V.
STATE
OF
204
Filed
July 24, 1979, No. 42286
1. Court of Industrial Relations: Elections:
Labor and Labor Relations: Collective Bargaining. In order to warrant the
setting aside of an election held under the order and auspices of the Court of
Industrial Relations by employees to decide who shall represent them in
collective bargaining proceedings, the burden is upon those objecting to and
moving to set aside the election to prove by a preponderance of the evidence
that material misrepresentations of relevant facts were made in the campaign
statements in question and that such misrepresentations had a substantial impact
on the outcome of the election.
2. Court of Industrial Relations: Appeal and
Error. The scope of review by this court of orders and decisions of the Court of
Industrial Relations is restricted to considering whether the order of that
court is supported by substantial evidence justifying the order made, whether it
acted within the scope of its statutory authority, and whether its action was
arbitrary, capricious, or unreasonable.
Appeal from the Court of Industrial
Relations. Affirmed.
Paul L. Douglas, Attorney General, and J.
Kirk Brown, for appellant.
Steven D. Burns of Noren and Burns, for appellee.
Heard before KRIVOSHA, C. J., BOSLAUGH,
MCCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
BRODKEY, J.
This case
originated as an action brought by the Nebraska Association of Public Employees,
a corporation and labor organization, hereinafter referred to as NAPE, in the
Court of Industrial Relations seeking to be designated as the exclusive
bargaining representative of certain employees of the appellant, State of
On June 5,
1978, appellant filed an objection to the election, claiming that on Friday, May
19, 1978, prior to the election which was held on Monday, May 22, 1978, the
plaintiff, NAPE, caused to be distributed to employees of the appellant eligible
to vote in the election a certain publication or leaflet entitled "NAPE 76
NEWSLETTER" containing an article entitled "HAS COLLECTIVE BARGAINING
WORKED WITH OTHER STATE AGENCIES?" in which article NAPE represented it was
responsible for obtaining certain employees' benefits through the collective
bargaining process for the Nebraska Game and Parks Commission, which
representations were untrue and misleading, and may have been relied upon by the
voting employees and have influenced them to vote in favor of NAPE in the
election. It was further alleged that the actions of NAPE were an effort to
mislead the employees and prevented them from making an informed choice in the
election. Three days later, on June 8, 1978, appellant also filed a motion to
void the election.
A hearing on
the objection and motion was held on June 28, 1978, before the Honorable Richard
L. DeBacker, one of the judges of the Court of Industrial Relations, at which
time evidence was adduced and the matter was taken under consideration.
Thereafter, on July 12, 1978, there was filed in the office of the clerk of the
Court of Industrial Relations a document entitled "Findings and Order"
in the above matter, reciting that it had been entered on July 11, 1978, and had
been heard before Judges DeBacker, Kratz, and McGinley. In the order of the
Court, written and signed by Judge DeBacker, the Court reviews the claims of the
appellant that the newsletter distributed by NAPE contained untrue and
misleading misrepresentations which its employees may have relied upon, and
concludes: "As we interpret the evidence, there is at least a grain of
truth in the claims made in the newsletter. But the position of the Department
is that the representations are twisted in that grievance discovery procedures,
for example, are available to all state employees who fall under the state
personnel system, albeit they are available as the result of requests made by
NAPE to the personnel department and the language in the agreement between NAPE
and the Commission is slightly different from the general policy. A similar
characterization can be made of each of the other claims by NAPE and the
criticisms of them by the Department.
"We are
unable to find that the claims of NAPE, even if exaggerated, go beyond usual
political or commercial sales puffing. There is no solid evidence that the
Department's employees relied upon or were influenced by the representations and
not even any inference that the representations had a substantial impact on the
outcome of the election, given the overwhelming majority in favor of
representation by NAPE." The Court then overruled the objection to the
election and denied the motion to void the election. Appellant's subsequent
request for a rehearing en banc was denied on July 25, 1978, and appellant then
perfected its appeal to this court "from the order of this court overruling
the respondent's objection to election and denying the respondent's motion to
void the election, and from the order of this court denying the respondent's
request for rehearing en banc on these matters." For reasons hereinafter
set out, we affirm the ruling of the Court of Industrial Relations as to the
order and issues appealed from.
