V.
SALINE
COUNTY SCHOOL DISTRICT NO. 76-0002, ALSO KNOWN AS CRETE PUBLIC SCHOOLS, A
POLITICAL SUBDIVISION OF THE STATE OF
265
Filed
December 13, 2002, No. S-01-617
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: if the commission acts without or in excess of
its powers; if the order was procured by fraud or is contrary to law; if the
facts found by the commission do not support the order; and 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:
Supreme Court: Evidence: Appeal and Error. In an appeal from a Commission of
Industrial Relations order regarding prohibited practices stated in Neb.
Rev. Stat. § 48-824 (Reissue
1998), the Nebraska Supreme 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. ____: ____: ____: ____. 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.
4. Trial: Evidence: Appeal and Error. An
improper exclusion of evidence is ordinarily not prejudicial where substantially
similar evidence is admitted without objection.
5. Labor and Labor Relations: Federal Acts:
Statutes. Decisions under the National Labor Relations Act are helpful in
interpreting the Nebraska Industrial Relations Act, but are not binding.
6. Labor and Labor Relations: Employer and
Employee. Direct dealing occurs when an employer undercuts the authority of a
collective bargaining agreement by negotiating directly with an individual
employee regarding a mandatory subject of bargaining.
7. Labor and Labor Relations: Federal Acts.
Wages, hours, and other terms and conditions of employment or any question
arising thereunder are considered to be mandatory subjects of bargaining under
the Nebraska Industrial Relations Act.
8. Labor and Labor Relations: Waiver: Words
and Phrases. In the context of the Nebraska Industrial Relations Act, waiver is
defined as a voluntary and intentional relinquishment or abandonment of a known
existing legal right or such conduct as warrants an inference of the
relinquishment of such right.
9. Waiver: Estoppel. In order to establish a
waiver of a legal right, there must be clear, unequivocal, and decisive action
of a party showing such a purpose, or acts amounting to estoppel on his or her
part.
10. Commission of Industrial Relations:
Administrative Law: Equity. The Commission of Industrial Relations does not have
authority to grant declaratory or equitable relief.
11. Commission of Industrial Relations:
Administrative Law: Statutes: Jurisdiction. The Commission of Industrial
Relations is an administrative body performing a legislative function. Thus, it
has only those powers delineated by statute, and should exercise that
jurisdiction in as narrow a manner as may be necessary.
12. Declaratory Judgments. The function of a
declaratory judgment is to determine justiciable controversies which either are
not yet ripe for adjudication by conventional forms of remedy or, for other
reasons, are not conveniently amenable to the usual remedies.
13. Injunction. Injunctive relief is
generally preventative, prohibitory, or protective.
14. Commission of Industrial Relations. Neb.
Rev. Stat. § 48-825(2) (Reissue 1998) authorizes the Commission of
Industrial Relations, upon a finding that a party has committed a prohibited
practice, to order an appropriate remedy.
15. Commission of Industrial Relations:
Administrative Law: Federal Acts. Cease and desist orders are nothing more than
the Commission of Industrial Relations' ordering a party to cease and desist
violating provisions of the Nebraska Industrial Relations Act.
Appeal from the
Kelley Baker and Karen A. Haase, of Harding,
Shultz & Downs, for appellant.
Mark D. McGuire, of McGuire and Norby, for
appellee.
Robert A. Bligh for amicus curiae Nebraska
Association of School Boards.
Hendry, C.J., Wright, Connolly, Gerrard,
Stephan, McCormack, and Miller-Lerman, JJ.
Hendry, C.J.
I.
INTRODUCTION
The Crete
Education Association (CEA) filed a complaint against Saline County School
District No. 76-0002, also known as Crete Public Schools (District), with the
Commission of Industrial Relations (CIR). The CEA alleged that the District
engaged in prohibited labor practices under Neb.
Rev. Stat. § 48-824(2) (a), (e), and (f) (Reissue 1998). The CIR found
for the CEA. The District appeals. Both the District and the CEA filed petitions
to bypass the Nebraska Court of Appeals, which this court granted.
II.
FACTUAL BACKGROUND
On March 9,
2000, the CEA requested negotiations with the District regarding the terms and
conditions of teacher employment for the upcoming 2000-2001 school year. The
District agreed to negotiate, and negotiations began on April 19, 2000. At no
time during the negotiation sessions was impasse reached or declared.
Near the time
that negotiations were requested, a position for an industrial technology
teacher at
Prior to
offering the position to Hintz, Kim Sheppard, principal of
At the
District's school board meeting held April 10, 2000, the District approved the
hiring of Hintz. While the minutes of that board meeting do not reflect the
$24,000 starting salary, there was testimony that the board did discuss the
amount of the starting salary at that meeting. The meeting was attended by Chad
Denker, past president of the CEA, as well as Jana Fulton, president of the CEA
during the relevant negotiations. The record reflects that at this meeting, the
board "opened up the floor" for general public comment, but none was
made. When Hintz signed his contract on April 27, the salary amount was left
blank pending the upcoming negotiations.
Negotiations
between the CEA and the District commenced on April 19, 2000, with a goal to
formulate a collective bargaining agreement for the 2000-2001 school year. Each
side was represented by a negotiating team. Representing the District were Dr.
