General Drivers & Helpers Union, Local No. 554 v. County of Douglas, Nebraska

This case involves a dispute between Douglas County,

Nebraska (the County), and General Drivers & Helpers Union,

Local No. 554 (the Union), regarding the construction of its

collective bargaining agreement (the CBA). The issue to be

determined is whether the word "start” in the CBA means the

starting wage for all employees in a certain classification or

whether only the "start” of the pay scale from which employees

may be hired at different wages. The Union appeals the

declaratory judgment that "start” is unambiguous and is the

minimum wage or "start” of a pay scale.

BACKGROUND

The Union, the Douglas County engineer, and the County

are parties to a CBA effective from January 1, 2010, through

December 31, 2013. The CBA controls the terms and conditions

of employment for mechanics employed by the County.

Article 1, section 1, of the CBA states that the County "recognizes

the Union as the sole and exclusive collective bargaining

representative for the purposes of establishing wages, hours

and other conditions of employment for all regular full time

and regular part time employees.”

A management rights clause states:

Except where limited by express provisions of [the

CBA], nothing herein shall be construed or interpreted

to restrict, limit or impair the rights, powers and authority

of the [County] heretofore possessed and hereafter

granted by virtue of law, regulations or resolution. These

rights, powers and authority include, but are not limited

to, the right to manage and supervise all of its operations

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291 Nebraska Reports

GENERAL DRIVERS & HELPERS UNION v. COUNTY OF DOUGLAS

Cite as 291 Neb. 173

and establish work rules, regulations and other terms and

conditions of employment not inconsistent with the specific

terms of [the CBA].

Article 7 of the CBA discusses the seniority system. Article

7, section 6, states: "New employees shall be added to the

seniority list as of the date of their employment, following

satisfactory completion of their probationary period.” Under

the CBA, article 6, "newly hired employees shall serve a

probationary period of ninety (90) days. . . . Employees shall

not be eligible for promotion during the probationary period

provided in this Article.”

Article 9, section 1, states:

"[P]romotion” shall be defined as the advancement of an

employee from one position classification to another in a

higher salary grade within their department. A promoted

employee will move to the step in the higher classification

that is above his current rate and will progress on

annual steps thereafter to the maximum.

Article 31 is entitled, "Teamsters Bargaining Unit Pay

Rates - Effective January 1, 2013.” For all positions there

exists a chart, at the top of which are columns entitled "Start,”

"Step 2,” "Step 3,” et cetera, through "Step 8.” Under each column

is an hourly pay rate that increases with each step. For the

"Equipment Mechanic II” position, the "start” pay is $19.44

per hour and increases until the pay scale ends at $23.98 per

hour at "Step 8.”

Hiring of Randy Nickell

In late October 2013, the County announced a vacancy for

an equipment mechanic II. The County posted a vacancy notice

that described the position as "Equipment Mechanic II,” with a

salary range of $19.44 to $22.05 hourly.

On December 3, 2013, the County hired Randy Nickell

to fill the equipment mechanic II vacancy. The County hired

Nickell at the wage of $22.05 per hour, corresponding to step 5

of the 2013 pay scale provided in the CBA.

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Nebraska Advance Sheets

291 Nebraska Reports

GENERAL DRIVERS & HELPERS UNION v. COUNTY OF DOUGLAS

Cite as 291 Neb. 173

Grievance

The Union steward filed a grievance, arguing that the CBA

prevented the County from hiring a new employee at a wage

above the "start,” or the first step, of the pay scale.

The parties filed a joint stipulation of facts and crossmotions

for summary judgment. Based on the parties differing

interpretations of the word "start” in the CBA, the parties

filed for summary judgment on the meaning of "start” in the

CBA pay rates scale. The parties reserved any breach of contract

claim for after the resolution of this motion.

Trial Court Opinion

The trial court granted summary judgment in favor of the

County. The trial court stated that "the CBA, taken as a whole,

is not ambiguous . . . and as drafted does not prohibit [the]

County from hiring an employee at a wage above the starting

step of the pay scale.” In coming to this decision, the trial

court looked at the CBA's "Management Rights” clause. The

court noted that the clause reserved to the County the right to

establish "'other terms and conditions of employment.'” The

court reasoned that a starting wage is a condition of employment.

Thus, the court found that the County had the right to

select a new hire's starting pay, at least within the range set

forth for that position in article 31 of the CBA.

Further, the court found that "[t]he express provisions of the

CBA do not state that the 'Start' step on the pay scale must be

the uniform starting wage for all new hires” of a given position.

The trial court found significant the fact that the CBA

stated that a vacancy notice shall include a salary range for a

posted position. The Union appeals.

ASSIGNMENTS OF ERROR

The Union asserts, restated, that the trial court erred in

granting summary judgment (1) by concluding that there was

no starting or initial salary specified in the CBA, (2) by finding

that the word "start” in the CBA was not ambiguous, and

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GENERAL DRIVERS & HELPERS UNION v. COUNTY OF DOUGLAS

Cite as 291 Neb. 173

(3) in relying on the management rights clause to give the

County the right to set initial wages without negotiation with

the Union.

STANDARD OF REVIEW

[1,2] The meaning of a contract and whether a contract is

ambiguous are questions of law.1

On a question of law, an

appellate court is obligated to reach a conclusion independent

of the determination reached by the court below.2

[3,4] In reviewing a summary judgment, an appellate court

views the evidence in the light most favorable to the party

against whom the judgment was granted, and gives that party

the benefit of all reasonable inferences deducible from the

evidence.3

We will affirm a lower court's grant of summary

judgment if the pleadings and admissible evidence offered at

the hearing show that there is no genuine issue as to any material

facts or as to the ultimate inferences that may be drawn

from those facts and that the moving party is entitled to judgment

as a matter of law.4

ANALYSIS

In the trial court, the Union argued that the meaning of

"start” pay under the CBA pay scale chart for "Equipment

Mechanic II” unambiguously referred to the mandatory starting

wage for all new employees filling that position. Under that

interpretation, no new "Equipment Mechanic II” could begin

employment with the County at a step 2 or above wage.

