|AMERICAN FEDERATION OF STATE,|||||CASE NO. 494|
|COUNTY & MUNICIPAL EMPLOYEES,||||
|LOCAL 1116, OF ADAMS COUNTY, NEBRASKA,||||
||||OPINION AND ORDER|
|ADAMS COUNTY, NEBRASKA and THE||||
|ADAMS COUNTY BOARD OF SUPERVISORS,||||
For the Plaintiff:James H. Truell
Ahlschwede and Truell
207 North Pine Street
Grand Island, Nebraska
For the Defendant:William A. Harding
C. Kelley Baker III
Nelson & Harding
Suite 500 - 1200 N Street
Before: Judges Kratz, Gradwohl and Berkheimer
The Union's Petition alleges that the County has interfered with rights of employees in the County Highway Department in two respects: (1) anti-union motivated conduct, particularly against the Local Union President, and (2) contracting for the sale of the Ambulance Division to a private concern without having previously negotiated in good faith with the Union on the subject. The County's Answer denies all allegations of improperly motivated conduct on its part and alleges that it notified the Union of the County's decision to contract ambulance service and offered to meet with the Union to bargain about the economic impact of that decision on bargaining unit personnel.
ISSUES OF ALLEGED ANTI-UNION MOTIVATED CONDUCT
Paragraph 4 of the Petition alleges:
"Since the certification, the Defendants contrary to fair practices have made modifications in its personnel rules and regulations and the enforcement thereof to the detriment of the members of AFSCME. In particular the Street Superintendent, Roger S. Parks, duly appointed by the elected legislative body of Adams County, has issued reprimands and corrective actions against one Herbert Jays, President of AFSCME. Said Superintendent has further threatened union members with layoffs and termination due to work and budget restrictions while at the same time adding additional employees to the workforce."
The Nebraska Constitution and Commission of Industrial Relations Statutes establish rights of Nebraska public employees to affiliate with and participate in labor organizations. It is a settled principle, however, that "uniquely personal" matters, apart from matters pertaining to affiliation with or participation in a labor organization, do not constitute an industrial dispute under the Commission of Industrial Relations Statutes and are not within the subject matter jurisdiction of the Commission. Nebraska Department of Roads Employees Association v. Department of Roads , 189 Neb. 754, 205 N.W.2d 110 (1973); IBEW v. City of Fairbury , 6 CIR 205 (1982).
The Department of Roads opinion, speaking to the termination of employment by the Department of Roads of Richard Kiernan, a key Union official, stated (189 Neb. at 761-763, 205 N.W. 2d at 114-115):
"We again briefly review the pertinent evidence with relation to whether the determination of the Court of Industrial Relations is supported by the evidence. The evidence does disclose something more than the simple discharge of an employee by his superior. Of course, it is true, that there is no allegation that Kiernan's performance prior to the time he became involved in union activities was anything less than superior. But, as the court below noted in its findings and order, and as the evidence we have reviewed clearly demonstrates, there developed a substantial and apparently irreconcilable personality conflict between Doyle and Kiernan. The court below said: 'We do not analyze this evidence in detail nor reach a conclusion as to 'fault,' because interpreted most favorably to Mr. Kiernan it could only support the further inference that Mr. Doyle's letter purporting to remove Mr. Kiernan from his employment was motivated by anti-Kiernan animus rather than by anti-labor organization animus. It is clear that Mr. Kiernan gave no indication that he was acting or speaking for the Association when he did any of the things Mr. Doyle found offensive.'(Emphasis supplied).
"We agree. We hold, as did the court below, that the discharge of Richard Kiernan from his employment from the State of Nebraska, Department of Roads, constituted a uniquely personal termination of employment and not an industrial dispute. The plaintiffs simply fail adequately to show reasons for the discharge other than the direct insubordination and a clear personality conflict between Doyle and Kiernan. Accordingly,the Court of Industrial Relations was correct in finding that it lacked jurisdiction over the subject matter of this action under section 48-810, R. S. Supp., 1972.