Fero, then school board president Dr. Gary Lothrop, and chief negotiator Gary
Williams, who was also a school board member. Representing the CEA were Denker,
Fulton, Jennene Puchalla, and chief negotiator Mike Coe.
At this first
meeting, one of the issues raised by the CEA was the salary to be paid some of
the new teachers. In addressing this issue, Dr. Fero noted that Hintz had been
promised $24,000, but had signed a blank contract.
The next three
negotiation sessions took place between May 3 and June 14, 2000. The District
made five different offers during these sessions, with an effective base salary
ranging from $23,661 to $24,826. The CEA's proposals made during these
negotiations included base salaries of $21,900 to $22,200.
A fifth and
final negotiation meeting was held on August 8, 2000. At this meeting, the
District presented its sixth proposal which included, in effect, a base salary
of $23,716. The CEA countered with their sixth proposal, which included a base
salary of $21,700. At this juncture, the District questioned why the CEA did not
favor an increase in the base salary. According to the minutes of that session:
Mike Coe
explained CEA wanted to keep the current index. There is not a board policy that
he is aware of that prohibits them [the District] from giving a bonus, because
it would not affect the salary index.
The entire CEA
Negotiations team does not agree with giving a non-experienced teacher any extra
steps.
The District
then presented its seventh proposal, which included a base salary of $21,650. In
response to
The District's
seventh proposal was approved by the membership of the CEA. This agreement
contained, inter alia, a base salary of $21,650, but made no mention of signing
bonuses. On August 30, 2000, however, the District and Hintz entered into a
separate agreement to make up the difference between the $24,000 promised
contract price and the $21,650 base price through the payment of a bonus.
The CEA
learned of this separate agreement, and on November 16, 2000, filed suit in the
CIR pursuant to the Nebraska Industrial Relations Act (NIRA), Neb.
Rev. Stat. §§ 48-801 to 48-842 (Reissue 1998). The CEA alleged that the
District had engaged in prohibited labor practices in violation of §
48-824(2)(a), (e), and (f) by refusing to bargain with respect to the
"'signing bonuses,'" by "dealing directly" with Hintz, and
by unilaterally repudiating the salary schedule in the parties' negotiated
agreement.
A hearing was
held before the CIR on February 1, 2001. District superintendent Dr. Fero's
testimony reflected that the District had made six proposals prior to the
proposal which the CEA accepted and that all six proposals included a base
salary at or near $24,000. Dr. Fero further testified that the District felt it
was necessary to raise the base salary in order to attract new teachers and
remain competitive with other districts. He then testified that after the
District had expressed concern over the low base salary, the CEA responded by
informing them that there was nothing in law or policy to prevent the District
from paying a bonus, but that the CEA did not endorse or approve of it. Dr. Fero
testified that he took these statements to mean that the CEA was "saying
it's okay to pay bonuses" and further, that the District had changed its
negotiating position in reliance on the CEA's apparent willingness to allow the
payment of signing bonuses. He stated that the District would not have agreed to
a base salary of $21,650 without a "clear agreement" that it could pay
a signing bonus to Hintz.
Dr. Lothrop,
president of the District's school board during the time of the relevant
negotiations, testified that the impetus for the school board's change in
position regarding the desire for a $24,000 base was the fact that the beginning
of the school year was fast approaching and that the District wanted a new
agreement before the new school year began. He testified that "settling
[this agreement] before school I don't think anybody would disagree in this room
is in the best interest of the teachers, the board, the administration and the
students." He similarly testified that he felt the CEA had agreed to the
use of a bonus as a solution to the District's low base salary problem.
Coe, chief
negotiator for the CEA, testified that the minutes were accurate in recording
his statement that "there is no board policy which prevents the board from
giving a bonus." However, he explained that he felt the minutes did not
adequately express his emphasis that the CEA did not endorse or approve the idea
of paying a bonus. He testified that he felt he had been clear in communicating
that the CEA was not endorsing or approving the use of bonuses.
Fulton, on
behalf of the CEA, testified that at the first negotiation meeting on April 19,
2000, Denker raised the issue of paying Hintz $24,000, but that that Hintz' name
did not come up in the discussions after that time.
Puchalla
testified that it was her belief that the District intended to pay Hintz $24,000
regardless of how the negotiations proceeded. Puchalla further testified that
she believed Coe was clear in communicating the CEA's position that it did not
approve of the use of a signing bonus.
The CIR
entered its order on May 1, 2001, finding that by directly communicating with
Hintz in April 2000 regarding his base salary of $24,000, and in August 2000
regarding his signing, the District engaged in impermissible direct dealing in
violation of § 48-824(2)(a), (e), and (f). The CIR further found that payment
of $2,350 in the form of a signing bonus, per the August 2000 agreement, was in
violation of the collective bargaining agreement and § 48-824(2)(a) and (e).
The CIR
further concluded that the CEA had not waived its right to object to the signing
bonuses, nor had it waived its right to file a claim with the CIR by failing to
first file a grievance pursuant to the negotiated agreement. Finally, the CIR
found that the parol evidence rule prevented the consideration of any statements
relating to the use of signing bonuses in an attempt to reform the final
negotiated bargaining agreement.
