13 CIR 79 (1998). Affirmed 257 Neb. 50, 595 N.W.2d 237 (1999).
|NEBRASKA PUBLIC EMPLOYEES LOCAL||)||CASE NO. 920|
|UNION 251 affiliated with THE AMERICAN||)|
|FEDERATION OF STATE, COUNTY, AND||)|
|MUNICIPAL EMPLOYEES, An International||)|
|)||FINDINGS AND ORDER|
|OTOE COUNTY, NEBRASKA,||)|
|For the Petitioner:||M. H. Weinberg|
|9290 West Dodge Road, Suite 205|
|Omaha, Nebraska 68114|
|For the Respondent:||Max Kelch|
|Otoe County Attorney|
|601 Central Ave.|
|Nebraska City, Nebraska 68410|
BEFORE: Judges Moore, Cullan and DeLay
NATURE OF PROCEEDING
Nebraska Public Employees Local 251 ("Union") filed a petition on July 2, 1996 alleging that three employees of the Otoe County Department of Roads were laid off in violation of their collective bargaining rights as set forth in the Industrial Relations Act ("IRA"). Specifically, the Union alleged that Otoe County selected these three employees for layoff because they were known by the Respondent to be union organizers and adherents who were instrumental in organizing Local 251's representation of the road department employees. The Union prayed for a finding that four prohibited practice statutes were violated and for an appropriate remedy.
Along with the Petition, the Union filed a Motion For Status Quo Hearing, requesting a temporary order preserving and protecting the status of the parties, property, and public interests involved pending final resolution of the issues. After a hearing by telephone, the Commission denied the motion.
Otoe County filed its Answer and Counterclaim of Respondent on July 10, 1996. Otoe County alleged that during negotiations, it consistently informed the Union and its representatives that four positions would be eliminated in the future to reduce costs and that Otoe County has the authority to lay off employees without regard to cause or seniority. Otoe County filed a counterclaim alleging that the action filed by the Union was filed frivolously and in an attempt to harass Otoe County in violation of Neb. Rev. Stat. § 48-824(3)(b). Otoe County prayed that the Petition be dismissed, and for costs and attorney fees.
The Union filed a Reply and Answer to Counterclaim on July 15, 1996, denying the allegations in the counterclaim, requesting that the counterclaim be dismissed, and praying that attorney fees and costs be assessed against Otoe County for filing a frivolous counterclaim.
Numerous discovery issues were raised by the parties and ruled upon by the Commission from July 1996 to November 1996. The pretrial and trial was held February, 1997. The parties' post-trial briefs were received during May, 1997.
The Commission finds the following facts to be true. The Nebraska Public Employees Local Union 251 is the collective bargaining representative for the employees of the Otoe County Department of Roads. Efforts to organize the Union as the labor representative began at least by 1994. Helms and Meyer were the employees who first contacted the Union and set up the first union organizational meeting. Bassinger, Helms and Meyer all obtained union authorization cards whereby employees gave their approval to hold a representation election. An election petition (Case No. 886) was filed with this Commission on October 26, 1994, seeking a determination of the appropriate bargaining unit and an election to determine whether the Union should be the exclusive labor representative of this bargaining unit. Following the parties' stipulation as to the appropriate bargaining unit, which excluded foremen, an election was held. Twenty-five employees voted in favor of union representation and two voted against union representation. The Union was certified as the exclusive collective bargaining representative on December 23, 1994.
The Union held a number of union organizational meetings before and after its certification by the Commission. Meetings were held on October 12, 1994, November 30, 1994, January 4, 1995 and thereafter. Employees attending the meeting signed their name on an attendance sheet. Eighteen employees attended the October 12, 1994 meeting, including Wally Pohlman, Ervin Meyer and Rex Bassinger. Twenty employees attended the November 30, 1994 meeting, including Richard Kuenning, Terry Helms, Ervin Meyer and Rex Bassinger. Sixteen employees attended the January 4, 1995 meeting, including Richard Kuenning and Terry Helms. Helms, Meyer and Bassinger spoke in favor of union representation at the November 30th and January 4th meetings. The record is silent as to whether these three individuals spoke at the October 12th meeting. Meyer served as the union steward during the time of the union organizational meetings. In April 1995, Merlyn Williams replaced Meyer as the chief steward and Dave Gress became the second steward. The duties of a union steward consist of being a liaison between the union, the employees, and management. At a safety meeting, Otoe County Commissioner Arlen Ross told Helms he had heard that attendance at the union meetings was low and he encouraged Helms to attend the union meetings and vote because that was his right as an employee.
There are three Otoe County Commissioners and three foremen. The first district county commissioner is Clyde Stoll, who is responsible for the bridge crew. The bridge crew foreman is Lynn Denniston. Denniston did not attend any union meetings. The second (eastern) district county commissioner is Arlen Ross, and the foreman of his district is Wally Pohlman. The third district county commissioner is Vernon Wilhelm, whose foreman is Richard Kuenning. Pohlman was a foreman when he attended the October 12th union meeting. Kuenning was not a foreman when he attended the November 30th and January 4th union meetings, but was later promoted to foreman.
On two separate occasions the Union filed a petition with the Commission seeking to have the Commission establish wage rates and fringe benefits for the bargaining unit employees. The first Petition (Case No. 898), filed on April 21, 1995, sought a wage and fringe benefit order for the period commencing July 1, 1994 through June 30, 1995. A status quo order was issued prohibiting Otoe County from altering the employment status of the employees pending disposition of the petition. Shortly thereafter, the Union alleged that Otoe County violated the employees' status quo by changing their health insurance coverage. A hearing was held at which time Bassinger testified on behalf of the Union and Commissioner Ross testified on behalf of Otoe County. Bassinger told his foreman prior to the hearing that he was voluntarily testifying without a subpoena. Commissioner Ross did not know that Bassinger was testifying without a subpoena, but he did tell Commissioner Stoll that Bassinger testified during the hearing. The Commission found that Otoe County had changed the status quo in violation of its previous order. On March 12, 1996, the Commission issued its decision determining wage rates and fringe benefits in Case No. 898.
