15 CIR 226 (2006) Affirmed in part, and in part reversed and remanded with directions. 274 Neb.70, 731 N.W.2d 901 (2007).
|OMAHA POLICE UNION LOCAL 101,||)||CASE NO. 1099|
|v.||)||FINDINGS AND ORDER|
|CITY OF OMAHA, a Municipal Corporation, and||)|
|CHIEF OF POLICE, THOMAS wARREN,||)|
Filed March 9, 2006
|For Petitioner:||Thomas F. Dowd|
|Dowd, Howard & Corrigan, L.L.C.|
|1411 Harney Street|
|Omaha, NE 68102|
|For Respondents:||Bernard J. in den Bosch|
|Assistant City Attorney|
|804 Omaha/Douglas Civic Center|
|1819 Farnam Street|
|Omaha, NE 68183|
Before: Judges Blake, Orr, and Burger
Police Union Local 101, IUPA, AFL-CIO, (hereinafter, “Petitioner”) filed a
Petition pursuant to Neb. Rev.
Stat. § 48-824 (2)(a) (Reissue
2004), claiming that the City of Omaha and Chief of Police Thomas Warren
(hereinafter, “Respondents”), committed a prohibited practice by placing
Sergeant Tim Andersen under an internal affairs investigation; by terminating
and later suspending Sergeant Kevin Housh because of opinions he expressed in a
union publication, involving matters of concern to its general membership; and
by “chilling” the members expression of views, orally and in writing.
September 12, 2005, Respondents filed an Answer stating that no practice of the
Respondents falls within the scope of prohibited practices or interferes with or
restrains the rights of the
The Commission held a hearing on November 9, 2005, before the Honorable William G. Blake. The issues presented at trial were:
Whether the internal affairs investigation of Tim
Andersen, the termination of Kevin Housh, and the threat of disciplinary action
by the Respondents against union officers for articles that appeared in The
Shield, have chilled the exercise of union member rights under Neb.
Whether the Petitioner has failed to state a cause of action against the
Respondents in its Petition.
Whether the doctrines of res judicata and collateral estoppel raised by
the Respondents bar the Petitioner from litigating this action in front of the
parties submitted post-trial briefs, the Petitioner on November 28, 2005 and the
Respondents on November 29, 2005.
Commission finds the following facts to be true. This action arises from a
dispute between the
first such instance occurred on December 14, 2004, when the
second instance occurred after Sergeant Andersen’s alleged violation, but
during his legal proceedings. In the February edition of The Shield, the union’s newspaper, Sergeant Kevin Housh wrote an
article entitled, “This ’n That.” In this article, Sergeant Housh was
openly critical of the Mayor’s office and the Chief of Police regarding the
calculation of response times. Sergeant Housh characterized the internal affairs
investigation of Sergeant Andersen as harassment. Sergeant Housh also stated,
“A bunch of grown men and women, supposedly leaders acting like petty
criminals trying to conceal some kind of crime.” The article as a whole was
sharply critical of Chief Warren’s handling of the calculation of response
February 7, 2005, an internal affairs investigation was authorized to
investigate whether the article written by Sergeant Housh in The Shield contained language that was insubordinate, and whether it
resulted in conduct unbecoming an officer. On February 9, 2005, Sergeant Housh
filed a complaint in the United States District Court for the District of
Nebraska seeking an injunction to stop the internal affairs investigation. On
February 15, 2005, Judge Bataillon issued an Order denying Sergeant Housh’s
request for an injunction. On February 25, 2005, Sergeant Housh was issued a
letter of discipline in which Chief Warren recommended that his employment be
terminated. Chief Warren found Sergeant Housh’s comments to be derogatory and
inflammatory. After his hearing, on March 11, 2005, Sergeant Housh was
terminated from his employment with the Omaha Police Department. Sergeant Housh
appealed his termination and on April 29, 2005 an agreement was reached which
reinstated Housh with a 20-day suspension and the issuance of a public apology.
