13 CIR 180 (1998)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Appearances:

Before: Judges Moore, DeLay and Anderson (Anderson concurring in the result)

Moore, J:

NATURE OF PROCEEDING

Metropolitan Technical Community College Education Association ("Association" or "Petitioner") brought an action on May 22, 1997 pursuant to Neb. Rev. Stat. §§ 48-824 and 48-825 alleging that Metropolitan Community College Area ("College" or "Respondent") committed various prohibited practice violations. The Association filed an Amended Petition on August 11, 1997. The Association alleged in its Amended Petition that the College violated the following prohibited practice statutes:

1. In not allowing Dr. Davis to have a representative of her bargaining agent present at her interview of March 21, 1997, the Community College breached Neb. Rev. Stat. § 48-824(2)(a) and (d) (Cum. Supp. 1996).

2. In using a prior lawsuit as a reason for excluding the Association's representative, the Community College violated Neb. Rev. Stat. § 48-824(2)(a) and (d) (Cum. Supp. 1996).

3. In removing the Association's representative from public property on campus, the Community College violated Neb. Rev. Stat. § 48-824(2)(a) (Cum. Supp. 1996).

4. The Community College through its agents and employees in not allowing Dr. Davis to have a representative of her bargaining agent present at the interview on March 21, 1997, and referring to a prior lawsuit as a reason for excluding the Association's representative from the March 21, 1997 meeting, and causing the removal of the Association's representative, Roger Larsen, from the public property of the Community College thereby interfered with, restrained, and coerced the bargaining unit members represented by the Association in the exercise of their rights granted by the Nebraska Industrial Relations Act, §§ 48-801 et seq., and interfered with, restrained, and coerced the Association in the exercise of its rights and obligations granted by the Nebraska Industrial Relations Act, §§ 48-801 et seq., in violation of Neb. Rev. Stat. § 48-824(2)(a) (Cum. Supp. 1996).

5. The actions of the Community College and its President, Dr. J. Richard Gilliland, were a part of the plan and course of action intended to discredit, intimidate, and harass the Association's collective bargaining agent in the exercise of its rights granted pursuant to the Nebraska Industrial Relations Act, §§48-801 et seq. , in violation of Neb. Rev. Stat. §48-824(2)(a) (Cum. Supp. 1996).

The College filed an Answer to Amended Petition on August 19, 1997 admitting and denying various allegations and facts, and praying that the Commission dismiss the Petition.

The parties entered into a Pretrial Stipulation which identified the issues for trial.

The trial was held on November 3, 1997 and post-trial briefs were received during the month of December 1997.

FACTS

The parties stipulated to the following facts in their Pretrial Stipulation:

1. The Petitioner is an unincorporated association and the certified collective bargaining agent for all full-time employees of the Respondent, receiving annual notices of employment, and holding full-time positions as Instructor, Counselor, Vocational Evaluator, and Campus Librarian; and the Petitioner has been recognized as the collective bargaining agent for such employees and all full-time employees receiving annual notices of employment and holding full-time positions as Special Needs Counselor and Career Awareness Leader.

2. The Petitioner is a "labor organization" as that term is defined by Neb. Rev. Stat. § 48-801 (6) (1993).

3. The Respondent is a political subdivision of the State of Nebraska, organized and existing by virtue of Neb. Rev. Stat. § 85-1501 et seq. (1994) and is an "employer" as that term is defined by Neb. Rev. Stat. § 48-801(4) (1993).

4. The Community College Board of Governors for the Metropolitan Community College Area is responsible for the governance of the Community College.

5. At all times relevant hereto, Dr. Gilliland was acting as an agent of the Community College.

6. At all times relevant hereto, Dr. Davis was an "employee" as defined by neb. Rev. Stat. § 48-801(5) (1993).

7. Dr. Davis, Mr. Wait, and Dr. Gilliland are employees of the Respondent.

The Commission finds the following facts to be true. Dr. Bobbie Davis has been employed by the College since January 1980. She has held the position of career counselor since 1995. A career counselor works with the students in assisting them to determine what their career goals are, what they would like to go into, and what kinds of things they would like to do in their lives.

