Public Assn. of Govt. Empl. v. City of Lincoln
24 Neb. Ct. App. 703
| Neb. Ct. App. | 2017Background
- PAGE (union) and City of Lincoln operated under a CBA effective Aug 14, 2014–Aug 31, 2016 covering shifts, hours, shift differential, and emergency call-in procedures.
- Historically, street maintenance employees volunteered for winter standby and were called in as needed; employees worked 8- or 10-hour shifts with consecutive days off.
- In Jan 2015 the City unilaterally implemented a mandatory standby staffing plan requiring employees to be on mandatory standby, work 12-hour shifts if called, and be subject to 7-day schedules and discipline for noncompliance.
- PAGE filed a prohibited practice petition with the Commission of Industrial Relations (CIR), alleging the City unlawfully refused to bargain over a mandatory subject under the Nebraska Industrial Relations Act (IRA).
- CIR found the changes were a mandatory subject of bargaining, not covered by the CBA, and that the City committed a per se prohibited practice by implementing the plan without bargaining. The City appealed.
Issues
| Issue | Plaintiff's Argument (PAGE) | Defendant's Argument (City) | Held |
|---|---|---|---|
| Whether the mandatory standby plan was a mandatory subject of bargaining or a management prerogative | Standby plan altered hours, days off, and working conditions; thus it is a mandatory subject | Scheduling is a management prerogative; changes are within City rights to schedule work | Held mandatory subject: changes vitally affected hours/terms and were mandatorily bargainable |
| Whether the standby changes were covered by the CBA (contract coverage rule) | Not covered: CBA contemplates hours/shifts and emergency call-in only; silent on mandatory standby procedures | CBA’s management-rights and shift provisions allow the City to change shifts and procedures | Held not covered: CBA did not authorize mandatory standby/mandatory overtime at issue |
| Whether unilateral implementation without bargaining was a prohibited practice | Failure to bargain over mandatory subject is a per se prohibited practice under the IRA | No duty to bargain because matter is management prerogative or covered by CBA | Held: Failure to bargain was a prohibited practice; CIR did not err |
| Whether CIR had jurisdiction (breach-of-contract vs. prohibited practice) | Claim is a prohibited practice under the IRA, within CIR jurisdiction | City contends claim is a breach of contract (outside CIR jurisdiction) | Held CIR had jurisdiction because the claim was for a prohibited practice under the IRA |
Key Cases Cited
- Service Empl. Internat. v. Douglas Cty. Sch. Dist., 286 Neb. 755 (2013) (defines mandatory subjects of bargaining and review standard for CIR decisions)
- Douglas Cty. Health Ctr. Sec. Union v. Douglas Cty., 284 Neb. 109 (2012) (explains contract coverage rule: if CBA fully defines rights on a subject, no further bargaining required)
- Dept. of Navy, Marine Corps Logistics Base v. FLRA, 962 F.2d 48 (D.C. Cir. 1992) (CBA provisions covering reassignment/performance standards can make implementation matters "covered by" the agreement)
- Lamb v. Fraternal Order of Police Lodge No. 36, 293 Neb. 138 (2016) (CIR lacks jurisdiction over pure breach-of-contract claims)