Reno v. Reno Police Protective Ass'n

• Decision Date: 26 December 2002
• Docket Number: No. 37060.,37060.
• Citation: 59 P.3d 1212,118 Nev. 889
• Parties: The CITY OF RENO and Reno Police Department, Appellants, v. RENO POLICE PROTECTIVE ASSOCIATION and State of Nevada, Local Government Employee-Management Relations Board, Respondents.
• Court: Nevada Supreme Court

59 P.3d 1212

118 Nev. 889

The CITY OF RENO and Reno Police Department, Appellants, v. RENO POLICE PROTECTIVE ASSOCIATION and State of Nevada, Local Government Employee-Management Relations Board, Respondents.

No. 37060.

Supreme Court of Nevada.

December 26, 2002.

Patricia A. Lynch, City Attorney, and Donald L. Christensen, Deputy City Attorney, Reno, for Appellants.

Frankie Sue Del Papa, Attorney General, and Dianna Hegeduis, Deputy Attorney General, Carson City, for Respondent Local Government Employee-Management Relations Board.

Michael E. Langton, Reno, for Respondent Reno Police Protective Association.

Before the Court En Banc.

OPINION

PER CURIAM.

This is an appeal from a district court order affirming the Employee-Management Relations Board's (EMRB's) decision regarding the discipline of police officers. The judgment of the district court is affirmed.

FACTS

On October 13, 1996, nine off-duty Reno police officers were involved in an altercation at Caesar's Tahoe, located in Douglas County, Nevada, resulting in the arrest of two officers for disorderly conduct and battery. In a separate matter, another police officer was implicated in an off-duty episode and disciplined in July 1996. The Reno Police Protective Association (RPPA) represented the majority of the officers involved in both incidents. At the time of these events, all parties to this appeal, as well as the disciplined officers, were governed by a collective bargaining agreement (the contract) that expired in June 1997. The contract was negotiated by the RPPA and the City and contained all subjects of mandatory bargaining required by NRS 288.150.

On June 17, 1997, the RPPA filed an unfair labor practice complaint against the City with the EMRB. The complaint alleged that the City engaged in a prohibited practice in violation of NRS 288.270¹ by adopting new criteria for disciplining police personnel for off-duty conduct without conducting mandatory negotiation as required by NRS 288.150. The RPPA argued that, prior to these incidents, the City had used three criteria known as the Robertson criteria, but when the City disciplined these officers, it added an additional criterion. The Robertson criteria, defining when police officers could be disciplined for off-duty misconduct, included:

(a) identifying oneself as a police officer, thus placing himself/herself on duty, (b) the use of any tools of the police officer trade, such as handcuffs, gun, badge, identification, etc., and (c) did a third person know the individual as a police officer or identified the individual as a police officer.

The City added the following criterion: "did the conduct impair the reputation or operations of the police department." The EMRB deferred hearing the complaint because the RPPA was simultaneously arbitrating whether just cause existed to discipline the officers.

The arbitrations pertinent to this appeal concerned the disciplinary actions taken against a police officer from the Caesar's Tahoe incident and the officer from the July 1996 incident. The same arbitrator heard both disputes. The arbitrator, in both arbitrations, was presented with three issues: (1) whether the City had jurisdiction to discipline the grievant for his off-duty conduct, and (2) if so, whether the grievant was disciplined for just cause under the contract, and (3) if not, what the remedy should be. The arbitrator determined that the Robertson criteria were not a clearly enunciated, or acted-upon, past practice. The arbitrator found that just cause existed to discipline the officers.

After completion of the grievance-arbitration process, upon the RPPA's request, the EMRB conducted a hearing on January 11, 2000, concerning the deferred complaint. At the outset, the City argued that the EMRB was estopped from hearing the matter because the arbitrations resolved the complaint. The EMRB decided to hear the matter because the complaint involved allegations of an unfair labor practice, a subject over which the EMRB has exclusive jurisdiction.

During the hearing, the EMRB admitted a memorandum over the City's claim of attorney-client privilege. Rick Gonzales, the City's labor relations manager, authored the memorandum and sent it by e-mail to the chief deputy city attorney, two deputy city attorneys, and the assistant city manager. Ron Dreher, executive director of the RPPA, found the memorandum on his desk sometime after the arbitrations, but did not know who placed the document on his desk. The EMRB concluded that documents transmitted by e-mail are not covered by the attorney-client privilege.