Dr. Davis has received annual employment evaluations. Six areas of her job performance were evaluated: Educational advising, student/support staff relationship, ability to work with colleagues, career counseling, college policies and procedures and other identified areas. For each area the evaluator may rank the job performance as unsatisfactory, needs improvement, meets expectations or exceeds expectations. Her employment evaluations for the 1991-92 and 1992-93 academic years indicated that she exceeded expectations in three areas and met expectations in three areas. Her evaluations for the 1993-94 and 1994-95 academic years indicated that she exceeded expectations in four areas and met expectations in two areas. On all four evaluations, Davis met expectations in the area of "ability to work with colleagues" and "college policies and procedures." The description under "ability to work with colleagues" stated that the evaluation preparer should "consider effectiveness, professional attitude, cooperation, serving as a member of a team, and respect for others." The description under "college policies and procedures" stated that the evaluation preparer should "consider adherence to approved policies and procedures, resolution of concerns through channels, support of the College, and professional attitude."

All four employment evaluations were prepared by Davis' supervisor, Larry Lindberg. The evaluations were reviewed and signed by higher ranking college officials. In the employee comment area on the 93-94 evaluation, Davis described some of the activities she completed throughout the school year which in her opinion justified a higher rating. Dr. Mary Wise, the Vice President for Educational Affairs, wrote on Davis' 93-94 evaluation that she concurred with Davis' remarks, but stated that Davis had not yet achieved her full potential. On her 94-95 evaluation Davis wrote, "I need to know how I can improve in the areas which are ranked 'meets expectations.' I do not know what I should be doing that I am not doing now." Davis did not receive any feedback as to how she could improve the areas marked "meets expectations."

In early 1995, Randy Schmailzl became the Dean of Student Services at the College. In May 1995, student services was reorganized. The goal was to elevate the level of service to the students to provide better advice, counseling or assistance to the students. Also at this time Davis received a new supervisor, Mark Carta.

Davis' evaluations for the 1995-96 and 1996-97 academic year were prepared by Carta. On the 95-96 evaluation, Davis exceeded expectations in two areas and met expectations in three areas. Davis met expectations in the areas of "educational advising" ("providing accurate information regarding College programs and courses, assists students in development of appropriate class schedules"), "ability to work with colleagues," and "college policies and procedures." Davis stated in the employee comment area of the evaluation that the evaluation did not reflect her performance in several areas. She further stated that she should be ranked higher in the three areas where she was ranked as meeting expectations and she gave examples of her activities justifying a higher rating. She concluded by stating, "All these ratings should be higher because I go beyond the expected on a regular basis. If my evaluation is going to continue to be artificially deflated, then it would appear that an investigation of the evaluation instruction, process, and procedure is imperative. A deflated evaluation violates the purpose of evaluation." Davis felt the evaluations were artificially deflated because Carta told her that an employee could not get a perfect rating on an evaluation and, in Davis' opinion, if an employee was performing at a very high level, then that level would never be reflected on an evaluation. The evaluation was signed by several higher ranking college officials, including Mary Hawkins, Vice President for Educational Services. Hawkins wrote on the evaluation, "I fail to understand why, year to year, Dr. Davis believes she has no room for improvement, i.e., she exceeds expectations in all regards. This was a contention with her last year evaluation."

A new evaluation form was used for the 1996-97 academic year. The category of "other identified areas" was replaced with "professional growth" and the job performance rankings were changed to unsatisfactory, below expectations but demonstrating progress, satisfactory, above expectations, or outstanding. Davis' performance was ranked satisfactory in the areas of "relationship with students" and "professional growth," below expectations but demonstrating progress in the areas of "advising" and "career counseling," and unsatisfactory in the areas of "ability to work with colleagues" and "college policies and procedures." Carta wrote on the evaluation, , that "[t]here have been occasions, however, when Bobbie avoids seeing students who are not scheduled for career services. Dr. Davis will find others in the office to see students for advising while she herself remains free to pursue other activities . . . When Dr. Davis encounters a decision made by the supervisor or administration of the College with which she does not agree, there are times when there seems to be no end to the disagreement." Under the supervisor's comment section, Carta stated that "failure to make progress on the various areas identified in this appraisal document may result in Dr. Davis being placed on probation."

