NOT
DESIGNATED FOR PERMANENT PUBLICATION
V.
Filed
July 17, 2001, No. A-00-132
Appeal
from the
John P. Fahey, of Law Office of John P.
Fahey, P.C., for appellant.
Jeff C. Miller and Duncan A. Young, of Young
& White, for appellee.
Irwin, Chief Judge, and Sievers and Inbody,
Judges.
Sievers, Judge.
This appeal
involves an industrial dispute between the City of Elkhorn, Nebraska (City), and
Elkhorn Professional Firefighters Association Local 3150 (
In a detailed
written opinion, the CIR rejected all of the
FACTUAL
BACKGROUND
In the spring
of 1997, the
The
The City
contends that Young's purpose in addressing the firefighters was to encourage
them to make their opinions known in the election, and to explain the process
and procedures related to union organization and collective bargaining. The City
contends that neither Young nor anyone else campaigned against the organization
effort. The Union presented testimony before the CIR that Young announced that
he was campaigning on the City's behalf against the
The City is
required by its ordinances to conduct a public hearing and approve its annual
budget prior to September 20 of each year. In that process, the City council
must authorize the payment of salaries and wages to City employees for each
fiscal year by approving and passing a pay ordinance which designates wages and
salaries for that fiscal year, which is October 1 to September 30. Historically,
the City has conducted its budget hearing and approval in the same month as when
pay is set for the coming fiscal year.
Possible pay
increases other than step increases are evaluated and recommended to the City
council by the City administrator, who considers, according to the parties'
stipulation, a number of factors, such as the economic conditions of the City
and the availability of labor, rather than following any mathematical formula.
At the regular
meeting of the City council on September 14, 1999, the budget hearing was
conducted and a budget was approved by City ordinance No. 407 for the 1999-2000
fiscal year. The City also passed ordinance No. 408 covering wages and salaries
for City employees for the same fiscal year. The City did not know the results
of the firefighters' certification election when these ordinances were adopted.
Ordinance No. 408 continued and maintained the wages of the firefighters without
increase or decrease. Eikmeier testified that at the time the salary matters
were being formulated and recommended to the City council, the firefighters had
requested organization and thus the City "neither wanted to offer a change
that would be treated as a positive inducement or a negative action against the
[firefighters]." Accordingly, Eikmeier recommended to the City council that
the status quo for firefighters' compensation be maintained subject to
negotiations if the firefighters voted in favor of certification.
Ordinance No.
408 did not provide for any across-the-board percentage increase or
cost-of-living increase for all City employees. The wage increases ranged from
19 percent to less than 1 percent. By way of illustration, ordinance No. 408
contained a 3-percent increase for the police chief, a 19-percent increase for
the fire chief (who was outside the union), a 3.5-percent increase for the
building inspector, a 7.33-percent increase for a step one police officer, and a
10.03-percent increase for a step six police officer. A waterworks plant
operator at step one received a 1.77-percent increase and a 2.93-percent
increase at step six. A step one secretary/receptionist received a 6-percent
increase and a 3.21-percent increase at step six.
On September
15, 1999, the City received the report of election showing that the 11 ballots
received were all in favor of the
Under the
City's pay ordinances, a system of six steps has existed which progresses from
the minimum to the maximum hourly rate for the various positions held by City
employees. This step system was in effect for City firefighters in the City's
1998-99 fiscal year pay ordinance, and it was carried over without change into
ordinance No. 408 and subsequently into ordinance No. 411. According to Eikmeier,
the paid firefighters would receive step increases during the 1999-2000 fiscal
year pursuant to the step system until the paid firefighters' wages were
otherwise established and approved through the collective bargaining process.
