Serv. Emps. Int'l Union (Afl-Cio ) Local 226 v. Douglas Cnty. Sch. Dist. 001
| Decision Date | 01 November 2013 |
| Docket Number | No. S–13–009.,S–13–009. |
| Citation | 839 N.W.2d 290,286 Neb. 755 |
| Parties | Service Employees International Union (AFL–CIO ) Local 226, appellant and cross–appellee, v. Douglas County School District 001, appellee and cross–appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Appeal from the Commission of Industrial Relations. Affirmed.
Timothy S. Dowd, of Dowd, Howard & Corrigan, L.L.C., for appellant.
David J. Kramer and D. Ashley Robinson, of Baird Holm, L.L.P., for appellee.
1. Commission of Industrial Relations: Appeal and Error. In reviewing 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 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. Labor and Labor Relations. Nebraska's Industrial Relations Act requires parties to negotiate only mandatory subjects of bargaining.
3. Labor and Labor Relations. Mandatory subjects of bargaining include the scale of wages, hours of labor, or conditions of employment.
4. Labor and Labor Relations. 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. Labor and Labor Relations. A matter which is of fundamental, basic, or essential concern to an employee's financial and personal concern may be considered as involving working conditions and is mandatorily bargainable even though there may be some minor influence on educational policy or management prerogative.
6. Labor and Labor Relations. Vacation is a mandatory subject of bargaining.
7. Commission of Industrial Relations: Labor and Labor Relations. An employer subject to the Industrial Relations Act may implement unilateral changes to mandatory subjects 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.
8. Labor and Labor Relations: Employment Contracts: Waiver. A clear and unmistakable waiver of a statutory right may be found in the express language of a collective bargaining agreement, or it may even be implied from the structure of an agreement and the parties' course of conduct.
9. Labor and Labor Relations: Waiver: Proof. An employer bears the burden of establishing that a clear and unmistakable waiver of a statutory right in a collective bargaining agreement has occurred.
10. Labor and Labor Relations: Waiver: Proof. To establish waiver of the right to bargain by union inaction, the employer must first show that the union had clear notice of the employer's intent to institute the change sufficiently in advance of actual implementation so as to allow a reasonable opportunity to bargain about the change. In addition, the employer must show that the union failed to make a timely bargaining request before the change was implemented.
11. Labor and Labor Relations: Notice. Once a union has notice of a proposed change in a mandatory bargaining subject, it must make a timely request to bargain. A union cannot charge an employer with refusal to negotiate when it has made no attempts to bring the employer to the bargaining table.
12. Commission of Industrial Relations: Courts: Evidence: Appeal and Error. The Nebraska Supreme Court will consider the fact that the Commission of Industrial Relations, sitting as the trier of fact, saw and heard the witnesses and observed their demeanor while testifying and will give weight to the commission's judgment as to credibility.
13. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.
Service Employees International Union (AFL–CIO) Local 226 (Local 226) appeals from the finding of the Commission of Industrial Relations (CIR) that Douglas County School District 001 (District) did not commit a prohibited practice under the version of the Industrial Relations Act (IRA) then in effect, Neb.Rev.Stat. §§ 48–801 to 48–838 (Reissue 2010). Local 226 argues that the District unilaterally changed its vacation accrual policy, declaredthe issue nonnegotiable, and failed to bargain on a mandatory subject of bargaining.
We conclude the District unilaterally changed its vacation accrual policy but presented Local 226 with opportunities to give input on the policy changes and request negotiations before implementation of the changes. Local 226 failed to take advantage of those opportunities. It negotiated and signed new collective bargaining agreements (CBA's) for the school year in which the new vacation accrual policy would take effect without requesting negotiations on the new policy. In doing so, Local 226 waived its right to negotiate on the matter of vacation accrual. We affirm the order of the CIR.
In reviewing an appeal from the CIR in a case involving wages and conditions of employment, an 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 CIR 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 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. Employees United Labor Assn. v. Douglas Cty., 284 Neb. 121, 816 N.W.2d 721 (2012).
Local 226 is the duly certified exclusive bargaining agent for the District's office personnel, educational paraprofessionals, and operations division. For the 2010–11 and 2011–12 school years, Local 226 and the District entered into separate CBA's for each of those three bargaining units. The current dispute over vacation accrual arose while Local 226 and the District were negotiating the CBA's for the 2011–12 school year, but during the time the CBA's for the 2010–11 school year were still in effect.
For the past 20 years, article 9 of the relevant CBA's has set forth the amount of vacation to which each employee was entitled. But the CBA's have never “outlined the manner and method of accrual and distribution of the agreed upon amount of vacation.” Rather, at all times relevant to this case, the distribution of vacation was governed by section 4.21 of the District's “Policies and Regulations.” The entire policies and regulations were incorporated by reference into article 2 of the CBA's. Article 2 also provided that the District could make changes to the policies and regulations at any time. The District has made changes to section 4.21 at least 10 times over the past 52 years, both with and without Local 226's approval.
When the District and Local 226 entered into the CBA's for the 2010–11 school year, section 4.21 of the policies and regulations provided that employees were granted their full vacation allotment for the year in a single lump sum on August 1, 2011—the start of the school year. If an employee terminated employment or transferred to a position in which he or she was not eligible for vacation, any unused vacation days would be paid out in the final paycheck. If a new employee was hired or an employee transferred to a vacation-eligible position after August 1, he or she would receive prorated vacation days based on the date of hire or transfer.
Both parties have stipulated that at their meetings on February 9 and March 2, 2011, the District advised Local 226 that the District was “going to make” changes to section 4.21. Under the proposed changes to section 4.21, employees would accrue vacation throughout the school year instead of being granted their vacation allotment in a single lump sum at the beginning of the school year.
On May 16, 2011, the Omaha Public Schools Board of Education adopted the amendments to section 4.21, to be effective August 1. Local 226 did not appear at the board of education meeting to oppose the changes.
On May 17, 2011, the members of Local 226 were notified of the changes adopted by the board of education. In response, Local 226 sent a letter to the District requesting that it “cease and desist from implementing [the vacation accrual] policy.” Local 226 characterized the District's action in implementing the new policy as a “unilateral change of a mandatory subject of bargaining[,] which is a prohibited practice.” It asked the District to “advise as to [the District's] intentions within the next seven (7) calendar days.”
In a reply letter, the District asserted that it “has the right to change its Policies and Regulations so long as those policies don't violate the terms of the [CBA's]” and that the amendments to section 4.21 were within its authority under the CBA's and not in violation of the provisions of the CBA's addressing vacation. The District closed by noting, “We remain open ... to working with Local 226 to address any concerns about the practical application of the revised policy.”
Beginning in February 2011 and continuing throughout the summer, the District and Local 226 were engaged in substantive negotiations of the CBA's for the 2011–12 school year. During those negotiations, Local 226 did not propose any changes to the new vacation accrual policy that was scheduled to take effect on August 1.
On September 13 and October 10 and 19, 2011,...
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