Davis and Carta met for approximately two hours to discuss the 1996-97 evaluation. Along with the evaluation, Carta also gave Davis a one page summary of expectations prepared by him. Davis signed the evaluation and prepared a two pages of comments to the evaluation. Several days later, on January 14, 1997, Davis met for approximately one hour with Schmailzl about the evaluation. Schmailzl signed the evaluation along with Dr. Wise, Vice President of Student and Instructional Services, and by Dr. Gilliland, the College President. Wise wrote on the evaluation, "I concur with Mark Carta's appraisal of Bobbie Davis. In addition, I consider this a serious matter which requires immediate attention." Gilliland attached a one page confidential memorandum dated January 21, 1997 to Wise, Carta and Schmailzl, which stated, in part, that he concurred with Wise that this was a serious matter and that "[i]t appears that Dr. Davis is choosing to resist efforts by her supervisors to improve her performance rather than working collaboratively with them to mitigate these serious and seemingly long-standing problems."

On February 14, 1997, Davis met with Carta for approximately one hour to discuss her 1996-97 evaluation. Also on that date she sent a memorandum to Carta of a longer and more thorough response to her evaluation (7 ½ pages). On the seventh page she indicated that she sent a copy of her response to Schmailzl, Wise and Gilliland, which Davis later acknowledged she did not send to these three individuals. Ultimately Schmailzl, Wise and Gilliland were all provided a copy of Davis' seven and one-half page response to her 1996-97 evaluation. Davis was also scheduled to meet with Carta on February 19^th and 20^th to further discuss her 1996-97 evaluation, but these meetings were canceled at the request of Schmailzl.

After reviewing Davis' seven and one-half page response, Schmailzl sent a letter dated March 6, 1997 to Davis. It stated, in part, that the appraisal by Mr. Carta was straightforward. Dr. Wise and I had no trouble understanding it. If you do not understand it, it may be because you are choosing not to understand but rather to be confrontational. That is also descriptive of the pattern of defiance and resistence that Mr. Carta, Dr. Wise and I have seen in your performance during the past year. I note that your memorandum dwells upon the occurrences that were cited in your appraisal as mere examples of significant concerns. That approach indicates you still do not recognize that your attitude, untimeliness, and lack of cooperation with supervision and co-workers are what essentially lie at the core of our concerns as your supervisors. Those are not difficult to remedy, but only you have the power to make the change.

The appraisal process is complete. Dr. Wise and I will not meet with you to further discuss your appraisal. You have been challenged by the appraisal to be responsive to Mr. Carta's expectations as set forth in the appraisal . . . Should you have any questions regarding Mr. Carta's expectations, I am certain he will be happy to discuss them with you. However, I would expect that those communications could be accomplished in minutes and not require hours of Mr. Carta's time.

Davis understood Schmailzl's letter to mean that she was to accept the information in her evaluation which, in her opinion, was incorrect and if she chose not to accept the evaluation by continuing to discuss it, then she would suffer the consequences.

Davis sent a letter dated March 10, 1997 to Gilliland requesting a meeting with him to discuss her 1996-97 evaluation. Gilliland sent a letter dated March 13, 1997 to Davis stating that he would accept her request and that "[b]ecause you have questioned a number of specific points in your evaluation, I will be asking Mark Carta and Dean Schmailzl to attend the meeting." Gilliland further stated that he was anxious to expedite the meeting since her evaluation had been a matter of discussion and contention for a number of weeks. Gilliland wanted to meet the following week, but since his schedule was pretty full that week, he could only meet for up to 45 minutes.

Davis had two reasons for wanting to meet with Gilliland. First, Davis had contact with Gilliland through a campus advisory committee about one year ago, at which time Gilliland told Davis that she should come see him if she ever had any questions about anything. Second, Gilliland's January 21, 1997 confidential memorandum was written prior to Davis' seven and one-half page response to her evaluation, and Davis wanted Gilliland to respond to her extended response. Davis anticipated that if Gilliland did not see her point of view that disciplinary or retaliatory activity would result.

