| LINCOLN COUNTY SHERIFFS'EMPLOYEES | | | CASE NO. 451 |
| ASSOCIATION LOCAL NUMBER 546, | | | |
| INTERNATIONAL BROTHERHOOD OF | | | |
| POLICE OFFICERS, | | | |
| | | ||
| Plaintiff, | | | |
| | | ||
| v. | | | OPINION AND ORDER |
| | | ||
| COUNTY OF LINCOLN, NEBRASKA, | | | |
| | | ||
| Defendant. | | |
Appearances:
For the Plaintiff:Ronald Rosenberg and
Don W. Taute
of Rosenberg, Gibson & Taute
For the Defendant: William A. Harding and Kelley Baker of Nelson & Harding
Before: Judges Davis, Berkheimer, and Orr.
DAVIS, J:
This matter comes before the Commission upon the plaintiff's Application for Restraining Order requesting the Commission to enter a restraining order to prevent the defendant from implementing the provisions of its proposed collective bargaining agreement concerning the wages, hours and conditions of employment for the employees of the plaintiff. The matter has been submitted to the Commission on a stipulated statement of facts and briefs from each of the parties.
1. Stipulated Facts.
The plaintiff and defendant stipulated for purposes of
plaintiff's request for a restraining order, and for no other purpose whatsoever, to the following facts:
1. That plaintiff is a labor organization as defined in
Section 48-801, sub (6), Nebraska Revised Statutes of
1943.
2. That the defendant, County of Lincoln, State of Ne-
braska, is an employer of members of said labor organi-
zation, as defined by Section 48-801, sub (4), Nebraska
Reissue Revised Statutes of 1943.
3. That bargaining teams, representing the plaintiff and the defendant did hold collective bargaining sessions up to, and including November 16, 1981, at which time defendant did make a "last best offer" to plaintiff, which said last best offer was rejected by the plaintiff.
4. That as a part of defendant's last best offer, defendant did notify plaintiff that in the event plaintiff desired to accept said last best offer, that it notify defendant prior to November 23, 1981; that plaintiff did not accept said last best offer, and an impasse was reached.
5. That at the collective bargaining session of November 16, 1981, defendant did notify plaintiff that in the event plaintiff did not accept said last best offer, that defendant did intend to implement the provisions of said last best offer.
6. That defendant's last best offer is contained within the November 17, 1981, letter of William A. Harding, attorney for defendant and is attached hereto, marked Exhibit "A" and made a part hereof as fully as though set out herein verbatim.
7. That plaintiff's rejection of defendant's last best offer was conveyed to the said William A. Harding by Ronald Rosenberg, attorney for the plaintiff; that a copy of said November 23, 1981, letter is attached hereto, marked Exhibit "B", and made a part hereof as fully as though set out herein verbatim.
8. That the defendant, County of Lincoln, has implemented its last best offer retroactive to July 1, 1981, as evidenced by a copy of the November 23, 1981, resolution of the Lincoln County Board of Commissioners, attached hereto and marked as Exhibit "C" and made a part hereof as fully as though set out herein verbatim.
9. That it was not until the pay period for the end of December, 1981, that members of the plaintiff actually received pay checks reflecting implementation of said last best offer and thereby obtained actual knowledge of implementation of said last best offer.
10. That the wages and fringe benefits of the members of plaintiff prior to defendant's implementation are as set forth in Exhibit "D" which is made a part hereof as fully as though set out herein verbatim.
11. The parties further stipulate and agree as follows:
a. The plaintiff's application for restraining order herein is limited to only the issue of implementation of the defendant's last best offer.
b. If the foregoing stipulation of facts prepared by the parties is deemed by the Commission to be insufficient to allow the Commission to address the issue of the implementation of the defendant's last best offer, the parties are prepared to submit a supplemental stipulation of facts or to present evidence.
c. The plaintiff shall have until Friday, January 8, 1982, to submit a brief in support of its application for a restraining order and the defendant shall have until Friday, January 15, 1982, to submit a reply brief. The case may be considered submitted to the Commission upon receipt of the defendant's reply brief.