Eikmeier further testified that the City's procedures were such that paid
firefighters who were eligible for a step increase starting in November 1999 and
beyond would receive that increase and that no paid firefighter had been denied
a step increase. It was stipulated that Eikmeier, when recommending salaries and
wages, considered a number of factors, including, but not limited to, the needs
of the City; the funds available to the City; the availability of labor; the
performance of duties; the City's market relationship to other public employers;
the City's market relationship to other cities; the increase or decrease of City
costs; the economic conditions of the City, state, and nation; the general wage
conditions of the employment positions; and the City's attempts in recruiting
people or positions. Eikmeier admitted that he did not use those criteria in the
consideration of whether firefighters would receive wages, because other than
step increases, the status quo was maintained as "we did not want to be put
into a position of either taking away from or offering something unilaterally
that would taint their decision" concerning the certification election.
CIR Decision.
Because the
written decision of the CIR is lengthy, we will distill it considerably for our
purposes. The CIR first considered whether there was adverse action by the City
against the organizing firefighters, which is prohibited under Neb.
Rev. Stat. § 48-811 (Reissue 1998). That statute requires that there be
(1) adverse action which occurs (2) because of a petition filing by the
firefighters. The CIR found both elements missing, reasoning that the City did
not withhold a "regularly scheduled, sum-certain raise," and therefore
the firefighters did not have a reasonable expectation of a raise of a certain
amount or percentage and thus no legal entitlement thereto existed. The CIR also
found that the City's decision not to increase the firefighters' wages was not
because of the petition filing, but because the City wanted to avoid influencing
the election.
The CIR then
took up the firefighters' claim that the City had refused to bargain in
violation of Neb. Rev. Stat. §
48-824(2)(e) (Reissue 1998). The CIR's initial premise was that in order to be
guilty of a refusal to bargain, a duty to bargain must exist. The CIR first
found that there was no violation under Neb.
Rev. Stat. § 48-816(5) (Reissue 1998), since the firefighters never
asked the City to bargain. Nonetheless, the CIR analyzed the question of whether
under § 48-824(1) and (2)(e), the parties had a duty to bargain over changes to
terms and conditions of employment because such terms and conditions were
mandatory topics of bargaining and because an employer could not unilaterally
change the status quo. The CIR found no such unilateral change because the
City's refusal to give the firefighters a raise during the organizational
process had not changed a condition of their employment in violation of §
48-824(2)(e). The CIR reasoned that the firefighters' argument was based upon
"the faulty premise that the wage reviews were a condition of the
firefighters' employment." The CIR found that in order for wage review to
become a condition of employment, it must be fixed as to frequency and criteria.
The CIR found that while wage reviews were fixed to occur annually in September,
the criteria for making adjustments are not fixed, but, rather, are broad and
subjective. The CIR additionally cited the lack of evidence that the
firefighters received a wage review every year, or even in the year preceding
this litigation.
The CIR then
addressed the proposition that where a government unit has determined the
appropriate wage for its employees, it may not withhold that wage from
bargaining unit members who are involved in an industrial dispute. The CIR found
that the City had not given nonorganized employees across-the-board,
cost-of-living increases and that the increases which were given varied greatly
in percentages and were based largely on the City's discretion.
The CIR
concluded that upon the record presented, the firefighters had not proved that
the City's act of granting various discretionary pay raises to employees not
involved in the representation election while maintaining the pay rates of the
firefighters, other than step increases, did not constitute a violation of §
48-811, did not constitute a refusal to bargain, and did not otherwise violate
Nebraska's public sector labor law. The CIR concluded:
Although
Respondent [City] apparently stood ready and willing to set the firefighters'
pay through good-faith bargaining, Petitioner [firefighters] filed this case
rather than seeking bargaining from Respondent. Ruling in Petitioner's favor in
this case would diminish the importance and effectiveness of collective
bargaining. . . .
Because
Petitioner has never requested bargaining from Respondent, and because no
mandatory subject of bargaining has been unilaterally altered in this case,
there has been no refusal to bargain.
ASSIGNMENTS
OF ERROR
In its
assignments of error, the
STANDARD
OF REVIEW
The standard
of review by an appellate court when reviewing a decision of the CIR is whether
the CIR's order is supported by substantial evidence, whether the CIR acted
within the scope of its statutory authority, and whether its action was
arbitrary, capricious, or unreasonable. Hall Cty. Pub. Defenders v.
In an appeal
from a CIR decision concerning prohibited labor practices, an appellate court
will affirm a factual 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.
