Nebraska Supreme Court Holds School District Proved Union Waived Its Right To Bargain Due to Union’s Inaction

Nebraska employers and unions have more guidance on what constitutes a “waiver” under the Industrial Relations Act (IRA) due to a recent Nebraska Supreme Court decision.  The Court determined that Service Employees International Union (AFL-CIO) Local 226 (Local 226) waived its right to negotiate vacation, a mandatory subject of bargaining, with Douglas County School District 001, also known as Omaha Public Schools, (District), when it failed to take advantage of opportunities offered by the District to offer input or request negotiations.  The Court concluded that the District proved a clear and unmistakable waiver by Local 226, by establishing (1) Local 226 received notice of the District’s plans to implement a new vacation accrual policy and (2) Local 226 failed to request bargaining on the issue.

During the 2010-11 school year, the District set forth to change the manner in which employees could accrue vacation time.  The District paid the value of an employee’s unused vacation days to the employee in his or her final paycheck upon the end of his or her employment with the District or position, if the employee transferred to a position in which he or she was not eligible for vacation.  At that time, employees were granted all of their vacation allotment in a single lump sum at the beginning of the school year.  Under the proposed changes, employees would gradually accrue vacation throughout the school year. 

The collective bargaining agreements (CBA’s) for the office personnel, educational paraprofessionals and operations division provided the amount of vacation employees were entitled to each year.  However, the CBA’s were silent as to the manner in which that amount of vacation was to be accrued by or distributed to employees.  Instead, the distribution was governed by section 4.21 of the District’s Policies and Regulations, which were incorporated by reference into Article 2 of the CBA’s.  Article 2 provided that the District could make changes to the policies and regulations at any time.     In February and March 2011, the District advised Local 226, the duly certified exclusive bargaining agent for the District’s office personnel, educational paraprofessionals, and operations division, that it planned to make changes to section 4.21, and on May 16, 2011, the Board of Education adopted those amendments.  Local 226 did not appear at the Board’s meeting to oppose the changes.  The next day, members of Local 226 sent a letter requesting that the District “cease and desist” from implementing the vacation accrual policy, characterizing it as an unilateral change of a mandatory subject of bargaining, which is a prohibited practice.  The District denied committing a prohibited practice but noted that it remained open to working with Local 226 to address any concerns about the practical application of the revised policy.  From February 2011 through the summer, the District and Local 226 were engaged in substantive negotiations of the CBA’s for the 2011-12 school year.  Local 226 did not propose any changes to the new vacation accrual policy, however, before signing them in September and October 2011. 

In January 2012, Local 226 filed petitions with the Commission of Industrial Relations (“CIR”) on behalf of the office personnel, educational paraprofessionals and operations division.  The CIR held a consolidated trial on the petitions, ultimately deciding that Local 226 had failed to prove that the District committed a prohibited practice.  Based on the evidence, the CIR found that “the District had given Local 226 ‘sufficient notice’ of the proposed change such that Local 226 had an obligation to ‘make a timely request to bargain.'”  It further determined that Local 226 had failed to negotiate to impasse on the matter.  Local 226 appealed the dismissal of the three petitions, and the Nebraska Supreme Court moved the case to its docket.

The Nebraska Supreme Court affirmed the CIR decision, but noted that “[o]nce the CIR concluded to request negotiations, any discussion on negotiating to impasse was extraneous to the CIR’s ultimate decision.” 

The Court found that the District acted within its authority when it made changes to the policies and regulations for the 2011-12 school year.  Nevertheless, the District was still required by the IRA to negotiate regarding the new vacation accrual policy, because vacation is a mandatory subject of bargaining.  The Court determined the District did not commit a prohibited practice, however, because Local 226 waived its right to negotiate.

The Court recognized that employees or their representatives may waive the right to bargain on mandatory subjects of bargaining.  The express language of a collective bargaining agreement may contain a clear and unmistakable waiver of a statutory right.  The waiver may also be implied from the structure of an agreement and the parties’ course of conduct.

The Court agreed with the CIR’s adoption of the following proposition:

Once a union has notice of a proposed change in a mandatory bargaining subject, it must make a timely request to bargain.  A union cannot charge an employer with refusal to negotiate when it has made no attempts to bring the employer to the bargaining table.

The Court concluded that Local 226 received notice of the District’s intended changes to the vacation accrual policy, but failed to make a timely request to bargain over the changes.  This failure constituted a waiver of Local 226’s right to bargain on what would otherwise be a mandatory subject of bargaining. 

The Court determined that the evidence before the CIR established a clear and unmistaken waiver of Local 226’s right to negotiate.  Local 226 was given “more than sufficient opportunity to express concerns about the new vacation accrual policy and negotiate regarding it.”  Instead, Local 226 “sat on the knowledge that the District planned to make changes to the vacation accrual policy and signed new CBA’s that made those changes binding on Local 226 members.”

This case is important, particularly for employers, because, as the Nebraska Supreme Court noted, “there is little Nebraska case law discussing waiver of the right to bargain under the IRA.”

David J. Kramer and D. Ashley Robinson of Baird Holm LLP, who represented the District in this matter