"The same argument disposes of the plaintiff's contention that Doyle's action in dismissing Kiernan violated rights guaranteed to Kiernan under Article XV, section 13, of the Constitution of the State of Nebraska, and section 48-837, R. S. Supp., 1972. The former provides: 'No person shall be denied employment because of membership in or affiliation with, or resignation or expulsion from a labor organization * * *.' The latter provides: 'Public employees shall have the right to form, join and participate in * * * any employee organization of their own choosing.' The finding by the Court of Industrial Relations that no antiunion animus was shown to have prompted Kiernan's dismissal dictated a finding that Kiernan had not been denied rights under either of these provisions. The two findings rest on the same factual base, and were necessary to determine the jurisdictional issue.
The Petition in this case was filed on October 22, 1982, three days after the County finally determined to shut down its own Ambulance Department and contract for ambulance service with a private concern. The issues of alleged anti-union motivated conduct toward Jeys took place primarily in April, May and June, 1982.
We note pursuant to Section 27-201 that the Commission filed a Report of Election on March 22, 1982, showing that Plaintiff had won a representation election, and a Certification Order on March 29, 1982, certifying Plaintiff as the exclusive bargaining representative, in Case No. 438, Rep. Case No. 145.
Plaintiff contends that the County did several things to Jeys with an improper anti-union motivation: issued a half-day suspension for failure to grease his vehicle on April 12, 1982; declined to process a workmen's compensation claim in early May 1982; issued a letter of reprimand following an incident in which a tar pot caught fire on June 1, 1982; and failed to allow Jays compensatory time rather than overtime pay for overtime work in November 1982, which the Plaintiff claims treated Jays differently than other bargaining unit employees. In addition to allegations concerning the sale of the Ambulance Division, the Plaintiff further contends that the publication of a Policy Manual on April 7, 1982, was done with an improper anti-union motivation and that the County Highway Superintendent made a threatening and coercive speech to bargaining unit employees following adoption of the County Budget while negotiations as to wages and conditions of employees were pending.
The Petition also alleges that there was a controversy concerning a proposed change in the length of shifts in the Ambulance Division, but the evidence shows that the proposal was not implemented and did not take place. Plaintiff conceded at the trial that its allegation concerning a violation of preestablished negotiation rules is not supported by the evidence.
The Plaintiff suggests that the incidents in April, May and June, 1982, following so closely upon the Plaintiffs becoming the certified exclusive bargaining agent for County Highway Department employees, indicates that the County was acting in retaliation against the Union. As in the Department of Roads case, the evidence simply does not substantiate any such inference and does not establish any "antiunion animus.".
The Plaintiff did not contest the issuance of the Policy Manual except as it has been applied to the Union President, Herbert Jays. The evidence shows that the Policy Manual merely codified past practices other than three changes to which the Plaintiff has not objected either during the collective bargaining or at the trial of this matter. The evidence at the trial showed that Jays was not treated differently than other employees in not being allowed to take compensatory time rather than overtime pay for overtime work, but that Jays had failed to secure permission from the Superintendent of Roads to do so in the incident in question. The evidence does not show that Jays was treated differently than other employees in this or in any other respect.
Jeys admitted that he did not grease his vehicle in accordance with proper procedures on April 12, 1982. Jays and another employee who did the same thing on the same day were each given a one-half day suspension. Jays had received a severe oral reprimand for substantial damage to a snow grader several months before.
The County Superintendent of Roads did not decline to process
Jeys' workmen's compensation claim. In reply to Jeys' inquiry, he merely told Jeys that Jeys was entitled to file the claim but that he had reliable information that Jeys had injured his back working in his personal garden rather than at work and that he would also be obligated to submit that information. The evidence is undisputed that the Superintendent did possess such information and that Jeys made no further effort to submit a workmen's compensation claim.
The evidence also shows that a tar pot with which Jeys and another employee were working caught fire on June 1, 1982, because a burner was left on when moving the tar pot and it was driven by the other employee over a hole in the pavement. Both employees were given a letter of reprimand for carelessness in connection with the incident.
"Uniquely personal" issues between a governmental employer and employee do not constitute an industrial dispute under the Commission of Industrial Relations Statutes. The evidence does not establish that the County's actions towards Jeys were other than for Jeys' work performance. No "anti-union animus" is shown to have prompted the County's actions toward Jeys. Accordingly, the evidence does not establish the existence of an industrial dispute within the subject matter jurisdiction of the Commission insofar as the allegations of antiunion Motivated conduct by the County toward Jeys are concerned.