Due to an illness Davis was out of the office for several days in March 1997. Upon her return to the office on March 20, 1997, she received notice that Gilliland had scheduled a meeting with her for March 21, 1997 in building 1, where Gilliland's office is located. At 11:51 a.m. on March 20^th, Davis sent the following e-mail to Gilliland. "Thank you for the opportunity to meet with you on March 21, 1997 at 11:00 A.M. I do not know how much time you have for the meeting. Roger Larsen will be attending this meeting with me. Roger and I have another meeting at 1:00 P.M. in Building 32. If you have less than an hour available, please let me know so we can focus our concerns." Larsen is the uniserve director for higher education at the NSEA. The Association is a chartered member of the NSEA and one of the locals for which Larsen is responsible. Davis called Gilliland's office at 9:00 a.m. on the 21^st to see if her March 20^th e-mail had been received by him. Gilliland's secretary told her that he had received the e-mail. From the time the e-mail was sent until 11:00 a.m. on March 21^st, the time of the meeting with Gilliland, Davis did not receive any notice that Larsen was not welcome.

Gilliland read Davis' e-mail at 5:30 p.m. on March 20^th, and attempted to contact the College's legal counsel to determine the propriety of adding Larsen at this late date. Gilliland was able to contact his legal counsel by 9:30 a.m. on March 21^st. Gilliland received an answer from counsel by 10:00 a.m., at which time he proceeded with a 10:00 a.m. meeting. At approximately 10:15 a.m. Gilliland directed his staff to contact campus security. Jim Herbert contacted campus security informing them that Gilliland had an 11:00 a.m. meeting at which time an uninvited person would be coming and that security's assistance would be needed if that person did not leave as requested. Gilliland had his staff contact campus security due to a prior experience several years ago with Larsen which substantially disrupted his outer office for a period of time. He did not want this to happen again because he only had a very limited amount of time to meet with Davis and he didn't want to disrupt the work of the people who were in the outer office.

Shortly before 11:00 a.m. on March 21^st, Davis, Carta and Larsen were all seated in the waiting area outside Gilliland's office. Schmailzl arrived and he and Carta went into a nearby office to talk. Shortly thereafter Gilliland arrived. Gilliland then told Davis that she was rude for inviting Larsen to the meeting without Gilliland's prior approval.

After this point the conversation was between Gilliland and Larsen, although the sequence isn't entirely clear from the evidence. Gilliland told Larsen that he would not be able to attend the meeting. Larsen explained that there seemed to be a likelihood that disciplinary action would be taken against Davis and that under the new prohibited practice laws Davis may have aWeingarten right to have someone else attend with her. Gilliland stated that the meeting was not a grievance hearing and that he (Larsen) would not be able to attend. A brief discussion was had about prior lawsuits between the Association and the College.

Gilliland left the room and instructed Fayetta Steele, his assistant, to contact campus security. At this point the Commission relied heavily upon exhibit 31, which is a written report prepared later in the day on March 21^st by one of the security officers involved. Gilliland returned to the room and two armed campus security officers arrived shortly thereafter. Gilliland told Larsen that he would not be able to attend the meeting and that he could file a complaint if he wished. Larsen responded that he had won all previous lawsuits and that he would win this one. Larsen also stated that this was no way to improve the relationship between the Association and the College administration. Gilliland asked Larsen if he needed the assistance of security to help him leave the building. Larsen indicated that that would not be necessary. At some point prior to being escorted out, Larsen asked Davis whether she wanted to proceed with the meeting without him and she said, yes. The security officers escorted Larsen, with one officer on each side of him, out of the building and down the sidewalk. The officers stood and watched as Larsen walked to his car and got into it. Larsen sat in his car using his cellular telephone for a few minutes when one of the officers approached him at his car window and told him that he would have to leave the campus. Larsen then drove off the College campus. In response to the March 21^st meeting, Gilliland sent a letter dated March 28, 1997 to Davis. It stated, in part, that "[y]our assertion of personal perfection this year symbolizes a serious attitude problem on your part . . . Just as Dean Schmailzl said in his letter to you, I too believe you possess the opportunity for engaging in constructive activity for the College and its students or to be destructive . . . I find no reason to change any part of your 1996-97 evaluation . . . You have indicated that expectations of you are unclear . . . I find your response difficult to accept in light of the time and effort that have already been spent in making expectations clear to you. Nevertheless, I have directed your supervisors to continue to prepare further written and specific performance expectations for you. . . ."

Carta prepared job performance expectations to Davis in a letter dated April 2, 1997. One of the items in the job performance expectations indicted that Davis needed approval to be out of the office for activities. Davis had previously served as a volunteer for Santa Monica, Inc., a halfway house for women who have chemical dependency problems, and for the Greater Omaha Community Action ("GOCA"). In a letter dated April 12, 1997, Carta informed Davis that "It has been decided that at the present time, the need to see students has a higher priority than your participation in committee/board activities with the GOCA and Santa Monica, Inc. organizations. Your request to attend committee/board meetings on Metro time is denied."

