Public Assn. of Govt. Empl. v. City of Lincoln ( 2017 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    05/16/2017 06:14 PM CDT
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    PUBLIC ASSN. OF GOVT. EMPL. v. CITY OF LINCOLN
    Cite as 
    24 Neb. Ct. App. 703
    Public Association of Government Employees, appellee,
    v. City of Lincoln, Nebraska, appellant.
    ___ N.W.2d ___
    Filed May 16, 2017.     No. A-16-007.
    1.	 Commission of Industrial Relations: Appeal and Error. In review-
    ing an appeal from the Commission of Industrial Relations in a case
    involving wages and conditions of employment, an order or decision
    of the commission may be modified, reversed, or set aside by an appel-
    late court on one or more of the following grounds and no other: (1) if
    the commission acts without or in excess of its powers, (2) if the order
    was procured by fraud or is contrary to law, (3) if the facts found by
    the commission do not support the order, and (4) if the order is not
    supported by a preponderance of the competent evidence on the record
    considered as a whole.
    2.	 Labor and Labor Relations. It is a prohibited practice for any
    employer, employee, employee organization, or collective-bargaining
    agent to refuse to negotiate in good faith with respect to mandatory
    ­topics of bargaining.
    3.	 ____. Mandatory subjects of bargaining include the scale of wages,
    hours of labor, or conditions of employment.
    4.	 ____. Management prerogatives, such as the right to hire, to maintain
    order and efficiency, to schedule work, and to control transfers and
    assignments, are not mandatory subjects of bargaining.
    5.	 ____. A matter which is of fundamental, basic, or essential concern to an
    employee’s financial and personal concern may be considered as involv-
    ing working conditions and is mandatorily bargainable even though
    there may be some minor influence on educational policy or manage-
    ment prerogative.
    6.	 ____. Ordinarily, mandatory subjects of bargaining must be negotiated
    between the parties, and as such, an employer may not alter a term
    or condition of employment unless it has bargained with regard to
    the issue.
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    PUBLIC ASSN. OF GOVT. EMPL. v. CITY OF LINCOLN
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    24 Neb. Ct. App. 703
    7.	 ____. No bargaining is required before altering a mandatory subject
    of bargaining if the issue is covered by the collective bargaining
    agreement.
    8.	 ____. When parties bargain about a subject and memorialize the results
    of their negotiation in a collective bargaining agreement, they create a
    set of enforceable rules—a new code of conduct for themselves—on
    that subject.
    9.	 Contracts. Because of the fundamental policy of freedom of contract,
    parties are generally free to agree to whatever specific rules they like,
    and in most circumstances it is beyond the competence of the courts to
    interfere with the parties’ choice.
    10.	 Labor and Labor Relations: Contracts. Where the contract fully
    defines the parties’ rights as to what would otherwise be a mandatory
    subject of bargaining, the contract will control, and under the contract
    coverage rule, if the issue was covered by the collective bargain-
    ing agreement, then the parties have no further obligation to bargain
    the issue.
    Appeal from the Commission of Industrial Relations.
    Affirmed.
    John C. Hewitt, of Cline, Williams, Wright, Johnson &
    Oldfather, L.L.P., for appellant.
    Gary L. Young and Thomas P. McCarty, of Keating, O’Gara,
    Nedved & Peter, P.C., L.L.O., for appellee.
    Moore, Chief Judge, and Inbody and R iedmann, Judges.
    R iedmann, Judge.
    INTRODUCTION
    The City of Lincoln, Nebraska (the City), appeals from a
    decision of Nebraska’s Commission of Industrial Relations
    (CIR), which determined that when the City unilaterally
    changed employee shifts and standby staffing without bargain-
    ing with the Public Association of Government Employees
    (PAGE), it violated Nebraska’s Industrial Relations Act (IRA).
    See Neb. Rev. Stat. §§ 48-801 through 48-842 (Reissue 2010
    & Cum. Supp. 2016). Finding no error in the CIR’s decision,
    we affirm.
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    PUBLIC ASSN. OF GOVT. EMPL. v. CITY OF LINCOLN
    Cite as 
    24 Neb. Ct. App. 703
    BACKGROUND
    PAGE is a labor union which represents various employees
    of the City, including street maintenance employees. PAGE
    and the City were operating under a collective bargaining
    agreement (CBA) that was effective from August 14, 2014,
    through August 31, 2016. Relevant to the matter at hand, the
    CBA provides:
    ARTICLE 3 - MANAGEMENT RIGHTS
    ....
