6 CIR 313 (1982)


LOCAL NO. 554 affiliated with |
Petitioner, |
Respondent. |


For the Petitioner: David D. Weinberg

Weinberg & Weinberg, P.C.

Omaha, Nebraska

For the Respondent: Roger J. Miller

Nelson & Harding

Omaha, Nebraska

Before: Judges Kratz, Gradwohl, and Davis


Petitioner (also called union) alleges that a unilateral change in wages for bargaining unit employees during the pendency of Case #445 constitutes a violation of Section 48-811 of the Revised Statutes of Nebraska. Respondent argues that since Case #445 involves a wage determination for the 1981-82 fiscal year, a unilateral wage increase for a different year, 1982-83, is not affected by that case and is therefore not a violation of Section 48-811. Ordinarily, a unilateral implementation of the employer's last bargaining offer, after impasse and before any proceeding is initiated in the Commission of Industrial Relations, is not a violation of Section 48-811. Lincoln County Sheriff's

Employees Association v. County of Lincoln , 5 CIR 441 (1982).

Case #445 has the same parties and same caption as this one ( General Drivers & Helpers Union Local No. 554 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, vs. Saunders County, Nebraska ). The petition in #445 asks the Commission to determine wages and conditions for respondent's employees for the fiscal year 1981-82. While that case was pending [1] the union, on January 11, 1982, requested negotiations on the 1982-83 wages. By June 28, 1982, the parties had bargained to impasse, and on July 7, 1982, the respondent implemented its last wage proposal. The union claims the respondent cannot put into effect its last proposal, and it cites the case of Nebraska State Council of Local Unions No. 32, AFSCME, v. Dakota County , 5 CIR 214 (1981), as its authority for this proposition.

In Dakota County , after a secret ballot election and certification of the Plaintiff union as bargaining representative for a unit of employees in various offices of the Dakota County Courthouse, the parties commenced bargaining. No agreement was reached. Plaintiff union then filed a separate action (Case No. 386), alleging the respondent was bargaining in bad faith, and secured a bargaining order from the Commission. The defendant, Dakota County, appealed that order to the Nebraska Supreme Court [2]. Since the appeal was from a bargaining order, the employer's duty to bargain had not yet been finally determined. While that appeal was pending, the Dakota County Board increased the salaries of various employees within the bargaining unit. No attempt was made to negotiate with the plaintiff prior to unilaterally instituting these pay increases. The Commission held that this unilateral increase violated Section 48-811.

The applicable sentence from Section 48-811 says that "no adverse action by threat or harassment shall be taken against any employee 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."

In Dakota County , the Commission referred to this sentence and then said as follows:

"The sentence from Section 48-811, set out above, means that the employment status of employees shall not be altered in any way during the pendency of an industrial dispute before the Commission of Industrial Relations, or before the Nebraska Supreme Court if an appeal is taken, without the agreement, consent or approval of the other party. The change of wage rates of bargaining unit employees constitutes a change in the employment status of the employees under Section 48-811."

The question here is simply whether a petition for a Section 48-818 determination for the fiscal year 1981-82 constitutes the type of "pending" industrial dispute under Section 48-811 which would prohibit the after-impasse unilateral implementation of a wage increase for the 1982-83 fiscal year. It is our opinion that it does not.

In the Dakota County case, the pending dispute was an order from the CIR for the parties to "resume bargaining in good faith." That order was appealed by the employer and while the appeal was pending, the employer unilaterally implemented a wage increase. It is clear under this circumstance that the employment status of the employees was prejudicially altered in violation of Section 48-811. The relationships between the employer, union, and the employees were adversely affected by this unilateral action.

The fact situation in the instant case is considerably different. We are not dealing here with the bargaining relationship between the parties. That is already established and is not being disputed or contested. There is no claim of refusal to bargain in good faith. The instant case involves two different wage disputes, one for the 1981-82 fiscal year and the other for 1982-83. The unilateral implementation of an offer with regard to the 1982-83 dispute has no adverse effect, so far as the employees' bargaining relationship and union affiliation is concerned, on the wage determination for the fiscal year, 1981-82. The employees are not prejudiced in their bargaining relationship with their employer by virtue of the fact that this implementation took place during the pendency of a case which determines their wages for the previous fiscal year.

Section 48-811 has as one purpose the protection of employees against adverse actions by employers which are motivated by a desire to discourage or retaliate for union membership while an industrial dispute is pending. There is no evidence that the implementation of the 1982-83 wage proposal was so motivated, nor are we able to see that any of the other important purposes served by Section 48-818 (set out at 5 CIR 218) are interfered with in this instance.

These determinations are strongly supported by language in the Supreme Court's Opinions in AFSCME Local 2088 v. County of Douglas , 208 Neb. 511, 304 N.W. 2d 368 (April 10, 1981), and 209 Neb. 597, 309 N.W. 2d 65 (Supplemental Opinion August 7, 1981). Syllabus 7 of the original Opinion states:

"No public employer shall withhold pay raises otherwise determined to be granted to public employees in a given year solely on the basis that they are then engaged in a labor dispute over a previous year's wages."

While the text in the original Opinion containing the same language as Syllabus 7 (208 Neb. at 526) was withdrawn in the Supplemental Opinion, Syllabus 7 was not withdrawn. The language and effect of the Supplemental Opinion strengthens the rule in Syllabus 7 by broadening its application from "a labor dispute over a previous year's wages" to a circumstance that the parties are "then engaged in a labor dispute" (209 Neb. at 597-598). Thus, the Supplemental Opinion, issued after a reargument in the Supreme Court following the original decision, made the holding potentially applicable to obligations imposed during the "current" year as well as a "subsequent" year. Syllabus 7 not only stands as a sound proposition following the Supplemental Opinion but also is strengthened by the language in the Supplemental Opinion.

It is, therefore, ordered that the Petition herein be dismissed.

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

Filed November 4, 1982


1. It has now been decided (September 27, 1982).

2. This appeal was ultimately dismissed by the parties.