| HALL COUNTY PUBLIC DEFENDERS | | | CASE NO. 905 |
| ORGANIZATION (HCPDO), | | | REP. DOC. NO. 308 |
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| Petitioner, | | | |
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| v. | | | FINDINGS AND ORDER |
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| COUNTY OF HALL, A Political | | | |
| Subdivision, and the HALL COUNTY | | | |
| BOARD OF SUPERVISORS, | | | |
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| Respondents. | | |
Appearances:
For the Petitioner: Edward F. Pohren
Dwyer, Pohren, Grimm & Lazer
8712 West Dodge Road, Ste. 400
Omaha, NE 68114-3431
For the Respondents: Jerry L. Pigsley
Harding, Shultz & Downs
800 Lincoln Square
121 S. 13th Street
Lincoln, NE 68501-2028
Jerom E. Janulewicz
Mark J. Young
Hall County Deputy Attorneys
117 East First Street
Grand Island, NE 68802
Before: Judges McFarland, Moore, and Cullan
MCFARLAND, J:
Petitioner Hall County Public Defender Organization ("HCPDO" or "Petitioner") filed its Election Petition (Amended) in this case requesting that the Commission determine the appropriate bargaining unit for certain employees in the Hall County Public Defender's Office employed by the County of Hall, a political subdivision of the State of Nebraska ("County" or "Respondent"). Petitioner alleges, and Respondent admits, that Petitioner is a labor organization and Respondent is an employer as those terms are defined by the Industrial Relations Act, Neb. Rev. Stat. § 48-801 et seq.
Petitioner requests an election and seeks to represent for purposes of collective bargaining an appropriate unit consisting of persons employed as assistant Hall County Public Defenders, who are licensed to practice law in Nebraska, on a salary basis. The number of employees contained in the unit claimed to be appropriate is four (4).
Respondent by Special Demurrer and Affirmative Defense alleges that the Hall County Public Defender, Gerard A. Piccolo, is a necessary and indispensable party respondent to this industrial dispute and should be so joined. Respondent further by Affirmative Defenses alleges that the showing of interest authorizations executed by the employees in the bargaining unit claimed to be appropriate are invalid because of a supervisor's involvement in seeking union representation and that the Petitioner is attempting to include supervisors in the bargaining unit contrary to Neb. Rev. Stat. § 48-816(3)(a) (1995 Supp.).
The contested hearing in this case was held on January 9, 1996, at the Hall County Courthouse, in Grand Island, Nebraska. Because the contested issues as stated in the Commission's Report of Pretrial Conference in the case are Respondent's Affirmative Defenses, the parties agreed that Respondent would proceed first in presenting its evidence with Petitioner to present its evidence afterward. Evidence was presented by both Respondent and Petitioner, and the Commission took the matter under advisement for decision.
RESPONDENT'S REQUEST FOR ADMISSIONS
At the conclusion of its case in chief, Respondent requested that the Commission take judicial notice of Exhibits 3 (Joint Motion for Enlargement of Time and Waiver), 4 (Order), 6 (Notice of Serving Discovery Documents), and 7 (Notice of Response to Request for Admissions and Interrogatories, and Response to Request for Production of Documents to Petitioner). These Exhibits are copies of filings contained in the Commission's record in this case. Respondent further offered in evidence Exhibit 5 (Respondent's Requests for Admissions and Interrogatories to Petitioner). For its evidence, Petitioner called no witnesses and only offered Exhibit 30 (Petitioner's Response to Request for Admissions and Interrogatories). Respondent objected to the offer of Exhibit 30 for the reason that it was not marked as an exhibit at the Pretrial Conference. The Commission took the matter under advisement and reserved on ruling on the admissibility of these exhibits.
The Commission takes judicial notice of Exhibits 3, 4, 6, and 7 which are filings contained in the Commission's record in this case. The Commission receives in evidence Exhibit 5, and overrules Respondent's objection and receives in evidence Exhibit 30.
Respondent asks that its Requests for Admissions Numbers 4, 5, 6, 7, and 9 of Exhibit 5 be deemed admitted for the reason that Exhibit 30 was not served upon Respondent until November 20, 1995 which was five days later than the deadline of November 15, 1995, as ordered by the Commission.
According to Neb. Rev. Stat. § 48-812, the "proceedings before the commission shall conform to the code of civil procedure applicable to the district courts of the state" except as modified by the commission by adopting reasonable and proper regulations under Neb. Rev. Stat. § 48-809 or other provisions of the Industrial Relations Act. With respect to the district courts of the state,Neb. Rev. Stat. § 25-534 provides that "[s]ervice by mail is complete upon mailing." It further provides that "[w]henever a party has the right or is required to do some act or take some proceedings within a prescribed time period after service of a notice or other paper upon him or her by mail, three days shall be added to the prescribed period." (emphasis added). Neb. Rev. Stat. § 25-2221 provides that if the last day of a period of time in any action is a Saturday, a Sunday, or a holiday, then "the period shall run until the end of the next day on which the office will be open." There are no regulations adopted by the Commission under § 48-809 or other provisions of the Industrial Relations Act which modify these statutes.
