plaintiff E. Clyde Paul became Acting Chief of the North Platte Police Department on July 21, 1978. In that capacity, he was not a member of the bargaining unit. On February 7, 1979, he was returned to his former position as Administrative Lieutenant. As an Administrative Lieutenant, he was also not within the bargaining unit because he answered directly to the Chief. See Section 48-816(3) (1979 Supp.).

In June 1979, the North Platte Police Department was reorganized under the direction of the new Chief. A second Captain was added and the Administrative Lieutenant position eliminated. E. Clyde Paul was reclassified as a Detective Lieutenant and his pay classification changed from Grade 17G to Grade 15H. This reduced the administrative responsibilities he had formerly held and also returned him to a bargaining unit position. Detective Paul is the only officer of the North Platte Police Department holding the rank of Detective Lieutenant. The rank of Detective Lieutenant was not involved in the previous litigation in this Commission. It was placed at one pay grade above that of Lieutenant in the reorganization. The propriety of changes during the reorganization was considered by both parties at the trial of this matter, but is not properly an issue before the Commission at this time.

Before the reorganization, E. Clyde Paul was earning $8.60 per hour as an Administrative Lieutenant at Grade 17G. The top pay for Grade 15H to which he was assigned as a Detective Lieutenant was then $7.79 per hour. When Detective Paul protested what he thought might become a decrease in pay, he was told orally and in writing by the City Administrator that his hourly rate of pay would be frozen at $8.60 until his pay grade rate caught up. The Change of Status Form (Plaintiffs' Exhibit 2) is plainly marked on its face "8.60 frozen until step 15-H reaches or exceeds 8.60-hr". The City Administrator also orally advised the President of the North Platte Police Officers Union that Detective Paul's pay was being frozen because of his reclassification. Detective Paul has remained a member of the bargaining unit since that time and has remained the Department's only Detective Lieutenant.

The collective bargaining negotiations for the current contract took place on August 8 and 9, 1979. Proposals were submitted by both parties and an agreement arrived at providing a general wage increase of 8%, plus a 2% hazardous duty pay increase for sworn police officers, and plus a merit increase later in the contract period. It was expressly agreed that the top pay levels in each grade would be increased and that persons frozen at the top level in a pay grade would receive the pay increases. There was no discussion whatsoever during the negotiations of E. Clyde Paul or of the situation of an employee previously frozen at a pay above the top level of the contractual pay grades.

The Union clearly expected that all sworn police officers, including Detective Paul, would receive the full 8% and 2% pay increases. The City equally clearly expected that Detective Paul's pay would remain frozen until his hourly rate under the pay grade system exceeded the $8.60 per hour he was already receiving.

The written collective bargaining agreement was executed by the parties on September 5, 1979. When Detective Paul claimed a pay increase, he was advised that the top rate of pay for a sworn police officer at Grade 15H was $8.58 per hour and that he will not be entitled to a raise until that rate exceeds $8.60 per hour. Detective Paul was the only member of the North Platte Police Department who did not receive the 8% increase and the only sworn officer not to receive the 2% hazardous duty pay increase. This suit was initiated after completion of the grievance procedures.

Plaintiffs do not claim entitlement to increased pay under the language of the collective bargaining agreement. See Transport Workers of America v. Transit Authority of the City of Omaha , 205 Neb. 26 (December 11, 1979). Plaintiffs contend that the City did not bargain in good faith as required by the statutes. Section 48-816(1) (1979 Supp.) defines the duty to bargain in good faith:

"To bargain in good faith shall mean the performance of the mutual obligation of the employer and the labor organization to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession."

Plaintiffs object that the City did not call Detective Paul's situation to their attention during the negotiations. Plaintiff made no request of the City for wage information of bargaining unit employees or any other request for information which might have pertained to the circumstances of Detective Paul. Actually, the City had clearly stated the fact that it considered Detective Paul's wages frozen at $8.60 per hour until the pay grid exceeded that amount in June 1979, a short time before the negotiations.

Defendant relied on the federal rule that it had no duty to volunteer salary information on bargaining unit employees unless requested by the Union. The definition of the duty to bargain in good faith in Section 48-816(1) is copied from Section 8(d) of the National Labor Relations Act. Decisions under the NLRA are helpful but not controlling in interpreting and applying the provisions of the Nebraska statutes. See City of Grand Island v. AFSCME , 186 Neb. 711, 185 N. W. 2d 860 (1971); University Police Officers Union v. University of Nebraska , 203 Neb. 4, 277 N. W. 2d 529 (1979). Cranston Paint Works Company and Textile Workers Union , 115 N.L.R.B. 537 at 557-558 (1956), cited by Counsel for the City, is a classic application of the federal rule. That decision held that a request by the Union for information as to the wages of all piece-rated employees included information as to the wages of hookers, but did not include information as to hourly workers. In the present situation, the Union made no request for wage information. The City had, in fact, already supplied the precise information the Union contends should have been given during negotiations. The City did not fail to bargain in good faith by not calling the matter again to the attention of the Union.

The Plaintiffs also argue that the City did not bargain in good faith in the manner in which the oral argument arrived at on August 8 and 9, 1979, was reflected in the written, signed agreement. This claim is not supported by the evidence. There was a pay grade schedule clearly set forth in the written drafts circulated after the negotiations. Pay grade schedules had been in existence for a number of years as the basis for classifying employees for pay purposes. The schedules had been present throughout the current contract negotiations. See Defendant's Exhibits 21, 22, and 23. The City reasonably treated the 8% and 2% increases as pertaining to these pay grade schedules. We find that the City did not fail to bargain in good faith in the manner in which the oral agreement was reflected in the written collective bargaining agreement.

While this matter was under advisement by the Commission, Defendant filed a Motion To Dismiss for lack of subject matter jurisdiction following the Supreme Court decision in Transport Workers of America v. Transit Authority of the City of Omaha , 205 Neb. 26 (December 11, 1979). The Plaintiffs in this matter do not seek to enforce a contractual right; in fact, their Briefs expressly recognize that they are not entitled to relief under the collective bargaining agreement. The relief sought is for an alleged failure to bargain in good faith as that duty is imposed under the statutes. Section 48-819.01 expressly grants jurisdiction to the Commission of Industrial Relations in this matter. Sections 48-810, 48801(7), and 48-823 also support the Commission's subject matter jurisdiction in this case. The arguments advanced by the Defendant in its Brief as to the possible remedies in this matter are not relevant to the determination whether the Commission has acquired subject matter jurisdiction in the first instance. Accordingly, the Defendant's Motion To Dismiss for lack of subject matter jurisdiction is overruled, although the matter is otherwise dismissed on the merits of the alleged refusal to bargain in good faith.

IT IS THEREFORE ORDERED that the Plaintiffs' Petition herein be dismissed.

All Judges assigned to the Panel in this case join in the entry of this Opinion and Order.

Filed December 20, 1979.