Davis informed Dr. Ben Ebong, the executive director of GOCA, of the College's decision. Davis explained to Ebong that she could not attend the GOCA committee meetings on College time and therefore she would have to resign from the committee. Ebong personally knew Jim Herbert at the College's administrative office, so he called Herbert on April 17, 1998 to see if he could help the situation. Herbert stated that he would talk to Davis' supervisor and then call Ebong. Herbert sent an e-mail to Schmailzl stating, in part, that "Ben indicated that Bobbie told Ben that she could not continue because Bobbie's boss has asked her not to participate with GOCA or any outside activities." Herbert called Ebong and indicated that Davis could not participate in GOCA on College time and that he was welcome to talk to Schmailzl. Ebong called Schmailzl and asked him if he was willing to reconsider his decision. Schmailzl told Ebong that for awhile Davis needed to stay at the College to serve students, so she could only participate in GOCA activities if she elected to take annual leave, personal leave or on her own time. Schmailzl sent a letter dated May 15, 1997 to Davis which stated, in part, the following:

Through your communication with Mr. Ebong, you chose to explain the situation in a manner that would lead him to feel a negative reaction toward the College and your supervisor, rather than presenting it in a way that would have allowed for a positive feeling by Mr. Ebong . . . you have chosen the consequences that flow from your choice. This letter is to be considered a letter of reprimand regarding your negative approach in communicating with outside constituents. In the future, you are expected to communicate positively with outside constituents. . . .

Schmailzl indicated that what bothered him most about the situation "was the fact that it had nothing to do with the college, it had to do with Bobbie needing to stay in the office to serve students. And the explanation to Dr. Ebong could have been I need to stay in the office to serve students . . . And when Dr. Ebong knew nothing of Bobbie's need to stay on campus and serve the students, that created a problem in my mind because this all resulted in our desire to have her stay on campus to help us out." (T155).

LAW

The Association alleges that the College violated the following prohibited practice statutes of Neb. Rev. Stat. § 48-824(2) (1996 Cum. Supp.):

"It is a prohibited practice for any employer or the employer's negotiator to:"

"(a) Interfere with, restrain, or coerce employees in the exercise of rights granted by the Industrial Relations Act;"

(d) Discharge or discriminate against an employee because the employee has filed an affidavit, petition, or complaint or given any information or testimony under the Industrial Relations Act or because the employee has formed, joined, or chosen to be represented by any employee organization;"

The employee rights granted by the Industrial Relations Act are set forth in Neb. Rev. Stat. § 48-837 (1993), which provides that "[p]ublic 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. 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 thereunder."

The Association also relies upon Neb. Const. art. XV, §§ 9, 14 and 15, which state:

"Laws may be enacted providing for the investigation, submission, and determination of controversies between employers and employees in any business or vocation affected with a public interest and for the prevention of unfair business practices and unconscionable gains in any business or vocation affecting the public welfare. An Industrial Commission may be created for the purpose of administering such laws, and appeals shall be as provided by law." Neb. Const. art. XV, § 9.

"The term 'labor organization' means any organization of any kind, or any agency or employee representation committee or plan, which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work." Neb. Const. art. XV, § 14.

"This article is self-executing and shall supersede all provisions in conflict therewith; legislation may be enacted to facilitate its operation but no law shall limit or restrict the provisions hereof." Neb. Const. art. XV, § 15.

DECISION

Nebraska Constitution

The Association argued in its post-trial brief that Dr. Davis' right to have a union representative present during her March 21, 1997 meeting and the Association's right to deal with Davis' employer is based upon the Nebraska Constitution, Article XV, §§ 9, 14 and 15. The Association asserted that Neb. Const. art. XV, § 14 provides that a labor organization exists for the purpose of dealing with employers concerning grievances, labor disputes and conditions of employment. The Association stated (pp. 20-21) that "Davis had a right to union representation at the meeting on March 21 and similarly the union had a right to be present to represent her and to 'deal with' her employer. When Larsen was ejected, her rights were violated as were the rights of the union. As a consequence in both instances, there was a violation of neb. Rev. Stat. §48-824(2)(a)."