The second Petition (Case No. 909) was filed on January 17, 1996 and sought a wage and fringe benefit order for the subsequent year, July 1, 1995 through June 30, 1996. While this petition was pending, however, the parties continued to negotiate. The parties negotiated during the months of February and March of 1996. Meyer was present at a negotiating session attended by Commissioner Ross, but Meyer was no longer a union steward at that time. At a negotiating session about one week before the CBA was signed, Commissioner Stoll calculated the cost of wages and fringe benefits to be paid by Otoe County, and stated that they would have to lay off four men with the layoffs to be based upon the "evaluation process and the need process." Max Kelch, the Otoe County Attorney, summarized the position of the Otoe County Commissioners in a letter he sent to Ed Cox, President of the Union. Kelch stated: "At our meeting in the District Courtroom of Otoe County, Nebraska, on March 25, 1996, it was my understanding that the three Otoe County Commissioners agreed that if the budget authority for the 1996-1997 fiscal year remained the same, that a total of four (4) positions may be lost due to the retroactive benefits that have to be paid. The total of four (4) positions would come in any manner whether it be by lay-offs, retirement, or voluntary dismissal." (Ex. 25).
The CBA was signed on April 4, 1996, at which time Commissioner Stoll stated that it was his intent to lay off four bargaining unit employees. The CBA covered a four-year period from July 1, 1994 through June 30, 1998. This four-year period includes the year for which the CIR rendered a wage and fringe benefit decision between these parties in Case No. 898. On April 5, 1996, the second Petition was dismissed upon the Union's request due to the settlement of the case. One condition of employment changed by the CBA was the method of selecting employees for layoff. The county commissioners wanted to eliminate layoff by seniority because they wanted to employ the "best men." Initially the Union resisted, but later agreed to elimination of the seniority clause in exchange for a CBA of longer duration. Specifically, the CBA states in Article 3 that Otoe County has the right (1) "to determine the size and location of the Employer's operations and to determine the type and amount of equipment to be used," (2) "to determine, create, modify, and terminate jobs, job vacancies, departments, job classifications, and job duties," (3) "to discipline, suspend, and discharge employees, as set forth in this contract," and (4) "to lay off at any time." (Ex. 5). Article 16 on Reduction in Staff states that "[i]f it becomes necessary to decrease staff or employees for any reason, including financial reasons or for reduction of work, the Supervisor or the Otoe County Commissioners may separate any employee, without prejudice, after 15 days written notice." (Ex. 5).
Subsequent to the signing of the CBA, four job positions were eliminated. One employee, Jimmy Bassinger, voluntarily retired. Helms' employment was terminated by written notice dated April 19, 1996. Bassinger and Meyer were both terminated by written notice dated June 14, 1996.
All three notices stated that termination was due to budget constraints.
Each County Commissioner selected one employee for layoff. Highway Superintendent Robert Fleming provided the Commissioners with a ranking of all road department employees based upon the total points contained in each employee's March 1996 job evaluation. Fleming and the three foremen did not participate in the layoff process. Commissioner Ross selected Helms, who worked in his district. He selected Helms on the basis of his prior job evaluations and the number of complaints received from residents of district two about the condition of the roads maintained by Helms. Helms' March 1996 job evaluation ranks him at the bottom compared to the other twenty-five employees. Commissioner Wilhelm considered discharging Howard Meadows, but instead chose Meyer. He selected Meyer, who worked in his district, based upon telephone and personal complaints, Meyer's dependability (coming to work late and leaving early), failure to follow orders and work attitude. He chose not to discharge Meadows because Meadows has a number of valuable job skills. Commissioner Wilhelm considers job evaluations to be "rather useless" and "scarcely" looked at Meyer's March 1996 evaluation, where Meyer is ranked sixth from the bottom. Meadows is ranked second from the bottom. Commissioner Stoll chose Bassinger for layoff based upon past job evaluations and the "need process." Bassinger worked for a number of years at the county landfill. When the landfill closed, he was put into a newly created job position. Otoe County purchased a wood chipper and gave Bassinger the responsibility of cutting brush and turning it into wood chips. Some time later Otoe County realized that state law requires land owners to do their own chipping. Otoe County still cleans up brush and turns it into wood chips, but only when a section of the road is regraded. Commissioner Stoll determined that the work performed by Bassinger wasn't needed by Otoe County as much as the work performed by other bargaining unit employees. Bassinger worked in both districts of Otoe County, but was supervised by Pohlman. Bassinger is tied for third from the bottom in his March 1996 job evaluation.