The newsletter
in question was distributed by an employee of the Nebraska Department of
Education, Peggy Weeks, who was vice president of the Department of Education,
chapter No. 76, of the Nebraska Association of Public Employees. She testified
that she had distributed the newsletter on the morning of May 19, prior to her
work hours. She picked up copies of the newsletter from the president's office,
took them around to the offices in the Department of Education, and laid them on
the desks of most of the employees on the 6th floor. She did not attempt to
distribute any of the material outside of the 6th floor and has no idea of the
number she distributed. We note at this point that there is absolutely no
evidence in the record as to the number of newsletters which were distributed,
received, and read; any impact upon the voters; or whether the newsletter in
question had the effect of changing the result of the election, although at the
hearing there was an offer of proof made that one witness had been riding on a
bus with a person, who identified herself as an employee of the Department of
Education, who told him she believed the employees of the Game and Parks
Commission had received certain benefits from being a member of the union.
The portion of
the "NAPE 76 Newsletter" published by the Department of Education,
chapter No. 76, of the Nebraska Association of Public Employees, which was
distributed on May 19, 1978, and which is in controversy in the present case,
reads as follows: "HAS COLLECTIVE BARGAINING WORKED WITH OTHER STATE
AGENCIES? YOU BET! Let's look at some history of how collective bargaining
helped GAME & PARKS in just one year:
"1) It
now appears that Game and Parks will have bargained a cash advance system for
travel by December 1 of this year. This will mean that an employee is paid
travel expenses before travelling -- not 30 days later.
"2) Game
and Parks established a 'discover' procedure in grievance cases where each party
can learn in advance of the hearings what information the opposition has to
present. This will permit better hearings and more rapid solutions to grievance
cases.
"3) Game
and Parks was successful in bargaining for five days of funeral leave instead of
four. This has now become a part of all state government personnel policies --
THUS WE ARE NOW SHARING THE RESULTS OF COLLECTIVE BARGAINING ACHIEVED BY ANOTHER
STATE AGENCY.
"In
addition, an employee of Game and Parks may now take up to two weeks of vacation
leave whether earned or not but charged to future leave for the purpose of
clearing estate matters following a funeral.
"4) Other
items bargained by Game and Parks include broader paid training programs for
both support and professional personnel, a procedure for updating personnel
files and the establishment of a joint employee/management committee to deal
with and resolve minor (less than grievable) problems.
"Games
and Parks employees will tell you COLLECTIVE BARGAINING IS A VERY GOOD THING.
Vote for representation by NAPE on May 22!"
Appellant
contends the statements and claims made in the aforementioned article were
untrue and may have influenced the vote of the eligible voters in the election,
and, therefore, the election should be voided and set aside. On the other hand,
NAPE contends there were no material misrepresentations in the article, and, in
any event, appellant failed to establish by any evidence at the trial that any
misrepresentations contained in the article in question influenced any of the
voters, or in any way affected the result of the election. In its order entered
following a hearing upon the objections filed by the appellant, the Court of
Industrial Relations found: "As we interpret the evidence, there is at
least a grain of truth in the claims made in the newsletter." (Emphasis
supplied.) The evidence adduced in connection with the items in question was
somewhat conflicting and subject to different interpretations. The principal
misrepresentation claimed by appellant is contained in paragraph 1 of the
article with reference to the "cash advance" system allegedly obtained
by the Game and Parks Commission. Dissatisfaction had been voiced by employees
of that department with reference to them having to advance travel and expense
money in the performance of their duties and the necessity of waiting for a
reimbursement thereafter. John Russell, the chief of labor relations for the
State Department of Personnel, testified at the hearing that no agreement was
reached upon a cash advance system of payment, but only an agreement to consider
an "expense payment" system. The language appearing in paragraph 1 of
the newsletter specifically stated: "It now appears that Game and Parks
will have bargained a cash advance system for travel by December 1 of this
year." (Emphasis supplied.) The record also reveals that the possibility of
a "credit card" system was discussed during the negotiation sessions.
In any event, the distinction between the alleged misrepresentation and the
actual statement contained in the article is obvious. It should also be noted
that the actual contract entered into with the Game and Parks Commission stated
that the Game and Parks Commission would attempt to establish such a system by
December 1, 1978, subject to approval from the Department of Administrative
Services.
With regard to
the statements contained in paragraph 2 of the newsletter with reference to the
establishing of "discover" procedure in grievance cases, appellant
argues that procedure is already available to state employees under the
personnel rules and regulations of the State of
Paragraph 3 of
the newsletter alleges the success of the Game and Parks Commission in
bargaining for additional funeral leave and vacation leave. The article clearly
states: "This has now become a part of all state government personnel
policies -- THUS WE ARE NOW SHARING THE RESULTS OF COLLECTIVE BARGAINING
ACHIEVED BY ANOTHER STATE AGENCY." With regard to additional vacation leave
to clear up estate matters following a funeral, the evidence shows that the
contract with the Game and Parks Commission provides that an employee's request
for up to 10 days of vacation leave may not be "unreasonably denied."
