19
CIR 180 (2016)
NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS
FRATERNAL
ORDER OF POLICE LODGE #24, and MITCHELL MEYER, Petitioners, v. CITY
OF GRAND ISLAND, NEBRASKA, Respondent. |
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Case
No. 1412
FINDINGS
AND ORDER |
Filed
June 16, 2016
APPEARANCES:
For Petitioners: Thomas P. McCarty
Keating,
O’Gara, Nedved & Peter, P.C., L.L.O.
530
S. 13th Street, Suite 100
Lincoln,
NE 68508
For
Respondent: Stacy
R. Nonhof
100 East 1st
Street
P. O. Box 1968
Grand Island, NE
68802
Before
Commissioners Spray, Pillen, and Partsch
SPRAY,
Commissioner
NATURE OF THE CASE
On November 9, 2015, the Fraternal
Order of Police Lodge #24 (“Union”) and Mitchell Meyer (“Officer Meyer”) (or
collectively “Petitioners”) filed this action with the Commission, alleging
that the City of Grand Island, Nebraska (“City” or “Respondent”) committed a
prohibited practice in violation of the Nebraska Industrial Relations Act (“Act”),
Neb. Rev. Stat. § 48-824(1) and (2)(b), (e) when Respondent refused to provide
requested documents to the Petitioners for use in administering the Collective
Bargaining Agreement (“CBA”) between the parties. Commissioner J.L. Spray
presided over a trial on February 11, 2016.
The parties then submitted post-trial briefs.
FACTS
The
Commission accepts the following facts as true pursuant to the Stipulation
entered into by the parties. (Ex. 24). The Union is a "labor
organization," as that term is defined in Neb. Rev. Stat. § 48-801(7), and
is the exclusive collective bargaining agent of the bargaining unit consisting
of Police Officers and Sergeants of the City of Grand Island Police Department
("GIPD"). Officer Meyer is a "public employee" as that term
is defined in Neb. Rev. Stat. § 48-801(11), and is currently employed by the
City as a Police Officer of the GIPD. Officer Meyer is a member of the
bargaining unit which the Union represents, and has been working as a Police
Officer for the GIPD for approximately one and a half years. The City is a
political subdivision of the State of Nebraska, and is a "public employer"
within the meaning of Neb. Rev. Stat. § 48-801(12) and employs those employees
who compose the bargaining unit described above.
The CBA contains the following
provisions regarding discipline of Police Officers and Sergeants in Article
XVII(C):
1.
Cause: Cause for disciplinary action shall include any cause so specified in
the Employee Personnel Rules of the City of Grand Island, the Police Department
Policy and Procedures Manual and the rules and regulations of the City Civil
Service Commission.
2.
Reprimand: The Police Chief or designated representative may reprimand any
employee for cause. Such reprimand may be in writing and addressed and
presented to the employee who will initial receipt. A signed copy shall be
delivered to the Mayor's office for inclusion in the employee's personnel file.
The employee may submit an explanation or rebuttal.
3.
Civil Service: It is agreed by the parties that all applicable provisions of
the Rules and Regulations of the Grand Island Civil Service Commission are
hereby made part of this agreement and by this reference made part hereof.
It
is the policy of the City of Grand Island to provide a system of progressive
discipline which affords an opportunity for the resolution of unsatisfactory
employee performance or conduct.
Such
system shall include an appeal procedure to assure the equitable and consistent
application of discipline.
Discipline
may begin with the least severe disciplinary action and progress, if necessary,
to more severe actions. However, the severity of the incident may warrant any
level of initial disciplinary action.
(Ex.
1).
Chapter
12 of the Grand Island Municipal Code governs the Grand Island Civil Service
Commission. (Ex. 2 and 3). In the case of terminations, the Code provides that
the Chief of Police must draft an Accusation recommending termination and
deliver it to the employee. The employee is then placed on administrative leave
with pay and may request a hearing before the Mayor of the City of Grand Island
on the Accusation. At the Mayoral hearing, the employee is allowed to present
evidence in his defense. Under Section 12-8 of the Code, the Mayor is the only
party authorized to terminate a Grand Island Police Officer. If, after the
Mayoral hearing, the Mayor terminates the employee, then the employee may
appeal the Mayor's decision to the Grand Island Civil Service Commission.
Finally, the employee may appeal the Civil Service Commission's decision to the
District Court of Hall County, Nebraska.
On
September 18, 2015, Officer Meyer received his First Letter of Accusation recommending
his termination from Grand Island Police Chief Steven Lamken. (Ex. 4). The
letter generally alleged that on and after September 3, 2015, Officer Meyer
failed to follow the Department's proper driving procedures during a pursuit of
a fleeing suspect, disregarded the direct order of a supervisor during the
pursuit, did not submit a complete report of his actions during the pursuit,
and disregarded the direct order of a supervisor to submit an additional report
following the pursuit. The letter specifically alleges that Officer Meyer
violated various policies, rules, and regulations of the City and GIPD. Officer
Meyer had no formal discipline in his personnel file prior to September18,
2015.