The past job performance of Bassinger, Helms and Meyer indicates a mixed work history. The road department job evaluations contain a scoring system. Zero - 3.0 means that the job requirements were not met, 3.1 - 5 means that the job requirements were met, and 5.1 means that the job requirements were exceeded. Bassinger's job evaluation scores were 3.0 in 1996, 3.6 in 1994 and either 2.9 or 3.1 in 1993. Twice in 1995 he received a letter from his foreman stating that he was doing a good job. On the other hand, he was once caught sleeping on work time, received a verbal reprimand for an incident involving a truck with a faulty brake, and was twice notified in writing of the need to preserve equipment through such things as greasing, oiling, and changing blades. Helms' job evaluation scores were 2.2 in 1996, 2.9 in 1994 and 3.8 in 1993. He received no pay increase in 1994 and 1995. In 1996 Helms received a warning when a tree slipped out of his backhoe and fell onto a farmer's fence. In 1993 Helms improperly changed the oil filter on a motor grader causing engine damage due to a leaky oil gasket. Commissioner Ross talked with Helms after he had received complaints about the way the roads were maintained. When he continued to get complaints, Commissioner Ross reinspected the roads and found that they were still being maintained in a manner that left large clumps of grass and brush in the road. Pohlman had a number of conversations with Helms about the manner in which he graded the roads, after which Helms made some improvement, but in some ways he continued to improperly grade the roads. Prior to the union organizing effort, Fleming and the Commissioners had conversations about terminating Helms due to his job performance. Meyer's job evaluation scores were 3.2 in 1996, 3.1 in 1994 and 2.8 in 1993. Meyer received a 50¢ per hour pay increase in 1995, but no pay increase in 1993 and 1994. A couple of months prior to his discharge, Meyer received a verbal reprimand for failure to follow the foreman's directions.
The Otoe County Board first considered laying off bargaining unit employees in March of 1996, when it received the CIR's wage and fringe benefit decision in Case No. 898. Commissioner Stoll calculated that the CIR's decision would cost Otoe County approximately $100,000 annually to implement. This estimate was confirmed through the testimony of the Otoe County Clerk, Janene Bennett, and the Deputy County Clerk, Delores Norstadt. Commissioner Stoll conceded that Otoe County could have continued to employ Bassinger, Helms and Meyer, but in his opinion it wasn't feasible to continue raising the road department payroll. Since becoming an Otoe County Commissioner, Stoll has "consistently" heard people of Otoe County say that they want lower taxes. Complaints by residents of Otoe County that their taxes are "very high," concern over legislative limitations, and citizen petition groups were all factors that went into Commissioner Ross's decision to lay off three employees. The road and bridge fund is the largest portion of the Otoe County budget. For fiscal year 1995-96, the road and bridge fund budget was $2,954,328 while the budget for the remainder of Otoe County (i.e. the general fund budget) was $2,551,545. On two occasions while negotiations were pending, Commissioner Ross stated that money was not a problem. One occasion was during a discussion with Bassinger over seniority, and the other occasion was during a negotiation meeting with Merlyn Williams, Kelch, and Cox.
None of the three foremen knew that Bassinger, Helms and Meyer were the principal organizers of the Union. Although Helms testified that, in front of all three foremen, he talked to other employees about the Union and stated that he was a bigger union organizer than Meyer, all three foremen testified that they thought the union organizers were Merlyn Williams and Chris Schneider. In addition, Denniston testified that he did not have any knowledge of pro-union activities or attitude by Bassinger, Helms or Meyer. The Commission does not disbelieve Helms' testimony, but it is possible that the foremen simply did not hear Helms' pro-union comments. Kuenning's only knowledge consisted of the pro-union statements made by Bassinger, Helms and Meyer during the union organizational meetings. Pohlman had a number of conversations about the Union with Bassinger and Meyer after the union representation election and prior to the April 4, 1996 signing of the CBA.
The Commissioners' knowledge of the union activities or attitude of Bassinger, Helms and Meyer consists of the following. Neither Kuenning nor Pohlman told Fleming or the Commissioners what they knew about the union activities or pro-union attitude of Bassinger, Helms or Meyer. At the time when Bassinger, Helms and Meyer were selected for layoff, the three Commissioners were generally unaware of their union activities. However, all three Commissioners knew that Meyer was a union steward. Commissioners Ross and Stoll both knew that Bassinger had testified as a witness for the Union in the CIR hearing on the status quo violation. Meyer attended the CIR wage and fringe benefit hearing as a potential witness, although he was not identified as a possible witness prior to the hearing and was not called to testify. Commissioners Ross and Stoll were present at the wage and fringe benefit hearing, and Commissioner Stoll remembered that Meyer was present at the hearing. Although Commissioner Stoll stated on at least one occasion that he was interested in seeing the union membership dues check-off list, he did not actually see the list until after Bassinger, Helms and Meyer were laid off.
The Petitioner offered considerable budget evidence for Otoe County. Otoe County budgets for the fiscal years 1991-1992, 1992-93, 1993-94 and 1995-1996 were compared, as was Otoe County's revenue for fiscal years 1992-93, 1993-94, 1994-95, 1995-96, and 1996-97. Otoe County's budget contained five cash reserve funds, of which four were in the general budget and one was in the road department budget. The cash reserve in the road department budget was $100,000 for the 1995-96 fiscal year. Otoe County is required by state law to maintain cash reserve funds, which should not be spent unless there is an emergency. Otoe County's cash reserve funds are "on the low side" since they would not even meet Otoe County's monthly expense obligations. Otoe County included an additional amount of approximately $110,000 in its 1995-96 budget to cover the amount it estimated it would have to pay in retroactive wages to the bargaining unit employees, while actual expenditures were approximately $56,000. In the 1995-96 fiscal year, the road department paid $200,000 in accelerated payments on road equipment and a shop building to pay off these items or reduce the balance. Four new trucks were also purchased and paid for by the road department during fiscal year 1995-96. Three were additional vehicles and one was a replacement for a traded-in vehicle, at a total cost to Otoe County of $49,534. The cost to Otoe County in wages and benefits of employing Bassinger, Helms and Meyer was estimated to be $79,862 annually. Property valuations were increased in Otoe County during 1996, which will cause residents to pay more money in property taxes unless the mill levy is reduced.
