MID-PLAINS EDUCATION ASSOCIATION, AN UNINCORPORATED
ASSOCIATION, APPELLEE, V. MID-PLAINS NEBRASKA
TECHNICAL COLLEGE, NORTH PLATTE, NEBRASKA, APPELLANT.
189 Neb. 37 N.W.2d 747
Filed August 4, 1972. No. 88291
Master and Servant: Labor and Labor Relations.
An employer's action or nonaction which results in cessation of an
employee's employment is unlawful if the employer's motive in so doing is to
discourage union membership or activity, or in reprisal or retaliation for the
Court of Industrial Relations: Labor and Labor Relations.
Section 48-811, R.S. Supp., 1969, establishes the right of any labor
organization organized under the provisions of the act to file a petition with
the Court of Industrial Relations invoking its jurisdiction when any
industrial dispute exists between the parties as set forth in section 48-810,
R.S. Supp., 1969.
from the Court of Industrial Relations. Affirmed.
Dent, Kay, Satterfield, Girard & Scritsmier and Kem W. Swarts, for
Pansing, Guenzel & Binning and Theodore L. Kessner, for appellee.
before WHITE, C.J., SPENCER, BOSLAUGH, SMITH, MCCOWN,
In this labor relations case the plaintiff labor organization alleged that five of its members, including all of its officers, were wrongfully discharged by the defendant because of labor organization activity. The Court of Industrial Relations found for the plaintiff and ordered reinstatement. We affirm the judgment of the Court of Industrial Relations.
plaintiff, to which we will hereinafter refer as the Association, was formed
in the fall of 1970 by members of the faculty of the defendant college.
One of its purposes was to represent its members in collective
negotiations with the Board of Governors of the college.
On November 15, 1970, the Association formally requested recognition as
the bargaining agent of the faculty and negotiations concerning working
conditions. The Board of Governors
rejected this request on December 15, 1970.
On January 25, 1971, the Association filed a petition in the Court of
Industrial Relations, invoking the court's jurisdiction to resolve the dispute
concerning representation and negotiations.
Hearings on the petition were held by the Court of Industrial Relations
on March 8 and April 24, 1971, and the matter was taken under advisement by
the court. On May 5, 1971, the
Board of Governors, without prior warning, announced that the contracts of six
teachers, five of whom are involved in this suit, would not be renewed for the
next school year. The Association
subsequently filed an application with the Court of Industrial Relations
asking for reinstatement of five of the teachers.
A hearing was held, and an order of reinstatement was issued from which
the college takes this appeal.
college first contends that the Court of Industrial Relations lacked
jurisdiction to issue the order of reinstatement because the petition was
filed by the Association and not by the affected teachers.
Stripped of its rhetoric this is akin to a defendant arguing that the
court had no jurisdiction over the plaintiff, an argument which the defendant
clearly has no standing to make.
We are satisfied that the procedure in bringing this petition properly invoked the jurisdiction of the Court of Industrial Relations. Section 48-837, R.S. Supp., 1969, provides in part: "Public employees shall have the right to be represented by employee organizations to negotiate collectively with their public employers in the determination of their terms and conditions of employment, and the administration of grievances arising thereunder***." Section 48-811, R.S. Supp., 1969, provides in part: "Any *** labor organization *** when any industrial dispute exists between parties as set forth in section 48-810, may file a petition with the Court of Industrial Relations invoking its jurisdiction ***." These statutes make it quite apparent that in a dispute such as this, a labor organization may invoke the jurisdiction of the Court of Industrial Relations in behalf of its affected members.
XV, section 13, of the Nebraska Constitution, provides:
"No person shall be denied employment because of membership in or
affiliation with *** a labor organization ***."
Section 48-837, R.S. Supp., 1969, provides:
"Public employees shall have the right to form, join and
participate in *** any employee organization of their own choosing ***."
Section 48-811, R.S. Supp., 1969, provides:
"No adverse action by threat or harassment shall be taken against
any employee because of any petition filing by such employee ***."
These constitutional and statutory provisions do not interfere with an
employer's ordinary powers over his employees except to this extent:
If the employee can demonstrate that adverse action against him was
motivated by a desire to discourage or retaliate for union membership or
activity, the action is unlawful. The
college vigorously contends that these teachers were employed on 1-year
contracts, and that it was under no obligation to rehire them and acted well
within its rights in failing to do so. This
does not preclude consideration of the motive of the college.
A failure to rehire is a denial of employment and an adverse action
against an employee, just as an outright firing would be, and if it is
prompted by anti-union motives, it comes within the prohibitions of the
Constitution and the statutes. The
relevant consideration is the motive of the employer.
The Court of Industrial Relations succinctly and correctly stated the
law: "An employer's action or
non-action which results in cessation of an employee's employment is unlawful
if the employer's motive in so doing is to discourage union membership or
activity, or in reprisal or retaliation for the latter activities."
See Annotation, 83 A.L.R. 2d 532.
examining the facts upon which this decision is based, it is appropriate to
discuss the scope of our review. An
appeal from the Court of Industrial Relations is triable de novo in this
court. §§ 25-1925 and 48-812,
R.R.S. 1943. This does not mean
that we are powerless to examine the conclusions of fact in the lower court.
Wiese v. Klassen, 177
college justified its failure to rehire the teachers in question on the
grounds that two of them had received bad evaluations, and that the other
three had had their jobs eliminated by a curriculum change.
Both of these grounds appear adequate on their faces, but it is clear
that the college cannot hide behind them if its real motive was to retaliate
for union activity. Upon an
examination of the facts we must concur in the conclusion of the Court of
Industrial Relations that these justifications do not ring true.