    Section 2. The Union acknowledges the concept of
    inherent management rights. These rights, powers, and
    authority of the City include, but are not limited to
    the following:
    ....
    C. The right to establish, allocate, schedule, assign,
    modify, change, and discontinue City operations and
    work shifts, so long as changes in days off, shifts, and
    working hours, other than in emergencies, which shall
    include but not be limited to, unplanned absences, are
    made only after the order for such change has been
    posted for seven (7) calendar days; except in instances
    which affect a single work crew or a single employee,
    the City will make a good faith attempt to deliver
    such notice.
    ....
    ARTICLE 18 - HOURS OF WORK
    AND DUTY SHIFTS
    Section 1. Eight (8) consecutive hours, exclusive of
    lunch, shall constitute a day[’]s work and five (5) con-
    secutive calendar days shall constitute a week[’]s work.
    From time to time, ten (10) hour working shifts are
    available, the option, within demand constraints, to work
    these shifts will be made available to employees working
    eight (8) hour shifts. When an employee elects to change
    his work shift to either an eight (8) or ten (10) hour work
    shift, he may not, without management consent, again
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    PUBLIC ASSN. OF GOVT. EMPL. v. CITY OF LINCOLN
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    change his work shift from eight (8) to ten (10) hours or
    from ten (10) to eight (8) hours.
    Section 2. Each employee shall be entitled to two (2)
    or three (3) days off each week which shall be consecu-
    tive, unless in conflict with shift or other assignments.
    ....
    Section 4. All employees who are regularly assigned
    to second and third shifts shall be paid an additional
    fifty-two (52) cents per hour for second shift and seventy
    (70) cents per hour for third shift. . . .
    ....
    ARTICLE 19 - OVERTIME, CALL BACK,
    AND STAND-BY PAY
    ....
    Section 5. ALTERATION OF ORDINARY SHIFT[.]
    Except for those employees that are on paid on-call or
    standby status, an employee may be called into work on
    a shift that is not his or her regular shift on a mandatory
    basis only when there is an emergency.
    In January 2015, after meeting with PAGE representa-
    tives on several occasions, the City unilaterally implemented
    changes to employee work schedules, including imposing
    a mandatory standby staffing plan. Previously, employees
    worked 8-hour shifts with 2 consecutive days off or could
    elect to work 10-hour shifts with 3 consecutive days off.
    They were also able to volunteer for standby status during
    winter months, which permitted them to be called into work
    during inclement weather. Under the new standby plan, street
    maintenance workers were mandatorily placed on standby
    status where they were required to report for duty if called
    upon, and if called to duty, they were required to work on a
    7-day-per-week basis subject to 12-hour shifts or face disci­
    plinary action.
    In July 2015, PAGE filed a prohibited practice petition
    in the CIR alleging that in implementing the new standby
    plan, the City engaged in a prohibited practice in violation
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    PUBLIC ASSN. OF GOVT. EMPL. v. CITY OF LINCOLN
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    of § 48-824(1) and (2)(e) based upon its “unilateral change
    to, and refusal to negotiate in good faith over, a mandatory
    subject of bargaining.” The City filed an answer generally
    denying the allegations and asserting that the CIR lacked
    jurisdiction over the matter, the changes implemented by the
    standby plan were not mandatory subjects of bargaining, and
    the changes were covered by the terms of the CBA.
    After conducting a trial, the CIR entered an order finding
    that because the facts of the case constituted a viable prohib-
    ited practice claim, it had jurisdiction to adjudicate the matter.
    The CIR concluded that the employee work schedule changes
    the City implemented were mandatory subjects of bargaining,
    because they would “‘vitally affect’ the hours and terms and
    conditions of employment” and the past practice of voluntary
    standby duty had been in place for at least 20 years such that
    employees could reasonably expect the practice to continue.
    As such, the City had a duty to bargain in good faith with
    PAGE regarding implementation of the plan, and because it
    failed to do so, its unilateral implementation of the plan was a
    “per se violation of the [IRA] and a prohibited practice.” The
    City appeals.
    ASSIGNMENTS OF ERROR
    The City assigns, restated and renumbered, that the CIR
    erred in (1) finding the City’s standby plan constituted a man-
    datory subject of bargaining under the IRA and not a manage-
    ment prerogative, (2) failing to find the City’s standby plan
    was covered by the parties’ CBA and therefore not subject
    to a duty to bargain under the IRA, (3) finding the imple-
    mentation of the standby plan constituted a per se violation
    of the IRA and a prohibited practice, and (4) finding it had
    jurisdiction to determine whether the City committed a pro-
    hibited practice.