In allegation that the Superintendent had threatened Union members stems from statements made by the Superintendent at a meeting with employees following adoption of the County Budget for fiscal year 1983. Those statements appear to have accurately reported on the County's "no increase" budget, including the possibility of layoffs, explained that bargaining unit employees were receiving a two and one-half percent increase at the start of the fiscal year in the same manner as other county employees, and that the County Board was maintaining a contingency fund for a number of reasons including further Union negotiations. The evidence does not support the claim that these statements intended to be coercive or threatening or that they were, in fact, threatening or coercive. The evidence also does not substantiate the allegation that the County has added employees to the bargaining unit workforce; the two new hires were necessary replacements in outlying areas for others who had left.
CONTRACTING FOR AMBULANCE SERVICE
The County's authority as to ambulance service is contained in Section 23-378, Supp. 1982, which provides:
"The county boards of counties, and the governing bodies of cities and villages, may provide ambulance service as a government service either within or without the county or municipalities, as the case may be. The county board or governing body may contract with any city, person, firm, or corporation to provide such service. Each may enter into an agreement with the other under the Interlocal Cooperation Act for the purpose of providing necessary ambulance service, or may provide separate service for itself. Public funds may be expended therefor, and a reasonable service fee may be charged to the user. Before any such ambulance service is established under the authority of this section, the county board or the governing bodies of cities and villages shall hold a public hearing after giving at least ten days' notice thereof, which notice shall include a brief summary of the general plan for providing such ambulance service, including an estimate of the initial cost and the possible continuing cost of operating such service. If the board or governing body after such hearing determines that ambulance service is needed, it may proceed as authorized in this section. The authority granted in this section shall be cumulative and supplementary to any existing powers heretofore granted. Any county board of counties and the governing bodies of cities and villages may pay their cost for such service out of available general funds, or may levy a tax for the purpose of providing necessary ambulance service, which levy shall be in addition to all other taxes and shall be in addition to restrictions on the levy of taxes provided by statute; Provided, that when afire district provides ambulance service the county shall pay the cost for the county ambulance service by levying a tax on that property not in a fire district providing ambulance service."
The County Board considered contracting for ambulance service in July and August of 1980, but cancelled a public hearing set for August 12, 1980, and determined to continue to operate its own Ambulance Division. The evidence indicates that there were informal discussions of the subject during the winter of 1981-1982 among Board Members and also among some of the bargaining unit and Ambulance Division members.
Collective bargaining negotiations between the recently certified AFSCME bargaining agent and County for a 1982-1983 contract began in the late spring or early summer of 1982. At that time, there were no plans or discussions underway concerning the County's contracting for ambulance service. The negotiations proceeded on the assumption that the Ambulance Division would continue to operate and the County Budget for fiscal year 1983 was also prepared on that assumption.
About two months after collective bargaining negotiations had begun, the County was again approached by representatives of a private ambulance company. Neither the County nor AFSCME raised issues concerning ending the County's Ambulance Division and contracting for ambulance service at the bargaining table.
On October 19,1982, the County Board finally determined to end the Ambulance Division and contract for ambulance service with Eastern Ambulance for a five year period beginning November 1, 1982. The public statement issued by the County Board is contained in Appendix A hereto.
On October 19, 1982, the County Attorney, at the direction of the County Board, advised AFSCME by letter as follows:
"At a meeting of the Adams County Board of Supervisors held on October 19, 1982, they entered into an Agreement to subcontract the Ambulance service to Eastern Ambulance Company.
"This action by the Board of Supervisors will have an effect upon your members, so on behalf of the County, I want to assure you that the County is willing to meet with you and bargain the fiscal impact upon the employees of the Adams County Ambulance Service.
The testimony of County Board members at the trial was that the County remained willing to engage in bargaining in good faith with AFSCME concerning the impact of its decision as to ambulance service upon bargaining unit members. These officials also testified that the County would continue to be willing to bargain in good faith on this subject.