Otoe County has been awarded federal grant money. In July of 1996, Otoe County received $163,762 from the Federal Emergency Management Agency (FEMA) to repair damage caused by flooding. In August of 1996, Otoe County received an additional $177,639 from FEMA for flood damage caused in 1993. The money received for the 1993 flood reimbursed Otoe County for money it had expended in repairing flood damage, while the money received for the 1996 flood was prepayment for work yet to be done. Since receiving the money for the 1996 flood, Otoe County has spent it repairing the flood damage. Although Otoe County was awarded a grant of approximately $1.9 million dollars for closure of the county landfill, the estimated costs are $2-3 million if Otoe County is required to build a wall around it, and $10-15 million if it is required to remove the contaminants.
The Union's expert, Paul Essman, compared the salary budgets of the road department bargaining unit employees with the non-bargaining unit employees in the road department and in the other departments at Otoe County. The percentage of increases and growth was compared for budget years 1993-94, 1994-95, 1995-96 and 1996-97, and whether there were any layoffs or dismissals. The actual budgets were compared, as were the actual costs.
The salary figures for the bargaining unit employees are set forth in the following table. The figures were obtained from the Union's exhibit 77.
1993-94 salary budget figures
|1994-95 salary budget figures||
1995-96 salary budget figures
|1996-97 salary budget figures|
*This figure includes an additional amount of approximately $110,000 to cover the cost Otoe County estimated it would have to pay in retroactive wages.
**Actual cost of the retroactive wages was approximately $56,000.
The salary figures for all other Otoe County employees (non-bargaining unit road department and all other departments), obtained from exhibit 77, are set forth in the following table.
1993-94 salary budget figures
|1994-95 salary budget figures||
1995-96 salary budget figures
|1996-97 salary budget figures|
The Union alleges that Otoe County 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;"
"(b) Dominate or interfere in the administration of any employee organization."
"(c) Encourage or discourage membership in any employee organization, committee, or association by discriminating in hiring, tenure, or other terms and conditions of employment;" and"(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 prohibited practice statutes under which the instant action is proceeding, consist of § 48-824 (1996 Cum. Supp.) and § 48-825 (1996 Cum. Supp.) These two statutes were passed by the Legislature in 1995, and this is the first time the Commission has rendered a decision under (b), (c) and (d) of § 48-824. The Commission has issued one prior decision, Ewing Education Association v. Holt County School District No. 29 , 12 CIR 242 (1996).
The only legislative history for these two statutes is The Introducer's Statement of Intent, which provides the following as the reasons for the law and the purposes sought to be accomplished:
LB 382 grants to public employees and employers rights and responsibilities currently provided to State employees and many private sector employees. Unfair labor practices by employers and employees are prohibited in the private sector by the National Labor Relations Act and for the State and State employees by the State Employees Collective Bargaining Act, adopted in 1987. LB 382 extends the same protection to the one remaining group not covered - all other public sector employees.
The Industrial Relations Act, including the prohibited practices sections, must be interpreted consistent with the fundamental public policies stated by the Legislature in § 48-802 which provides in pertinent part:
... the public policy of the State of Nebraska is hereby declared to be as follows:
(1) The continuous, uninterrupted and proper functioning and operation of the governmental service ... to the people of Nebraska are hereby declared to be essential to their welfare, health and safety. It is contrary to the public policy of the state to permit any substantial impairment or suspension of the operation of governmental service by ... reason of industrial disputes therein....
(2) No right shall exist ... to hinder, delay, limit or suspend the continuity or efficiency of any governmental service ... either by strike, lockout, or other means;
These public policies recognize that there are many essential differences between governmental and private sector labor relations which stem from the public's interest in the "continuous, uninterrupted and proper functioning of the governmental service."
The Nebraska Supreme Court has stated that decisions under the National Labor Relations Act ("NLRA") are helpful, but not controlling upon the CIR, where there are similar provisions in the Nebraska statutes.
We have heretofore said that decisions under the National Labor Relations Act were helpful but not controlling upon either the CIR or this court . . . That declaration must be carefully understood to mean that decisions under the NLRB are helpful where there are similar provisions under the Nebraska statutes. Decisions under the NLRB are of no help or benefit in attempting to determine actions absent similar provisions under the Nebraska statutes. Nor can common practices under other statutes in other jurisdictions enlarge the statutory power granted the CIR by the Legislature.
University Police Officers Union v. University of Neb., 203 Neb. 4, 12 (1979).
Section 48-824(2)(a) of the IRA is virtually identical to § 8(a)(1) of the NLRA. Section 48-824(2)(a) of the IRA states:
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;
Section 8(a)(1) of the NLRA, found at 29 U.S.C. § 158(a)(1), states:
It shall be an unfair labor practice for an employer . . . (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title.
The employee rights protected by these two statutes are § 48-837 of the IRA and § 7 of the NLRA. Both of the employee rights statutes are similar as well. The only difference between these two statutes is that § 7 of the NLRA states that the employee rights may be modified by an agreement requiring membership in a labor organization as a condition of employment, whereas § 48-837 does not contain a similar statement. This difference, however, is not relevant for purposes of the instant action.
Section 48-837 states:
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. 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.
Section 7 of the NLRA, set forth at 29 U.S.C. § 157, states:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.
The Commission finds that the IRA statutes are similar to the NLRA statutes for purposes of determining whether Otoe County interfered with, restrained, or coerced Terry Helms, Rex Bassinger or Ervin Meyer in the exercise of their IRA rights. That being the case, it is appropriate for the Commission to look at decisions under the NLRA for guidance.
Violations of § 8(a)(1) of the NLRA are either derivative or independent. A violation by an employer of any of the four subdivisions of § 8 of the NLRA, other than subdivision one, is also a violation of subdivision one. This is a derivative violation. An independent violation occurs when actions violate § 8(a)(1) only and are not dependent upon a violation of any other subdivision of § 8. At this point, we will examine independent violations of § 8(a)(1). Derivative violations will be considered later on when we examine the other prohibited practice statutes allegedly violated.
