NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Entered February 28, 2007.

Before: Judges Blake, Burger and Lindahl

BLAKE, J. 

NATURE OF THE PROCEEDINGS: 

Omaha Police Union Local 101, IUPA, AFL-CIO, (hereinafter, “Petitioner”) filed a Petition pursuant to Neb. Rev. Stat. § 48-824(2)(a) (Reissue 2004), claiming that the City of Omaha and Chief of Police Thomas Warren (hereinafter, “Respondents”), committed a prohibited practice by discontinuing their practice of furnishing take-home vehicles to certain members of the bargaining unit and failing and refusing to negotiate over the discontinuance of the take-home vehicles. Furthermore, the Petition also alleged the Respondents committed a prohibited practice by reallocating parking stalls previously available to bargaining unit members, and by failing and refusing to negotiate or agree to negotiate the reallocation of parking stalls at the police department’s central headquarters. On July 27, 2006, Respondents filed an Answer denying that the changes made by the Respondents were a prohibited practice, stating that their actions were consistent with their rights under the collective bargaining agreement and the law.

The issues presented at trial were as follows:

1)      Whether assignment of parking is a mandatory subject of bargaining.

2)      Whether the assignment of take-home vehicles is a mandatory subject of bargaining.

3)   Whether the right to bargain has been waived by the union by history of actions, or made a matter of management discretion by the collective bargaining agreement.

FACTS: 

            The Omaha Police Department employs approximately 797 sworn personnel and approximately 200 non-sworn or civilian personnel. The Omaha Police Department is organized into a Police Operations Division (which includes the Uniform Patrol Bureau as well as the Criminal Investigations Bureau), a Police Services Division (which includes Special Operations and the Administrative Information Bureau), and the Office of Professional Standards. 

The Omaha Police Department has a central police headquarters but also has five satellite locations. The Uniform Patrol Bureau is located at four separate precincts spread throughout the four geographic quadrants of the city. The Omaha Police Department also maintains an undisclosed off-site facility where auxiliary functions operate such as narcotics, gang suppression, and a number of task forces.  

Parking Stalls

            Currently, at the police department central headquarters there are 159 parking spaces allocated by the police department administration. Most of these parking spaces are assigned to the specific individuals, including, but not limited to the chief, deputy chiefs, and various lieutenants or crime lab personnel. Since 1984, at the very least, 26 of the 159 parking spaces have been available to bargaining unit members for their privately-owned vehicles on a first-come-first-served basis. In 1984, these stalls were the subject of a dispute in front of the Commission. In the 1984 case, the Union contended that the assignment of those parking stalls constituted a condition of employment and the police chief’s decision should have been discussed with the Union. The Commission agreed and restored the 26 disputed parking stalls to the status quo that existed prior to the chief’s new parking assignment order. 

            From 1984 to May of 2006, the police department administration maintained a minimum of 26 parking stalls at the police department central headquarters for bargaining unit members on a first-come-first-served basis. Thirteen of these minimum 26 parking stalls were then eliminated in May of 2006. Effective May 21, 2006, Police Chief Warren ordered that the bargaining unit members could no longer use parking spaces numbered 86 through 98, available at the police department central headquarters. The police department administration eliminated these 13 stalls without negotiating with the Union. The economic impact of these eliminated stalls could cost bargaining unit members either $20 per week at a parking meter, or $40 to $50 per month at a parking lot near the police department central headquarters.  

At trial, the Chief of Police admitted that the parking stalls are a mandatory subject of bargaining. The Chief countered this by saying that even though the stalls are a mandatory subject of bargaining, he felt he was justified in unilaterally removing the stalls according to a management rights clause. The Chief of Police also felt that there was no specific provision listed in the current collective bargaining agreement which gave the stalls to the bargaining unit members. The management rights clause that the Chief of Police relied upon is identical to the management rights clause which was in effect at the time of the previous Commission decision in 1984.