Officer
Meyer timely requested a Mayoral Hearing on the First Letter of Accusation,
which was scheduled for Wednesday, October 7, 2015. On October 1, 2015, while Officer Meyer was on
paid administrative leave for the First Letter of Accusation, the Department
issued Officer Meyer a Second Letter of Accusation. (Ex. 6) The letter generally
alleges that, on August 10, 2015, Officer Meyer conducted an unconstitutional
search and seizure of a suspect's bag and spoke in an unprofessional manner to
the suspect and fellow officers. The Second Letter of Accusation specifically
alleges Officer Meyer violated various rules, regulations, and policies of the
City, as well as the United States Constitution. Officer Meyer timely requested
a Mayoral Hearing on the Second Letter of Accusation. The Second Mayoral
Hearing is currently pending pursuant to this Commission’s Order on Motion for
Temporary Status Quo, dated November 12, 2015.
On
October 5, 2015, Petitioners sent an email to Respondent requesting a copy of a Written Reprimand previously issued
to GIPD Officer Bellici. (Ex. 8). On
October 6, 2015, Respondent denied the request for a copy of Officer Bellici's Written
Reprimand. (Ex. 9). The Mayoral Hearing on Officer Meyer's First Letter of
Accusation was held on October 7, 2015. (Ex. 500 and 501). The Mayor decided at
the hearing on the First Letter of Accusation that he would not make a
determination regarding whether to terminate Officer Meyer until after his
Mayoral Hearing on the Second Letter of Accusation. (Ex. 500, pg. 82). On October 29, 2015, Respondent submitted a
Written Response (Brief) to the Mayor following the First Mayoral Hearing. (Ex.
10).
On
October 30, 2015, Petitioners sent a letter to Respondent requesting certain documents
and information, including disciplinary information regarding other Officers
and former Officers of GIPD. (Ex. 11). On November 4, 2015, Respondents denied
the requests of the Union and Officer Meyer, except that Respondents agreed to
produce GIPD emails and documents related to Officer Meyer and the incidents
giving rise to his First and Second Letters of Accusation. (Ex 12).
Among
other documents, Respondent produced the documents described in Exhibits 13 and
14 after receiving the requests for documents and information contained in the
October 30, 2015 letter. Mayor Jensen granted Petitioners' request to
supplement the record of the First Mayoral Hearing with the documents in
Exhibits 13 and 14. (Ex 15). At the time of trial, Officer Meyer was still
employed by Respondent and on paid administrative leave pending the Mayor's
decision following the Second Mayoral Hearing.
DISCUSSION
Petitioners
allege that the Respondent committed a prohibited practice in violation of Neb.
Rev. Stat. § 48-824(1) and (2)(b), (e) when it refused to provide information
requested to permit the Petitioners to administer the existing collective
bargaining agreement. The Respondent contends that it is not required to provide
any information to the Petitioners other than the Accusation pursuant to the
CBA, the City Personnel Rules and Chapter 12 of Grand Island Municipal Code.
Jurisdiction
The
Commission has been given jurisdiction to adjudicate alleged violations of the
Act by virtue of Neb. Rev. Stat. §§ 48-824 and 48-825. Respondent attempts to
classify the issue at hand as a uniquely personal termination, over which the
Commission does not have jurisdiction. It is true that the Commission does not
have subject matter jurisdiction with respect to "uniquely personal"
matters. See Nebraska Dept. of Roads Employees Ass 'n v. Department
of Roads, 189 Neb. 754, 205 N.W.2d 110 (1973), See also, Schmieding v.
City of Lincoln and Lincoln General Hospital, 2 CIR 60 (1972). Schmieding
very clearly held that uniquely personal matters are not within the legislative
policy behind the Industrial Relations Act. Here, however, it is not the unique
circumstances of the proposed termination that is at issue. The issue is whether
the Respondent committed a prohibited practice under the Industrial Relations
Act.
Further, Respondent contends
that the Commission lacks jurisdiction, as the claim amounts to a breach of
contract claim which requires the Commission to interpret and apply terms and
conditions of an existing CBA. It is also true that the Commission does not
have subject matter jurisdiction over a breach of contract claim. However, the
Commission has jurisdiction over prohibited practice claims even if the same
facts constitute a breach of contract claim. See, Lamb v. Fraternal Order of Police Lodge, 293 Neb. 138 (2016); Nebraska Ass'n of Public Employees. Local
61 v. State of Nebraska Dep't
of Correctional Services, 19 CIR 13 (2014); South Sioux City Educ. Ass’n v. South Sioux
City Public Schools, 16 CIR 12 (2008), aff’d 278 Neb. 572 (2009); Ewing Educ. Ass’n v. Ewing Public Schools,
12 CIR 242 (1996). The facts in this case constitute a viable prohibited
practice claim. Therefore, the Petitioner has invoked the jurisdiction of the
Commission.
Prohibited
Practice Allegations
Neb.
