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APPELLEE,
v.
CITY
OF
CHIEF OF POLICE, THOMAS
WARREN, APPELLANTS.
276
Neb. 983
Filed January 2, 2009. No. S-07-1245
1. Commission of Industrial Relations: Appeal and Error. Any order or
decision of the Commission of Industrial Relations may be modified, reversed,
or set aside by an appellate court on one or more of the following grounds and
no other: (1) if the commission acts without or in excess of its powers, (2) if
the order was procured by fraud or is contrary to law, (3) if the facts found
by the commission do not support the order, and (4) if the order is not
supported by a preponderance of the competent evidence on the record considered
as a whole.
2. Public Officers and Employees: Words and
Phrases. Flagrant misconduct includes, but is not limited to, statements or
actions that (I) are of an outrageous and insubordinate nature, (2) compromise the
public employer's ability to accomplish its mission, or (3) disrupt discipline.
3. Labor and Labor Relations: Public Officers and Employees: Civil Rights. Public employees who belong to a labor organization have the
protected right to engage in conduct and
publish statements concerning terms and conditions of employment, but not if the speech or conduct
constitutes flagrant misconduct.
Appeal
from the Commission of Industrial Relations.
Affirmed.
Paul D. Kratz, Omaha City Attorney, and Bernard J. in den Bosch for
appellants.
Thomas F.
Dowd, of Dowd, Howard & Corrigan, L.L.C., for appellee.
Wright,
Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.
Wright, J.
NATURE OF CASE
This matter arose from the filing of a petition with the Commission of
Industrial Relations (CIR) by the Omaha Police Union Local 101, IUPA, AFL-CIO
(Union), against the City of Omaha and its chief of police, Thomas Warren (collectively the City).
The CIR issued an order granting partial relief
as requested by the Union, and the City appealed. This court found that the CIR
erred in applying the "deliberate and reckless
untruth" standard, which applies to private sector labor relations
cases, and that the "flagrant misconduct" standard applies to protected speech issues in public
sector employment cases. See Omaha Police Union Local 101 v. City of Omaha, 274 Neb. 70, 736 N.W.2d 375 (2007). We affirmed in part, and in part reversed the judgment and
remanded the cause with directions for the CIR to
apply the flagrant misconduct standard. Id.
Applying the flagrant misconduct standard, the CIR determined that remarks made by an Omaha police officer in a Union newspaper were protected speech. The CIR again ordered the City to place a statement in the Union newsletter indicating that it will recognize the Union members' rights to protected
speech and other activity. The City has appealed.
SCOPE OF REVIEW
[1] Any order or
decision of the CIR may be modified, reversed, or set
aside by the appellate court on one or more of the following grounds and no
other: (1) if the CIR acts without or in excess of
its powers, (2) if the order was procured by fraud or is contrary to law, (3)
if the facts found by the CIR do not support the order, and (4) if
the order is not supported by a
preponderance of the competent evidence on the record considered as a
whole. Id.
FACTS
During a meeting of the Union on December 14, 2004, the president of the Union, Omaha Police Department (OPD) Sgt. Timothy Andersen,
was asked about the method OPD used to calculate its response times for 911 emergency dispatch calls. Andersen
gave his opinion that the method used by OPD to calculate response times was misleading. Reports of Andersen's statements were relayed to Warren several days after the meeting. Warren initiated an Internal Affairs (IA) investigation to determine whether Andersen had advised officers to disregard departmental
standard operating procedures. IA found that Andersen
had neither violated departmental procedures nor acted unprofessionally. Warren adopted those findings and took no
disciplinary action against Andersen.
In response to
the events involving Andersen, OPD Sgt. Kevin Housh wrote an article in the February
2005 issue of the Union newspaper, "The
Shield," which was distributed to members of
the Union as well as to members of the community. Housh's
article was generally critical of OPD procedures for two-officer 911 calls and the manner in which the City of Omaha and OPD calculated response time. Housh characterized
city officials as "[a] bunch of grown men and women, supposedly leaders, acting like petty criminals trying
to conceal some kind of crime."
Based on the
article, Warren initiated an IA investigation of Housh. Warren alleged that Housh's conduct constituted gross disrespect and insubordination and was unbecoming an officer, in
violation of OPD rules of conduct. Warren adopted IA's finding that the unprofessional conduct allegation against Housh should be sustained and
terminated Housh's
employment.
After the Union
appealed Housh's termination to the City of Omaha Personnel Board, the City of Omaha and the Union reached an
agreement and Housh was reinstated to OPD but was required to serve a 20-day suspension without
pay and to discontinue working on
the emergency response unit.
The Union filed a
petition with the CIR, claiming that the City had
engaged in prohibited labor practices under the Industrial Relations Act, Neb. Rev. Stat. §§ 48-801 to 48-838 (Reissue 2004) (Act). It alleged that the City's investigations of Andersen and Housh and the termination of Housh's employment had
'chilled" other Union members' expression of opinions at Union meetings and in the Union publication. It claimed that the City had engaged in prohibited labor practices under § 48-824(2)(a) by interfering
with, restraining, and coercing Union
members in their exercise of rights granted under § 48-837 It asked that the City be restrained from interfering with Union members' rights to express their opinions at Union meetings or in Union publications relating to terms and conditions of their employment, the City of Omaha's administration, and OPD's management.