Take-Home Vehicles

            Since approximately 1995, the Omaha Police Department administration has provided approximately 60 take-home vehicles for various assignments occupied by bargaining unit members. These assignments have included, but were not limited to, the special victims unit, gang command, criminal investigative bureau, and the narcotics unit. On approximately May 21, 2006 in an e-mail from Deputy Chief Buske, these roughly 60 take-home vehicles were reduced to approximately 21 take-home vehicles. These vehicles were reduced mostly at the satellite locations in narcotics, narcotics command, gang command, and a fugitive sergeant, as well as several positions in the criminal investigative bureau command at the central station. These vehicles were restored to the bargaining unit members, temporarily, through the Commission’s Status Quo Order dated July 28, 2006.

            Several witnesses at trial testified of the economic impact caused by the loss of a take- home vehicle. One witness testified that having a take-home vehicle enabled him and his wife to share a car for several months. The witness also testified to the benefit of using city gas to travel to and from work.

Other witnesses testified to the officer safety benefits of being provided a take-home vehicle. Officers working in an undercover capacity could have the possibility of jeopardizing their own safety if criminals could follow them from their personal home to the off-site facility.

            The Chief of Police stated that the reasoning behind the department’s change in policy regarding take-home vehicles stemmed directly from an appeal of a disciplinary action. At trial, the Chief of Police also admitted that the take-home vehicles are a mandatory subject of bargaining. The Chief countered this by saying that even though the take-home vehicles are a mandatory subject of bargaining, he felt he was justified in unilaterally re-assigning the vehicles according to a management rights clause and the contract, because there was no specific provision regarding the use of the vehicles in the current collective bargaining agreement.

DISCUSSION:

             The threshold issue in this case is whether the Omaha Police Department’s elimination of parking stalls at the central police headquarters and the reduction of take-home vehicles are mandatory subjects of collective bargaining.

            There are three categories of collective bargaining subjects: mandatory, permissive, and prohibited. International Union of Operating Engineers Local 571 v. City of Plattsmouth, 14 CIR 89 (2002). aff’d. 265 Neb. 817 (2003). The Industrial Relations Act only requires parties to bargain over mandatory subjects. Neb. Rev. Stat. § 48-816(1). The Commission in Service Employees International Union, Local No. 226 v. School District No. 66, 3 CIR 514 (1978), used a relationship test in determining bargaining issues. “Whether an issue is one for bargaining under the Court of Industrial Relations Act depends upon whether it is primarily related to wages, hours and conditions of employment of the employees, or whether it is primarily related to formulation or management of public policy.” Id. at 515; See also Coleridge Education Ass’n v. Cedar County School District No. 14-0541, a/k/a Coleridge Community Schools, 13 CIR 376 (2001).

            The language of the Nebraska Industrial Relations Act does not follow exactly the language of the National Labor Relations Act, 29 U.S.C. 158(d), which requires good faith negotiations regarding “other terms and conditions of employment.”  However, the Industrial Relations Act does refer specifically to “conditions of work” under Neb. Rev. Stat. § 48-801(6); “terms or conditions of employment” under Neb. Rev. Stat. § 48-801(7); “terms and conditions of employment” under Neb. Rev. Stat. § 48-816(2)(4)(6); “other terms or conditions of employment” under Neb. Rev. Stat. § 48-824(c); and “their terms and conditions of employment” under Neb. Rev. Stat. § 48-837. Since it is apparent that the Nebraska Legislature had the same purpose in mind as Congress had in determining what should be considered mandatory subjects for collective bargaining, the federal interpretations of terms and conditions of employment under the National Labor Relations Act can serve as a guide in determining what may constitute subjects for collective bargaining under the Nebraska law. City of Grand Island v. American Federation of State, County and Municipal Employees, 186 Neb. 711, 185 N.W. 2d 860 (1971).

             There is no definition of “conditions of employment” in the Industrial Relations Act, but the NLRB has given a broad interpretation, including subjects which are much farther removed than assignment of parking spaces and take-home vehicles. “Conditions of employment” have been interpreted to be more inclusive than the term “working conditions.” The Commission has determined that the following subjects are conditions of employment: dues to professional organizations; noon duty; dress code (School District of Seward Education Ass’n v. School District of Seward, 1 CIR 3No. 4, affirmed 188 Neb. 772, 199 N.W.2d 752 (1972); grievance procedures (Central City Education Association v. School District of Central City, 1 CIR No. 35 (1971); instructor time with a student (Metropolitan Tech Community College Education Association v. Metropolitan Tech College Area, 3 CIR 418 (1978), but see reversal, 203 Neb. 832, 281 N.W.2d 201 (1979); and subcontracting of janitor work (Service Employee International Union Local Union No. 226 v. School District No. 66 of Douglas County, 3 CIR 514 (1978).