    STANDARD OF REVIEW
    [1] In reviewing an appeal from the CIR in a case involv-
    ing wages and conditions of employment, an order or decision
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    PUBLIC ASSN. OF GOVT. EMPL. v. CITY OF LINCOLN
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    of the CIR may be modified, reversed, or set aside by an
    appellate court on one or more of the following grounds and
    no other: (1) if the CIR acts without or in excess of its pow-
    ers, (2) if the order was procured by fraud or is contrary to
    law, (3) if the facts found by the CIR do not support the order,
    and (4) if the order is not supported by a preponderance of
    the competent evidence on the record considered as a whole.
    Service Empl. Internat. v. Douglas Cty. Sch. Dist., 
    286 Neb. 755
    , 
    839 N.W.2d 290
    (2013).
    ANALYSIS
    The City argues that the CIR erred in finding that the
    standby plan was a mandatory subject of bargaining rather than
    a management prerogative. We disagree.
    [2-5] It is a prohibited practice for any employer, employee,
    employee organization, or collective-bargaining agent to
    refuse to negotiate in good faith with respect to mandatory
    ­topics of bargaining. Service Empl. 
    Internat., supra
    . See, also,
    § 48-824(1). Mandatory subjects of bargaining include the
    scale of wages, hours of labor, or conditions of employment.
    Service Empl. 
    Internat., supra
    . Management prerogatives, such
    as the right to hire, to maintain order and efficiency, to sched-
    ule work, and to control transfers and assignments, are not
    mandatory subjects of bargaining. 
    Id. A matter
    which is of
    fundamental, basic, or essential concern to an employee’s
    financial and personal concern may be considered as involv-
    ing working conditions and is mandatorily bargainable even
    though there may be some minor influence on educational
    policy or management prerogative. 
    Id. The City
    argues that the changes implemented by the
    ­mandatory standby plan were solely to employee work sched-
    ules and therefore fall within management prerogative. We
    agree that scheduling work is not a mandatory subject of
    bargaining; however, the changes to standby staffing were
    not simply scheduling employees to work. Rather, the man-
    datory plan would force employees to work 12-hour shifts
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    instead of 8- or 10-hour shifts and would require employees to
    forgo their weekends off, working 7 consecutive days rather
    than 4 or 5 days with 2 or 3 consecutive days off. These are
    matters of employee work hours—a mandatory subject of
    bargaining.
    In addition, employees would no longer have a set sched-
    ule, but instead, they would be placed on mandatory standby
    status with little notice. As the CIR concluded, the plan imple-
    mented by the City would vitally affect the hours and terms
    and conditions of employment and was therefore a manda-
    tory subject of bargaining. Indeed, the significant change in
    lifestyle required by the mandatory standby plan constitutes
    a matter of fundamental, basic, or essential concern to an
    employee’s personal concern and therefore may be consid-
    ered as involving working conditions. The CIR’s conclusion
    is not contrary to law, and we therefore find no error in
    its decision classifying the changes as mandatory subjects
    of bargaining.
    [6,7] Ordinarily, mandatory subjects of bargaining must be
    negotiated between the parties, and as such, an employer may
    not alter a term or condition of employment unless it has bar-
    gained with regard to the issue. See Service Empl. Internat.
    v. Douglas Cty. Sch. Dist., 
    286 Neb. 755
    , 
    839 N.W.2d 290
    (2013). However, no bargaining is required before altering a
    mandatory subject of bargaining if the issue is “‘covered by’”
    the CBA. Douglas Cty. Health Ctr. Sec. Union v. Douglas Cty.,
    
    284 Neb. 109
    , 115, 
    817 N.W.2d 250
    , 255 (2012).
    [8-10] Generally, when parties bargain about a subject
    and memorialize the results of their negotiation in a collec-
    tive bargaining agreement, they create a set of enforceable
    rules—a new code of conduct for themselves—on that sub-
    ject. Douglas Cty. Health Ctr. Sec. 
    Union, supra
    . Because of
    the fundamental policy of freedom of contract, the parties are
    generally free to agree to whatever specific rules they like,
    and in most circumstances it is beyond the competence of the
    courts to interfere with the parties’ choice. See 
    id. Therefore, -
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    where the contract fully defines the parties’ rights as to what
    would otherwise be a mandatory subject of bargaining, the
    contract will control, and under the contract coverage rule,
    if the issue was covered by the collective bargaining agree-
    ment, then the parties have no further obligation to bargain
    the issue. See 
    id. In Douglas
    Cty. Health Ctr. Sec. 