The CIR
granted several remedies to the CEA. First, while it allowed the District to pay
Hintz the disputed signing bonus for the 2000-2001 school year, it ordered the
District to cease and desist from paying that bonus after August 1, 2001. The
District was further ordered to cease and desist from the payment of any signing
bonuses or other compensation which would otherwise be the subject of mandatory
bargaining and was not contained in a negotiated agreement. In addition, the
District was ordered to cease and desist from deviating from the negotiated
agreement and to cease and desist from directly dealing with its represented
employees on matters which constituted terms and conditions of employment.
Finally, the District was ordered to post notices explaining that it had engaged
in prohibited labor practices and would not do so again in the future. The
District appealed.
III.
ASSIGNMENTS OF ERROR
The District
assigns, restated, that the CIR erred in (1) failing to find that the CEA
negotiated in bad faith thereby "bar[ring] it from litigating . . . the
issue of a signing bonus"; (2) refusing to consider parol evidence in the
course of negotiations between the CEA and the District pertaining to the
payment of signing bonuses; (3) finding that the District engaged in direct
dealing; (4) failing to find that the CEA had "waived its right" to
complain about the District's payment of a bonus by failing to file a grievance
pursuant to the negotiated agreement; and (5) entering declaratory and
injunctive relief, which exceeded "the commission's limited statutory
authority and is, therefore, contrary to law."
IV.
STANDARD OF REVIEW
Our scope of
review of CIR orders relating to § 48-824 violations is specifically set forth
in § 48-825(4), which states:
Any order or decision of
the commission may be modified, reversed, or set aside by the appellate court on
one or more of the following grounds and no other:
(a) If the commission acts
without or in excess of its powers;
(b) If the order was
procured by fraud or is contrary to law;
(c) If the facts found by
the commission do not support the order; and
(d) If the order is not
supported by a preponderance of the competent evidence on the record considered
as a whole.
See
In an appeal
from a CIR order regarding § 48-824 prohibited practices, concerning a factual
finding, we will affirm that finding if, considering the whole record, a trier
of fact could reasonably conclude that the finding is supported by a
preponderance of the competent evidence. This court will consider the fact that
the CIR, sitting as the trier of fact, saw and heard the witnesses and observed
their demeanor while testifying and will give weight to the CIR's judgment as to
credibility.
V.
ANALYSIS
1.
Bad Faith
In its first
assignment of error, the District asserts the CIR erred in failing to find the
CEA negotiated in bad faith. The District contends the CEA acted in bad faith by
first suggesting the payment of bonuses and then filing suit in the CIR when
that course of action was followed. According to the District, Coe's statement
that there was "no board policy which prevents" the District from
paying a bonus waived any right the CEA had to complain about the District's
payment of a signing bonus to Hintz.
The District
relies on Century Electric Motor Company v. N. L. R. B., 447 F.2d 10 (8th
Cir. 1971), decided under the National Labor Relations Act (NLRA), 29 U.S.C. §
151 et seq. (2000), for the proposition that it is bad faith for a union to
remain silent on an issue of possible contention and then sue after an agreement
is finalized. See,
In Century
Electric Motor Company v. N. L. R. B., supra, an employer announced to its
employees in late November 1968 that it would be unable to pay a Christmas bonus
that year. At the time the announcement was made, the employer was involved in
negotiations with the employees' union. On December 10, the two sides met to
finalize their bargaining agreement. Though the members of the union's
negotiating team were aware that there would be no Christmas bonuses that year,
they did not complain about that fact at the final negotiating session. One week
after a new agreement was finalized, the union attempted to force the employer
to negotiate over the Christmas bonus for that year. When the employer refused,
the union sued, arguing that since the bonus was a wage, hour, term, or
condition of employment, the employer could not unilaterally withdraw it. The
court rejected the union's argument, stating:
The statutory
purpose of having general collective bargaining agreements negotiated would
inherently seem to be to have the parties engage in good-faith endeavor to
effect as full a basis as possible for securing harmonious relations between
them. This intent of the [NLRA] is not being properly served if the parties do
not deal with each other in that approach and spirit in their negotiation of
such an agreement. An attempt by either party in such a general negotiation to
conceal and withhold some harbored grievance of which the other is not aware, in
order to avoid discussion and possible fusion on it and so to keep the door open
to subsequent controversy and contention between them, is not conduct which is
entitled to administrative or judicial approbation, nor should it be lightly
made the subject of any unrequired ancillary rewarding.
Century Electric Motor Company v. N. L. R.
B., 447 F.2d at 13.
Century
Electric Motor Company is distinguishable. In the case before us, the CIR
found:
The record reveals that
there were no false representations or concealment of material facts on the part
of the Association. On the contrary, the Association in negotiations with the
District clearly stated that while the Association's representative could find
no board policy which prevented the district from giving a bonus, the
Association did not endorse or approve of such bonuses. We find no evidence in
the record that this representation was false, nor do we find that the
Association tried to conceal any policy.