Both the state and federal decisions illustrate that the phrase, “terms and conditions of employment,” has been given a broad and inclusive interpretation. See Inland Steel Co. v. NLRB, 170 F.2d 247 (7th Cir. 1948); Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 8 LC 51A (1944); and Local Union 571, International Union of Operating Engineers, AFL-CIO v. County of Douglas and Roger Morrissey, 15 CIR 75 (2005). A condition of employment should normally have an effect and an economic impact on the employee’s job assignment. It does not include certain subjects normally considered prerogatives of management, such as business schedules, company policy, plant locations, or supervisors because management decisions lie at the core of management control. See Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964).

Parking Stalls

            In Omaha Police Union Local 101 v. City of Omaha, 7 CIR 179 (1984), which we note involved the same Petitioner and Respondent, with the addition in this case of naming the police chief and mayor, the question asked was whether eliminating the use of parking stalls is a term or condition of employment. The Commission simply answered, “we conclude that it is.” In City of Omaha, the Commission found that the police chief’s unilateral act frustrated the bargaining process and had the effect of disparaging and undermining the Union representative. With regard to the 26 disputed parking stalls in City of Omaha, the Commission concluded that the parties should return the parking assignment arrangement to the status that existed prior to the date of the police chief’s original parking assignment order.

             When parking stalls are reserved for some members of a bargaining unit, it has the effect of preventing other members of that bargaining unit from using those stalls and also gives to certain members of the bargaining unit something that is not given to the others. It may be that some of the members will simply park farther away from their place of work. Those who are not granted an assigned stall must compete for other limited parking space. Eliminating the use a parking stall changes the relationship between the employer and the employee, as it affects the employee’s job benefits, and has some impact upon the relationships among members of the bargaining unit and between the members and management. Eliminating the use of a parking stall does not involve a decision, which can be said to lie at the core of management control.  This analysis is why the Commission has previously determined the act of eliminating the use of parking stalls to be a condition of employment, and why we reaffirm that determination.

            As a result of the Commission’s decision in the prior Omaha police case, the Police administration restored the 26 disputed parking stalls to unassigned status. These stalls have remained open for use by bargaining unit and non-bargaining unit persons. There is no evidence that the parking stalls were ever the subject of any negotiations since 1985. The administration has maintained a minimum of 26 first-come-first-served parking stalls since the 1984 decision of the Commission, until Chief Warren’s orders of May and June 2006, which eliminated 13 of those stalls. This was done by the administration, without consulting the union prior to taking the action. It was a unilateral act by the administration. The Respondents admitted this in their Answers to Requests for Admission at Request Nos. 3 and 4.  See Exhibit 15.

            As in the prior case involving these parties, the impact is not great. The elimination of parking stalls cannot affect more than 13 union members at any one time. The evidence establishes that eliminating the use of stalls could cost $20 per week per metered parking space, or $40 to $50 per month in a parking lot. While this economic impact is not great, it is, nevertheless, an economic impact, as was previously determined by the Commission.

            Deputy Chief Buske acknowledged that he was familiar with the Commission’s 1984 City of Omaha decision, regarding assignment of parking spaces. This was stated in testimony by Union President Hanson, and was not denied in the testimony of Mr. Buske. This admission was made on May 26, 2006, during a meeting between Hanson and Buske regarding the issue. The meeting occurred approximately a week after issuance of an information order by Chief Warren eliminating the use of some of the parking spaces. This meeting was prior to the June 6 General Order implementing the new parking policy. Hanson again raised the issue with Chief Warren on July 14, 2006, but the evidence shows that Chief Warren took the position that the parking stalls were a privilege and not a matter for collective bargaining. At trial, we note that Chief Warren admitted that the reduction of parking stalls was indeed a mandatory subject of collective bargaining.

