Pub. Ass'n of Gov't Emps. v. City of Lincoln

24 Neb.App. 703

896 N.W.2d 630

PUBLIC ASSOCIATION OF GOVERNMENT EMPLOYEES, appellee,

v.CITY OF LINCOLN, Nebraska, appellant.

No. A-16-007.

Court of Appeals of Nebraska.

Filed May 16, 2017.

John C. Hewitt, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., Omaha, for appellant.

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

Moore, Chief Judge, and Inbody and Riedmann, Judges.

INTRODUCTION

Riedmann, Judge.

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 bargaining 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.

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

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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:

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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) consecutive 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 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 consecutive, 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....

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ARTICLE 19—OVERTIME, CALL BACK, AND STAND-BY PAY

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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 representatives 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 disciplinary 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 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 prohibited 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 mandatory subject of bargaining under the IRA and not a management 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 implementation 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 prohibited practice.

STANDARD OF REVIEW

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.

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.

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 schedule 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 involving 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 schedules 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 mandatory plan would force employees to work 12-hour shifts 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 schedule, but instead, they would be placed on mandatory standby status with little notice. As the CIR concluded, the plan implemented by the City would vitally affect the hours and terms and conditions of employment and was therefore a mandatory subject of bargaining. Indeed, the significant change in lifestyle required by the mandatory standby plan constitutes a matter of fundamental, basic, or...