Preview:

IN THE COURT OF APPEALS OF IOWA No. 1-720 / 11-0547 Filed December 7, 2011

UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, Petitioner-Appellant, vs. IOWA PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

The United Electrical, Radio & Machine Workers of America appeal from a district court order on judicial review affirming in part and reversing in part the Iowa Public Employment Relations Board's decision that a proposal was not a mandatory subject of bargaining under Iowa Code section 20.9 (2009). REVERSED.

Charles Gribble of Parrish Kruidenier Dunn Boles Gribble Parrish Gentry & Fisher, L.L.P., Des Moines, for appellant. Jan Berry, Des Moines, for appellee.

Heard by Danilson, P.J., and Tabor and Mullins, JJ.

2 DANILSON, P.J. The United Electrical, Radio & Machine Workers of America (UEW) appeals from a district court order on judicial review. The district court affirmed in part and reversed in part the Iowa Public Employment Relations Board's (PERB) decision that a UEW proposal was not a mandatory subject of bargaining under Iowa Code section 20.9 (2009). Upon our review, we conclude the proposal in question does not fall within the parameters of section 20.9 because it references temporary employees not included within the employee organization bargaining unit. We reverse the district court's ruling. I. Background Facts and Proceedings. The UEW is an employee organization certified by the PERB as the exclusive collective bargaining representative of a group of employees of Western Tech Community College, a public employer. During the course of

collective bargaining between UEW and the college, a dispute arose regarding the negotiability status of certain portions of the proposal advanced by UEW. The dispute focused on the following staff reduction portion of UEW's proposal and its definition of "Temporary Employee": ARTICLE 1. RECOGNITION AND DEFINITIONS .... G. Temporary Employee As used in this agreement and unless otherwise indicated, the term "temporary employee" shall mean an employee who works subject to an appointment of less than six (6) continuous months. Temporary employees shall not be entitled to any of the benefits set forth in this Agreement. ARTICLE 12. STAFF REDUCTION PROCEDURES .... If the College decides to lay employees off, employees in the affected job classification shall be laid off in the following order:

3 1. Temporary employees1 shall be laid off first. 2. If the layoff cannot be fully accomplished by laying off temporary employees, then limited part-time employees shall be laid off next. 3. If the layoff cannot be fully accomplished by laying off temporary employees and limited part-time employees, then probationary employees shall be laid off next. 4. If the layoff cannot be fully accomplished by laying off temporary employees, limited part-time employees, and probationary employees, then part-time employees shall be laid off next starting with the least senior employee in the affected job classification. 5. If the layoff cannot be fully accomplished by laying off temporary employees, limited part-time employees, probationary employees, and part-time employees, then full-time employees shall be laid off next starting with the least senior employee in the affected job classification. . . . In June 2009, the college filed a petition with PERB for expedited resolution of the negotiability dispute. Following oral arguments, PERB issued a preliminary ruling in August 2009, stating the staff reduction portions of the proposal at issue were non-mandatory subjects of bargaining. UEW

subsequently requested a final ruling from PERB. In April 2010, PERB issued its final ruling, expanding on its preliminary ruling and again concluding the staff reduction portions of the proposal were non-mandatory subjects of bargaining: Since the temporary employees referenced in the proposal . . . are not included in the bargaining unit, we thus conclude that the references to them in the proposal do not fall within the mandatory topic of "procedures for staff reduction" and are not mandatory subjects of bargaining. In May 2010, UEW filed a petition for judicial review with the Polk County District Court.2 PERB filed a responsive brief.3 Following oral arguments, the

Temporary employees within this meaning are non-bargaining unit personnel. Thereafter, UEW filed a motion for leave to amend petition (which was granted by the district court) and an amended petition.
2

1

4 district court entered its ruling in March 2011. The district court reversed in part and affirmed in part PERB's final ruling, concluding the proposal's references to temporary employees were a mandatory topic of bargaining to the extent those employees were included within the UEW-represented bargaining unit but the proposal's references to temporary employees were merely permissive to the extent those employees were not included within the bargaining unit. Because it is undisputed that none of the temporary employees referred to in the proposal are within the UEW-represented bargaining unit, the district court's ruling, in effect, affirmed PERB's final conclusion. UEW now appeals. II. Scope and Standard of Review. Iowa Code section 17A.19(10) governs judicial review of agency decision making. Evercom Sys., Inc. v. Iowa Utils. Bd., ___ N.W.2d ___, ___ (Iowa 2011). At issue here is PERB's interpretation of section 20.9. Our review of PERB's interpretation of statutory language depends on whether such interpretation has "clearly been vested by a provision of law in the discretion of the agency." Iowa Code

Download UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, Petitioner-Appellant, vs.

Iowa Law