            The Respondents urge that the result in this case should be different from the 1984 decision because of the current collective bargaining agreement. The Respondents argue that the collective bargaining agreement is a waiver by the Petitioner of its rights through the bargaining process. The 1983 collective bargaining agreement, which was the agreement in effect at the time of the prior case between these parties decided by this Commission, contained a management rights article with 22 subparts. Those same subparts were contained in the management clause effective for the years 1984 through 1986, and have remained in effect, without change, in the management rights article in the current collective bargaining agreement between the parties. In short, there has been no change in that management rights clause since 1983, and there is no other evidence before the Commission which could indicate any interpretation or course of conduct by the parties which could constitute a waiver of the right to bargain regarding the assignment of parking.

            The Respondents argue that negotiations shortly after the 1984 decision indicate that the Commission’s decision was intended to correct the inequity where benefits were provided to one member of the bargaining unit and not to others, relying upon statements made by the City’s bargaining agent during negotiations. While such statements are certainly not binding upon the Commission, Exhibit 19 in fact demonstrates only a self-serving position taken by one party during a bargaining session. The same exhibit indicates that the union held a different view, and the issue was then apparently dropped from all later bargaining sessions, as there is no further evidence of such bargaining.

            The evidence shows that since 1984 the City has reassigned parking spaces, ranging upwards from a minimum of 26 spaces during the past 22 years. However, throughout all of these changes following the Commission’s 1984 decision, the evidence shows that a total of 26 first-come-first-served parking spaces have remained constant. As in the prior case involving these parties, the impact of the Police Chief’s unilateral decision is not great. Despite this, we find that this unilateral act frustrates the bargaining process. It was, therefore, a refusal to bargain in good faith and a violation of the Industrial Relations Act.

Take-Home Vehicles

             The Commission recently found the practice of furnishing take-home vehicles to be a mandatory subject of collective bargaining and ruled that any unilateral change in such practice constitutes a prohibited practice. See Local Union 571 International Union of Operating Engineers v. the County of Douglas, 15 CIR 75 (2005) (which was decided approximately six months prior to this case and involved the county in which Omaha is located.) Certainly, the ability to drive a city-owned vehicle to and from work is an economic benefit to those so permitted. The evidence in this case readily demonstrates that there is such benefit.

            Providing take-home vehicles has been a longstanding practice in the Omaha Police Department, since at least 1991. In the instant case, the Respondents admit a refusal to negotiate the issue with the union both before and after it made the change in 2006. The evidence establishes that the union president made at least two attempts to negotiate the issue, but these efforts were rejected by the chief and assistant chief. At trial, the Respondents attempted to establish that they had reduced the number of take-home vehicles previously. However, there was no evidence that such reduction or elimination took place other than on paper, and there was no indication that the Petitioner was ever notified of any written policy regarding any such reduction or elimination. When the Petitioner was informed of the Respondents’ change of policy, the union president promptly attempted to negotiate the issue.

            There is no evidence of any contractual negotiations between the Respondents and the Petitioner regarding take-home vehicles. There is no evidence of any provision in any bargaining agreement regarding take-home vehicles, and there is no evidence that it has ever been discussed in negotiations. The only evidence either party can cite in the bargaining agreement which could have impact on the decision in this case is in the management rights section, at Section 18, which again, has remained the same in all bargaining agreements submitted to the Commission. In fact, the evidence shows that this language was in the bargaining agreement as long ago as January 1982. 

            What this evidence establishes is that the police department administration had established a policy of allowing certain officers to take police vehicles home since 1991. There is no evidence that this was ever the result of negotiations or contract language. At all times during which this has been allowed, the Respondents have reserved the right of property, machinery, and equipment owned by the City. 

            The Respondents also cite subsections (2) and (10) of Article 2 of the bargaining agreement, noting that these provisions have also been in existence since at least 1982.  However, these add nothing in this case to the arguments made with respect to Section 18 regarding the control and use of City property. In particular, Section 2 could be cited to justify practically any unilateral decision by the City on any subject. 