Rev. Stat. § 48-824 states in part:
(1) It
is a prohibited practice for any public employer, public employee, public
employee organization, or collective-bargaining agent to refuse to negotiate in
good faith with respect to mandatory topics of bargaining.
(2) It
is a prohibited practice for any public employer or the public employer's
negotiator to:
b. Dominate
or interfere in the administration of any public employee organization;
e. Refuse
to negotiate collectively with representatives of collective-bargaining agents
as required by the Industrial Relations Act.
Neb. Rev. Stat. §
48-824
The Commission has
previously held that refusing to furnish information requested by the Union for
the purpose of investigating potential grievances is a prohibited practice. Omaha Police Union Local 101, IUPA AFL-CIO
v. City of Omaha et al., 15 CIR 355 (2007). A public employer's duty to
bargain in good faith requires the employer to furnish the union, upon a good
faith request, information which is necessary and relevant to the union's
administration of the parties' bargaining agreement. Id. at 358. Once the relevance of information is determined, the
employer's refusal to honor the information request is a "per se
violation" of the Act. Id.
To determine whether the
requested information is relevant, the Commission applies a relaxed
"discovery-type" standard. Id.;
see Neb. Ct. R. Disc. § 6-326(b)(I) ("It is not ground for objection that
the information sought will be inadmissible at the trial if the information
sought appears reasonably calculated to lead to the discovery of admissible
evidence."). The Commission then determines whether the information would
be "of use" to the union in carrying out its duties. Omaha Police Union, 15 CIR at 358. Under
this standard, the Commission recognized employers will be required to give
unions "a broad range of potentially useful information." Id.
Decisions under the National
Labor Relations Act (NLRA) are helpful in interpreting the Nebraska Industrial
Relations Act, but are not binding. Crete Educ. Ass'n v. Saline Cty. Sch. Dist.
No. 76-0002, 265 Neb. 8, 22 (2002). The Commission concludes that the
relevant provisions of Neb. Rev. Stat. § 48-824 are sufficiently similar to 29
U.S.C.S. § 158(a) to provide guidance in the application of our statutes.
In NLRB v. Pfizer, Inc., 763 F.2d 887 (7th Cir. 1985), the National
Labor Relations Board (NLRB) sought enforcement of its order finding that
respondent employer had violated the National Labor Relations Act, 29 U.S.C.S.
§ 158(a)(1), (5), by refusing to supply information relevant to the processing
of an employee grievance and ordering production of that information and other
remedies. Respondent asserted that the information was irrelevant to the
grievance and confidential. The court affirmed petitioner NLRB's order because an
employer's duty to bargain collectively included the duty to furnish
information relevant to a union's performance of its duties. The court also noted
that a mere probability that such information was relevant and of use to the
union was sufficient to compel an employer to supply information and that personnel
files were not per se confidential.
The Commission finds that
the information requested by the Petitioners is both relevant and of use to the
Union. The term “equitable and consistent” implies comparison by definition. In
order to determine whether particular discipline is equitable and consistent,
one must first evaluate other instances of discipline. Here Respondent claims
that by wholly denying Petitioners’ requests for disciplinary records they are
protecting the privacy of other Officers. Yet Respondent’s Representatives
testified openly to disciplinary matters involving both named and unnamed
Officers at the Mayoral Hearing. (Ex. 500). Here Petitioners are not requesting unfettered
access to employee files. Further, Petitioners expressed willingness to work
with the City to address privacy concerns and to accept redacted records. The
Commission finds the Respondent’s denial to provide the disciplinary information
requested by Petitioners to be a prohibited practice and a per se violation of
the Act.
REMEDIAL AUTHORITY
The Commission has the authority to
issue cease and desist orders following findings of prohibited practices and
has done so in the past. See Local Union 571 International Union of
Operating Engineers v. County of Douglas, 15 CIR 75 (2005); Ewing
Education Ass’n v. Holt County School District No. 29, 12 CIR 242 (1996)(en
banc). In
the present case, the Commission finds that the Respondent has committed a
prohibited practice under the Nebraska Industrial Relations Act. Therefore, an
order requiring that the Respondent cease and desist from committing the
prohibited practice is clearly within the authority of the Commission and will
be ordered.
Attorney Fees
The
Commission has authority to award attorney’s fees, and has found it to be an
appropriate remedy in cases where an employer’s misconduct was flagrant,
aggravated, persistent, and pervasive. See
Fraternal Order of Police, Lodge No. 8 v. Douglas County, et. al., 16 CIR
401 (2010). Respondent’s actions in this case do not rise to the level deemed
appropriate for an award of attorney fees. The Commission finds that the parties are to pay their own
costs and fees.
IT
IS THEREFORE ORDERED that Respondent shall:
1. Cease
and desist from refusing to provide information to the Petitioners which is
necessary and relevant to the Union's administration of the parties' bargaining
agreement.
2. Cease
and desist from refusing to furnish relevant and necessary disciplinary information
as requested by the Petitioners.
All
Panel Commissioners join in the entry of this Order.