The Supreme Court's decision in Metropolitan Technical Community College Education Association v. Metropolitan Technical Community College Area , 203 Neb. 832, 281 N.W.2d 201 (1979), makes clear two basic rules which are applicable to the present situation: Those matters involving foundational value judgments, which strike at the very heart of the philosophy of a particular institution, are management prerogatives and are not mandatory subjects for negotiation even though such decisions may have an impact on working conditions. The impact on working conditions of whatever decisions management may make within its management prerogatives is a subject of mandatory bargaining under the Commission of Industrial Relations statutes. See AFSCME v. State of Nebraska Department of Public Institutions , 5 CIR 52 (1980) (and order denying temporary relief therein September 5, 1980, with respect to the Department's proposed determination to close portions of the Norfolk Regional Center).
The Metropolitan Technical Community College opinion states (203 Neb. at pages 837-838 and 842-843):
"The parties agree, and their position is supported by both case law and statutes, that matters which are predominately matters of educational policy and management prerogative are not subject to mandatory negotiation, whereas conditions of employment are. School Dist. of Seward Education Assn. v. School Dist. of Seward , 188 Neb. 772, 199 N.W.2d 752 (1972); §48-816, R.R.S. 1943. It is also obvious the number of 'Contact hours' or 'duty hours' which must be spent out of the 40-hour work week has some effect on whether it is an easy job or a difficult job and these hours are therefore, to that extent, 'conditions of employment.' By the same token, if the number of 'Contact hours' requires a change in the philosophy of education, the number of teachers needed, the scope of the program offered, the number of students, or the amount of financial aid, as was demonstrated by the record, it affects educational policy and management prerogatives.
"The College recognized this dichotomy, or perhaps more accurately this overlapping, in its formal response to the Association's demand for negotiation: In that document the College said: 'The allocation of the time and energies of its faculty are consequences of the College's basic educational policy. This is an area of management prerogative and policy-making powers, reserved to the Board of Governors of the College. Accordingly, we decline to bargain concerning the number of hours within the work week that are to be allocated to classroom time, laboratory time or other time in contact with students. However, this is not to say that we decline to bargain at the appropriate time, concerning the affects [sic] of the Board's allocation of faculty's time on the wages of bargaining unit employees. " (Emphasis supplied).
"A matter which is of fundamental, basic, or essential concern to an employee's financial and personal concern may be considered as involving working conditions and is mandatorily bargainable even though there may be some minor influence on educational policy or management prerogative. However, those matters which involve foundational value judgments, which strike at the very heart of the educational philosophy of the particular institution, are management prerogatives and are not a proper subject for negotiation even though such decisions may have some impact on working conditions. However, the impact of whatever decision management may make in this or any other case on the economic welfare of employees is a proper subject of mandatory bargaining.
In the present case, the County Board's authority to act under Section 23-378 with respect to providing ambulance service should be classified as a management prerogative insofar as the public employment bargaining law is concerned. The County Board has been and is willing to bargain in good faith concerning the impact of that decision on wages, hours and working conditions of bargaining unit employees. Accordingly, no bargaining order or other relief by the Commission of Industrial Relations is warranted.
It is, therefore, Ordered that the Petition of the Plaintiff be and hereby is dismissed.
All judges assigned to the panel in this matter join in the entry of this Opinion and Order.
Entered December 21, 1982
Statement Issued on Behalf of Adams County Board of Supervisors, October 19, 1982:
For some time now, there has been a great deal of discussion as to whether or not it is any longer feasible for Adams County to continue to own and operate the Adams County Ambulance Service. The following information relates some of the areas in which problems are being encountered and will be encountered if this service is retained by Adams County.