            The Commission will not be persuaded by vague, all inclusive statements in bargaining agreements that employers may do whatever they please, which if taken to their logical conclusion under the Respondents’ arguments, would negate the entire agreement and the bargaining process established by the Industrial Relations Act. Broad statements to the effect that the public employer maintains the right to manage all operations of that entity and maintains the right to change or discontinue any regulations or procedures do not override the requirement of bargaining in good faith regarding subjects of mandatory bargaining.

            Mandatory subjects of bargaining are not just topics for discussion during negotiations sessions. Unless clearly waived, mandatory subjects must be bargained for before, during, and after the expiration of collective bargaining agreements. In Rockwell Int’l Corp., 260 NLRB 1346, 109 L.R.R.M. 1366 (1982), the National Labor Relations Board found that the duty to bargain continues during the existence of a bargaining agreement concerning any mandatory subject of bargaining, which has not been specifically covered in the contract and regarding which the union has not clearly and unmistakably waived its right to bargain. In Rockwell, the Respondent, a manufacture of nuclear weapon components, maintained a cafeteria for its employees in part because of its remote location in the Rocky Flats near Golden, Colorado. The Respondent refused to bargain over food price increases in cafeteria items. In Rockwell, the Board overturned the administrative law judge’s finding that a zipper clause in the collective bargaining agreement constituted an effective waiver of the Union’s right to request bargaining about cafeteria and vending machine prices for the duration of the contract. Citing Ford Motor Co. (Chicago Stamping Plant) v. N.L.R.B., 441 U.S. 488 (1979), the Board stated that the Respondent had violated Section 8(a)(5) of the National Labor Relations Act by refusing to bargain about unilateral increases in food prices made during the terms of a collective-bargaining agreement which did not specifically cover the subject of those prices. In sum, the Board found that the Respondent had a continuous duty to bargain over the matter of increases in the in-plant food prices. The Board concluded that the Respondent’s refusal to bargain over the price increases violated 8(a)(5) and (1) of the Act.

            In Local Union 571 v. The County of Douglas, this Commission, in part relying upon NLRB cases, recognized that the use of company vehicles for transportation to and from work involves working conditions, and is therefore a mandatory subject of bargaining. We noted that for a substantial period of time, Douglas County had furnished vehicles to the majority of employees in the assessor’s office. Such vehicles provided a definite and significant economic impact on the benefited employees. The evidence did not establish that this benefit began as a result of bargaining, just as it does not establish in this case that the use of take-home vehicles by Omaha police officers was established through the bargaining process. However, once clearly established, it was ruled to indeed be a mandatory subject of bargaining, which could not be changed by the Respondents without any notice to the union or bargaining between the parties.

            What the evidence does establish in this case is that the City has had various rules in place for at least 15 years regarding take-home vehicles, that the rules have been changed by the City from time to time, that the police department may not have always followed its own rules, that those in the chain of command below the assistant chief of police may have made their own rules from time to time without the knowledge of the police department, and that nobody seems to be able to identify exactly how many take-home vehicles were authorized at any given time.  The union president testified that he was not aware of prior changes in the City’s policy, as the union had not been informed. Given the nature of the bargaining unit and the ability to observe fellow officers in the exchange of information, the attempt by the Petitioner to establish that it was not aware of changes in the take-home vehicle policy until the changes were made by Chief Warren in 2006 is not entirely credible.

            Once the Commission determines that a matter is one for mandatory bargaining, it is for the party which did not bargain to establish a claim of waiver by evidence. While we are skeptical that the union was not aware of changes in assignment of take-home vehicles, the evidence is void of any attempt by the police administration to inform the union or any of its members of any of the policy or practice changes. This does not meet the burden of proof to establish knowledge on the part of the union, and thus does not meet the burden of proof regarding waiver. See Fraternal Order of Police v. The City of Ralston, 12 CIR 59 (1994) (the burden of proof is on Respondents regarding the union’s waiver of the right to bargain over mandatory subjects. The burden must be established clearly and unmistakably that the union waived its right, including notice of a proposed change in the mandatory bargaining subject.) In respect to actual notice, the evidence does not establish that any of the office correspondence or policies had ever been provided to the union.