An independent violation of § 8(a)(1) does not depend upon the employer's motive for its actions. "It is well settled that the test of interference, restraint and coercion under Section 8(a)(1) of the Act does not turn on the employer's motive or on whether the coercion succeeded or failed." American Freightways Co., 44 LRRM 1302 (1959). See also NLRB v. Litho Press, 512 F.2d 73 (5th Cir. 1975) (Section 8(a)(1) is not concerned with the employer's state of mind, but with the effect of the employer's conduct); Munro Enterprises, 86 LRRM 1620 (1974) (since no proof of coercive intent or effect is necessary under § 8(a)(1), it is not significant that employees did not testify that they regarded the general manager's statement as a threat of reprisal) and NLRB v. Burnup and Sims, Inc., 379 U.S. 21 (1964) (defeat of § 7 rights by employer action does not necessarily depend on the existence of anti-union bias).
Since a § 8(a)(1) violation does not turn upon the employer's motive, it follows that employer actions taken in good faith are no defense. "In essence, the company argues that as its actions were taken in good faith it committed no unfair labor practice. There is much in this record to indicate that Welch acted in good faith, although this is disputed by the [National Labor Relations] Board, but we conclude that, if the conduct complained of otherwise violated Section 8(a)(1), good faith is no defense. The cases clearly demonstrate that it is the tendency of an employer's conduct to interfere with the rights of his employees protected by Section 8(a)(1), rather than his motives, that is controlling." Welch Scientific Co. v. NLRB, 340 F.2d 199, 203 (2nd Cir. 1965). See also Munro Enterprises, 86 LRRM 1620 (it is not significant that the general manager may not have intended to convey a threat by his remark).
In determining whether employer actions violated § 8(a)(1), 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." American Freightways Co., 44 LRRM at 1302. "Interference, restraint and coercion are not acts themselves but are descriptive and are the result of acts. Whatever acts may have the effect of interference, restraint and coercion are included in those terms, and are therefore prohibited. They include a great number of acts which, normally, could be validly done, but when they interfere with, restrain or coerce employees in the exercise of their rights, they are prohibited by the act." NLRB v. Grower-Shipper Vegetable Ass'n, 122 F.2d 368, 377 (9th Cir. 1941).However, not all conduct which interferes with employee rights under the NLRA is a violation of § 8(a)(1). "Naturally, certain business decisions will, to some degree, interfere with concerted activities by employees. But it is only when the interference with § 7 rights outweighs the business justification for the employer's action that § 8(a)(1) is violated." Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 268-69 (1965). "A violation of § 8(a)(1) alone therefore presupposes an act which is unlawful even absent a discriminatory motive. Whatever may be the limits of § 8(a)(1), some employer decisions are so peculiarly matters of management prerogative that they would never constitute violations of § 8(a)(1), whether or not they involved sound business judgment, unless they also violated § 8(a)(3)." Darlington, 380 U.S. at 269.
The Commission finds that the actions of the Otoe County Commissioners in discharging Bassinger, Helms and Meyer did not interfere with, restrain, or coerce them in violation of § 48-824(2)(a). Not only did the layoffs not occur around the time of the union organizing effort, but the layoffs were consistent with the position maintained by Otoe County during negotiations. The union organizing effort occurred in 1994, while the layoffs occurred at least one and one-half years later. During negotiations, Otoe County consistently maintained its position that it did not want layoffs to be based upon employee seniority, but upon job performance (i.e. they wanted to employ the "best men."). Otoe County made its position clear that it would agree to the final version of the CBA, but it would mean a loss of four employees. The CBA was signed on April 4, 1996 and the layoffs occurred shortly thereafter. Commissioner Stoll admitted that Otoe County could have continued to fund the employment of Bassinger, Helms and Meyer, and the budget evidence supported his admission. The Commissioners chose not to do so based upon their personal philosophy of money management. Since the layoffs do not appear to be related to the union organizing effort, it follows that such action did not interfere with the rights of Bassinger, Helms or Meyer to form, join or assist a labor organization of their choosing.
Although § 48-824(2)(b) and § 8(a)(2) have some similar language, § 8(a)(2) is broader. Section 48-824(2)(b) of the IRA states:
It is a prohibited practice for any employer or the employer's negotiator to: . . . (b) Dominate or interfere in the administration of any employee organization;
Section 8(a)(2), found at 29 U.S.C. § 158(a)(2), states:
It shall be an unfair labor practice for an employer . . . (2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, That subject to rules and regulations made and published by the Board pursuant to section 156 of this title, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay;
Section 48-824(2)(b) prohibits domination or interference with the administration of a union, while § 8(a)(2) prohibits domination or interference with the formation or administration of a union. The Commission finds that § 48-824(2)(b) is similar to § 8(a)(2) for the purpose of determining whether Otoe County dominated or interfered with the administration of the Union.
Prohibited employer domination occurs when a union is directed by the employer, rather than by the employees. "Although Section 8(a)(2) does not define the specific acts that may constitute domination, a labor organization that is the creation of management, whose structure and function are essentially determined by management, as in Pennsylvania Greyhound Lines, . . . [1 NLRB 1, 303 U.S. 261 (1938)], and whose continued existence depends on the fiat of management, is one whose formation or administration has been dominated under Section 8(a)(2)." Electromation Inc., 142 LRRM 1001, 1007 (1992), order enforced by, 35 F.3d 1148 (7th Cir. 1994). See also NLRB v. Newport News Shipbuilding & Dry Dock Co., 308 U.S. 241 (1939) (employer found to have dominated an employee representation committee where actions of the committee required agreement of the employer and the employer had veto power over any amendment by the committee).