Respondent's Certificate of Service indicates that the Requests for Admissions and Interrogatories to Petitioner were served upon Petitioner by mail on October 31, 1995. Thus, according to § 25-534, three days are added to the November 15, 1995, date of service of answers and/or responses by Petitioner. The Petitioner had until November 18, 1995, to serve such answers and/or responses. The Commission takes judicial notice that November 18, 1995, was a Saturday. Thus, according to § 25-2221, Petitioner had until Monday, November 20, 1995, to serve such answers and/or responses. Petitioner's Response to Request for Admissions and Interrogatories which denied each of Respondent's Requests for Admission Numbers 4, 5, 6, 7, and 9, was served upon Respondent by mail on November 20, 1995. The Commission finds therefore that Petitioner's filing of such Response, Exhibit 30, was timely.
Moreover, Respondent's Request for Admissions Number 4, 5, 6, 7, and 9 were also controverted by the testimony at the hearing without any objection being raised by Respondent to such testimony. The Commission therefore finds that Respondent waived any right it may have had to claim that its Requests for Admission Numbers 4, 5, 6, 7, and 9 were admitted. Finally, Petitioner's offer of Exhibit 30, in rebuttal to Respondent's offer of Exhibit 5, was a withdrawal of any admissions claimed by Respondent. The Commission denies Respondent's request for admission.
FINDINGS OF FACT
From the evidence presented, we make the following findings of fact. In November, 1992, Attorney Gerard A. Piccolo was elected as the Hall County Public Defender. He took office in January, 1993, and appointed deputy public defenders to assist him in representing indigent defendants. Such appointments were subject to the approval of the Hall County Board of Supervisors. As of the fiscal year beginning July 1, 1995, the four Deputy Public Defenders were Jerry J. Fogarty, Kevin K. Knake, Thomas J. Gaul, and Paul E. Cooney.
Mr. Piccolo, as the elected Hall County Public Defender, is the supervisor in the Public Defender's Office. None of the deputy public defenders has the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them or to adjust their grievances, or effectively to recommend such action.
Mr. Fogarty is the senior deputy with respect to years of experience within the Public Defender's Office. In the budget sheets used by the Hall County Board of Supervisors, his salary for the Public Defender's Office is designated as the "Deputy's Salary - Chief" or "Chief Deputy's Salary." These budget sheets are form documents prepared by the state auditor which are used by the County for all departments in the County. While other county departments, either by statute or title, have a designated chief deputy, Mr. Fogarty is not designated as a chief deputy within the Public Defender's Office except with regard to his salary designation on the budget sheets.
Public Defender Piccolo has assigned Mr. Knake the duty of distributing the caseload in misdemeanor and juvenile cases. Mr. Knake's function in distributing these cases is clerical in nature in that he tries to keep these cases balanced among the deputy public defenders and Public Defender Piccolo so that no one of the attorneys becomes overloaded with these type of cases. Misdemeanor and juvenile cases are not distributed on a determination or appraisal of a particular attorney's abilities. Mr. Knake has the authority to redistribute such cases after speaking with Public Defender Piccolo. In prior years, Mr. Fogarty had the duty of distributing the misdemeanor and juvenile cases among the attorneys in the office.
In the Performance Appraisal form for the period from October 15, 1993 to October 15, 1994, Mr. Knake was listed as the Department Head of Misdemeanor and Juvenile Cases. This Appraisal included a Management Skills section with the notation "(Omit this section if employee is not a supervisor)." This section was completed by Public Defender Piccolo by checking the appropriate blanks in the seven subsections to indicate whether Mr. Knake's performance was unsatisfactory, competent, or exceeds job requirement. There are no written comments indicating that Mr. Knake's actual job duties were supervisory duties. For the 1991/92 and 1992/93 years, this Management Skills section was similarly completed in the Performance Appraisal forms for Mr. Fogarty.
For the fiscal year July 1, 1995 to June 30, 1996, Public Defender Piccolo submitted a budget request to the Hall County Board of Supervisors. Such request increased the total salaries and total budget of the Public Defender's office between two and three percent in consideration of the Board's request on or about May 23, 1995, to limit total salary increases and total budget increases to two percent. By letter dated July 19, 1995, to the Chair of the Hall County Board of Supervisors, Mr. Piccolo revised his initial salary request upward with the goal of making the respective office salaries in the Hall County Public Defender's Office equivalent to those in the Hall County Attorney's Office. In response, the Board proposed cutting the total budget of the Public Defender's Office by ten to twelve percent. The Board then adopted a total budget for the Public Defender's Office generally comparable to the two to three percent increase initially requested by Public Defender Piccolo. This adopted budget increase, however, did not increase the salaries of the Public Defender, the Deputy Public Defenders, and their Office Manager to salaries equivalent to the respective office salaries in the Hall County Attorney's Office.