Remedial Authority

            The Petitioner requests that the Commission restore the status quo before the unilateral change, and order the Respondents to cease and desist from their recent actions regarding parking stalls and take-home vehicles. The Petitioner also requests payment of mileage with interest and an award of reasonable attorney fees. The Respondent submits that if the Commission determines that the Petitioner is entitled to relief, the Respondents believe the damages asserted in Exhibit 18 are the maximum damages that could be appropriately awarded. The Respondents urge the Commission that their actions were based upon their interpretation of the management rights clause in the collective bargaining agreement and that those actions do not rise to the level of repetitive, egregious, or willful actions.

            The Commission has the authority to order an appropriate remedy, which will promote public policy, adequately provide relief to the injured party, and lead to the resolution of the industrial dispute. See International Union of Operating Engineers, Local 571 v. City of Plattsmouth, 14 CIR 89 (2002), aff’d 265 Neb. 817, 660 N.W.2d 480 (2003). While the Commission’s authority is limited in nature, the Nebraska Supreme Court has also previously determined that the Commission has authority to enter orders preserving the status quo until a dispute is resolved. See Transport Workers v. Transit Auth. of Omaha, 216 Neb. 455, 344 N.W.2d 459 (1984). In City of Plattsmouth, the Supreme Court upheld the Commission’s order returning the parties to the status quo by ordering reinstatement and back-pay, following a finding of a prohibited practice under the Industrial Relations Act.

                In the instant case, in order to preserve the status quo, the Respondents should be ordered to cease and desist from unilaterally changing the number of first-come-first served parking stalls and from implementing Chief Warren’s General Order of June 6, 2006, and information order of May 18, 2006. The Respondents should also be ordered to cease and desist from unilaterally changing the take-home vehicle policy of the Omaha Police Department and should not implement the Chief’s General Order of June 6, 2006. Finally, the Respondents should cease and desist from implementing changes to these policies without submitting the matters to the Petitioner as part of the collective bargaining process.

            For the period of May 11 to July 28, 2006, the evidence is uncontroverted that until the Commission’s temporary order, various union employees were deprived of their take-home vehicles through the Respondents’ unilateral actions. In order to fully return the parties to the status quo, the officers should be reimbursed for the value of the mileage required by use of their personal vehicles from May 11 to July 28, 2006. While there was some discussion at trial as to whether the list of the affected employees was complete, the evidence established that Exhibit 18 was the most complete and accurate list of potentially affected members concerning their status. The Respondents should reimburse the 37 affected employees by paying the mileage reimbursement owed to them individually, totaling $20,394.29, plus interest at the legal rate for judgments of 7.094% now in effect. (For mileage reimbursement, see Table 1.)

Attorney Fees 

Not every prohibited practice will result in an award of attorney fees. To support an award of fees, under CIR Rule 42(b)(2a), it must be found that the party in violation has undertaken a pattern of repetitive, egregious, or willful prohibitive practice. While this is a close question under the facts of this case, we find that the Respondents’ actions do not meet that standard. While we are not persuaded that this case is simply a disagreement as to the meaning of an interpretation of decisions of the Commission, as urged by Respondents, the evidence does establish that parking and take-home vehicle policies have not been the subject of bargaining for many years, with changes being made which either would not have been a prohibited practice or which were not fully communicated to the Union. Under these facts, we are not convinced that the administration’s actions were egregious or willful. Petitioner’s request for attorney fees is denied.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that: 

1.   The Respondents shall cease and desist from unilaterally changing the number of first-come-first-served parking stalls and from implementing Chief Warren’s General Order of June 6, 2006, and information order of May 18, 2006.

 

2. The Respondents shall be ordered to cease and desist from unilaterally changing the take-home vehicle policy of the Omaha Police Department and should not implement the Chief’s General Order of June 6, 2006.

    

3. The Respondents shall cease and desist from implementing changes to these policies without submitting the matters to the Petitioner as part of the collective bargaining process and shall commence good faith negotiations over those policies within thirty (30) days.

 

4.   The Respondents shall reimburse the 37 affected employees by paying the mileage reimbursement owed to them individually, totaling $20,394.29, plus interest as set by § 45-103, which is the Nebraska judgment rate of 7.094% now in effect. Adjustments resulting from this order shall be paid in a single lump sum payable within thirty (30) days. 

All panel judges join in the entry of this order.