The College argued in its post-trial reply brief that the Association cannot rely upon the Nebraska Constitution because it wasn't properly plead and preserved. "Petitioner may not now be allowed to transform its cause of action into claims based on the Nebraska Constitution." (p. 7).

The Commission finds that the Association is not pursuing a cause of action based upon the Nebraska Constitution, but is arguing that rights set forth in the Nebraska Constitution support a cause of action pursuant to § 48-824(2)(a). This being the case, it is unnecessary to rule upon the issue of whether a cause of action based on the Nebraska Constitution was properly plead and preserved in this case and whether the Commission would have subject matter jurisdiction over such a dispute.

The Commission further finds that the sections of the Nebraska Constitution cited by the Association do not add anything to the Association's cause of action. Section 9 of article XV provides that laws may be enacted for the determination of public labor disputes and that an Industrial Commission may be created to administer such laws. Section 14 of article XV provides a definition of "labor organization." This same definition is found at Neb. Rev. Stat. § 48-801(6) (1993). Section 15 of article XV states that article XV is self-executing and legislation may be enacted to facilitate its operation but may not limit or restrict the provisions thereof. In addition, even if there were additional rights found in the Nebraska Constitution which are not found in the Industrial Relations Act, § 48-824(2)(a), only protects rights found in the Industrial Relations Act. "It is a prohibited practice for any employer or the 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) (Cum. Supp. 1996) (emphasis added).

Section 48-824(2)(a)

In determining whether the College employer violated § 48-824(2)(a), the test is "'whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act.' " Nebraska Pub. Employees Local Union 251 v. Otoe County, 13 CIR 79, 93 (1998). Actions which normally could be validly done are prohibited when the result is that they interfere with, restrain or coerce employees in the exercise of their rights under the Industrial Relations Act ("Act"). Business decisions which interfere with the rights of public employees as set forth in the Act, violate § 48-824(2)(a) only when the business justification does not outweigh the rights of public employees. Other employer actions are so peculiarly matters of management prerogative that they would never constitute an independent violation of § 48-824(2)(a) regardless of whether or not they involve sound business judgment.

Both parties, in their briefs, pointed out various facts which they felt demonstrated anti-union animus, or the lack thereof. However, a violation of § 48-824(2)(a) does not depend upon the employer's motive for its actions. No proof of coercive intent or effect is necessary and employer actions taken in good faith are no defense. See Otoe County, 13 CIR at 92.

Under the National Labor Relations Act ("NLRA"), an employer interferes with, restrains, or coerces an employee in their rights under the NLRA when the employer denies the employee's request that a union representative be present at an investigatory interview in which the employee reasonably believes might result in disciplinary action. See NLRB v. Weingarten, Inc., 88 LRRM 2689 (1975). The College has asked the Commission to rule on whetherWeingarten applies under the Industrial Relations Act.

The rights of employees under the Weingarten decision are based upon § 7 of the NLRA (29 U.S.C. § 157) which guarantees the right of employees to act in concert for mutual aid and protection. The relevant language states that "[e]mployees shall have the right to . . . engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . ." (emphasis added). Similar language is also contained in § 1 of the NLRA, which sets forth the policies and purposes of the NLRA. The employee seeks aid and protection against a perceived threat to his or her employment security. The union representative is "safeguarding not only the particular employee's interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly." Weingarten, 88 LRRM at 2692.

The employee rights statute, parallel to § 7 of the NLRA, is § 48-837. Section 48-837 does not contain similar language giving public employees the right to engage in concerted activity for mutual aid and protection. Section 48-802, which sets forth the public policy of the Industrial Relations Act also does not contain such language. Under § 48-837, public employees have the right to form, join and participate in any employee organization of their choosing. They also have the right to be represented by employee organizations for the purposes of collective bargaining and the administration of grievances arising thereunder. A labor organization is defined as any organization in which employees participate and which "exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work." Neb. Rev. Stat. § 48-801(6) (1993). Based upon these differences, the Commission finds that employees subject to the Industrial Relations Act do not have a Weingarten right to have a union representative be present at an investigatory interview in which the employee reasonably believes might result in disciplinary action. Therefore, it is not necessary to determine whether the meeting with Dr. Gilliland was "an investigatory interview in which the employee reasonably believes might result in disciplinary action."

