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STATE OF IOWA BEFORE THE PUBLIC EMPLOYMENT RELATIONS BOARD CEDAR

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STATE OF IOWA BEFORE THE PUBLIC EMPLOYMENT RELATIONS BOARD CEDAR Powered By Docstoc
					                               STATE OF IOWA
               BEFORE THE PUBLIC EMPLOYMENT RELATIONS BOARD


CEDAR RAPIDS ASSOCIATION OF                          )
FIREFIGHTERS, LOCAL 11,                              )
INTERNATIONAL ASSOCIATION OF                         )
FIREFIGHTERS,                                        )
     Complainant,                                    )      CASE NO. 4591
                                                     )
and                                                  )
                                                     )
CITY OF CEDAR RAPIDS,                                )
     Respondent.                                     )



                                   DECISION ON APPEAL

          This case concerns an appeal by the Cedar Rapids Association

of    Firefighters,        Local    11,    IAFF      (Association)        of    a   Proposed

Decision and Order issued by an administrative law judge (ALJ)

dismissing       a   prohibited           practice        complaint       filed     by    the

Association against the City of Cedar Rapids (City).                                 In its

complaint,      filed      pursuant       to    §11       of    the    Public     Employment

Relations Act (the Act), Code of Iowa ch. 20, the Association

alleges       that   the     City     made     proposals         during    the      parties'

collective bargaining which had not been contained in the City's
initial      bargaining      position,         and       that   such    conduct     per    se

constitutes bad faith bargaining and a breach of the City's duty

to present all of its bargaining proposals at the second public

bargaining session, and thus constitutes a prohibited practice

within the meaning of §§20.10(1), 20.10(2)(a), (e) and (f).1                               On

June 15, 1992, the ALJ found that no violation of the law had

occurred and proposed dismissal of the complaint.                         The Association
      1
     These  and   all  subsequent   statutory citations,                             unless
otherwise indicated, are to the Code of Iowa (1991).




                                               1
then    filed   the      instant     appeal       to   the    full    Public     Employment

Relations Board (PERB or Board).                  Oral arguments were presented to

the Board on August 12, 1992, by Charles E. Gribble, attorney for

the Association, and James H. Flitz, attorney for the City.                            Both

parties filed briefs on appeal.

        Based upon the entirety of the record, and having considered

the parties' briefs and oral arguments, we make the following

Findings of Fact and Conclusions of Law:

                                    FINDINGS OF FACT

        In   lieu   of    an   evidentiary        hearing,      the    parties     filed   a

written      Stipulation       of    Facts2    with     the    ALJ    for    purposes      of

deciding the matter.                Based on that stipulation, the ALJ made

findings of fact which are not in dispute on appeal, and which we

adopt and affirm, as set out below:

        The Association is an employee organization as defined by

§20.3(4) and the City is a public employer as defined by §20.3(1).

The Association has been certified by PERB as the exclusive

bargaining      representative         for    certain        employees      of   the   City,
including all firefighters.

        The Association and the City are parties to a collective

bargaining agreement, effective from July 1, 1991 through June 30,

1992.        Article     11    of    that    agreement       contains    provisions        on

workweek and overtime, and provides, in relevant part:


                                       ARTICLE 11
   2
     The parties' Stipulation of Facts incorporated by reference a
number of attached documents, which are hereinafter referred to as
"Stipulation Ex. 1", etc.




                                              2
                         WORKWEEK AND OVERTIME
                                 . . .
        11.2a. The work hours for office workers, building
        maintenance, mechanics, fire prevention bureau, and
        training department will consist of 40 hours per week.
         The fire alarm operators will work three (3) regular
        shifts of 9 consecutive days on duty and three days off
        duty.   One operator will work a swing shift changing
        hours every three (3) days working nine days in a row
        with three (3) days off. Regular starting and quitting
        times will be posted by the Department. Line Personnel
        will follow a 19 day rotating schedule of 53 hours.
                                 . . .
        11.5a. . . .
            b. An employee may have the privilege to change a
        workday with another employee on a different shift upon
        their mutual agreement and with the approval of the
        employee's company officer and district chief.       In
        cases where an employee trades time with another
        employee, the Employer shall not be obligated to pay
        overtime on either trade unless more than regular
        scheduled hours are worked.