2. Findings.
The Commission finds that it has jurisdiction of the parties and the subject matter herein by the virtue of Neb. Rev. Stat. §48-818 (1980 Cum. Supp.), which provides in part: "All industrial disputes involving governmental service...shall be settled by invoking the jurisdiction of the Commission of Industrial Relations;..."
The Commission also finds that it has the power to make findings and enter orders in the matter by virtue of Neb. Rev. Stat. §48-819.01 (1980 Cum. Supp.), which provides:
Whenever it is alleged that a party to an industrial dispute has engaged in an act which is in violation of any of the provisions of sections 48-801 to 48-838, or which interferes with, restrains, or coerces employees in the exercise of the rights provided in sections 48-801 to 48-838, the commission shall have the power and authority to make such findings and to enter such temporary or permanent orders as the commission may find necessary to provide adequate remedies to the injured party or parties, to effectuate the public policy enunciated in section 48-801, and to resolve the dispute.
The issue in this case is whether the employer "has engaged in any act which is in violation of any provisions of sections 48-801 to 48-838, or which interferes with, restrains, or coerces employees in the exercise of the rights provided in sections 48-801 to 48-838."
The plaintiff argues that the defendant cannot unilaterally implement its last best offer despite the fact that impasse has been reached. The plaintiff cites Nebraska State Council of Local Unions No. 32, A.F.S.C.M.E. v. Dakota County , 5 CIR 214 (1981), as a recent Nebraska case discussing the issue of an employer's unilateral implementation of certain wage increases. The Commission in that case found a violation of Section 48-811 by the Dakota County Board when it approved a change in wage rates of bargaining unit members without the agreement, consent or approval of the duly certified statutory bargaining agent during the pendency of another action involving the same parties. Neb. Rev. Stat. §48-811 (Cum. Supp. 1980), provides in part: "No adverse action by threat or harassment shall be taken against any employees because of any petition filing by such employee, and the employment status of such employee shall not be altered in any way pending disposition of the petition by the commission."
The defendant argues that an employer may unilaterally change the terms and conditions of employment after an impasse in bargaining has been reached, provided that the changes do not significantly exceed the employer's best offer to the union. The defendant cites a number of National Labor Relations Board decisions to support its argument. NLRB v. Katz , 369 U.S. 736, 82 S.Ct. 1107 (1962); NLRB v. Crompton-Highland Mills , 337 U.S. 217, 69 S.Ct. 960 (1949); Winn-Dixie Stores v. NLRB , 567 F.2d 1343 (2d Cir. 1978). The Commission has held many times that National Labor Relations Board decisions are helpful, and may be looked to for guidance, but are not controlling. City of Grand Island v. AFSCME , 186 Neb. 711, 185 N.W.2d 860 (1971); AFSCME v. County of Lancaster , 196 Neb. 89, 241 N.W.2d 523 (1976), Nebraska Association of Public Employees v. State of Nebraska , 204 Neb. 165, 281 N.W.2d 544 (1979).
The defendant also argues that Section 48-811 has not been violated since no industrial dispute was pending before the Commission at the time defendant implemented its proposal. Defendant, therefore, distinguishes the Section 48-811 violation in Dakota County, supra , from the present case.
The Commission finds that implementation of defendant's "last best offer" to plaintiff after impasse and before any proceeding was initiated in the Commission of Industrial Relations did not alter the employment status of the employees in violation of Section 48-811.
3. Order.
IT IS THEREFORE ORDERED that the plaintiff's application for a restraining order be denied.
IT IS FURTHER ORDERED that a pretrial conference for the purpose of preparing the case for trial shall be set as soon as possible.
All Judges assigned to the panel in this case join in the entry of this Order.
Filed February 11, 1982
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