ANALYSIS
Did City Take
"Adverse Action" Against Its Firefighters?
Section 48-811
provides that no adverse action by threat or harassment shall be taken against
any employee because of any petition filing with the CIR and that the employment
status of such employee shall not be altered in any way pending disposition of
the petition by the CIR. This section is the source of the body of law which has
grown up around the concept of adverse action in labor relations.
When we reduce
the claim of adverse action here to its simplest expression, it is that the City
gave wage increases to other City employees, but not to the firefighters, who
were in the process of conducting an election after the filing of an
organizational petition with the CIR. The
But, we first
note that there is no claim that the CIR acted outside the scope of its
statutory authority and that we need not discuss that aspect of the standard of
review. The
The Union
contends that antiunion animus is shown by the City's refusal to recognize the
The second
claim of antiunion animus deals with the meeting of the firefighters with the
City's attorney, Young, on August 30, 1999. This meeting occurred pursuant to
the directions of the mayor and City administrator. As recounted in our factual
statement, there is a dispute over what Young said and whether he was simply
passing along information and encouraging firefighters to participate in the
process or whether he was campaigning against the
The
The Union
contends that the threat of not getting the step increases allegedly made by
Young at the August 30, 1999, meeting, as testified to by Garrean, proves
adverse action. While we will address that contention in more detail later, we
can state now that we reject this contention because the undisputed evidence is
that step increases would be given, and in fact, were given. We now turn to the
question of whether there was adverse action because the firefighters were
excluded from any pay raises, other than step increases, in the 1999-2000
budget.
Failure to
Grant Pay Raises as Adverse Action.
The
firefighters contend that the CIR's decision departs "from a long line of
Supreme Court and C.I.R. decisions which held that government, having determined
the appropriate wage for its employees, may not withhold that wage from
bargaining unit members who are involved in industrial disputes." Brief for
appellant at 30. We have already detailed that the City "froze" the
firefighters' wages other than step increases, while other City employees
received increases.
The
firefighters rely upon AFSCME Local 2088 v. County of Douglas, 208 Neb.
511, 304 N.W.2d 368 (1981), where the court considered an appeal from the CIR of
its order fixing compensation to be paid to certain employees working for
Douglas County Social Service Administration. Acknowledging that the issue was
not raised by either party, the Supreme Court stated that a further matter
required comment. The court's premise was expressed as follows: "[T]he
record discloses that Douglas County may have granted to county employees not
members of AFSCME a raise but withheld the same to members of AFSCME because of
the existence of a labor dispute. We believe such practice is both improper and
illegal."
While the
court's holdings in AFSCME Local 2088, supra, are obviously an expression
of the policy of this state, the case does not readily transfer over to the
instant case to generate a finding of adverse action. In part, that is because
the opinion in AFSCME Local 2088 does not contain sufficient facts from
which we can draw the necessary parallels to the facts presented in the instant
case. But, here the record clearly reveals what was granted to whom and what was
withheld. For a more helpful case, we turn to IAFF Local 831 v. City of No.
Platte, 215 Neb. 89, 100, 337 N.W.2d 716, 723 (1983), a case where the city
of North Platte and its firefighters were at the bargaining table, but the facts
revealed what the Supreme Court said was "one of the more flagrant examples
of bad faith bargaining by a city with its employees."
The court in IAFF
Local 831 concluded that the city was dilatory throughout negotiations while
the union made a good faith effort to bargain, plus while negotiations were in
progress, the city enacted a 9.28-percent across-the-board wage increase for
nonunion employees, a raise precisely of the type condemned in AFSCME Local
2088, supra. The pay raise in IAFF Local 831 was given to nonunion
employees of the fire department, both above and below the ranks of the union
members, and the court cited evidence that the city was well aware through
discussions with its attorney that the 9.28-percent across-the-board increase
for nonunion employees with no increase to the fire department left the city
"'wide open for an unfair labor practice lawsuit,'" which turned out
to be prophetic advice. 215
The facts of
the instant case are far removed from the flagrant unfair labor practice
demonstrated in IAFF Local 831, supra. In recognition of the factual
differences, the CIR in the instant case ruled that unilateral withholding of a
regularly scheduled, sum certain raise may be an adverse action because it is a
change in the status quo. The CIR found, however, that the Elkhorn firefighters
did not have a reasonable expectation of a raise of a certain amount or
percentage and that therefore no legal entitlement to a raise existed, citing
"Laidlaw Waste Sys., 307 NLRB 52, 140 LRRM 1328 (1992)." In
judging the soundness of the CIR's ruling, we remember that the basic concept
from the cases is that raises given to nonunion members may not be withheld from
union members simply because they are union members. See, IAFF Local 831,
supra; AFSCME Local 2088 v.