The meeting with Dr. Gilliland, requested by Dr. Davis, did not involve collective bargaining issues or the administration of any grievances, and as such, the refusal to allow Dr. Larsen's presence did not interfere with, restrain or coerce Dr. Davis or the Association in the exercise of their rights granted by the Nebraska Industrial Relations Act.

The Association argued in its brief that the intervention of armed campus security guards at the direction of Dr. Gilliland would be a violation of § (8)(a)(1) of the NLRA and therefore is a violation of § 48-824(2)(a). The Association cites to NLRB v. Schlegal Okla., Inc., 106 LRRM 3069 (1981); Cumberland Farms, Inc. v. NLRB, 142 LRRM 2508 (1993) and NLRB v. Unbelievable Inc., 150 LRRM 3002 (1995).

In Schlegal, two individuals were standing at an intersection of a plant entrance handing out handbills to employees notifying them of a union meeting to be held the next day. The company president, after reading the handbill, threatened to call the police. The Board found that the company had violated § 8(a)(1) by threatening arrest for passing out handbills on the public thoroughfare in front of one of the plant entrances. The tenth circuit affirmed. "Threatening to summon law enforcement authorities for the purpose of inhibiting lawful union activities has long been held violative of Section 8(a)(1) of the Act." Schlegal, 106 LRRM at 3070.

Similarly, in Cumberland Farms an employer was found to have violated § 8(a)(1) by threatening to arrest a union agent while he distributed handbills on public property. "An employer lacks a legitimate interest in interfering with union activities which occur away from the employer's property. Threatening to call the police, in the presence of employees, to interfere with lawful union activity violates the Act." Cumberland, 142 LRRM at 2510.

The lawful union activity can occur on the employer's property as well. In Unbelievable, the collective bargaining agreement provided that union representatives were authorized to visit the employee break room. The employer's security chief was found to have violated § 8(a)(1) by eavesdropping on a conversation between a union representative and an employee which occurred in the employee break room. Shortly thereafter, the security chief expelled the union representative from the employer's premise based upon what he heard of the conversation. "In addition to the contractual violation, the ALJ found that the ejection of representatives interfered with union-related communications in violation of § 8(a)(1) of the NLRA. . . ." Unbelievable, 150 LRRM at 3005. The Board affirmed the ALJ's finding and the ninth circuit granted enforcement of the Board's order.

Applying Schlegal, Cumberland Farms and Unbelievable to the instant action, Larsen's presence at Davis' March 21^st meeting must have been lawful union activity in order for the College to have interfered with, restrained or coerced the Association by calling campus security.

The next appropriate question is whether an employee subject to the Industrial Relations Act has a right to have a union representative present in a meeting between the employee and employer which was requested by the employee for the purpose of discussing that employee's job performance evaluation. Sections 48-837 and 48-801(6), taken together, give public employees subject to the Industrial Relations Act the right to participate, or to refrain from such participation, in a labor organization for the purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work. Davis' March 21^stmeeting was not a labor dispute, did not involve an issue of wages or other rates of pay, nor did it involve hours of employment or conditions of work. The Commission finds that Davis had a right of union representation only if the March 21^st meeting was a grievance.

There are two grievance procedures available to Davis. The grievance procedure set forth in the parties' collective bargaining agreement, exhibit 32, was established to handle alleged violations of the collective bargaining agreement. The facts of this case clearly do not involve an alleged violation of the collective bargaining agreement. Other grievances are handled under the College's memorandum on grievance procedures for professional staff, exhibit 36. It is possible that Davis could have filed a grievance pursuant to exhibit 36, but she did not to do so within ten calendar day requirement after the incident giving rise to the grievance. The Commission finds that the March 21^st meeting was not a grievance and therefore Davis did not have a right to have Larsen present at the meeting. The College's actions in the case at bar did not violate § 48-824(2)(a).

Section 48-824(2)(d)

In the Amended Petition, the Association alleges that the College violated § 48-824(2)(a) and (d) in not allowing Dr. Davis to have a Union representative present at her meeting on March 21, 1997 and in using a prior lawsuit as a reason for excluding the Union's representative from the meeting. The College argued in its Post-Trial Brief that the Association has abandoned its claim that the College violated § 48-824(2)(d) because it isn't referenced or asserted in the Association's controverted issues identified in the Pretrial Stipulation.