It is clear
from the record that the discussions between the District and the CEA concerning
wages, hours, and other terms and conditions of employment included a dialog
regarding signing bonuses. The parties, however, dispute the manner in which
this dialog was resolved. The District maintains it left the final negotiating
session on August 8, 2000, thinking it could pay bonuses, based in part upon the
August 8 minutes wherein Coe is recorded to have said that "[t]here is not
a board policy that he [Coe] is aware of that prohibits them from giving a bonus
. . . ." The CEA, on the other hand, maintains it left believing it had
made its opposition to bonuses clear, also relying, in part, on the August 8
minutes wherein it is further recorded that "Mike Coe explained again that
there is no board policy which prevents the board from giving a bonus but that
the Negotiation Team did not endorse or approve of it."
The issue
before us on appeal is not whether there was evidence to support the District's
claim, but whether, considering the whole record, a trier of fact could
reasonably conclude that the finding is supported by a "preponderance of
competent evidence."
2.
Parol Evidence
In its second
assignment of error, the District argues that the CIR erred in refusing to
consider parol evidence regarding the course of negotiations between the CEA and
the District. The District first contends this evidence should have been
considered to show that (1) the CEA negotiated in bad faith, (2) the issue of
signing bonuses was "actually negotiated," and (3) the signing bonus
agreement supplemented the negotiated agreement and was not parol evidence.
Brief for appellant at 18. Assuming, without deciding, the CIR erred in failing
to admit some evidence related to the course of negotiations, we nonetheless
conclude that a substantial amount of evidence regarding the purported
relationship between signing bonuses and the negotiation process was received
and considered by the CIR.
At the hearing
before the CIR, Dr. Fero was asked by one of the District's attorneys whether
there was anything that was not expressed in the written negotiated agreement
that he believed to be a part of the agreement. The CEA made a parol evidence
objection. The following exchange between one of the District's attorneys and
the CIR judge then took place:
[CIR judge:]
Are you - so you are asking for an interpretation of this? Or -
[District's
counsel:] No, sir. No. I - I can approach it differently by asking him what
happened in negotiations. And we'll get to the same end.
[CIR judge:] I
am concerned about the parol evidence rule as altering or seeking to interpret
an otherwise unambiguous document. We haven't talked about whether this is
ambiguous or not. If you can get it, what you're getting at in a different way,
I think it would be better.
I will sustain
the objection on the basis of the parol evidence rule and allow you to proceed.
At that point, Dr. Fero proceeded to relate
the chronology of the negotiations between the parties, including statements
regarding the payment of bonuses:
[District's
counsel:] Okay. Now, let's go to August 8th of 2000, the negotiating session,
the minutes of which . . . .
. . . [state],
"Mike Coe explained CEA wanted to keep the current index. There is not a
board policy that he is aware of that prohibits them from giving a bonus because
it would not affect the salary index."
The
penultimate paragraph . . . says, "Mike Coe explained again that there is
no board policy which prevents the board from giving a bonus but that the
negotiation team did not endorse or approve of it."
In prior
negotiating sessions, had the Board of Education proposed starting salaries of
24,000 or $23,650?
[Dr. Fero:]
Prior to Proposal No. 7, which was the . . . final accepted by both sides, there
were six offers by the Board . . . and there were six offers made by the CEA.
All six . . . offered either above or just under 24. . . .
. . . .
The board made
. . . it very clear from the very outs[et] of negotiations that it . . . wanted
to have the starting salary at $24,000. . . .
The board . .
. wanted to be competitive. . . .
. . . .
. . . And it
was discussed upon how can we get to 24 - how can we attract teachers if you're
at $21,700 . . . .
And the
response was, well, you can't give signing bonuses, we don't approve of it, we
don't like it but there's nothing in board policy that prohibits you from doing
that.
Q. When you
say the response was, who are you referring to? Mr. Coe?
A. Mr. Coe.
. . . .
Q. Then let me
ask you to focus on this. You said from the outset. Do you mean from the first
negotiating session . . . you raised the issue of Mr. Hintz and the amount of
pay that the board had committed to paying him?
. . . .
A. Yes, we
did.
. . . .
Q. Okay. Now,
you were discussing it at the negotiating session on August 10th of - or August
8th of 2000, the last session? That's the - reflected in the minutes . . . .
A. Correct.
Q. . . . Mr.
Coe is listed in these exhibits as saying that there is - he's not aware of any
board policy that prohibits the board from giving . . . a signing bonus. What
did you understand his statements to mean?
A. That what
we had done with Mr. Hintz they did not approve of but they saw no reason why we
couldn't do it.
The whole -
the whole part up to where [the minutes] says the board asked to caucus,
everything was how do we attract teachers into this district, especially in
extremely difficult areas to fill.
We discussed
this at great length. And they said the CEA said there isn't any problem with
giving bonuses. . . .
. . . .
. . . I
understood that the - and the board negotiating committee understood that to
mean that the CEA was saying its okay to pay bonuses.
The record
further shows the CIR considered the course of negotiations in its decision and
order. The CIR's order states:
During
negotiations, Mike Coe, an Association representative, informed the Board that
he knew of no law or Board policy which would prevent the Board from giving
teachers bonuses, but that the Association's negotiation team did not endorse or
approve bonuses. The District then presented its seventh proposal with a base
salary of $21,650 on a 5 x 4 salary schedule. The parties completed negotiations
without reaching impasse and without impasse being declared when the Association
accepted this proposal, and the parties signed the 2000-2001 collective
bargaining agreement on August 14, 2000 . . . .