This is a slight variance from the rule as contained in the personnel rules.
Finally,
paragraph 4 of the newsletter appears to be a "catchall" for a number
of minor matters allegedly the result of collective bargaining by NAPE on behalf
of the Game and Parks Commission. The only witness testifying with reference to
these latter matters was John Russell, the chief of labor relations for the
State Department of Personnel. In his testimony, Russell admitted he was not
familiar with the terms of the contract with the Game and Parks Commission as
they modified the personnel rules and regulations which existed at the time of
the negotiations of the contract, and had no knowledge whether the terms of the
'77-78 contract included broader paid training programs for both support and
professional personnel or whether it included procedures for updating personnel
files which were different from the personnel rules and regulations at that
time, but testified nothing was agreed upon that violated the personnel rules
and regulations. As previously stated, the Court of Industrial Relations
specifically found "[T]here is at least a grain of truth in the claims made
in the newsletter." (Emphasis supplied.)
However, even
assuming the statements contained in the newsletter were in some respects
inaccurate and not completely true and, perhaps, to some extent misleading, we
now examine the existing law with reference to the effect of false misleading
statements in elections in labor matters, and whether, under the evidence in the
record in this case, it is necessary to void the election in question.
The question
involved appears to be one of first impression in this state, and we have been
unable to find any
With the above
limitations in mind, we now examine the position of the National Labor Relations
Board in connection with the recurring problem of misrepresentations in
elections for bargaining representatives. For many years, the National Labor
Relations Board took the position that false statements, which constituted an
interference with free choice, either for or against the bargaining
representative, constituted grounds for setting aside a representation election.
48 Am. Jur. 2d, Labor and Labor Relations, § 798, p. 639; Hollywood Ceramics
Company, Inc., 140 NLRB 221 (1962). In its decision in that case, the National
Labor Relations Board stated: "The Board has limited its intervention to
cases of this type because an election by secret ballot, conducted under
Government auspices, should not be lightly set aside, and because we realize
that additional elections upset the plant routine and prevent stable
labor-management relations. We are also aware that absolute precision of
statement and complete honesty are not always attainable in an election
campaign, nor are they expected by the employees. * * * We believe that an
election should be set aside only where there has been a misrepresentation or
other similar campaign trickery, which involves a substantial departure from the
truth, at a time which prevents the other party or parties from making an
effective reply, so that the misrepresentation, whether deliberate or not, may
reasonably be expected to have a significant impact on the election. However,
the mere fact that a message is inartistically or vaguely worded and subject to
different interpretations will not suffice to establish such misrepresentation
as would lead us to set the election aside. Such ambiguities, like extravagant
promises, derogatory statements about the other party, and minor distortions of
some facts, frequently occur in communication between persons. But even where a
misrepresentation is shown to have been substantial, the Board may still refuse
to set aside the election if it finds upon consideration of all the
circumstances that the statement would not be likely to have had a real impact
on the election. For example, the misrepresentation might have occurred in
connection with an unimportant matter so that it could only have had a de
minimis effect. Or, it could have been so extreme as to put the employees on
notice of its lack of truth under the particular circumstances so they could not
reasonably have relied on the assertion. Or, the Board may find that the
employees possessed independent knowledge with which to evaluate the
statements."
However, in
1977 the board reversed its position on this question, holding that misleading
campaign statements in which employees decide whether a union will represent
them in collective bargaining will not necessarily void an election. "The
assumption, said the Board, that misleading campaign propaganda will interfere
with employees' freedom of choice is completely unverified, and the Board will
view employees as mature individuals who are capable of recognizing campaign
propaganda for what it is and discounting it." 48 Am. Jur. 2d, Labor and
Labor Relations, § 798, p. 639; Shopping Kart Food Market, 228 NLRB 1311
(1977). Two of the five members of the board that sat upon it and rendered the
decision in that case filed dissenting opinions. We quote from the majority
opinion in that case: "In sum, we decide today that the Board will no
longer probe into the truth or falsity of the parties' campaign statements.