In May of 1982, the Employees of Adams County voted to seek representation from the American Federation of State, County, and Municipal Employees Union. The Adams County Board of Supervisors has been meeting regularly with the Union and the Employees representatives. The Board has been negotiating in good faith and has made concessions in several categories during these negotiations. The Union and Employees representatives have done likewise. However, at this time, the two sides are still a long way from agreement on several of the key points. At the meeting with Union and Employee representatives on Tuesday, October 5, 1982, the latest demand of the Employees and the Union was that The Board give a Ten Percent (10%) across the table increase in salary. In addition the personnel in the Adams County Ambulance Department are demanding a One Dollar and Sixty Five Cents per hour ($1.65/hr.) compensation for time designated as being "on call". Based on the work schedule they are proposing, this would result in a cost to the Adams County Taxpayers of Four Thousand One Hundred and Eighteen Dollars and Forty Cents ($4118.40) per employee per year above their base salary. Not including the Ambulance Director or the Bookkeeper, this translates into a yearly fiscal impact of an additional Twenty Eight Thousand Eight Hundred Twenty Eight Dollars and Eighty Cents ($28,828.80). This figure does not reflect any overtime pay the employee would be paid in the event he or she is actually called back in for additional duty. In this case, the cost would then be an additional Four Dollars and Seven Cents ($4.07) per hour more than the "on call compensation" for those hours actually worked after being called back.
Prior to the beginning of negotiations with the Union, the base salaries of the Ambulance Department Personnel constituted a total yearly figure of One Hundred and One Thousand, Six Hundred and Sixteen Dollars ($101,616). The ten percent (10%) increase they are asking for would amount to an additional figure of Ten Thousand, One Hundred Sixty One Dollars and Sixty Cents ($10,161.60) per year for Ambulance Personnel.
At the present time, each employee involved in Emergency Medical Treatment receives Four Hundred and Twenty Dollars ($420.00) per year Uniform Maintenance Allowance. For eight employees the annual cost is Three Thousand Three Hundred and Sixty Dollars ($3360.00). The uniforms are also furnished to each employee at no charge by the Taxpayers of Adams County.
In August of 1982, the Director of the Ambulance Department presented a Budget for Fiscal Year 1982-1983 to the Adams County Board of Supervisors. In this Budget, the total expenditures for Fiscal Year 1981-1982 were shown to be One Hundred Fifty Six Thousand, Three Hundred Ninety Nine Dollars and Fifty Two Cents.
($156,399.52) The County Board was informed that During Fiscal 1981-1982, collections for the Department amounted to Seventy Four Thousand, Nine Hundred Twenty Five Dollars and Seventy Six Cents ($74,925.76). According to the Ambulance Department Director, these collections constituted revenue to cover 47.9 per cent of the expenditures.
In September of 1982, the Annual Audit of the Adams County Ambulance Department performed by the State Auditor's Office, indicated that only approximately Sixty percent (60%) or Forty Five Thousand Dollars ($45,000) of the Seventy Four Thousand Nine Hundred and Twenty Five Dollars and Seventy Six Cents ($74,925.76) can be attributed to billings during Fiscal Year 1981-1982. The remainder of the revenue collected was from delinquent accounts from previous Fiscal Years. In addition to the expenditures that were shown on the Ambulance Department Budget for Fiscal Year 1981-1982, the following items represent the approximate additional costs directly attributed to the operation of the Adams County Ambulance Department for Fiscal 1981-1982.
Workmen's Compensation $4772.00
Communication Equipment Repair 1000.00
Photo-copy Supplies 100.00
Postage (based on approximate billings) 200.00
Rent and Utilities (est. $250/mo.) 3000.00
Telephone Services 1200.00
Equipment Depreciation (Estimate) 6000.00
Total Figure $16,272.00
In addition there are liability insurance premium costs that are included in our blanket insurance policy, but are directly related to and should be charged to the Ambulance Service.
Based on the above, the total cost of providing the Ambulance Service for Fiscal Year 1981-1982 was One Hundred Fifty Six Thousand, Three Hundred Ninety Nine dollars and Fifty Two Cents ($156,399.52) plus Sixteen Thousand Two Hundred and Seventy Two Dollars ($16,272.00) for a total of One Hundred Seventy Two Thousand, Six Hundred and Seventy One Dollars and Fifty Two Cents, ($172,671.52) not including liability insurance.
