Int'l Broth. of Elec. Workers Local 763 v. Omaha Pub. Power Dist.
| Decision Date | 03 December 2010 |
| Docket Number | No. S-10-025.,S-10-025. |
| Citation | 280 Neb. 889,189 L.R.R.M. 2950,791 N.W.2d 310 |
| Parties | INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 763 and International Brotherhood of Electrical Workers Local 1483, appellants, v. OMAHA PUBLIC POWER DISTRICT, appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Commission of Industrial Relations: Appeal and Error. Any order or decision of the Commission of Industrial Relations 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 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. Commission of Industrial Relations: Evidence: Appeal and Error. In an appeal from an order by the Commission of Industrial Relations regarding prohibited practices, an appellate court will affirm a factual finding of the commission if, considering the whole record, a trier of fact could reasonably conclude that the finding is supported by a preponderance of the competent evidence.
3. Pleadings: Appeal and Error. An appellate court is obligated to dispose of cases on the basis of the theory presented by the pleadings.
4. Labor and Labor Relations: Public Officers and Employees. The purpose of Neb.Rev.Stat. § 48-824 (Reissue 2004) is to provide public sector employees with the protection from unfair labor practices that private sector employees enjoy under the National Labor Relations Act, by making refusals to negotiate in good faith regarding mandatory bargaining topics a prohibited practice.
5. Commission of Industrial Relations. An employer may lawfully implement changes in terms and conditions of employment which are mandatory topics of bargaining only when three conditions have been met: (1) The parties have bargained to impasse, (2) the terms and conditions implemented were contained in a final offer, and (3) the implementation occurred before a petition regarding the year in dispute is filed with the Commission of Industrial Relations.
Robert E. O'Connor, Jr., Omaha, for appellants.
Robert F. Rossiter, Jr., and Cristin McGarry Berkhausen, of Fraser Stryker, P.C., L.L.O., Omaha, for appellee.
International Brotherhood of Electrical Workers Locals 763 and 1483 (collectively IBEW) filed a prohibited practices complaint against Omaha Public Power District (OPPD) on July 7, 2009. The complaint alleged that OPPD's implementation of its "Tobacco-Free Worksite" policy (the Policy) to each existing IBEW collective bargaining agreement (CBA) was a "prohibited practice" under Neb.Rev.Stat. § 48-824(1) and (2)(a), (b), and (f) (Reissue 2004). The issue was tried before the Commission of Industrial Relations (CIR) upon stipulated facts. The parties also stipulated at trial that they were at impasse regarding the negotiation of this issue. The CIR found that OPPD did not commit a prohibited practice in implementing the Policy to the existing agreements. IBEW now appeals.
The organizations that make up IBEW are labor organizations as defined in Neb.Rev.Stat. § 48-801(6) (Cum.Supp.2010). OPPD is a political subdivision of the State of Nebraska and an employer as defined in § 48-801(4). IBEW represents two different bargaining units of employees employed by OPPD; each has a separate CBA with OPPD.
The term of both CBA's is June 1, 2007, to May 31, 2010. One of the CBA's provides:
Other rules and practices, pertaining to working conditions, etc., which obtained on the effective date of the Agreement and which are not in conflict with any of the other provisions of the Agreement, shall remain in effect until revised or discontinued by mutual consent of the Company and the Union or the employees concerned.
In February 2008, the Governor signed the Nebraska Clean Indoor Air Act (the Act), which was codified under Neb.Rev.Stat. §§ 71-5716 to 71-5734 (Reissue 2009). The Act prohibits smoking in enclosed indoor workspaces. 1 Under § 71-5727, the Act defines smoking as the lighting of any cigarette, cigar, pipe, or other smoking material or the possession of anylighted cigarette, cigar, pipe, or other smoking material, regardless of its composition. As a result of the Act's implementation, on May 28, 2008, OPPD notified its three unions of its plan to implement a new 2009 policy concerning a tobacco-free worksite. The parties agreed the implementation of the Act was a mandatory subject of collective bargaining, and in February 2009, OPPD opened up negotiations regarding the new policy. The International Association of Machinists and Aerospace Workers Local Lodge 31, which is the other union that represents OPPD employees, was a party to the negotiations at issue, but declined to join in the proceeding below.