        However, men trading a workday must report for their
        scheduled tour of duty or have a replacement available.
        If a time trade is not properly consummated, the
        employees originally scheduled to work will lose pay
        for those hours not worked.3


        The Association presented its initial bargaining position for

a successor collective bargaining agreement, to become effective

July 1, 1992, to the City in an open meeting held on October 1,
1991.     The Association's initial position as to the entirety of

sections 11.2 and 11.5 was that those sections be incorporated,

without change, into the parties' successor agreement.4


    3
    Stipulation Ex. 1.
    4
     Stipulation Ex. 2. The only change to Article 11 initially
proposed by the Association was an alteration of section 11.11,
the substance of which is not pertinent here. The Association's
initial position was prefaced by the statement that "[a]ll
articles not listed to be changed will remain as they are. Local
11 reserves the right to modify its' [sic] open articles
throughout the negotiating process."




                                   3
        The City presented its initial bargaining position to the

Association during the parties' second open meeting, on October

14, 1991.     The City's initial position as to section 11.2 was to

delete both its existing subsections (11.2a and 11.2b) and to add

in their place the following new section 11.2:


        Line personnel will follow a 19 day rotating schedule
        of 53 hours. All other full-time employees will work a
        40 hour workweek. Regular starting and quitting times
        will be posted by the department.       Some 40 hour
        employees will have flexible hours.

        Any permanent change in a sworn (fire civil service)
        personnel's schedule will be preceded with 30 day
        notification.


Thus, although proposing changes to section 11.2 for the successor

contract,    the    City   initially    proposed   no    change   in   the    work

schedule for line personnel, due to its inclusion in its initial

position of the existing contract's language that "line personnel

will follow a 19 day rotating schedule of 53 hours."                         As to

section 11.5, the City's initial bargaining position was to retain

section 11.5a unchanged, and to incorporate a slightly-changed
section 11.5b into the successor agreement.5

        Following   the    submission       of   their   respective     initial

bargaining positions, the parties held at least three negotiating
    5
     Stipulation Ex. 3. Specifically, the City proposed deleting
"employee's company officer and district chief" from the first
paragraph of section 11.5b and replacing that language with "Chief
or designee."    In section 11.5b's second paragraph, the City
proposed deleting the word "However" and, in the paragraph's
second line, deleting "a" and replacing it with "an approved".
The City's initial position also contained a preface stating:
"The City of Cedar Rapids reserves the right to make such
additions, corrections, and amendments to this proposal as it may
deem proper during the course of negotiations."




                                        4
sessions.    At the session held on October 21, 1991, neither party

proposed any change in the existing language concerning the work

schedule for line personnel, and the City proposed no additional

changes in section 11.5.            Likewise, at the session on October 30,

1991,    neither    party    proposed     a    change         in   the    existing      work

schedule for line personnel, and the City proposed no additional

changes in section 11.5.

        Another bargaining session was held on November 18, 1991.

During    this   session     the     City,    for    the      first      time,    proposed

altering the work schedule for line personnel by changing the

existing    19-day       rotating    schedule       to    a    28-day      work    cycle.6

Additionally, the City for the first time proposed deleting the

entirety    of     the   existing     contract's         section      11.5b      from   the

successor agreement.

        The Association's prohibited practice complaint was filed

with PERB on December 9, 1991.                The provisions of the Act which

the complaint alleges have been violated by the City provide:

        20.10 Prohibited Practices.
           1. It shall be a prohibited practice for any public
        employer, public employee or employee organization to
        willfully refuse to negotiate in good faith with
        respect to the scope of negotiations as defined in
        section 20.9.
           2. It shall be a prohibited practice for a public
        employer or the employer's designated representative
        willfully to:
           a. Interfere    with, restrain or coerce public
        employees in the exercise of rights granted by this
        chapter.
                                 . . .


   6
    Stipulation Ex. 4.




                                         5
           e. Refuse     to    negotiate    collectively  with
        representatives of certified employee organizations as
        required in this chapter.
           f. Deny the rights accompanying certification or
        exclusive recognition granted by the chapter.
                                  . . .


