Fraternal Order of Police Lodge 31 v. City of York

• Decision Date: 28 May 2021
• Docket Number: No. S-20-588.,S-20-588.
• Citation: 960 N.W.2d 315,309 Neb. 359
• Parties: FRATERNAL ORDER OF POLICE LODGE 31, petitioner, v. CITY OF YORK, Nebraska, respondent.
• Court: Nebraska Supreme Court

309 Neb. 359

960 N.W.2d 315

FRATERNAL ORDER OF POLICE LODGE 31, petitioner,

v.CITY OF YORK, Nebraska, respondent.

No. S-20-588.

Supreme Court of Nebraska.

Filed May 28, 2021

Thomas P. McCarty and Gary L. Young, of Keating, O'Gara, Nedved & Peter, P.C., L.L.O., Lincoln, for appellant.

Kari A. F. Scheer and Jerry L. Pigsley, of Woods Aitken, L.L.P., Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

A bargaining agent brought suit before Nebraska's Commission of Industrial Relations (CIR) against a public employer for prohibited labor practices. The bargaining agent asserted that in relation to a residency requirement for a promotion, the public employer engaged in prohibited labor practices by dealing directly with an employee represented by the bargaining agent, making a unilateral change to the collective bargaining agreement, and refusing to negotiate in good faith over mandatory subjects of bargaining. We affirm.

BACKGROUND

Fraternal Order of Police Lodge 31 (FOP) is a labor organization as that term is defined in Neb. Rev. Stat. § 48-801(7) (Cum. Supp. 2020) and is the exclusive collective bargaining agent for a bargaining unit consisting of police officers, sergeants, and lieutenants of the York Police Department (Department). FOP brought this action against the City of York, Nebraska, as the political subdivision that employs FOP's bargaining unit.

COLLECTIVE BARGAINING AGREEMENTS AND RELEVANT PROVISIONS

The parties entered into a collective bargaining agreement effective September 22, 2014, through September 30, 2018 (the 2014 agreement). This agreement was to be in effect until a new agreement was reached. Following negotiations in 2018, a new collective bargaining agreement was signed on January 9, 2019, to be effective retroactively starting October 1, 2018, and continuing through September 30, 2020 (the 2019 agreement). During the negotiations leading to the 2019 agreement, neither party demanded the inclusion of any provision related to the issue of a residency requirement applying to FOP members.

Article III of both the 2014 and 2019 agreements contained a management rights provision stating:

Section 3.1 All management rights, functions, responsibilities, and authority not specifically limited by the express terms of this agreement are retained by the City and remain exclusively within the rights of the City.

Section 3.2 [FOP] acknowledges the concept of inherent management rights. These rights, powers, and authority of the City include, but are not limited to the following:

....

e. The right to hire, examine, classify, promote, train, transfer, assign, and retain employees ....

....

g. The right to determine, establish, and implement policies for the selection, training, and promotion of employees.

....

j. The right to adopt, modify, change, enforce, or discontinue any existing rules, regulations, procedures, and policies which are not in direct conflict with any provisions of this Agreement.

Article XI of both agreements also contains the same promotion provision: "Section 11.1 If any position that is represented by [FOP] or will be represented by [FOP] in the future, except Police Officer should become vacant, competitive testing for the position shall be conducted within the Department so long as a qualified candidate shall present himself/herself."

Article XXXII of both agreements also provides that each collective bargaining agreement constitutes the entire agreement and understanding concerning "all proper subjects of collective bargaining for the duration of the contract" and that any "negotiations preceding the signing of this Agreement included negotiations on all proper subjects of bargaining."

Neither agreement contained any provision specifically requiring residency within York County. It is undisputed between the parties that a residency requirement for employment or promotion is a mandatory subject of bargaining.

YORK PERSONNEL RULES AND REGULATIONS AND DEPARTMENT EMPLOYMENT PROCEDURE POLICIES

While the collective bargaining agreements between FOP and York do not contain a residency requirement, the Department employment procedure policies do. The Department policies were effective June 1, 1995, and revised on October 1, 2010. The minimum qualifications provision, 2.8.1, provides: "E. Residency: It is the policy of the police department that employees live in the county of York. However, at the discretion of the City Administrator, this policy may be waived. This policy shall not preclude recruitment or hiring from outside York County." Establishing residency within York County is also a condition of employment under provision 2.8.3.