. . . .
. . . [T]he
Association in negotiations with the District clearly stated that while the
Association's representative could find no board policy which prevented the
district from giving a bonus, the Association did not endorse or approve of such
bonuses.
This court has
held, "An improper exclusion of evidence is ordinarily not prejudicial
where substantially similar evidence is admitted without objection." Leavitt
v. Magid, 257 Neb. 440, 444-45, 598 N.W.2d 722, 726 (1999). The record shows
that substantial evidence was admitted regarding signing bonuses and its effect
on the course of negotiations between the parties. The record further
demonstrates that such was considered by the CIR. Therefore, any error by the
CIR was not prejudicial to the District and is harmless. The District's second
assignment of error is without merit.
3.
Direct Dealing
In its third
assignment of error, the District argues the CIR erred in finding that it had
engaged in direct dealing in violation of § 48-824(2)(a) and (e). For the sake
of completeness, we note that the District makes no specific argument with
respect to the CIR's findings (1) that the District's actions were direct
dealing in violation of § 48-824(2)(f) or (2) that the District's unilateral
actions in paying the signing bonuses violated the collective bargaining
agreement and § 48-824(2)(a) and (e). We therefore limit our analysis to the
specific arguments of the District. Section 48-824(2)(a) and (e) states:
It is a
prohibited practice for any employer or the employer's negotiator to:
(a) Interfere
with, restrain, or coerce employees in the exercise of rights granted by the
Industrial Relations Act;
. . . .
(e) Refuse to
negotiate collectively with representatives of collective-bargaining agents as
required by the Industrial Relations Act.
Section
48-824(2)(a) and (e) are similar to § 8(a)(1) and (5) of the NLRA, codified at
29 U.S.C. § 158(a)(1) and (5) (2000). As recognized earlier, we have said that
cases decided under the NLRA can be helpful in interpreting the NIRA, but are
not binding. See,
The District
cites Permanente Medical Group, Inc., 332 N.L.R.B. No. 106 (Oct. 31,
2000), as setting forth the appropriate analysis when evaluating a claim of
direct dealing. The analysis employed in Permanente Medical Group, Inc.
has been applied to labor relations cases by the U.S. Supreme Court. See Medo
Corp. v. Labor Board, 321
In Permanente
Medical Group, Inc., supra, the NLRB identifies the elements of direct
dealing as follows: (1) The employer was communicating directly with
union-represented employees; (2) the discussion was for the purpose of
establishing wages, hours, and terms and conditions of employment or
undercutting the collective bargaining unit's role in bargaining; and (3) such
communication was made to the exclusion of the collective bargaining unit. We
will discuss these elements below.
(a)
Dealing With Hintz to Exclusion of CEA
The District
first argues that it did not engage in direct dealing with Hintz because direct
dealing requires that the collective bargaining agent be excluded, and in this
case, it contends, the CEA was not excluded. The CIR's order with respect to
this issue found in relevant part:
[T]he District met with Mr.
Hintz and communicated with him directly for the purpose of establishing his
wages. This communication was to the exclusion of the Association; the
Association had absolutely no input before the District and Mr. Hintz agreed to
a salary of $24,000 per year. After the collective bargaining agreement was
entered, the District again met with Mr. Hintz on August 30, 2000 to set forth
in writing that his annual compensation would total $24,000 . . . .
The CIR found
that the District engaged in direct dealing with Hintz on two separate
occasions-in April 2000 when Hintz and the District agreed to a contract for
$24,000 and on August 30 when Hintz and the District entered into the signing
bonus agreement.
(i)
April Actions
Direct dealing
occurs when an employer "undercuts" the authority of a collective
bargaining agreement by negotiating directly with an individual employee
regarding a mandatory subject of bargaining. Permanente Medical Group, Inc.,
supra. When the District made its initial offer to Hintz in April, he was
not an employee of the District; nor is there evidence in the record to suggest
that the April negotiations with Hintz would be covered by any other agreement
between the District and the CEA. The CIR's finding that the District engaged in
direct dealing in April 2000 is not supported by a preponderance of the evidence
and is in error.
(ii)
August Actions
The August 30,
2000, communication regarding the signing bonus, however, presents a different
factual circumstance. On the date the signing bonus agreement was entered into,
Hintz was an employee of the District and subject to the terms of the 2000-2001
negotiated agreement. By communicating with Hintz and thereafter entering into
the "bonus" agreement, the District contracted for a different, higher
starting salary. As a result, the agreement regarding signing bonuses clearly
dealt with Hintz' wages. The CEA was not involved in the signing bonus agreement
entered into between the District and Hintz, nor was it officially informed that
such an agreement had been made.
The District
cites Toledo Typographical Union No. 63 v. N.L.R.B., 907 F.2d 1220, 1222
(D.C. Cir. 1990), for the proposition that "[a]n employer may deal directly
with its employees over any lawful matter if it first obtains the consent of
their union." This argument presupposes that the negotiations between the
CEA and the District resulted in an understanding that signing bonuses could be
paid, thus permitting the District to approach individual teachers to negotiate
such a bonus. The CIR heard evidence pertaining to signing bonuses and the
negotiation process and found that there was no understanding or agreement
reached between the parties on that issue. Since we have earlier affirmed such
finding, the District's argument that it had the consent of the CEA in that
signing bonuses were negotiated, and thus did not act to the exclusion of the
CEA, is without merit.