There is no
evidence that all City employees are or were entitled, at a given point in time,
to a predetermined amount or percentage pay raise and that such raise was
withheld from the firefighters. (Step increases are not part of our discussion
because these were given to the firefighters). The system for City employees to
receive pay increases beyond step increases is that the City administrator,
using a variety of factors previously cited herein, recommends pay increases
which range from substantial to inconsequential for various employees, which the
City council then acts upon. In the case of the firefighters, Eikmeier
recommended that because of the pendency of the certification election that the
firefighters' wages not be changed, up or down. The question is whether this was
an adverse action, and we agree with the CIR that it is not.
What occurred
here is vastly and obviously different from IAFF Local 831, supra, where
every city employee, except unionized firefighters, got a 9.28-percent
increase--there, even nonunion firefighters got the pay increase. Thus, there
was a sum certain raise, 9.28 percent, to all
The CIR in the
instant case cited the nature of the criteria for wage evaluations, which were
inherently subjective and uncertain. The CIR's conclusion was that such a system
necessarily prevents City employees from having a reasonable expectation of
receiving an annual raise. Additionally, there was an absence of evidence in the
record of the amounts or percentages of past wage increases. Moreover, the
City's personnel policy manual specifically provides that the City does not
recognize cost-of-living adjustments; plus, the manual disclaims any implication
that the City provides semiannual or annual pay increases. Consequently, the
evidence fails to show an expectation of a raise which was withheld, and we hold
that IAFF Local 831 v. City of No. Platte, 215 Neb. 89, 337 N.W.2d 716
(1983), puts into the law this element of "expectancy denied," which
is unproved here.
The analytical
touchstone with respect to the
While the tale
of the firefighters in IAFF Local 831, supra, could be called a
"wage freeze" case in the sense that everyone but the unionized
firefighters got a raise which was found to be an illegal adverse action, there
is authority from another jurisdiction which is perhaps more closely linked
factually with the instant case. In Vienna Sch. Dist. v. Ill. Ed. Labor Rel.
Bd., 162 Ill. App. 3d 503, 515 N.E.2d 476, 113 Ill. Dec. 667 (1987), the
issue was the meaning of status quo with respect to salary after the expiration
of the teachers' association's employment contract. That agreement provided for
a salary schedule, including incremental increases in salary vertically to
reflect a teacher's additional years of experience as well as horizontally to
reflect additional education acquired. This method had been used for more than
10 years, and the court described it as "automatically implemented prior to
the opening of the new school term."
A term or
condition of employment must be an established practice to constitute the status
quo. The test for determining whether a specific practice is sufficiently
established is objective. (See Plasticrafts, Inc. v. NLRB (10th Cir. 1978), 586
F.2d 185.) With respect to wage increases, the focus is whether the status quo
would have been clearly apparent to an objectively reasonable employer at the
time in question. Platicrafts, Inc. v. NLRB (10th Cir. 1978), 586 F.2d
185.
Status quo
requires the further consideration of the amount of discretion vested in an
employer with respect to an established practice. (See Gossen Co. v. NLRB (7th
Cir. 1983), 719 F.2d 1354.) Where an employer engages in merit reviews at
regular intervals with a view to granting preestablished salary increases, this
is sufficient to constitute a status quo. When, however, the timing of reviews
and amounts of increase is within the sole discretion of the employer with no
established practice, such evaluations could not constitute a status quo.