Using this figure, the user fees collected for that period of time in the amount of approximately Forty Five Thousand Dollars ($45,000.00) constitute only Twenty Six percent (26%) of the total costs, not the 47.9 percent (%) as indicated by the Ambulance Director. This means that the approximate total cost to the taxpayers of Adams County was One Hundred Twenty Seven Thousand Six Hundred and Seventy Dollars ($127,670) instead of Eighty One Thousand Four Hundred Seventy Three Dollars and Seventy Six Cents ($81,473.76). This is a difference of approximately Forty Six Thousand Two Hundred Dollars ($46,200.00).
In December of 1981, a proposal showing the cost to upgrade the Ambulance Service to Paramedic Status was presented to the Adams County Board of Supervisors. This proposed Budget would have amounted to One Hundred Ninety Four Thousand Seven Hundred and Thirty Five Dollars ($194,735.00), or Twenty Nine Thousand Three Hundred and Seventy Dollars ($29,370.00) more than the budget that was approved, but did not include paramedic status. Some of the projected salary increases in that proposal ranged from 16% increase to as much as a 56% increase.
In view of all of the foregoing, possible projected costs for the operation of the Adams County Ambulance Service could easily increase from the approved 1982-1983 Budget figure of One Hundred Sixty Five Thousand Three Hundred and Sixty Five Dollars ($165,365.00) to Two Hundred Four Thousand, Three Hundred Fifty Five Dollars and Forty Cents ($204,355.40) by adding only the American Federation of State County and Municipal Employees' Union proposal for salary increases and "On Call Compensation". This does not include any additional costs that may be incurred as a result of any additional Medical, Dental or Optical Insurance Program costs, or the additional costs incurred by the implementation of a paramedic program.
Should these programs become reality, it is obvious that the cost to the Taxpayer in Adams County, to maintain a publicly owned and operated Ambulance Service will continue to spiral upward.
After receipt of proposals for the purchase and operation of the Adams County Ambulance Service by two private entities, and reviewing the conditions set forth in their proposals, and in light of the present problems encountered in the operation and financing of a County owned and operated Ambulance Service, we believe that a Contract should be awarded to Eastern Nebraska Ambulance Service of Lincoln, Nebraska for the purchase of the equipment of the Adams
County Ambulance Service, and to provide Basic Life Support Ambulance Service sufficient to meet the needs of the populace of Adams County.
Some of the proposed services are to include:
Emergency and Non-Emergency Ambulance Services
Long Distance and Standby Service. (Long distance Service is presently available only in an emergency situation)
The possibility of Advanced Life Support (paramedics) in the next six to twelve months at no additional subsidy cost to Adams County.
Implementation of a "Med-Van" Service (A one-man operated service to provide transportation to and from Doctor and Hospital Out Patient Appointments)
The Board of Supervisors has been assured by Eastern Nebraska Ambulance Service that the residents of Adams County will continue to receive the same Quality and Quantity of service that they presently enjoy. In addition, Eastern has indicated that they will offer employment to the present ambulance attendants.
Eastern has offered to purchase the present equipment for the sum of Forty Seven Thousand Seven Hundred and Seventy Two Dollars ($47,772.00).
Adams County would, under this provision, subsidize Eastern Nebraska Ambulance Service in the amount of Ninety Seven Thousand Seven Hundred and Seventy Two Dollars, ($97,772.00), for the first twelve months' service. The subsidy for each subsequent year of operation for the next four years would decrease each year.
This means that the subsidy to Eastern Nebraska Ambulance Service for the first twelve months of service would be approximately Thirty Eight Thousand Dollars ($38,000) less than the total operational costs for the service if the service were to remain under the ownership and operation of Adams County, providing there are no additional increases in operational costs as a result of Union negotiations, and if there are no additional costs incurred by the implementation of a paramedic program. These two items alone could cost an additional Fifty (50) to Sixty (60) Thousand Dollars per year.
We have attempted to approach this situation in a businesslike manner. Emotional issues often cause differences of opinions, but solutions must be arrived at through sensible, intelligent, and in this case fiscally responsible decisions. The state of today's economy mandates that we as elected officials, endeavor to save tax dollars wherever possible, yet still provide the same high quality of service whenever possible to our taxpayers. We feel that the sale of the Ambulance Equipment, and the Contract with Eastern Nebraska Ambulance Service to provide ambulance service to the residents of Adams County achieves these goals.