As a result of the disparity between salaries in the two offices, Public Defender Piccolo and the four Deputy Public Defenders signed an authorization petition, in late September, 1995, requesting an election to determine whether the HCPDO should represent them for purposes of collective bargaining. On October 2, 1995, Public Defender Piccolo withdrew his individual request for such election.
During the 1995/96 fiscal year, Public Defender Piccolo has been taking approximately $2,300.00 from his annual salary and dividing it among his four deputy public defenders. Mr. Piccolo has been able to achieve this result by submitting monthly salary claims to the County Board in which he reduces his monthly salary claim and reallocates this portion of his salary among his four deputies. These monthly claims are then approved by the County Board and paid by the County. The total monthly salary claims comply with the monthly salary amount budgeted for the attorneys in the Public Defender's Office.
Mr. Piccolo favors and supports the Hall County Public Defenders Organization. While Mr. Piccolo did not specifically state to the deputy public defenders that he favored the HCPDO, the deputy public defenders understood that he favored the HCPDO. Mr. Piccolo states that, if the decision was his to make, he would personally recognize the HCPDO as a bargaining unit even though the HCPDO has not been recognized by the County. There has been no indication that the County favors the HCPDO or that Mr. Piccolo will retaliate against the deputy public defenders if they do not support the HCPDO.
The four deputy public defenders are all attorneys licensed to practice law in the State of Nebraska. They are seeking representation by the HCPDO voluntarily. They are not being coerced into forming or joining the HCPDO.
STANDARDS OF REVIEW AND CONCLUSIONS OF LAW
Respondent has raised three issues by way of its affirmative defenses. Respondent has the burden of proof for each of these three affirmative defenses.
Supervisory Involvement
The question presented by Respondent's first affirmative defense is whether Hall County Public Defender Gerard A. Piccolo's alleged involvement in seeking union representation invalidates the showing of interest authorizations signed by the four deputy public defenders in the Hall County Public Defender's Office.
The Industrial Relations Act specifically guarantees public employees the right to join or not join any employee organization of their own choosing. The applicable statute reads in relevant part as follows:
Public employees shall have the right to form, join, and participate in or to refrain from forming, joining, or participating in any employee organization of their own choosing.
Neb. Rev. Stat. § 48-837 (1993).
The Industrial Relations Act further declares that it is a "prohibited practice" for an employer or employer's negotiator or any employee to interfere with such choice. The applicable statutes read in relevant part as follows:
It is a prohibited practice for any employer or employer's negotiator to: (a) Interfere with, restrain, or coerce employees in the exercise of rights granted by the Industrial Relations Act.
Neb. Rev. Stat. § 48-824(2)(a) (1995 Supp.).
It is a prohibited practice for any employee...to: (a) Interfere with, restrain, or coerce employees in the exercise of rights granted by the Industrial Relations Act.
Neb. Rev. Stat. § 48-824(3)(a) (1995 Supp.).
The Industrial Relations Act further provides a remedy for engaging in prohibited practices. The Commission has "the power and authority to make such findings and to enter such temporary or permanent orders as the commission may find necessary to the injured party or parties." Neb. Rev. Stat. § 48-819.01 (1993).
These statutes in the Industrial Relations Act are similar to federal statutes found in the National Labor Relations Act ("NLRA") governing employees in private employment. The NLRA states that it is an unfair labor practice for an employer "to interfere with, restrain, or coerce employees" in the exercise of their rights to form or join a labor organization. 29 U.S.C. § 158. Similarly, the NLRA guarantees employees the right to form or join labor organizations for the purposes of collective bargaining. 29 U.S.C. § 157.
The Nebraska Supreme Court has declared that "decisions under the National Labor Relations Act are helpful but not controlling" on the Commission. City of Grand Island v. AFSCME, 186 Neb. 711, 714 (1971). The Court has further stated that decisions under the NLRA are helpful where similar provisions exist in the Nebraska statutes. University Police Officers Union v. University of Nebraska, 203 Neb. 4, 12 (1979). Since the Industrial Relations Act provisions regarding "prohibited practices" are similar to the NLRA provisions regarding "unfair labor practices," the Commission shall look to federal decisions under the NLRA for guidance on this issue.