(b)
Signing Bonus as Wage, Hour, or Condition of Employment
The District
next argues that it did not engage in direct dealing because a signing bonus is
not a wage, hour, or condition of employment. "[W]ages, hours, and other
terms and conditions of employment or any question arising thereunder" are
considered to be mandatory subjects of bargaining under the NIRA. See §
48-816(1). The CIR found that the bonus paid to Hintz was part of his wages, and
thus a mandatory subject of bargaining.
The District
relies on N. L. R. B. v. Wonder State Manufacturing Company, 344 F.2d 210
(8th Cir. 1965), to support its contention that bonuses are not the subject of
mandatory bargaining. In Wonder State Manufacturing Company, the Eighth
Circuit found that an employer was permitted to unilaterally withdraw a
Christmas bonus over a union objection that the bonus was a subject of mandatory
bargaining. The court emphasized that there had been no regularity in the paying
of the bonus by the employer, there was no uniformity in how the employer
determined the amount of the bonus, the bonus was not tied to the employee's
usual remuneration, and whether a bonus was paid was tied to the financial
condition and ability of the employer to afford to pay such a bonus. The
District contends those same factors are present in this case: "The
District had never before paid any type of signing bonus. There was no uniform
bonus amount, because this was a one-time situation. Finally, the bonus was paid
to Hintz because the District faced an exigency that demanded unique
action." Brief for appellant at 27.
However, the
court in N. L. R. B. v. Wonder State Manufacturing Company, 344 F.2d at
213, explained:
The rule is that gifts per
se-payments which do not constitute compensation for services-are not terms and
conditions of employment, and an employer can make or decline to make such
payments as he pleases, but if the gifts or bonuses are so tied to the
remuneration which employees received for their work that they were in fact a
part of it, they are in reality wages and within the statute.
(Emphasis supplied.) See, also, N. L. R.
B. v. Electric Steam Radiator Corporation, 321 F.2d 733 (6th Cir. 1963)
(containing similar language). In this case, the CIR found that "[a]fter
the collective bargaining agreement was entered, the District again met with Mr.
Hintz on August 30, 2000 to set forth in writing that his annual compensation
would total $24,000, including a 'signing bonus' of $2,350." It is
undisputed in the record that the "'signing bonus'" was to be paid to
Hintz in 12 equal installments, the sum of which, when added to his base salary
of $21,650, totaled $24,000. The CIR's finding that the bonus was a wage is,
considering the whole record, supported by a preponderance of the competent
evidence, is within the scope of the CIR's statutory authority, and is not
contrary to law. See,
4.
Waiver
In its fourth
assignment of error, the District asserts that the CEA waived any right to
"complain" about the District's paying of a bonus to Hintz due to its
failure to comply with the grievance procedure set forth in the negotiated
agreement between the parties. The CEA admits that no grievance was filed prior
to filing its petition with the CIR.
Article IX of
the 2000-2001 negotiated agreement states that "[g]rievances shall be filed
and processed according to the procedure outlined in Appendix D." Appendix
D defines a grievant as "any teacher, group of teacher [sic], or the
association filing the grievance" and includes both an informal and formal
procedure. See Pfizer v.
The formal
procedure as set forth in appendix D states, in part, at B1(a) of appendix D,
that
[i]f an aggrieved person is
not satisfied with the disposition of his or her problem, or if no decision has
been rendered after seven days through the informal procedure, he or she may
submit the claim as a formal grievance, in writing, to the appropriate principal
and retain a copy.
Thereafter, at
B1(c), it is stated that "[a] teacher who is not directly responsible to a
. . . principal may submit a form grievance claim to the administrator to whom
he or she is directly responsible." (Emphasis supplied.) Finally, under
section D2 entitled "Other Considerations," a "written grievance
[shall be] filled [sic] within 30 days . . . after the teacher knew, or should
have known, of the act or condition on which the grievance is based, [or] the
grievance shall be waived." (Emphasis supplied.)
Waiver is
defined as a voluntary and intentional relinquishment or abandonment of a known
existing legal right or such conduct as warrants an inference of the
relinquishment of such right. . . . In order to establish a waiver of a legal
right, there must be clear, unequivocal, and decisive action of a party showing
such a purpose, or acts amounting to estoppel on his part.
(Citation omitted.) Wheat Belt Pub. Power
Dist. v. Batterman, 234 Neb. 589, 594, 452 N.W.2d 49, 53 (1990). See, also, Shelter
Ins. Cos. v. Frohlich, 243 Neb. 111, 498 N.W.2d 74 (1993). The issue is
whether the language of the negotiated agreement evidences the CEA's intention
to relinquish its right to bring an action in the CIR without first complying
with the grievance procedure. We determine that it does not.
First, as
noted earlier, in order for the CEA to have waived its right to immediately file
its claim in the CIR, such waiver must be "clear, unequivocal, and
decisive." The language of appendix D is not clear, unequivocal, or
decisive. Although the definition of grievant can include the CEA, the grievance
procedure, as set forth in appendix D, by its terms, could be read to limit its
application to teachers. See Pfizer v.
