7 CIR 179 (1984). Appeal dismissed July 6, 1984.


101, Affiliated with the |
Petitioner, |
a Municipal Corporation, |
Respondent. |


For the Plaintiff: Bruce G. Mason

711 First National Bank Building

Omaha, Nebraska

For the Defendant: Kent Whinnery

1819 Farnam

Omaha, Nebraska

Before: Judges Kratz, Gradwohl and Davis


Omaha Police Union, Local 101 (Union) and the City of Omaha (City) are parties to a collective bargaining agreement which establishes the wages and conditions for Omaha policemen within a bargaining unit that includes captains and lieutenants. 1 This agreement, which expired on December 31, 1983, contains no reference to employee parking stalls and this item was not included in the demands for the new agreement.

Exhibit 1B contains a sketch, which shows the parking stalls available at the central police station, located at 15th & Howard Street. There are 105 stalls in the outside area, and 61 stalls inside the police garage. Heretofore, all stalls except those in the inside parking area have been assigned. The approximate 60 stalls in the inside area are not assigned and have been available to anybody on a first-come, first-served basis. These stalls have been regularly occupied by private vehicles belonging to any of the approximately 200 employees who work at the police station, by guests, and by people who work elsewhere in the immediate area.

Sometime during the early part of 1983, it was decided that this arrangement should be changed and the 60 stalls should be reserved exclusively for police officers. Inasmuch as the detective vehicles were heretofore parked somewhere on the street and difficult to locate, 35 of these parking stalls were assigned to detectives. Thus, the detectives could be told the exact location of their vehicles each morning and, unlike the previous arrangement, they would not have to search for them. There is no dispute between the parties as to the assignment of these 35 stalls to the detective bureau.

9 of the remaining stalls were assigned to captains and the remaining 17 were assigned to lieutenants. Originally, no protest was raised by the Union when the 9 stalls were assigned to captains. When the lieutenants were assigned the remaining 17 stalls, Union President, Nick Gibilisco, consulted with Chief of Police Wadman. Wadman told Gibilisco that he didn't consider this a bargainable issue. The Union filed a grievance, but it was not processed.

The Union contends that the assignment of these parking stalls constitutes a condition of employment and the Chief's decision in this regard should therefore have been discussed with the Union. According to the Union, the assignment of these stalls without the agreement and approval of the Union constituted a unilateral change in conditions of employment in violation of Section 48-816, Neb. Rev. Stats. 1979 Supp.

As mentioned, the Union does not object to the assignment of 35 stalls to the detective bureau and it would have no objection if the 26 stalls remained unassigned. In that event, the parking stalls would again be available on a first-come, first-served basis and the 200 employees of the central police department, and perhaps other employees in surrounding areas, would all compete for the 26 parking stalls. The Union claims Chief Wadman's decision with regard to these 26 parking stalls will cost the other members of the bargaining unit, those below the rank of captain and lieutenant, from $20 to $40 a month (the cost of parking). The facts, however, indicate that most of these policemen would continue to have parking expense because of the limited availability of the 26 stalls.

We must first determine whether the assignment of parking stalls is a term or condition of employment. We conclude that it is.

While the language of the Nebraska Court of Industrial Relations Act does not follow exactly the language of the National Labor Relations Act (29 U.S.C. 158(d)), which requires good faith negotiations regarding "other terms and conditions of employment", the CIR Act does refer specifically to conditions of employment or conditions of work in Sections 48-801(6), 48-801(7), 48-837, and 48-816. In Norfolk Education Association v. School District of Norfolk in the County of Madison Nebraska, 1 CIR No. 40, this court (now commission) said that "our state statutes ... resemble the National Labor Relations Act ... on the issue of negotiable subjects," and

"Since it seems apparent that 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 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."

There is no definition of "conditions of employment" in the National Labor Relations Act, but the courts and National Labor Relations Board have given this language a broad interpretation 2, so as to include such remote subjects as maintenance of trucks 3, lease arrangements between employers and owner-drivers 4, issuance of an employees manual 5, the size and composition of a grievance committee" 6, and employee payment system 7. "Conditions of employment" has also been interpreted to be more inclusive than the term "working conditions" as used in the Railway Labor Act, Inland Field Co. v. NLRB, 170 Fed. 2d 347, and in Order of railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 8 LC 51, 174 the United States Supreme Court stated that the statutory collective bargaining duty includes bargaining "about the exceptional as well as the routine" matters affecting wages, hours, and other conditions of employment.

Although less experienced than the NLRB in this area of interpretation, the CIR has determined that the following subjects are conditions of employment: dues to professional organizations, Noon duty, and dress code 8, grievance procedures 9; Contact time (time actually spent by an instructor with a student) 10; and subcontracting of janitor work ll.

A condition of employment should have an effect and an economic impact on the employee's job assignment. It does not include certain subjects normally considered prerogatives of management, such as business schedules, company policy, plant locations, supervisors. In Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 50 LC 19, 384, the Supreme Court said that "nothing the court holds today should be understood as imposing a duty to bargain collectively regarding such management decisions which lie at the core of entrepreneurial control ...."

Gorman, Labor Law, says conditions of employment "include provisions which deal with the relationship between the employer and the employees, and has also been read to engross most aspects of the employer-union relationship". Also, "rules which regulate how employees are to perform their work ... fall squarely within 'terms and conditions of employment'." (p. 503)

Chief Wadman's unilateral decision to reserve parking stalls to certain members of the bargaining unit (captains and lieutenants) has the effect of preventing other members of the bargaining unit from using these stalls and furthermore gives to certain members of the bargaining unit something that is not given to the others. 12 It likely has some economic impact on the members of the bargaining unit, though this impact is not as great as is suggested by the Union ($20 to $40 per month per policeman) inasmuch as the policemen would be competing with civilian police employees and others for this limited parking space. Nevertheless, though the effect of this parking stall assignment may be slight, it does deal with the relationship between the employer and the employees, it does effect the employees job benefits, and it does not involve a decision which lies at the core of entrepreneurial control. We consider it a condition of employment.