    Union, supra
    , the Supreme
    Court concluded that the issue of subcontracting of bargaining
    unit jobs was clearly covered by the applicable CBA, because
    the CBA specifically noted the steps that the county needed to
    follow when the contracting out or subcontracting of bargain-
    ing unit work had the effect of eliminating bargaining unit
    jobs, and the elimination of bargaining unit jobs was at issue
    in the dispute. The steps included notifying the union of the
    impending changes and providing the union with an oppor-
    tunity to discuss with the county the necessity and effect on
    employees. The Supreme Court therefore concluded that the
    issue of subcontracting of bargaining unit jobs was covered
    by the CBA.
    Similarly, in Dept. of Navy, Marine Corps Logistics Base
    v. FLRA, 
    962 F.2d 48
    (D.C. Cir. 1992), cited by the Supreme
    Court in Douglas Cty. Health Ctr. Sec. 
    Union, supra
    , the
    D.C. Circuit Court of Appeals held that the reassignment of
    employees and establishment of new performance standards
    were covered by the CBA. The court relied on the fact that
    the CBA contained provisions covering the implementation
    of both actions, including detailed provisions concerning the
    procedures for temporarily reassigning employees or modify-
    ing performance standards. The CBA defined when employee
    “details” would be implemented, to what kinds of positions
    an employee may be detailed, how long a detail may last,
    and what effect a detail would have on an employee’s salary
    and liability for union 
    dues. 962 F.2d at 51
    . Similarly, the
    CBA established comprehensive procedures that the agency
    must follow when it modified performance criteria—includ-
    ing advance notice to employees, an opportunity for employee
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    participation in the creation of performance standards, and an
    overarching requirement that the standards implemented be
    fair and reasonable. Accordingly, the appellate court held that
    under any reasonable definition of the term “covered by,” the
    impact and implementation matters related to employee details
    and performance criteria were covered by the CBA.
    In the present case, the main change at issue is the modi-
    fication of the procedure for standby staffing, which in turn
    alters employees’ work hours, days, and overtime status. The
    parties’ CBA refers to the hours and shifts employees work,
    contemplating three separate work shifts and 8- or 10-hour
    shifts. Thus, under article 3 of the CBA, the City retained the
    right to change employee work shifts, meaning, for example,
    it could move employees from first shift to second shift, so
    long as 7 days’ notice was provided. The CBA is silent on the
    issue of voluntary standby staffing (except as to the issue of
    pay) and says nothing about the steps the City would need to
    follow to make standby staffing mandatory—thereby impos-
    ing mandatory overtime on employees and altering their work
    hours and days off. Article 19 of the CBA contemplates man-
    datorily calling employees into work on a shift that is not a
    regular shift but applies only in the case of an emergency,
    which does not affect the changes at issue here. We therefore
    cannot find that the changes implemented by the City are
    covered by the CBA. As a result, the parties were required to
    negotiate prior to implementing any changes to the standby
    staffing procedures.
    Because we conclude that the changes the City imple-
    mented were not covered by the CBA, we also reject PAGE’s
    argument that the issues became moot with the expiration of
    the CBA. We additionally find no merit to the City’s argu-
    ment that the CIR lacked jurisdiction over the matter because,
    instead of a prohibited practice claim, the matter was actu-
    ally a breach of contract claim over which the CIR does not
    have jurisdiction. See Lamb v. Fraternal Order of Police
    Lodge No. 36, 
    293 Neb. 138
    , 
    876 N.W.2d 388
    (2016) (CIR
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    has no jurisdiction over breach of contract claims, but for
    claims involving determination of prohibited practice under
    IRA, jurisdiction lies with CIR). Because we determined that
    the claim was, in fact, a prohibited practice, we conclude
    that the CIR did not err in exercising its jurisdiction over
    PAGE’s claim.
    CONCLUSION
    We conclude that the City’s implementation of changes to
    standby staffing, employee work hours, and days off was a
    mandatory subject of bargaining that was not covered by the
    CBA. Therefore, the City had a duty to negotiate the changes
    with PAGE prior to implementation. Because the City failed
    to do so, it committed a prohibited practice under the IRA.
    Accordingly, we affirm the decision of the CIR.
    A ffirmed.
    

Document Info

Docket Number: A-16-007

Filed Date: 5/16/2017

Precedential Status: Precedential

Modified Date: 5/16/2017