                                        CONCLUSIONS OF LAW

        The essence of the Association's claim both before the ALJ

and on appeal, is that §20.17(3) requires a public employer to

include     within          its     initial       bargaining        position          all    of     its

proposals to amend or delete provisions of the existing collective

bargaining agreement.                  Since the City's initial position proposed

no change in the work schedule for line personnel, and did not

propose the deletion of the existing contract's section 11.5b, the

Association maintains that the City was precluded from lawfully

making    such     proposals            later     in    the      bargaining      process.           The

Association thus reasons that the City's advancement of those

proposals     during              later     bargaining            violated       §20.17(3)          and

constituted a per se violation of the previously-quoted provisions

of the Act.
        Although       we    believe       that    the       introduction,        later      in     the

bargaining       process,          of     "new"    proposals        which       may    expand       the

dispute or the opening of new articles not addressed in initial

positions    may,       under       some     circumstances,             constitute      bad       faith

bargaining,      we     do    not       believe        it   may    be    said    that       doing   so

constitutes        a    per       se      violation         of    the    Act,    regardless          of

circumstances or motivation.7
    7
     As a general rule, violations of the duty to bargain fall
into two generic categories:   1) those in which the totality of
the Respondent's conduct must be examined; and 2) those in which
the Respondent's conduct is deemed so manifest a violation of the



                                                   6
       Section 20.17(3) provides:


          3. Negotiating    sessions,   strategy  meetings  of
       public employers or employee organizations, mediation
       and the deliberative process of arbitrators shall be
       exempt from the provision of chapter 21 [the open
       meetings law].     However, the employee organization
       shall present its initial bargaining position to the
       public employer at the first bargaining session.    The
       public employer shall present its initial bargaining
       position to the employee organization at the second
       bargaining session, which shall be held no later than
       two weeks following the first bargaining session. Both
       sessions shall be open to the public and subject to the
       provisions of chapter 21.        Hearings conducted by
       arbitrators shall be open to the public.


       On its face, §20.17(3) does not require that an employer's

initial bargaining position contain all proposals which it may

ultimately make during the course of the collective bargaining

process, nor does it restrict the employer from later amending its

initial bargaining position.

       At   least     four     PERB        decisions    have    construed       §20.17(3),

although none have directly addressed the question of whether the

issues framed by the parties' initial bargaining positions may
lawfully      be    altered     by     a    party     during   further       negotiations.

Instead,      those    decisions       discussed       what    an     employer's   initial

bargaining         position     must        contain    in     order     to   fulfill    the

requirements of §20.17(3).                   Although the Association recognizes

that    the    instant        case    differs       from    PERB's      prior    decisions

construing      §20.17(3),       it        maintains    that    the    effect    of    those

Act that they are considered, in and of themselves, a violation of
the duty to bargain.      Under this second category, generally
referred to as per se violations, an examination of the totality
of a party's bargaining conduct or subjective good faith is not
required. Oelwein Community School District, 80 H.O. 1593.




                                               7
decisions    is    to    preclude    an       employer    from      later    proposing

amendments to contract language which were not contained in its

initial position and from later proposing the deletion of language

which the employer did not initially propose be deleted.

        In Oelwein Community Education Association, 80 H.O. 1593, it

was concluded that the employer's failure to respond, in its

initial     bargaining      position,     to       the   employee      organization's

initial position on wages and other items constituted a §20.17(3)

violation    and   a    prohibited      practice.          Fort     Dodge    Education

Association, 83 H.O. 2373, found a prohibited practice based upon

an employer's failure to respond, in its initial position, to an

initial employee organization proposal to add new provisions to a

successor    agreement.         Similarly,          Davenport     Community     School

District, 83 PERB 2458, construed §20.17(3) in the context of a

factual scenario where an employer's initial bargaining position

included    no    counter    proposals        or    responses     to   the    employee

organization's proposals to amend existing contract language, but

instead only expressed the employer's willingness to negotiate
concerning the employee organization's proposals.8

        These prior cases established a construction of §20.17(3)

which requires an employer to not only set forth its own initial

bargaining proposals, but also to specifically respond to all

    8
     The  fourth   §20.17(3)   decision,   Iowa  State   Education
Association, 89 PERB 4020, was a declaratory ruling decided
primarily by applying the construction of §20.17(3) which had
emerged from the prior cases. The new ground broken by that case,
concerning how a proposal to delete permissive contract language
from a successor agreement must be communicated to the other
party, is not relevant to the issue in the instant case.