The CIR found that Housh's article was a
protected Union activity if it
was "concerted activity" falling under the protection of § 48-824(2)(a). It relied on
federal labor cases to find that employee
speech is a protected concerted activity if it is related to working conditions. It determined that Housh's article pertained
to officer safety, which was a working condition and a mandatory subject of
bargaining, and that an employee loses protection
for speech only if the speech is deliberately or recklessly untrue.
The CIR
concluded that "Housh's statements, while certainly constituting intemperate, abusive and insulting rhetorical hyperbole, fall short of deliberate or reckless untruth. The comments were made in a union publication in the context of a management/union disagreement, and they were therefore
protected from interference, restraint or coercion by management."
The City was
ordered "to not interfere in any way" with statements made by employees in the Union publication which did not violate the standard of deliberate or reckless untruth. The City was required to place a statement in the Union newsletter indicating that it would recognize the Union members' rights to
protected activity.
[2] On appeal to
this court, we determined that the "deliberate and reckless untruth"
standard of the National Labor Relations Act was
inappropriate in the context of public sector employment. We concluded that the legal standard of flagrant misconduct should apply to the determination of whether public employees' speech is protected under the Act. "Flagrant misconduct includes, but is not limited to, statements or actions that (1) are of an outrageous and insubordinate nature, (2) compromise the public employer's ability to accomplish its mission, or (3) disrupt discipline." Omaha
Police Union Local 101
v. City of Omaha, 274 Neb. 70, 86, 736 N.W.2d 375,
387-88 (2007).
We affirmed in part, and in part reversed the judgment and remanded the cause to the CIR so that it could
apply the flagrant misconduct standard we
prescribed for determining when Union speech is
protected under the Act. On remand, the CIR again determined that Housh's conduct was
protected, and it ordered the City
not to interfere in any statements made in the Union publication which do not violate such standard. The City was again ordered to place a statement in the Union newspaper indicating that it recognizes the rights of the Union members to protected activity.
ASSIGNMENT OF
ERROR
The City assigns
as error that the CIR erred in its evaluation of whether the speech of an employee of a law enforcement agency in a Union newspaper was flagrant misconduct and, thus, exceeded the protections of § 48-824(2)(a).
ANALYSIS
In its order
following remand, the CIR noted that the newsletter in which Housh's article was published
was primarily a Union
newsletter, although it is not distributed exclusively to Union members. Housh's article was
"designed, rather than impulsive,"
and the CIR could not say it was provoked by the employer's words or actions. Housh's
conduct was, as previously
determined, "intemperate, abusive and insulting." However, the CIR found that the remarks did not reach the level of flagrant misconduct. "They were in fact rhetorical hyperbole, which would not be reasonably believed by any reader as
accusing of any crime or wrongdoing. They were intemperate, immature hyperbole, but they were nonetheless protected union speech in the context of the newsletter." The CIR found no evidence of any loss of discipline, respect, or ability to
accomplish the police department's mission that could be attributed to the publication of the article, and the CIR doubted that the remarks would reflect poorly on
anyone other than Housh and the newsletter's editor. The CIR concluded that Housh's remarks were protected speech.
[3] The issue is
whether the CIR properly applied the standard of "flagrant misconduct." Public employees who belong to
a labor organization have the protected right to engage
in conduct and publish statements concerning terms and
conditions of employment, but not if the
speech or conduct constitutes flagrant
misconduct. See Omaha Police Union Local 101 v. City of Omaha, 274 Neb. 70, 736 N.W.2d 375 (2007).
In our review of an order of the CIR, the decision may be modified, reversed, or set aside on one or more of the following grounds and no other: (1) if the CIR acts without or in excess of its
powers, (2) if the order was procured by, fraud or is contrary to law, (3) if the
facts found by the CIR do not support the order, and (4) if the order is not supported
by a preponderance of the competent evidence on the record considered as a whole. See id.
Had this court conducted its own review of Housh's conduct, the result might have been different. Housh's
article appeared in a newsletter circulated outside the Union. Housh stated that city officials were "acting like
petty criminals trying to conceal some
kind of crime."
We have defined flagrant misconduct as "statements or
actions that (1) are of
an outrageous and insubordinate nature, (2)
compromise the public employer's ability to accomplish its mission, or (3) disrupt discipline." Omaha Police Union Local 101, 274 Neb. at 86, 736 N.W.2d at 388.
Although reasonable minds could differ as to whether Housh's
statements were outrageous and insubordinate, given our standard of review,
we conclude
that the CIR's order is supported by the facts, and it is affirmed.
CONCLUSION
The
decision of the CIR is affirmed.
AFFIRMED.
HEAVICAN, C.J., not participating.