On April 29, 2005 Judge Bataillon entered an Order of Dismissal with prejudice
in Sergeant Housh’s pending case in the United States District Court.
third instance occurred on August 22, 2005, when the current union president,
Aaron Hansen and the current union vice president Chris Circo met with Chief
Warren to discuss the boundaries beyond which the Chief could not interfere with
the rights of the union members. The
employees in the Union alleged that Chief Warren’s stance in these three
instances has limited their involvement with the
state law in question is Neb. Rev.
Stat. § 48-824 (2)(a), which
states “It is a prohibited practice for any employer . . . to interfere with,
restrain, or coerce employees in the exercise of rights granted by the
Industrial Relations Act.” This
provision is almost identical to § 8 (a)(1) of the National Labor Relations Act
(hereinafter, “NLRA”). The
National Labor Relations Board (hereinafter, “NLRB”) determinations of
employer conduct, which unlawfully restrains or interferes with the protected
labor activity, are given considerable deference by the Federal courts. While
NLRB decisions are not determinative of state law, we will generally look to
direction from the determinations of the NLRB under the NLRA. See also Fraternal Order of Police, Lodge 41 v.
Res Judicata and Collateral Estoppel
need not enter into a lengthy discussion of intricacies of issue and claim
preclusion, or the issues raised in the prior federal court litigation that was
brought by Sergeants Andersen and Housh. Those cases were settled, and dismissed
with prejudice. However, the cases did not involve final orders on the merits
and were brought by the individual officers to enforce their individual rights.
This case does not involve the individual rights of the officers, but rather,
the rights of the
Chilling of Union Rights
this case, we are not determining whether the Chief of Police acted in
conformance with, or contrary to, any standard operating procedure, and we are
not questioning whether the Chief of Police was aware of the correct procedure.
We are not here to act as a personnel review board. Instead, we are here to
determine if the actions of the City of
argues that the investigation of Sergeant Andersen was unwarranted and designed
to interfere with protected union activity. Petitioner urges that a strong
inference can be made that Mr. Landow, the Mayor’s Chief of Staff, never
received any anonymous phone calls, but had a plant at the union meeting in
question. Of course, the inference could just as easily be made that such calls
were received. Similarly, Petitioner urges that a strong circumstantial case can
be made that the investigation by Chief Warren was motivated by a desire to
Petitioner complains that Sergeant Andersen was required to work under the threat of the ongoing investigation for a period of seven months. However, the evidence was that the investigation was put on hold at the request of Sergeant Andersen, and that this holding pattern lasted for approximately six of those seven months.
As to the investigation of Sergeant Andersen, the evidence does not show that it was improperly conceived or that it was improperly performed. The Petitioner asks why Chief Warren did not simply call Sergeant Andersen and ask him what was said at the meeting. While this may be a good question, we again note that we are not a personnel board, nor do we establish management policy for the City or its Police Department. Similarly, we are not persuaded by the Petitioner’s argument that Chief Warren could have, or should have, used some lesser means of investigating Sergeant Andersen’s statements. There is no evidence that his action was an improper or unestablished police procedure. The evidence does not prove that the procedure has been overused or otherwise used abusively. A pattern or practice of using an internal affairs investigation based upon “anonymous” phone calls could well establish interference, restraint or corrosion in the exercise of the right to participate in union activities, but the evidence here does not establish such a pattern or practice.
Petitioner also argues that Sergeant Housh’s article is a protected labor speech and that the comments of Chief Warren had a chilling effect on other union activities. In determining whether Chief Warren’s actions regarding Sergeant Housh inferred with the rights of the union, we must determine whether Sergeant Housh’s article was a protected union activity. To do this, we must determine whether Sergeant Housh’s article was concerted activity falling under the protection of § 48-824 (2)(a).