Prohibited employer interference or assistance is conduct less severe than domination, such that the union is deemed capable of functioning as a union once the interference or assistance is removed. For example, unlawful employer assistance was found in Garment Workers' Union v. NLRB, 366 U.S. 731 (1961), when the employer granted exclusive recognition to a union which lacked support of the majority of the employees because doing so gives the union an advantage over any other union in securing the support of the employees. In another example, in Affiliated Food Stores, 138 LRRM 1035 (1991), an employer was found to have unlawfully assisted a union by continuing to deduct union dues under a dues check-off authorization after an employee had resigned from the union and was no longer obligated to pay dues.
A violation of § 8(a)(2) does not require a finding of anti-union animus or any other motive. See Garment Workers' Union v. NLRB, 366 U.S. 731 (1961) (an employer's good faith belief in a union's majority status was no defense to a § 8(a)(2) violation of unlawful support where the employer recognized the union as the exclusive representative when it did not have the support of the majority of the employees) and NLRB v. Newport News Shipbuilding & Dry Dock Co., 308 U.S. 241 (1939) (in determining the independence of an employee organization, it is immaterial that the company interference in the administration was with good motives).
The Commission does not find any evidence of prohibited domination or interference by Otoe County in the administration of the Union in violation of § 48-824(2)(b). There is no evidence that the Union was directed or controlled by Otoe County. There is no evidence that the Union is a creation of management with its structure and function determined by the management at Otoe County. There is also no evidence of Otoe County's interference or assistance in the administration of the Union. There is no evidence that Otoe County favored the petitioning Union over a rival union, or in any way granted favorable treatment to the petitioning Union. Based upon the record before the CIR, the Union was created by the employees, is directed by the employees, and is not improperly assisted in any way by Otoe County. Basically, the Union is operated independently of Otoe County or any of its supervisors and/or managers. The purpose of § 8(a)(2) is to ensure the employees' freedom of choice concerning whether and by whom to be represented, and this has not been violated in the instant action.
Section 48-824(2)(c) of the IRA is virtually identical to the relevant portions of § 8(a)(3) of the NLRA. Section 48-824(2)(c) of the IRA states:
It is a prohibited practice for any employer or the employer's negotiator to: . . . (c) Encourage or discourage membership in any employee organization, committee, or association by discriminating in hiring, tenure, or other terms and conditions of employment.
Section 8(a)(3) of the NLRA, found at 29 U.S.C. § 158(a)(3), states:
It shall be an unfair labor practice for an employer . . . (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership of any labor organization. . . .
The remainder of § 8(a)(3) is lengthy and there is no similar language in § 48-824(2)(c). However, the omitted language is not relevant to our decision in this case. The remainder of § 8(a)(3) states that an employer may make an agreement with the labor union that membership in the union is required as a condition of employment and the statute provides some details surrounding such a condition. The Commission finds that § 48-824(2)(c) of the IRA is similar to § 8(a)(3) of the NLRA for purposes of determining whether Otoe County discouraged membership in the Union by laying off Terry Helms, Rex Bassinger and Ervin Meyer. Again, the Commission finds that it is appropriate to look at decisions under the NLRA for guidance.
Encouragement or discouragement of union membership accomplished by discriminatory means is prohibited by § 8(a)(3). "The language of § 8(a)(3) is not ambiguous. The unfair labor practice is for an employer to encourage or discourage membership by means of discrimination. Thus this section does not outlaw all encouragement or discouragement of membership in labor organizations; only such as is accomplished by discrimination is prohibited." Radio Officers' Union v. NLRB, 347 U.S. 17, 42-43 (1954).
Section 8(a)(3) requires a finding of discrimination and encouragement or discouragement. "The unfair labor practice charged here is grounded primarily in § 8(a)(3) which requires specifically that the Board find a discrimination and a resulting discouragement of union membership." NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 32 (1967).
"Discouraging membership in a labor organization 'includes discouraging participation in concerted activities . . . such as a legitimate strike.' . . . The act of paying accrued benefits to one group of employees while announcing the extinction of the same benefits for another group of employees who are distinguishable only by their participation in protected concerted activity surely may have a discouraging effect on either present or future concerted activity." Id. (citation omitted).
In some 8(a)(3) cases, the employer's motive is controlling, and in other cases, it is not controlling. "First, if it can reasonably be concluded that the employer's discriminatory conduct was 'inherently destructive' of important employee rights, no proof of an antiunion motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations." Great Dane, 388 U.S. at 34.
"That is, some conduct carries with it 'unavoidable consequences which the employer not only foresaw but which he must have intended' and thus bears 'its own indicia of intent.' . . . If the conduct in question falls within this 'inherently destructive' category, the employer has the burden of explaining away, justifying or characterizing 'his actions as something different than they appear on their face,' and if he fails, 'an unfair labor practice charge is made out.' . . . And even if the employer does come forward with counter explanations for his conduct in this situation, the Board may nevertheless draw an inference of improper motive from the conduct itself and exercise its duty to strike the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and its policy." Id. at 33-34 (citation omitted).
"Second, if the adverse effect of the discriminatory conduct on employee rights is 'comparatively slight,' an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct." Id. at 34 (emphasis in original). "[W]hen 'the resulting harm to employee rights is . . . comparatively slight, and a substantial and legitimate business end is served, the employer's conduct is prima facie lawful' and an affirmative showing of improper motivation must be made." Id. (emphasis in original) (citation omitted).