On February 26, 2009, the parties held the first of four negotiation meetings. OPPD began negotiations by presenting the unions with a draft memorandum of understanding. On March 12, the parties met a second time, and the unions presented a joint union proposal, which contained several changes, including an extended implementation date, designated smoking areas, an exception for smokeless tobacco, and a provision regarding the use of cessation medication and sick leave for the purposesof quitting smoking. The parties held a third meeting on March 19, where OPPD presented its counterproposal. The counterproposal reflected OPPD's concessions regarding the use of tobacco during " 'unpaid time' " and smoking cessation medication and use of sick leave for the purpose of quitting smoking.
On April 13, 2009, the parties met for a fourth and final time and OPPD presented its final proposal. OPPD sent its last, best, and final offer as a memorandum of understanding to all of the unions on April 17. The letter instructed the unions to notify OPPD of their position by April 30. IBEW declined to accept the final offer. OPPD thereafter notified all three unions that it would unilaterally implement the Policy on June 1, and the Policy was implemented on that date.
The Policy effectively prohibits the use of tobacco products within all company-owned and/or company-occupied buildings and vehicles, including but not limited to all facilities, vehicles, parking lots, parking garages, and private and public land where OPPD is performing work, as well as all sidewalks which OPPD maintains. The Policy defines tobacco products as"all products used in the form of cigarettes, pipes, cigars and/or any smokeless form." The Policy also prohibits leaving the worksite to use tobacco products and using tobacco products while walking to or from an employee's parked car on OPPD property. The Policy states that if OPPD has reasonable cause to believe an employee is in violation of these prohibitions, OPPD will take corrective action which could include disciplinary action.
IBEW filed a prohibited practices complaint against OPPD. The complaint alleged that OPPD's implementation of the Policy to the existing CBA was a prohibited practice under § 48-824(1) and (2)(a), (b), and (f). The issue was tried before the CIR upon stipulated facts. The parties also stipulated at trial that they were at impasse regarding the negotiation of this issue. The CIR determined that the implementation of the Policy following good faith bargaining to impasse did not constitute a violation of § 48-824, and dismissed IBEW's claim. IBEW now appeals.
IBEW assigns that the CIR erred in (1) failing to consider the existence of a valid, binding CBA, (2) relying upon inapplicable case law regarding impasse at contract expiration, and (3) allowing a public employer to unilaterally modify a CBA during its term after bargaining to impasse on a mandatory subject of bargaining.
Under Neb.Rev.Stat. § 48-825(4) (Reissue 2004), any order or decision 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 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
In an appeal from an order by the CIR regarding prohibited practices, an appellate court will affirm a factual finding of the CIR if, considering the whole record, a trier of fact could reasonably concludethat the finding is supported by a preponderance of the competent evidence. 3
Both IBEW and OPPD elected to engage in the collective bargaining process on the present issue. While a unilateral change in a term or condition of employment contained in a CBA may be a breach of contract,4 the CIR lacks jurisdiction to hear breach of contract claims.5 IBEW chose to bring this action before the CIR and alleged only that OPPD committed a prohibited practice under Nebraska's Industrial Relations Act (IRA). An appellate court is obligated to dispose of cases on the basis of the theory presented by the pleadings.6 Therefore, we will address only whether the implementation of the Policy in this instance was a prohibited practice under § 48-824.
The parties stipulated to the fact that OPPD is lawfully entitled to enact, without negotiation, such provisions of the Policy as are consistent with the Act. The Policy, however, exceeds the statutory requirements of the Act. Specifically, the Policy applies to smokeless tobacco and prohibits the use of tobacco products anytime an employee is on company time, is using company property, or is in company facilities. The Act did not require these additional changes to the CBA.
At issue, then, is...
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