York's personnel rules and regulations were effective June 20, 2013, and provide that "[u]pon adoption [by the York City Council], the rules shall supersede any and all personnel rules, policies, regulations, or procedures previously adopted by the Council." The personnel rules and regulations do not contain any residency requirements.

OFFICER DOUG HEADLEE'S PROMOTION AND FOP'S DEMANDS TO BARGAIN

Requiring residency within York County for promotions was discussed during a sergeant staff meeting on October 3, 2018, between the York chief of police, Edward Tjaden, and the four current sergeants within the Department. FOP president, Sgt. Kim Christensen, testified that Tjaden stated the sergeants should have to live in York County and wondered what the other sergeants thought. Christensen commented that he did not know whether or not they could do that without negotiating it as a residency requirement within their collective bargaining agreement.

On November 13, 2018, Tjaden posted a notice to the incumbent police officers that the Department was establishing an eligibility list for a vacant sergeant position. This notice indicated, among other things, that the chosen candidate would be required to sign a contract in which the candidate agreed to live within York County within 6 months of the promotion.

After the notice was posted, FOP sent a letter to the city clerk, city administrator, mayor of York, and Tjaden demanding to bargain regarding the residency requirement for promotions to sergeant. This letter claimed that the residency requirement was a condition of employment and a mandatory subject of bargaining and, further, that it could be classified as "side dealing."

Officer Doug Headlee was one of four police officers who submitted applications for the sergeant vacancy. Headlee, who is a FOP member, had been a York police officer since 2007. Headlee applied, tested, and interviewed for the promotion to sergeant between November 13, 2018, and January 8, 2019. He submitted a resume and cover letter as required for the application portion; took a written standardized police supervisor promotional test on December 19, 2018; and then was interviewed by a promotion panel on January 8, 2019. On January 9, Headlee was notified during a personal meeting with Tjaden that he was chosen to receive the promotion. At this meeting, Tjaden presented Headlee with a copy of a residency agreement, and Headlee testified that Tjaden told him that he would have to comply with the terms of the agreement to receive the promotion. Headlee testified that he signed the residency agreement and accepted the promotion the next day on January 10. The residency agreement required Headlee to establish his domicile within York County within 6 months after promotion and allowed him to request a waiver from the city administrator due to personal hardship, but it stated that failure to comply could result in discipline up to and including termination. Headlee started working as a sergeant on January 21.

Negotiations were continuing between FOP and York while Headlee was taking part in the process for his promotion application. The eighth and ninth negotiation sessions occurred in December 2018, after FOP had sent the first demand-to-bargain letter and before Headlee was officially awarded the promotion to sergeant. FOP's proposals submitted for these meetings did not present any proposal restricting management rights in the collective bargaining agreement drafts; nor was there any proposal restricting York from following its residency policy regarding police department employees or regarding promotion criteria that did not include a residency requirement that would have dealt with the establishment of residency as a requirement for promotion to sergeant. The parties also did not discuss or negotiate residency at these negotiation sessions. Christensen testified that there were discussions about the demand-to-bargain letter, but that no specifics were really discussed. FOP took the lead in putting together the proposals that became the 2019 agreement.

After the 2019 agreement was signed and Headlee had been promoted to sergeant and had signed a residency agreement agreeing to move to York County within 6 months, FOP sent a second demand to York to bargain regarding a residency requirement for promotions to sergeant. This letter acknowledged that York had not responded to the previous request to bargain and that the 2019 agreement did not contain any provision covering residency requirements for incumbent employees. FOP requested that York immediately halt and rescind any actions York had taken to implement a residency requirement and any attempts to "side deal and/or directly deal" with FOP members regarding employment agreements.

Eventually a negotiation meeting was set up on March 19, 2019, to discuss FOP's demand to bargain over the residency and promotion issue. The meeting ended when the council members told the FOP representatives, "I guess we'll see you in court because we're not interested. He's a new employee." The York city administrator, Joseph Frei, then sent a letter to Christensen dated March 29, 2019, formally denying FOP's request to bargain. Frei explained that the residency policy was adopted by the...