                                          8
areas addressed by the employee organization's initial bargaining

position.      Oelwein Community Education Association, supra.                 The

employer's initial proposals must also be made in accordance with

the language customarily used by the negotiating teams, and must

be specific enough for the parties to agree upon the proposals at

the   moment     they   are    introduced.         Davenport   Community    School

District, supra.        Adherence to these requirements furthers the

legislative purpose of allowing "the public to know the initial

bargaining positions, and thus, the outside parameters of the

dispute, without opening the entire bargaining process." Id.

        In the instant case there is no claim by the Association that

the City failed to set out its initial proposals in the public

sessions on October 4, 1991, that it failed to respond to all

areas    which   had    been    addressed     by   the   Association's     initial

position, or that its proposals were so imprecise that immediate

agreement was impossible.             Instead, the Association extrapolates

from the existing PERB authority a rule which requires an employer

to include within its initial bargaining position all matters
which it may ever address during the course of the parties'

negotiations.

        We believe that the legislature's use of the word "initial"

in connection with its imposition of the §20.17(3) duty to present

bargaining positions is significant, and evidences a legislative

realization that areas of dispute may change during the bargaining

process.       We do not read either §20.17(3) or the prior PERB
decisions      construing      that    section     as    imposing   an   absolute

requirement that a party's initial bargaining position encompass



                                          9
all aspects of what may ultimately become its position through the

give and take of collective bargaining, or through the need to

respond to changing circumstances during the course of bargaining.

The rule apparently urged by the Association would, in our view,

unduly restrict the parties' flexibility to adjust their positions

in the course of bargaining, which could in turn substantially

reduce the prospects for voluntary agreement upon the terms of

collective bargaining agreements.

      In   general,    we     believe     that   the     concept     of    good       faith

bargaining    requires       the    parties     to    include   in    their       initial

positions all items which the parties, in good faith, believe are

at   issue.     The    Act     unquestionably         contemplates     a    subsequent

reduction, and not an expansion, of open issues during the course

of bargaining.        We believe, however, that certain circumstances

may justify the "opening up" of new areas or proposals during the

course of bargaining, and thus decline to find that doing so

automatically       constitutes       a   per    se     violation     of        the    Act,

regardless of circumstances or motivation.                      If we adopted the
Association's position, parties to collective bargaining would not

be free to open up new areas if necessary to address problems that

surface during the course of their discussions, even by mutual

agreement.      Nor    could       parties    respond    reasonably        to    changing

circumstances, such as new legislation, court decisions, or other

outside    forces     which    may     affect    them    during      the    course      of

bargaining.     The parties, and mediators attempting to assist them
in settlement, would be unduly deprived of the flexibility needed

to find solutions to disputes.



                                          10
        Accordingly, we believe these cases are best addressed on a

case-by-case basis.       The facts and circumstances of each case

should be examined to determine if an "expansion" of demands is

motivated by an attempt to circumvent the provisions of §17.3 or

is designed to frustrate an agreement, or otherwise evidences bad

faith.9

        We conclude that the Association has failed to establish the

City's commission of a per se violation of the Act.10

        Consequently, we enter the following:

                                   ORDER

        The prohibited practice complaint filed herein by the Cedar

Rapids     Association   of   Firefighters,   Local   11,   International

Association of Firefighters, is hereby DISMISSED.

        DATED at Des Moines, Iowa this 12th day of October, 1992.

                                  PUBLIC EMPLOYMENT RELATIONS BOARD

                                  /s/ RICHARD R. RAMSEY, CHAIRMAN

                                  /s/ M. SUE WARNER, BOARD MEMBER

                                  /s/ DAVE KNOCK, BOARD MEMBER
    9
     In his proposed decision, the ALJ discussed the fact that, in
his view, the contract articles at issue here had at least been
"opened" by the parties at the initial bargaining sessions, when
the parties proposed minor language changes in those articles.
Although whether a contract article has previously been "opened"
or not may be a relevant consideration in determining whether
particular circumstances justify the altering of a parties'
position, we do not think it critical to our conclusion in this
case.
    10
     The sole theory advanced by the Association in the instant
case is that the City committed a per se violation when it made
proposals concerning sections 11.2 and 11.5 which had not been
contained in its initial bargaining position.    The record is
otherwise insufficient to establish that the City acted in bad
faith by its conduct in this case.




                                    11