162
The Illinois
court in Vienna Sch. Dist. also said that it was important to consider
the reasonable expectations of the employees in the continuance of existing
terms and conditions of employment and that where employees receive regular
salary increases based on years of service or additional education, it is
reasonable for employees to expect these increments, even though negotiations
for a new contract are still pending.
Relying upon
the Indiana Supreme Court's decision in Indiana Educ. Employment v. Mill
Creek Teachers, 456 N.E.2d 709 (Ind. 1983), the court in Vienna Sch.
Dist. v. Ill. Ed. Labor Rel. Bd., 162 Ill. App. 3d 503, 515 N.W.2d 476, 113
Ill. Dec. 667 (1987), quoted the Indiana court's holding that school
corporations are legally required to pay wage increments which are part of an
existing contract in order to maintain the status quo pending negotiation of a
new contract. The final result in Vienna Sch. Dist. was that the salary
increments involved were a term and condition of employment which had been long
utilized by the district to the point that they were an established practice and
completely objective because they were based on years of experience and
education obtained. The court found that the evaluations were completed annually
prior to the beginning of the school term with little discretion afforded the
district. Consequently, the
From this
authority, it naturally follows that in order to prove a § 48-811 violation
concerning the fact that the firefighters did not get wage increases, other than
step increases, the firefighters must show a reasonable expectation of
entitlement to such increase based on a history of regularly scheduled and sum
certain raises. We disagree with the CIR's suggestion that the expectation must
be of a precise sum or a precise percentage increase, because such criteria is
too restrictive as the facts in a particular case could establish a reasonable
expectancy, without a sum certain. Nonetheless, the basic tenet of the CIR's
decision that there is no § 48-811 violation absent proof that it is an
established practice of the employer to grant raises which have been withheld
because of the attempt at unionization is correct. Here, the evidence
establishes that what is certain is the step increases and that they were given.
However, other wage increases were subject to a variety of factors as evaluated
by Eikmeier, the City administrator, a great number of which are purely
subjective. From the evidence here, no objectively reasonable employer could
conclude that maintenance of the status quo for the
To conclude
our discussion of this issue, it seems apparent that if a public employer wanted
to discourage unionization, it could unilaterally increase wages as a
demonstration that the union is simply unnecessary. By the same token, if it
wanted to demonstrate that a union would adversely impact the employees, a
decrease in wages for potential union members could be ordered. InTransport
Workers v. Transit Auth. of Omaha, 216 Neb. 455, 344 N.W.2d 459 (1984), the
court held that the meaning of the words "employment status" in §
48-811 is that no employer may, without cause, terminate an employee, but that
under Neb. Rev. Stat. § 48-819.01
(Reissue 1998), the CIR can also act to preserve the employee's status quo with
respect to salary. The City's evidence was that it maintained the status quo by
not including any firefighters in the wage evaluations performed for other city
employees in order to ensure that it did not engage in "adverse
action." We note that the CIR could order wages "frozen." See, §
48-816; Transport Workers, supra. The City did what the CIR could do in
order to protect the "status" of the employees during bargaining. See
§ 48-816. Under our standard of review, we need only decide whether there is
substantial evidence to support that there was no adverse action and the status
quo was maintained. We so find.
Failure to
Bargain.
One of the
prohibited practices in § 48-824 is for an employer to "[r]efuse to
negotiate collectively with representatives of collective-bargaining agents as
required by the Industrial Relations Act." Immediately before the hearing
in this matter, the
The
It seems to us
that the
We see the
matter rather differently. Prior to September 15, 1999, when the City received
the CIR's report that all ballots were in favor of the
CONCLUSION
We conclude
that the CIR acted within its authority and that its decision is supported by
substantial evidence. The raises granted by ordinance No. 408 were not an
expectancy for any employee under the evidence adduced here. The City offered
evidence that it chose to maintain the status quo on firefighters' pay to avoid
claims of adverse action or attempting to influence the outcome of the election,
and to await the collective bargaining process. And while the City promptly
prepared for bargaining upon learning of the election results, the
AFFIRMED.