In both situations, whether the employer's discriminatory conduct impacted employee rights in an inherently destructive manner or in a comparatively slight manner, the burden is upon the employer to prove that it was motivated by legitimate objectives. "Thus, in either situation, once it has been proved that the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that it was motivated by legitimate objectives since proof of motivation is most accessible to him." Id. (emphasis in original).
In 1995, the Board undertook a comprehensive reexamination of the principals applicable for determining whether inherently destructive conduct has occurred. The four principals are:
1.The severity of the harm. "The Court has specifically directed that the severity of the harm to employees' Section 7 rights caused by the employer conduct must be determined. As one commentator has observed, this includes the severity of the harm suffered by the employees for exercising their rights as well as the severity of the impact on the statutory right being exercised. Thus, as in Erie Resistor Corp., an employer's policy of directly attaching penalties to participation in protected union activities is inherently destructive of the employees' statutory right to engage in those activities. . . As the Fifth Circuit has stated, 'conduct inherently destructive of important employee rights is that which directly and unambiguously penalizes or deters protected activity.' " International Paper Co., 151 LRRM 1033, 1051 (1995) (citation omitted), enforcement denied by, 115 F.3d 1045 (D.C. Cir. 1997).
2.The temporal impact of the employer's conduct. "The Court in Erie Resistor Corp. emphasized the effect of the employer conduct upon future collective bargaining and union activity. . . Thus, conduct of a temporary duration which seeks to put pressure on union members to accept a particular management proposal is distinguished from conduct that has 'far reaching effects which would hinder future bargaining' and conduct that 'creates visible and continuing obstacles to the future exercise of employee rights.' " Id.
3.Employer hostility to the process of collective bargaining. "[T]he [U.S. Supreme] Court specifically directed in American Ship Building that a distinction must be drawn between an employer's 'hostility to the process of collective bargaining' and its simple intention to support its bargaining position as to compensation and other matters." Id. " 'Essential to understanding the Supreme Court's analysis . . . is its distinction between substance and process in collective bargaining. The Labor Act is process-oriented. It establishes and protects the employees' rights to bargain, not their right to a bargain. Thus, the employer must negotiate but it need not agree. Employer 'hostility to the process of collective bargaining' is intolerable in this regime, and constitutes a rejection of all that the law requires an employer to accept.' " Id. (emphasis in original) (citation omitted).
4.Collective bargaining is discouraged in that the employees view it as a futile exercise. "[C]onduct may be inherently destructive of employee rights if it 'discourages collective bargaining in the sense of making it seem a futile exercise in the eyes of employees.' " Id. at 1052 (citation omitted). "An example of conduct falling within this category is a 'calculated repudiation of a collective bargaining agreement and prompt institution of less favorable terms' because an employer thereby 'sends a signal to employees that despite their diligent efforts to organize and bargain collectively, their contract may be disregarded.' " Id. (citation omitted).
Cases turning on the employer's motivation apply the following analysis. "[W]e shall henceforth employ the following causation test in all cases alleging violation of Section 8(a)(3) or violations of Section 8(a)(1) turning on employer motivation. First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a 'motivating factor' in the employer's decision." Wright Line, 105 LRRM 1169, 1175 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982). The elements of the General Counsel's prima facie case are protected activity, employer knowledge of that activity, timing, and union animus. See Best Plumbing Supply, 142 LRRM 1258 (1993); Fluor Daniel Inc., 138 LRRM 1197 (1991). "Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct." Wright Line, 105 LRRM at 1175. "[T]he objective . . . is to determine the relationship, if any, between employer action and protected employee conduct." Id. The Board's allocation of the burden of proof was upheld by the Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).
"The National Labor Relations Act . . . makes unlawful the discharge of a worker because of union activity . . . but employers retain the right to discharge workers for any number of other reasons unrelated to the employee's union activities." Id. at 394.
The Commission finds that Otoe County's conduct should not be evaluated under the inherently destructive/comparatively slight analysis. The Commission does not find that the facts of this case have far-reaching effects which would hinder future bargaining. Nor does the conduct discriminate solely on the basis of participation in union activity similar to the granting of increased benefits to replacement workers and strike breakers while not granting these benefits to employees who continue to strike. The granting of preferential treatment to employees for not exercising their labor rights is clearly destructive of the collective bargaining process and union cohesiveness. Otoe County hasn't exhibited hostility to the process of collective bargaining. The parties not only bargained and reached an agreement, but Commissioner Ross, after hearing that attendance was low at union meetings, encouraged Helms to participate in union activities because this was his right as an employee. The Commission does not find that the manner in which Bassinger, Helms and Meyer were laid off makes collective bargaining seem a futile exercise in the eyes of the employees.
The Commission finds that the reasons related to the discharge of Bassinger, Helms and Meyer were unrelated to their union activities. Again, the layoffs did not occur around the time of the union organizing effort. Otoe County made it clear in advance of signing the collective bargaining agreement, that it would agree to the terms of the agreement, but that it would mean a loss of four jobs. The Union was also aware that the seniority clause had been removed from the CBA. Although Bassinger, Helms and Meyer all engaged in protected activity, other employees who were not laid off also participated in protected activity. In addition, the County Commissioners were unaware of much of the protected activity engaged in by Bassinger, Helms and Meyer. None of the Commissioners knew that Helms and Meyer contacted the Union and arranged the first organizational meeting, or that Bassinger, Helms and Meyer obtained union authorization cards and attended Union meetings. Two foremen, Kuenning and Pohlman, knew that Bassinger, Helms and Meyer attended one or more Union organizational meetings and supported the Union organizing effort. However, there is no evidence that they relayed this information to Highway Superintendent Fleming or any of the three Otoe County Commissioners. In addition, Kuenning and Pohlman both thought that two other employees were responsible for bringing the Union to Otoe County.