Furthermore,
to effectuate a waiver, the relinquishment must be "voluntary and
intentional" and must be of a "known existing legal right." See
id. The language of the negotiated agreement makes no mention of the CIR or the
NIRA. As the CIR noted in its decision:
The grievance procedure
provides that if a grievance is not filed within 30 days after the grievant has
knowledge of the alleged wrongful act, then the grievance shall be waived. This,
however, does not specifically waive the statutory right to bring a case before
the Commission. The Association has a statutory right to file a prohibited
practice case, and its non-filing of a grievance does not waive that right.
We agree with
the CIR's finding and determine that the CEA did not waive its statutory right
to file a claim with the CIR when it did not file a grievance. The CIR's finding
to that effect is not contrary to law. The District's fourth assignment of error
is without merit.
5.
Statutory Authority
In its fifth
and final assignment of error, the District asserts that the CIR's entry of
"[d]eclaratory and injunctive relief in this case exceeds the Commission's
limited statutory authority, and is, therefore, contrary to law." In its
brief, the District appears to argue that the orders entered by the CIR exceeded
its authority for two reasons. First, the remedies ordered grant declaratory and
injunctive relief; second, the orders provide neither adequate nor appropriate
remedies pursuant to §§ 48-819.01 and 48-825(2). We will discuss each
separately.
In its
decision, the CIR ordered the District, restated and summarized, to cease and
desist from (1) deviating from the negotiated agreement in payment of salaries
and benefits; (2) paying Hintz in deviation from the negotiated agreement after
August 1, 2001; (3) bypassing the CEA and dealing directly with its represented
employees regarding wages, terms, and conditions of employment; and (4) paying
teachers "'signing bonuses'" or other compensation that is a mandatory
subject of bargaining and is not included in a negotiated agreement. The CIR
further ordered the District to post notices informing employees that it had
engaged in prohibited labor practices.
The CIR does
not have authority to grant declaratory or equitable relief. See, Calabro v.
City of
In its
petition, the CEA did not request declaratory relief. The CEA's petition alleged
the existence of a pending dispute, namely whether the District engaged in
prohibited labor practices by paying Hintz a bonus contrary to the 2000-2001
negotiated agreement. In Ryder Truck Rental v. Rollins, 246 Neb. 250,
257, 518 N.W.2d 124, 128 (1994), we observed that "[t]he function of a
declaratory judgment is to determine justiciable controversies which either are
not yet ripe for adjudication by conventional forms of remedy or, for other
reasons, are not conveniently amenable to the usual remedies." In this
case, the CIR was confronted with a pending dispute. Its order did not grant
declaratory relief.
Nor did the
Commission's orders, despite any similarity in language, grant equitable or
injunctive relief. Injunctive relief is generally preventative, prohibitory, or
protective. Putnam v. Fortenberry, 256 Neb. 266, 589 N.W.2d 838 (1999).
Black's Law Dictionary 784 (6th ed. 1990) defines injunction as follows:
A court order
prohibiting someone from doing some specified act or commanding someone to undo
some wrong or injury. A prohibitive, equitable remedy issued . . . by a court .
. . directed to a party . . . forbidding the latter from doing some act . . . or
restraining him in the continuance thereof . . . . A judicial process . . .
requiring [a] person to whom it is directed to do or refrain from doing a
particular thing.
The CIR is not
a court, but an administrative body performing a legislative function. Transport
Workers of America v. Transit Auth. of City of Omaha, supra. Its orders are
not issued by a court and are merely advisory, given the CIR has no enforcement
authority. The enforcement of any order issued by the CIR resides only in the
district courts of this state. See §§ 48-819 (failure on part of any person to
obey order of CIR shall constitute contempt, and upon application to appropriate
district court, shall be dealt with as would similar contempt of said district
court) and 48-825(2) (upon finding that party has committed prohibited practice,
any remedy ordered by CIR can be enforced by district court only upon filing of
action seeking injunctive relief). The orders issued by the CIR in this case did
not command, forbid, or restrain the District. They were not issued by a court,
are merely advisory, and therefore, do not grant injunctive relief.
Having
concluded that the orders of the CIR provided neither declaratory nor injunctive
relief, we now consider whether they were "adequate" and
"appropriate" remedies pursuant to §§ 48-819.01 and 48-825(2).
The remedies
fashioned by the CIR essentially fall into two categories. The first category,
identified above in Nos. (1) through (4), ordered the District to cease and
desist from certain actions. The second category ordered the District to post
notices informing employees that it had engaged in prohibited labor practices.
We will discuss each category separately.
Section
48-825(2) authorizes the CIR, upon a finding that a party has committed a
prohibited practice, to "order an appropriate remedy." The District
argues that the cease and desist orders are not appropriate and therefore
contrary to law.
What is
considered an appropriate remedy pursuant to § 48-825(2) is an issue of first
impression. However, § 48-819.01 contains remedial language similar to §
48-825(2). Section 48-819.01 provides:
Whenever it is alleged that
a party to an industrial dispute has engaged in an act which is in violation of
any of the provisions of the Industrial Relations Act, or which interferes with,
restrains, or coerces employees in the exercise of the rights provided in such
act, the commission shall have the power and authority to make such findings and
to enter such temporary or permanent orders as the commission may find necessary
to provide adequate remedies to the injured party or parties, to effectuate the
public policy enunciated in section 48-802, and to resolve the dispute.