Both of the teachers who received poor evaluations had been rehired with commendations in previous years, and neither had been specifically warned about his shortcomings or given an opportunity to correct them. One of them was head of his department, a position of some importance, and the other apparently was about to be promoted to that position. There was evidence of personality clashes involving these teachers and the administration, but not all of these seem to have arisen during the 1970-71 school year. What appears, then, is the administration on one hand, commending the work of these teachers, and entrusting positions of responsibility to them, and on the other hand giving them very poor evaluations. The evidence shows nothing to resolve this ambiguity. Further, the college president and other administration officials did not recommend to the Board of Governors that these teachers be dismissed, told that body that it could work with these teachers, and expressed surprise when they were not rehired. It seems highly unlikely that the Board of Governors, which does not deal with the faculty on a day-to-day basis, would in these circumstances take it upon itself to dismiss these teachers, unless other factors, unrelated to the evaluations, were at work.
The curriculum change which purportedly eliminated the jobs of the other three teachers is not credible. The college is a vocational school, and its curriculum includes courses of both a practical and a more theoretical nature. As we understand it, a student studying welding would go to an instructor who would teach him the mechanical aspects of how to weld. This instructor is called a "major area instructor." Our hypothetical welding student would also attend classes in which the instructor would teach the scientific and mathematical principles which a welder needs to know. These instructors are called "related area instructors." The proposed curriculum change would eliminate the related area instructors and provided that their functions would be taken over by the major area instructors. Under this plan, the other three teachers would lose their jobs. On its face this plan seems reasonable and well within the discretion of the college. However, the extreme speed with which the plan was promulgated and the fact that no one on the faculty, including the department heads, had been told about it, forces us to the conclusion that it was merely a pretext for the dismissal of these three teachers.
college attempted to show that this change had long been contemplated, but its
evidence is not convincing. The
change was the brainchild of Mr. Kenneth Aten, the college president, and
several people testified that Mr. Aten had discussed the matter with them long
previously. Obviously Mr. Aten
himself is the best authority on what he was thinking about, but the record
shows that he was present in court throughout the reinstatement hearing, and
was not called upon to testify. This
may be explained by Mr. Aten's testimony at one of the prior hearings on the
subject of recognition, held April 24, 1971.
At that hearing the following exchange took place:
"Q. Mr. Kessner asked you about the teachers, are there any of the
teachers from 6 down through 19 (the question refers to an exhibit containing
a numbered list of faculty members that are not coming back next year, that
have resigned? A. The only
resignation I know of so far is John McBride, number 14."
If Mr. Aten had been planning a curriculum change at that time, he
would have known that some of the related instructors' jobs would be
eliminated, and that they would not be back.
He could not truthfully have answered this question in the way he did
if he had been planning the change at that time.
Yet only 10 days later, May 5, 1971, the curriculum change was
presented as "fait accompli." It
is incredible that in the ordinary course of school administration a
curriculum change of this magnitude would be implemented so rapidly and with
no notice to anyone. In the April
24th hearing, the college took the position that some of the department heads
were more properly designated as administrative personnel, rather than
faculty, and thus should not be included within the membership of the union.
To fortify this position, evidence was presented emphasizing the
importance of the department heads in the planning of the curriculum.
We are now asked to believe that a major curriculum change was
considered and adopted without these department heads even knowing about it.
We cannot but agree with the Court of Industrial Relations that the
plan was not bona fide.
casting about for another explanation for the failure to rehire these
teachers, we are irresistibly drawn to a clear and frankly expressed antipathy
toward this labor organization on the part of the Board of Governors and the
administration of the college. The
witnesses representing these bodies made no attempt to conceal their
disinclination to deal with the Association.
They were not accustomed to dealing with unions; they were apprehensive
at the prospect of negotiating with an experienced labor representative; and
they feared the increase in influence which the faculty might achieve through
this union. In the light of this
antipathy, we turn to the action taken by the college.
Six teachers were not rehired; and all six were members of the
Association. All of the officers
and organizers of the Association were not rehired.
All nonmembers of the Association were rehired.
Although some Association members were rehired, their numbers were so
few that the Association could no longer make a credible claim to be the
bargaining agent for the entire faculty.
the light of these facts we are convinced that the failure to rehire was
motivated by an unlawful intent to discourage and retaliate for labor
organization membership and activity. We
cannot improve upon the conclusion of the Court of Industrial Relations in its
quotation from the Supreme Court of the United States:
"It would seem that when employers freely recognize the fight of
their employees to their own organizations and their unrestricted right of
representation there will be much less occasion for controversy in respect to
the free and appropriate exercise of the right of selection and
discharge." Jones v. Laughlin
Steel Corp., 301
judgment of the Court of Industrial Relations is correct and is affirmed.
I respectfully dissent from the majority opinion herein. The opinion fails to recognize that the teachers involved were not on tenure, but were hired on 1-year contracts. They were not discharged but simply were not rehired for an additional year when their existing contracts expired.
employer should have an absolute right to refuse to renew a contract, regardless
of his reasons, unless tenure is involved, See Board of Regents v. Roth (Wis.),
40 Law Week 5079. The majority
opinion, carried to its logical conclusion, will permit employees under
short-term contracts, to make those contracts permanent ones regardless of the
wishes of the employer. At the very
least, an employee can force the employer to litigate every refusal to renew a
dissent. See dissent appearing in
School Dist. of Seward Education Assn. v. School Dist. of Seward, 188 Neb. 772,
- N.W.2d -.