1 Gary's Implement v. Bridgeport Tractor Parts, 270 Neb. 286, 702 N.W.2d

355 (2005). See, also, Big River Constr. Co. v. L & H Properties, 268 Neb.

207, 681 N.W.2d 751 (2004); Wood v. Wood, 266 Neb. 580, 667 N.W.2d

235 (2003).

2 Id.

3 C.E. v. Prairie Fields Family Medicine, 287 Neb. 667, 844 N.W.2d 56

(2014).

4 Zawaideh v. Nebraska Dept. of Health & Human Servs., 285 Neb. 48, 825

N.W.2d 204 (2013).

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291 Nebraska Reports

GENERAL DRIVERS & HELPERS UNION v. COUNTY OF DOUGLAS

Cite as 291 Neb. 173

On appeal, the Union argues that "start” is ambiguous—that

reasonable minds could adopt either the trial court's reading

or the Union's. The County argues that the ambiguity of the

CBA has been waived by the Union and cannot be raised for

the first time on appeal. We disagree. The meaning of the

CBA is a question of law and must be determined in order

to address the Union's assignment of error that the trial court

should have found the County in breach of the CBA. Whether

the CBA is ambiguous is a necessary analysis in determining

the meaning of the CBA.

The question in this appeal is whether, as the trial court

found, the CBA pay scale established a wage range within

which the County, under the management rights clause, could

exercise discretion to set the level of a newly hired employee,

or whether, instead, "start” is the mandatory starting wage for

all beginning employees. We conclude that the meaning of

"start” in this context is unambiguous and denotes the start of

a pay scale in which the employer has discretion to set the step

on the pay scale of each new hire.

[5] Whether a contract is ambiguous is a question of law.5

A contract is ambiguous when a word, phrase, or provision in

the contract has, or is susceptible of, at least two reasonable

but conflicting interpretations or meanings.6

Webster's dictionary defines "start” as both "to begin an

activity or undertaking” or "to begin work.”7

If we apply the

first meaning of "start,” then it lends itself to the Union's

alleged meaning—when an employee begins to do his or her

job, he begins at the "start” pay. However, if we apply the

second definition supplied, the County's proffered meaning

5 Davenport Ltd. Partnership v. 75th & Dodge I, L.P., 279 Neb. 615, 780

N.W.2d 416 (2010).

6 Beveridge v. Savage, 285 Neb. 991, 830 N.W.2d 482 (2013); Davenport

Ltd. Partnership v. 75th & Dodge I, L.P., supra note 5.

7 Webster's Third New International Dictionary of the English Language,

Unabridged 2227 (1993).

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GENERAL DRIVERS & HELPERS UNION v. COUNTY OF DOUGLAS

Cite as 291 Neb. 173

seems to apply; "to begin work” would mean that "start” is

causing the pay scale to begin at a minimum starting wage

of $19.44 per hour and ending at step 8, which is $23.98

per hour.

[6] However, a contract must be construed as a whole,8

and its terms are accorded their plain and ordinary meaning

as an ordinary or reasonable person would understand

them.9

In light of the reasonable interpretation of the remaining

provisions of the CBA, the meaning of the term "start”

becomes clear.

The CBA includes a management rights provision in article

3 which allows the County to "manage and supervise all of

its operations and establish work rules, regulations and other

terms and conditions of employment,” except where the terms

are otherwise limited by the CBA. Here, the terms of the CBA

limit the pay of an equipment mechanic II. But they do so by

setting forth a pay range to anywhere from the "start” pay at

$19.44 hourly up to the step 8 pay at $23.98 hourly. There is

no express provision stating that new employees must begin

at "start,” or $19.44 per hour. Therefore, the County complied

with this limitation on the pay for Nickell.

The management rights clause gave the County the

flexibility to determine where Nickell's pay fell on the

bargained-for pay scale. Further, common sense suggests

that the County must be free to offer different wages to new

employees according to their experience and expertise. If the

County needed a highly experienced equipment mechanic,

the County could not expect to pay that mechanic the starting

wage that it would give to an applicant with very little

experience.

8 Hearst-Argyle Prop. v. Entrex Comm. Servs., 279 Neb. 468, 778 N.W.2d

465 (2010); Lexington Ins. Co. v. Entrex Comm. Servs., 275 Neb. 702, 749

N.W.2d 124 (2008).

9 See, Kercher v. Board of Regents, 290 Neb. 428, 860 N.W.2d 398 (2015);

Gibbons Ranches v. Bailey, 289 Neb. 949, 857 N.W.2d 808 (2015).

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GENERAL DRIVERS & HELPERS UNION v. COUNTY OF DOUGLAS

Cite as 291 Neb. 173

Other provisions of the CBA also support the reading that

"start” is merely the beginning of a pay range by which equipment

mechanics may be assigned a wage. For example, the

CBA expressly states that any vacancy notices posted by the

County should include a salary range for the posted position.

If the CBA meant to have each new hire begin work at the

"start” wage, then the vacancy notice could post only the starting

wage.

Reading the CBA as a whole, we find that the meaning of

“start” in article 31 of the CBA is unambiguous and that summary

judgment was proper.



Affirmed.