Accordingly, we hereby overrule Hollywood Ceramics. * * * Despite the many
difficulties in administering the Hollywood Ceramics rule, we, too, would
nevertheless choose to continue to adhere to it if we shared the belief that
employees needed our 'protection' from campaign misrepresentations. * * * Based
on assumptions of employee behavior which we find dubious at best and productive
of a host of ill effects, we believe that on balance the Hollywood Ceramics rule
operates more to frustrate free choice than to further it and that the purposes
of the Act would be better served by its demise. Accordingly, we decide today
that we will no longer set elections aside on the basis of misleading campaign
statements. However, Board intervention will continue to occur in instances
where a party has engaged in such deceptive campaign practices as improperly
involving the Board and its processes, or the use of forged documents which
render the voters unable to recognize the propaganda for what it is. While the
former standard represents no change in Board law, by our adoption of the latter
we choose to revert to our earlier policy of setting an election aside not on
the basis of the substance of the representation, but the deceptive manner in
which it was made. * * *."
Apparently,
there was a change in the membership of the board between April 8, 1977, on
which date the board issued Shopping Kart, and December 6, 1978, when the board
issued its decision in General Knit of California, Inc. and United Steelworkers
of America, AFL-CIO, 239 NLRB No. 101, 1978-79 CCH NLRB, par. 15,317, p. 28,616.
In General Knit, the board overruled its 1977 decision in Shopping Kart in which
it had limited remedial action to deceptive practices that involved use of NLRB
processes or forged documents, or an "egregious mistake of fact," and
reverted to its policy toward election campaign misrepresentations enunciated in
Hollywood Ceramics, to the effect that an election should be set aside only
where there has been a misrepresentation or other similar campaign trickery,
which involves a substantial departure from the truth, at a time which prevents
the other party from making an effective reply, so that the misrepresentation,
whether deliberate or not, may reasonably be expected to have a significant
impact on the election. We note that the Shopping Kart case was heard before
members Penello, Walther, and Murphy, who wrote the majority and a concurring
opinion, and before members Jenkins and Fanning, who dissented. The General Knit
case was heard before members Fanning, Jenkins, and Truesdale, representing the
majority, and with Penello and Murphy writing vigorous dissenting opinions,
pointing out the beneficial results that had accrued even during the short time
Shopping Kart was in existence and also pointing out statistically that the
decisions of the Board had been reversed by the courts on appeal at least 50
percent of the time.
With reference
to court decisions, our research discloses that the two most recent decisions
discussing the Shopping Kart case are Oshman's Sporting Goods, Inc. v. N. L. R.
B., 586 F. 2d 699, decided November 20, 1978, by the United States Court of
Appeals, 9th Circuit; and N. L. R. B. v. Wagner Elec. Corp., 586 F. 2d 1074,
decided by the United States Court of Appeals, 5th Circuit, on December 26,
1978. In Oshman's Sporting Goods the court stated: "In Shopping Kart Food
Market, Inc., 1977, 228 NLRB 1311, the Board has announced that it 'will no
longer probe into the truth or falsity of the parties' campaign statements,'
thus accepting, in part, the conclusions of the study.
"It is
tempting to us to seize upon the study and go farther than the Board did in
Shopping Kart, holding that we will no longer sustain orders setting aside
elections, or set aside orders sustaining them, in cases of threats as well as
in cases of claimed misrepresentations in election campaigns. However, we resist
the temptation because it is the Board, not the courts, that is presumed to be
expert in this field."
In N. L. R. B.
v. Wagner Elec. Corp., supra, the court, after setting forth the holding of
Shopping Kart, continued: "Shopping Kart could, of course, be applied to
this case because of the rule that an intervening change in the law while a case
is on appeal will be applied by the appellate court. However, as in NLRB v. J.
C. Penney Co., Inc., 5 Cir. 1977, 559 F. 2d 373, 377, we do not base our
decision on the less restrictive standard established in Shopping Kart, because
the misstatements of the effective dates of the cost-of-living increases were
not sufficiently material or significant to trigger the Hollywood Ceramics
standard."
Because of the
unsettled state of the law in this very important area, as indicated by the
foregoing authorities, we do not deem it advisable at this time to adopt either
of the foregoing standards discussed above, nor are we required to follow them.