On February 29, 2000, based on the evidence before it, and without deferring to the arbitrator's findings, the EMRB issued its decision. The EMRB found that the City's use of the Robertson criteria was an established practice, which could only be changed through negotiation pursuant to NRS 288.150, and that the City engaged in a prohibited practice by unilaterally changing that criteria. The City petitioned the district court for judicial review. The district court denied the petition, finding that the EMRB's decision was supported by substantial evidence. The City filed this appeal.

DISCUSSION

When reviewing an administrative decision, this court is limited to determining whether the decision is legally sound and is based upon substantial evidence.² This court conducts an independent de novo review of questions of law to determine whether there has been a clear error of judgment.³ However, with respect to an agency's decision concerning an issue of fact, this court will affirm the agency's decision if it is supported by substantial evidence.⁴

Collateral estoppel

The City argues that the EMRB was precluded from determining whether the Robertson criteria were previously utilized in disciplining police officers' off-duty conduct because the arbitrator, in both arbitrations, determined the criteria were not utilized. The doctrine of collateral estoppel precludes parties from re-litigating issues that were actually decided and necessary to a judgment in an earlier suit on a different claim between the same parties.⁵ Collateral estoppel applies to arbitration.⁶ However, when a collective bargaining agreement is at issue, the arbitrator's award "`must be based on the collective bargaining agreement,'" and the deference bestowed upon arbitration findings is not limitless.⁷

Under the contract, the arbitrator had jurisdiction to determine if just cause existed to discipline the officers, but not to determine whether the City engaged in an unfair labor practice.⁸ The parties only submitted their contract grievances to arbitration and did not agree to arbitrate their NRS 288.150 unfair labor practice claims.⁹ Further, the contract itself provides, in Article 28, that the arbitrator's decision is final and binding, unless the contract provides otherwise. The contract later states in Article 31(b):

In the event the City intends to institute a change during the term of this Agreement of a subject which falls within the scope of mandatory bargaining as outlined in Subsection 2 of NRS 288.150, the City recognizes its duty to bargain with the Association over said change. Disputes arising under this Article shall not be grievable under Article 28 of this Agreement, but shall be submitted to the Nevada Local Government Employee-Management Relations Board of resolution.

(Emphasis added.) The contract also states that the arbitrator's decision must be consistent with the terms of the contract. Accordingly, disputes concerning a change in disciplinary procedure, such as modification of the Robertson criteria, would be submitted to the EMRB,¹⁰ and any arbitration award concerning such modification would not be final or binding. This court has recognized that the EMRB has exclusive jurisdiction over unfair labor practice issues.¹¹ An unfair labor practice includes the prohibited practice of unilaterally changing a subject of mandatory bargaining.¹² A function of the EMRB is to determine whether a matter falls within the scope of mandatory bargaining.¹³ The EMRB has the duty to administer NRS Chapter 288, and thus, is "impliedly clothed with [the] power to construe it as a necessary precedent to administrative action."¹⁴ We conclude, therefore, that the EMRB is not estopped from determining issues previously decided by an arbitrator when the EMRB has exclusive jurisdiction over the issue. Thus, the EMRB did not err by hearing the RPPA's unfair labor practice complaint.

Deferral

The City argues that because the EMRB is patterned after the National Labor Relations Board (NLRB), the EMRB is required to apply the deferral policy followed by the NLRB.¹⁵ This court has held that "it is proper to look toward the NLRB for guidance on issues involving the EMRB."¹⁶ The NLRB defers to a prior arbitration if:

(1) the arbitration proceedings were fair and regular; (2) the parties agreed to be bound; (3) the decision was not "clearly repugnant to the purposes and policies of the [National Labor Relations Act (NLRA)];" (4) the contractual issue was factually parallel to the unfair labor practice issue; and (5) the arbitrator was presented generally with the facts relevant to resolving the [unfair labor practice].¹⁷

The party desiring the NLRB to reject an arbitration award has the burden of demonstrating that these principles are not met.¹⁸ We adopt the NLRB deferral policy and conclude that the EMRB must apply these principles in determining whether to defer to an arbitration. However, under these principles, the EMRB would not be required to defer to the arbitrations in this case.

First, the parties did not agree to be bound by the arbitrator's decision regarding mandatory subjects of bargaining.¹⁹ In fact, the contract specifically stated that disputes concerning mandatory bargaining were to be submitted to the EMRB. Further, under the contract, an arbitrator's decision as to negotiable subjects is not final,...