Selecting Bassinger, Helms and Meyer for discharge is not without merit. All three had recent evaluations indicating that their job performance was either not acceptable or marginally acceptable. These evaluations date back to a time prior to the union organizing effort. Helms and Meyer both had a two-year period where their job performance merited no pay increase. At a time prior to the union organizing effort, Helms was considered for discharge based upon his work performance. All three had received one or more reprimands or warnings. Helms had problems maintaining the roads in the proper manner. After he had a number of conversations with Pohlman or Commissioner Ross, he showed some improvement, but in other ways he continued to improperly grade the roads. In addition, Bassinger's job position was not a highly needed position within Otoe County. Otoe County created a job position for Bassinger by purchasing a wood chipper and giving him the responsibility of cutting brush and turning it into wood chips. Some time later Otoe County realized that state laws require landowners to do their own chipping. Otoe County still cleans up brush and turns it into wood chips, but only when a section of the road is regraded.
Otoe County stated that the layoffs were due to "budget constraints." Of the budget evidence before the Commission, the Commission does not consider the cash reserve or the federal grant money as appropriate to spend on the employment of Bassinger, Helms and Meyer since those funds are designated for other purposes. The remaining budget evidence indicates that the Otoe County road department may have been able to fund the continued employment of Bassinger, Helms and Meyer. Commissioner Stoll even conceded this point. However, Commissioner Stoll also expressed concern over the increasing payroll in the road department. Comparing the salary figures for the bargaining unit employees with the salary figures for the non-bargaining unit employees produces at best mixed results. The salary budget for the bargaining unit employees is a much larger budget than any other department in Otoe County. For the 1993-94 fiscal year, that salary budget was $456,046. Of the twenty-one other department salary figures identified on Table 1 of exhibit 77, only two were greater than $100,000. A percentage increase or decrease in the bargaining unit salary budget therefore has a greater financial impact upon Otoe County than does a percentage increase or decrease in any other salary budget. In addition, comparisons using the 1995-96 fiscal year are questionable since the bargaining unit salary budget was inflated by approximately $110,000 and the actual salary costs were inflated by approximately $56,000. A comparison with subsequent years is naturally going to show a percentage or dollar decrease in the bargaining unit salary budget.
The Commission finds that the Union did not make a prima facie showing sufficient to support the inference that the protected conduct was a 'motivating factor' in Otoe County's decision to lay off Bassinger, Helms and Meyer. The Commission finds that the decision to lay off Bassinger, Helms and Meyer was not related to their union activity, but was a business decision by the Otoe County Commissioners to exercise their management prerogative in choosing the level of Otoe County's budget.
Although § 48-824(2)(d) is broader than § 8(a)(4), the language contained in § 8(a)(4) is similar to the relevant portions of § 48-824(2)(d). Section 48-824(2)(d) of the IRA states:
It is a prohibited practice for any employer or the employer's negotiator to: . . . (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.
Section 8(a)(4) of the NLRA, found at 29 U.S.C. § 158(a)(4), states
It shall be an unfair labor practice for an employer . . . (4)to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act.
Both statutes contain similar language prohibiting discharge or discrimination against an employee because that employee has given testimony under the labor relations laws, which is the part of § 48-824(2)(d) that the Union claims was violated. The Union alleged in its Petition that Otoe County discharged employees in retaliation for their giving testimony in a CIR proceeding. The Commission finds that § 48-824(2)(d) is similar to § 8(a)(4) for the purpose of determining whether Otoe County discharged Helms, Bassinger or Meyer in retaliation for their giving testimony in a CIR proceeding.
For § 8(a)(4), like § 8(a)(3), the Board applies the Wright Line analysis, set forth in Wright Line, 105 LRRM 1169, 1175 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982). "Section 8(a)(4) prohibits an employer from retaliating against an employee for filing unfair labor practice charges or testifying at NLRB proceedings . . . Where anti-union animus is shown to be a motivating factor in the employer's decision to take adverse action against an employee, 'the employer will be found to have violated the Act unless the employer demonstrates, as an affirmative defense, that it would have taken the same actions even in the absence of the protected conduct.' . . . 'Motive is a factual matter to be determined by the Board, and the Board reasonably may infer motive from the circumstances surrounding the employer's actions, as well as from direct evidence.' " NLRB v. McCullough Environmental Services, Inc., 5 F.3d 923, 931-32 (5th Cir. 1993) (citations omitted). See also NLRB v. Advance Transportation, 979 F.2d 569 (7th Cir. 1992).
The record before the Commission does not support a finding of a violation of § 48-824(2)(d) for Bassinger, Helms or Meyer. There is no evidence in the record of Helms' participation in any CIR proceeding, and it therefore follows that there can be no retaliation for the giving of testimony. Although Meyer was present during the CIR wage and fringe benefit hearing where Commissioners Ross and Stoll were also present, he was not asked to testify nor was he identified prior to trial as a potential witness. The Commission finds no violation of § 48-824(2)(d) for the discharge of Meyer since he was not called as a witness, not identified as a witness and there is no evidence in the record that any of the Commissioners had knowledge of Meyer's presence as a potential witness. Bassinger testified in a CIR proceeding on a status quo violation. Commissioners Ross and Stoll were both aware of his testimony. However, for the reasons set forth under the analysis of § 48-824(2)(c), the Commission finds that Bassinger's testimony was not a motivating factor in Otoe County's decision to select him for layoff.
In light of the above findings of no violation of § 48-824(2)(a), (b), (c) and (d), the Petition shall be and hereby is dismissed.
All judges assigned to the panel in this case join in the entry of this Findings and Order.
Entered April 29, 1998.