If the assignment of parking stalls is a bargainable condition of employment, did Chief Wadman's act of assigning the stalls to certain members of the bargaining unit violate the City's obligation to bargain in good faith as required by Section 48-816?

The Chief did not consult the Union prior to taking this action. It was a unilateral act. The National Labor Relations Board has traditionally held that an employer's unilateral grant of employee benefits is an unlawful refusal to bargain when not approved by the union. Langlade Veneer Products Corp., 118 NLRB 985.

The matter of what constitutes an unlawful refusal to bargain is the same under the Nebraska statute as it is under the National Labor Relations Act. Therefore, we once again turn to the NLRB and its interpretation of the rule on unlawful unilateral acts. In NLRB v. Bradley Washfountain Co., 192 F. 2d 144, the Board held that the granting of benefits to employees without the agreement of their bargaining representative is an unfair labor practice on the part of the employer if the purpose thereof is to disparage or undermine the prestige of the representative or to forestall collective bargaining. In this regard, the Board has held that although a unilateral change in the time for paying the company's annual vacation bonus was somewhat insignificant, it nevertheless disparaged the union in the eyes of the employees. Rangaire Corp., 157 NLRB 682. In a case somewhat similar to the instant case, Ford Motor Co. v. NLRB, 99 SCT 1842, 60 Led. 2d 420, the Board held an employer cannot promulgate rules concerning use of company cars without giving the union an opportunity to bargain.

Before finally concluding that there is a disparagement or undermining of the bargaining representative, we must consider the possibility that the Chiefs unilateral decision has no "significant or material" impact l3 and is therefore not sufficiently related to the terms and conditions of employment to require bargaining. An employer, of course, should not be required to bargain over a conditional change which has no impact on the employees or the union. The evidence herein shows that (1) there are only a few parking stalls involved, not nearly enough to begin to satisfy the parking needs of all members of the bargaining unit, (2) the stalls may go to civilian police employees or employees of other employers located in the area, rather than to members of the bargaining unit, and (3) some members of the bargaining unit benefit from this change in parking assignments.

In the case of UAW v. NLRB (General Motors Corp.) 381 F. 2d 265, General Motors eliminated 6 unit jobs out of 1,000, but assigned the displaced workers to other positions. The NLRB held there was no significant adverse impact in this unilateral decision and thus no obligation to bargain. The Circuit Court for the District of Columbia reversed on the ground the unit was reduced in size by the 6 eliminated jobs and the union, as the bargaining unit representative, had a practical interest in this reduction in size of the unit.

The U.S. Supreme Court decision cited by the petitioner, NLRB v. Katz, 369 U.S. 736, has a significant application to the instant case because it also involved a unilateral change in conditions which was beneficial to some of the unit employees. In Katz, the company unilaterally changed the company policy with regard to sick leave. While this change was of benefit to some employees in the bargaining unit, and harmful to others, the court said the unilateral change "plainly frustrated the statutory objective of establishing working conditions through bargaining". The fact that some employees benefitted and others did not created a situation where

". . the union negotiators, beset by conflicting factions, might be led to adopt a protective vagueness on the issue of sick leave, which also would inhibit the useful discussion contemplated by Congress in imposing the specific obligation to bargain collectively."

Despite the very slight impact wrought by Chief Wadman's parking assignment orders, we find that this unilateral act "frustrated" the bargaining process and had the effect of disparaging and undermining the bargaining representative. It was, therefore, a refusal to bargain in good faith and a violation of Sec. 48-816 of the Nebraska statutes.

While there is no evidence that the Chief's order has been implemented, an unchallenged statement in the petitioner's brief indicates that it has. Therefore, with regard to the 26 disputed parking stalls, we order the parties to return the parking assignment arrangement to the status that existed prior to April 18, 1983, the date of the Chief's original parking assignment order (Ex. 2A).

Filed March 20, 1984.

1. Only the Chief and Deputy Chiefs are excluded from the bargaining unit as supervisory employees.

2. Inland Steel Co. v. NLRB, 170 F. 2d 247.

3. Pacific Power Co. , 84 NLRB 280.

4. Local 24 v. Teamsters, 358 U.S. 283.

5. Timkin Roller Bearing Co., 70 NLRB 500.

6. Oliver Corp. , 74 NLRB 483.

7. Teamsters Local 782 v. NLRB, 373 F. 2d 661.

8. School District of Seward Education Assn. v. School District of Seward, 1 CIR No. 34, affirmed 188 Neb. 772, 199 N.W. 2d 752 (1972).

9. Central City Education Association v. School District of Central City, 1 CIR No. 35 (1971), 1 CIR Nos. 35/36/38 (1971).

10. Metropolitan Tech Community College Education Association v. Metropolitan Tech Community College Area, 3 CIR 418 (1978), reversed, 203 Neb. 832,281 N.W. 2d 201 (1979).

11. Service Employees International Union Local Union No. 226 v. School District No. 66 of Douglas County, 3 CIR 514 (1978).

12. There is nothing wrong, of course, with favoring some members of the bargaining unit over others, provided the union agrees with this selective arrangement.

13. Westinghouse Electric Corp. v. NLRB, 387 F. 2d 542, where the 4th Circuit Court reversed the NLRB and concluded the employer had no duty to bargain about every minor price change in the plant cafeteria.