From a review of the pleadings, it appears that the Association has abandoned its claim of a violation of § 48-824(2)(d). Section 48-824(2)(d) is not cited anywhere in Association's controverted issues contained in the Pretrial Stipulation, nor do any of the controverted issues use the statutory language of § 48-824(2)(d). In the Association's controverted issues where it references Dr. Davis not being allowed to have a Union representative present at the March 21, 1998 meeting or the College referring to a prior lawsuit as a reason for excluding the Union's representative (issues the Association previously identified as having violated § 48-824(2)(d)), the Association only cites to § 48-824(2)(a) and incorporates that statutory language into its issues. Finally, neither of the Association's post-trial briefs address a violation of § 48-824(2)(d). For the foregoing reasons, the Commission finds that the Association abandoned its right to claim that the College violated § 48-824(2)(d).

The Petition in this case shall be and hereby is dismissed.

Entered October 28, 1998.

G. Roderic Anderson, Concurring:

I concur in the result reached by the majority in its opinion, but reach that result with different reasoning.

The issue in this case is whether an employee who requests a meeting with her employer to discuss the specific ratings on her performance evaluation has a right to the presence of a labor representative. If not, exclusion of the labor representative from the meeting is permissible, and there has been no prohibited practice by the employer in violation of Neb. Rev. Stat. §48-824(2)(a) or (d).

Even if the Weingarten doctrine¹ applied, the answer would be "No". The meeting was not an "investigatory" meeting "where the employee reasonably believes the investigation will result in disciplinary action." Weingarten at 257. Therefore, any right to a labor representative's presence at the meeting must be found under some provision of Nebraska law.

A labor organization is defined in the Nebraska Constitution at Article XV, Section 14, and at Neb. Rev. Stat. §48-801(6)(Reissue 1993) to include an organization "which exists for the purpose, in whole or in part, of dealing with employers concerning grievances....". Petitioner argues that implicit in the purpose of a labor organization is the employee's right to have labor representatives present at grievance hearings, and that this was a "grievance" hearing because an employee's complaint to her employer is included in the broadest definition of the term. However, this Constitutional and statutory definition does not clearly grant a right to labor organization representation at a grievance.

Neb. Rev. Stat. §48-837 (Reissue 1993) provides that "public employees shall have the right to be represented by employee organizations to negotiate collectively with their public employers in the determination of the terms and conditions of employment and the administrationof grievances arising thereunder." (emphasis added) Thus, Neb. Rev. Stat. §48-837 appears to grant the right to collectively bargain for the establishment of a grievance procedure and not to representation at a grievance meeting. Once a procedure is established by collective bargaining, then representation would be appropriate under the terms of that agreement.

If the statute or the Constitution of Nebraska were construed to grant a right to representation at any meeting between the employer and the employee, then the right created would be overly broad and burdensome to allow for the proper daily functioning of the public organization. Without any limitation, the construction would be impractical and nonsensical. Where the limits would be set is unclear.

I cannot agree with Petitioner's strained construction of the term "grievance", and cannot find a right for Mr. Larson to be present at Dr. Davis' requested meeting with the President to remonstrate about the ratings on her annual performance evaluation. I cannot find such a right under the Nebraska Constitution or statutes.

The presence of Mr. Larson at the meeting was therefore, not required. His exclusion from the meeting was not improper and therefore did not interfere with any right of the Petitioner, or Dr. Davis. Likewise, Mr. Larsen's exclusion from the meeting did not discriminate against Dr. Davis because she was a member of the Petitioner. Neb. Rev. Stat. §48-824 (2) (a) and (d) were not violated by exclusion of Mr. Larsen from this meeting. Further, the evidence of Mr. Larson's exclusion from the campus was insufficient to prove a violation of Neb. Rev. Stat. §48-824 (2) (a) and (d).

It is not necessary to decide whether under Nebraska law a public employee has a right to representation at an investigatory hearing where there is a reasonable prospect of receiving discipline as a result of that hearing. That question is not presented in this case and I would leave that issue for another day.

I find against the Petitioner and for the Respondent in this case and agree to dismissal of the Petition for the reasons recited herein.

1. NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975)