It would appear, as pointed out by plaintiff-appellee NAPE in its brief, that it
is fairly inferable from the opinion issued by the Court of Industrial Relations
in this case that it has developed a standard which is somewhere between the
Hollywood Ceramics philosophy and the new Shopping Kart philosophy, which
standard appears to be that where there are material misrepresentation of
relevant facts and where there is evidence that those misrepresentations
influenced the voters or had a substantial impact on the outcome of the
election, the Court of Industrial Relations would set aside the election. In
this case, however, the Court decided that the newsletter did not contain
material misrepresentations of relevant issues and that there is no evidence of
either influence upon the voters or a substantial impact on the election. We see
no reason to depart from the standard adopted by the Court at this time. The
evidence in this case convinces us that the misrepresentations claimed by
appellant are not of an egregious nature, and while it is true appellant was
probably not afforded a proper interval of time to answer the alleged
misrepresentations, which should in future cases be done, in the absence of any
proof as to the effect of those representations upon the voters involved or the
outcome of the election, or any compelling reason to indulge in a per se rule or
presumption in this regard, notwithstanding the nature of the
misrepresentations, we conclude that no compelling reason exists for setting
aside the election in this case.
Our scope of
review on appeals from orders and decisions of the Court of Industrial Relations
was recently set out in American Assn. of University Professors v. Board of
Regents, 198 Neb.243, 253 N. W. 2d 1 (1977), as follows: "We now hold that review
by this Court of orders and decisions of the Court of Industrial Relations is
restricted to considering whether the order of that court is supported by
substantial evidence justifying the order made, whether it acted within the
scope of its statutory authority, and whether its action was arbitrary,
capricious, or unreasonable. To the extent prior cases hold that appeals from
the Court of Industrial Relations are heard de novo in this court, they are
overruled."
We conclude
that there was substantial evidence in the record to support the decision of the
Court of Industrial Relations, that it acted within the scope of its statutory
authority, and that its action was not arbitrary, capricious, or unreasonable.
We have also
examined appellant's second assignment of error to the effect that the Court
failed to follow its own rules of procedure in entering a decision in the case
on the ground that at the conclusion of the hearing on June 28, 1978, the
hearing judge granted the parties 14 days to file briefs. The State's brief was
filed with the Court on July 12, 1978, 14 days later; the order entered in the
case was "Entered" July 11, 1978, 1 day before the State's brief was
filed, but was not filed until July 12, 1978. NAPE's brief was filed with the
Court on July 13, 1978. Rule 15D of the Rules of the Court of Industrial
Relations provides: "Cases shall be deemed submitted to the Court and the
hearing thereon deemed concluded ten days after the last brief day set for the
parties by the Court." NAPE points out, however, that there is nothing in
the record with reference to any brief date being suggested or ordered by the
Court, any evidence as to whether Judge DeBacker did or did not read appellant's
brief, nor is there any demonstration of prejudice experienced by appellant
under the circumstances. We deem this assignment of error to be without merit,
and, at the most, to constitute harmless error under section 25-853, R. R. S.
1943.
We also note
that on November 28, 1978, appellant filed a motion in this court requesting an
order directing that all materials filed with this court by the clerk of the
Court of Industrial Relations, in excess of the materials required by the rules
of this court and the appellant's praecipe, be removed from the record in this
case and the appellant not be held responsible for any costs incurred in the
creation and filing of the bill of exceptions and exhibits for the hearing held
on July 19, 1977, and the bill of exceptions for the hearing held May 4, 1978.
The bill of exceptions for the hearing on the objections to the election, held
June 28, 1978, reveals that at the end of said hearing the following transpired:
"THE COURT: * * * Anything more, Mr. Brown? MR. BROWN: No. THE COURT: Do
you have any witnesses, Mr. Burns? MR. BURNS: The only thing I would like to do
is to submit to the Court a part of the record of the Court in this case dealing
with the issue of the names and addresses to be supplied by the respondent to
the partitioner [sic]. And I would ask that those documents of the Court be
entered as an exhibit and also the rulings of the Court thereon. THE COURT: A
hearing was held with respect to that problem, was there not? MR. BURNS: Yes.
THE COURT: The record made at the time of that hearing and at any previous
hearing in this matter is a continuing record along with this one, does that
satisfy your request? MR. BURNS: Yes it does." All of the foregoing
transpired in the presence of Mr. Brown, attorney for appellant, and with no
apparent objection. That being so, we do not feel we can in good conscience
sustain appellant's motion, and take upon ourselves the burden of editing out
the material objected to by counsel without any specification to the court of
what that might be, and the reasons therefor. Appellant's motion will be
overruled.
No reversible
error appearing in the record, the decision of the Court of Industrial Relations
must be affirmed.
AFFIRMED.