(Emphasis supplied.) We therefore look to §
48-819.01 to aid us in determining what are appropriate remedies under §
48-825(2).
In Transport
Workers v. Transit Auth. of Omaha, 216 Neb. 455, 344 N.W.2d 459 (1984), this
court was presented with the issue of whether the CIR had the authority to enter
temporary orders concerning wages, hours, and terms and conditions of employment
while the CIR was attempting to resolve a labor dispute pending before it.
Relying in part upon the version of § 48-819.01 then in effect, which is
substantially similar to the current § 48-819.01, we observed:
To be sure, the authority
of the CIR to enter temporary orders is not unlimited. As we noted in University
Police Officers Union v.
Transport Workers v. Transit Auth. of
Having found
violations of the NIRA, §§ 48-819.01 and 48-825(2) grant the CIR authority to
issue such orders as it may find necessary to provide adequate remedies to the
parties to effectuate the public policy enunciated in § 48-802. This court has
previously commented upon the authority of the CIR to issue cease and desist
orders. In University Police Officers Union v. University of Nebraska,
203 Neb. 4, 16-17, 277 N.W.2d 529, 537 (1979), we discussed § 48-811 and
observed:
The provisions of section
48-811, R. R. S. 1943, do not constitute matters similar to those prescribed in
sections 8a and 8b of the NLRA. Thus, the CIR does not, by reason of section
48-811, R. R. S. 1943, have authority to declare unfair labor practices. If, in
fact, the evidence discloses that a public employer is threatening or harassing
an employee because of any petition filing by such employee, the CIR is limited
to entering an order directing the employer to cease and desist such threat or
harassment. The CIR has no authority, however, to require anything further. Upon
failure of the public employer to cease and desist, action must be brought by
the employee in the appropriate District Court seeking to hold the public
employer guilty of contempt of court.
In our view,
the remedies provided by the CIR are nothing more than the CIR's ordering the
District to cease and desist violating the terms of the negotiated agreement and
are one of the "circumstances under which the CIR may exercise its
authority." Transport Workers v. Transit Auth. of
Having
concluded that the cease and desist orders issued by the CIR were
"adequate" and "appropriate" under §§ 48-819.01 and
48-825(2), we now determine whether the CIR's order requiring the posting of
notices was an "adequate" and "appropriate" remedy under
these facts.
The District,
in arguing that the CIR has no such authority, relies in part upon University
Police Officers Union v.
We note that
the CIR directed UNL to post a copy of its temporary order, and in its opinion
of December 20, 1977, suggested it was considering requiring UNL to post
"mea culpa" notices. The CIR is without authority to make such orders.
Its authority is limited to the provisions of section 48-818, R. R. S. 1943,
wherein it is provided that the CIR's findings and orders may establish or alter
the scale of wages, hours of labor, or conditions of employment.
However, University
Police Officers Union was decided prior to the enactment of §§ 48-819.01
and 48-825. We therefore consider the CIR's authority to require the posting of
notices within the statutory framework of identifying "adequate" and
"appropriate" remedies.
In this case,
it is difficult to envision how the posting of notices provides an adequate and
appropriate remedy to the CEA. The CEA's grievances were remedied by the CIR's
finding that the District had engaged in prohibited labor practices and its
issuance of the cease and desist orders. Clearly, those remedies are adequate to
resolve the dispute.
Furthermore,
the mere posting of these notices does not appear to effectuate the public
policy underlying the NIRA. That policy provides that
[t]he continuous, uninterrupted and proper
functioning and operation of governmental service . . . to the people of
§ 48-802(1). Under these facts, we fail to
see any relationship between the policy stated in § 48-802 and the posting of
notices relating to the employer's engagement in prohibited labor practices
under the NIRA.
Accordingly,
we determine that ordering the District to post notices regarding its NIRA
violation is, under the facts, not a proper remedy and therefore in excess of
its powers. Such order is reversed.
Finally, the
District argues that if § 48-819.01 gives the CIR the authority to issue
declaratory and injunctive relief, then § 48-819.01 is unconstitutional as
granting powers in violation of the Constitution of the State of
VI.
CONCLUSION
The CIR's
order is affirmed insofar as it (1) found that the District engaged in
prohibited labor practices; (2) ordered the District to cease and desist from
deviating from the negotiated agreement in payment of salaries and benefits; (3)
ordered the District to cease and desist from paying Hintz in deviation from the
negotiated agreement after August 1, 2001; (4) ordered the District to cease and
desist from bypassing the CEA and dealing directly with its represented
employees regarding wages, terms, and conditions of employment; and (5) ordered
the District to cease and desist from paying teachers signing bonuses or other
compensation that is a mandatory subject of bargaining and which is not included
in a negotiated agreement.
The CIR's
order is reversed insofar as it (1) found that the District engaged in
prohibited labor practices in communicating with Hintz in April 2000 and (2)
ordered the District to post notices regarding its violation of the negotiated
agreement.
AFFIRMED IN PART, AND IN PART REVERSED.