In FOP, Lodge No. 11 v. City of Seward, 7 CIR 74 (1983), the Commission adopted the following two-pronged test to determine whether union authorization cards signed by employees were invalid because of a supervisor's involvement in seeking union representation:
`Supervisory support for a union will invalidate the union's majority only when the supervisor's activities (1) cause the employees to believe that the supervisors are acting on the behalf of the employer and that the employer favors the union, or (2) lead the employees to support the union because they fear future retaliation by the supervisors.'
FOP, Lodge No. 11, 7 CIR at 81 (citing NLRB v. Wehrenberg Theatres, Inc., 690 F.2d 159, 162 (8th Cir. 1982)).
In ITT Lighting Fixtures v. NLRB, 658 F.2d 934, 936 (2nd Cir. 1981), appeal on remand, 712 F.2d 40 (1983), cert. denied, 466 U.S.978 (1984), the Court of Appeals stated, "It is well-established that the participation of a supervisor in a union election may in some circumstances so undermine the employees' freedom of choice as to warrant setting the election aside." An election, however, "is not per se invalid simply because there is evidence of pro-union supervisory activity." Wright Memorial Hospital v. NLRB, 771 F.2d 400, 404 (8th Cir. 1985). "Supervisory solicitation of authorization cards does not in itself require that an election be set aside where `nothing in the words, deeds or atmosphere of a supervisor's request for authorization cards contains the seeds of potential reprisal, punishment or intimidation.'" Id. at 405 (citation omitted). "The critical question is whether the supervisors' actions `created an atmosphere of tension or coercion such as to preclude employees from exercising a free choice.'" Id. at 404 (citation omitted).
"The party seeking to overturn a representation election has the burden of showing that the election was unfairly conducted." Id. at 403. "`[S]pecific evidence is required showing not only that unlawful acts occurred, but also that they interfered with the employees' exercise of free choice to such an extent that they materially affected the results of the election.'" Wright, 771 F.2d at 404 (citation omitted).
Respondent has not met its burden of proof under prong one of the test set out by the Commission in FOP, Lodge No. 11, that Hall County Public Defender Gerard A. Piccolo's activities have caused the deputy public defenders to believe that he is acting on behalf of the employer and that the employer favors the union. In fact, there was no evidence showing that the employer favors the union. Respondent Hall County's position clearly has been that it opposes the union. Furthermore, the evidence does not support a finding that Mr. Piccolo was acting on behalf of the employer. The evidence is to the contrary. Mr. Piccolo and the employees sought union representation after efforts to negotiate with the Hall County Board of Supervisors ("Board") better wages for the employees were unsuccessful. The decision to seek union representation occurred when the Board provided a more significant wage increase to the attorneys in the Hall County Attorney's Office that it did for the attorneys in the Hall County Public Defender's Office. As stated by Deputy Public Defender Paul Cooney in response to a question regarding the purpose of the deputy public defenders joining the HCPDO:
We're seeking some amount of equity. We realize that we're criminal defense lawyers and primarily we're--we're criminal defense lawyers for the indigent accused. We understand that that carries with it a -- some amount of disrespect and doesn't carry with it a very lucrative income. We've chosen this career. But it's very difficult for us to maintain confidence, to maintain the stamina because we have a very difficult job. We have tremendous burdens placed upon us in terms of the caseload, in terms of the clients that we deal with, in terms of the severity of the cases with which we deal. And it's very difficult if we don't receive any amount of compensation for that.
I don't disrespect the prosecutor or her employees, the deputies, they are very good professional people and I think that they are underpaid as well. But we are getting disproportionate raises and it's difficult for us to maintain ourselves. We see that we're disrespected by the county. Oftentimes we're disrespected by the courts and that's--it's difficult.
So I want to organize primarily for the colleagues who have served several years with the Hall County public defender's office, specifically Mr. Knake and Mr. Fogarty. Mr. Gaul and I are relatively new and I don't expect too much in terms of a raise. But they have devoted a good number of years of their career to this county and have not received compensation that is just.
(Record at 105:11 - 106:16).
Respondent has not met its burden of proof under prong two of the test set out by the Commission in FOP, Lodge No. 11, that Mr. Piccolo's activities led the deputy public defenders to support the union because they feared future retaliation by Mr. Piccolo. The four deputy public defenders are lawyers licensed to practice law in the State of Nebraska. All of them testified that their decision to seek union representation was voluntary and not coerced. There was no evidence to show that any one of the deputy public defenders feared retaliation if he did not support the union. There was no showing of any supervisory conduct that contained the seed of potential reprisal, punishment, or intimidation. There was no showing that the supervisor's actions created an atmosphere of tension or coercion such as to preclude the deputy public defenders from exercising a free choice. There was no showing that the supervisor's actions interfered with, restrained or coerced the deputy public defenders in the exercise of their rights under the Industrial Relations Act.
The present case is similar to FOP, Lodge No. 11, where the Commission found that the supervisor's pro-