Under the NLRA, employees are protected whose actions are (1) concerted, (2) directed toward an appropriate end and (3) conducted under an appropriate means of action. “Concerted activity” is any activity by individual employees who are united in pursuit of a common goal. To find an employee’s activity to be “concerted,” the action must be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself. An employee’s conduct is not “concerted” unless it is engaged in with or on authority of other employees. Meyers Industries & Kenneth P. Prill, 281 NLRB 882 (1986). The definition of concerted activity encompasses those circumstances where individual employees seek to initiate, induce, or prepare for group action, as well as actions by individual employees bringing truly group complaints to the attention of management.
For example, in Eastex, Inc v. NLRB, 437 U.S. 556 (1978), the Supreme Court adopted the Board’s ruling that a company violated Section 8(a)(1) by prohibiting distribution of a newsletter that urged employees to write their legislators to oppose incorporation of the state “right-to-work” statute into a revised state constitution. The newsletter also criticized a presidential veto of an increase in the federal minimum wage, and urged employees to register to vote to “defeat our enemies” and “elect our friends.” The subject matter of the newsletter, in the Court’s judgment, bore such a relation to employees’ interests as to come within the guarantee of Section 7. The Supreme Court noted that few topics are of such immediate concern to employees as the level of their wages. Employee conduct that disparages management officials of the employer may be protected activity, if the remarks or conduct relate to employee working conditions and are not egregious in nature. Community Hospital of Roanoke Valley v. NLRB, 538 F.2d 607, 92 LRRM 3158 (4th Cir. 1976), enforcing 220 NLRB 217, 90 LRRM 1440 (1975).
this particular case, the Commission has not been asked to make a finding as to
the appropriate method of how the City calculates response times and we have no
jurisdiction do so in this case. However, the manner and method of calculating
response time is of vital concern to the
Sergeant Housh accused the Chief of Police and the Mayor of “acting like” petty criminals. While it may be a rather fine line between accusing them of “acting like” and “being” petty criminals, there is a difference. It would not be expected that anyone reading the article by Sergeant Housh would actually believe he was accusing anyone of criminal activity. Petitioner correctly describes his statements as “rhetorical hyperbole.” The statements certainly were this, to the extreme. We note that just the slightest exercise of discretion by Sergeant Housh or by the editors of the newsletter could have avoided this situation without detracting from the conveyed message. However, as has been noted in a number of cases, union activities often involve hot debate and rhetorical hyperbole. In fact, the right to engage in open communication, even hot debate, is strongly encouraged by the National Labor Relations Act.
claims that a union member can say anything about management in a union
publication with immunity, provided the statements fall short of a deliberate or
reckless untruth. This effectively
gives license to intemperate, abusive or insulting language, or rhetorical
hyperbole. Petitioner relies upon Linn v.
Plant Guard Workers Local 114, 383 U.S. 53, 86 S Ct. 657 (1966), and Letter Carriers v. Austin, 418 U.S. 264, 94 S Ct. 2770 (1974) as the
primary support for this position. Linn
was not a union interference suit. Rather, it was a defamation action brought in
state court for statements made by a union member during a labor dispute. The
threshold issue was whether a state defamation suit can ever be heard, or is the
NLRB the sole tribunal for review of statements made during such disputes. The
Supreme Court held that a defamation suit may be an available remedy, but that
utterances, or writings, in a labor dispute, are actionable for defamation only
if publicized with knowledge of the falsity or with reckless disregard for truth
or falsity. Linn, 383
Petitioner cites a number of cases in support of its argument where the courts
have made the jump from restricting defamation suits to protecting the union and
its members from responsive actions by management. Most of these cases do not
involve a similar factual pattern, and some of the cases do not even involve
this issue. Therefore, most of the case law relied upon by Petitioner is
inapplicable. However, this extension of the protection of union activity
statements has been made. In particular, see Phoenix
Transit System & Amalgamated Transit Union, Local Union No. 1433, AFL-CIO,
337 NLRB 510 (2002). In that case, a union officer and newsletter editor was
discharged because of articles he wrote in the union newsletter concerning
management’s handling of sexual harassment complaints. It was determined that
the articles in the newsletter constituted protected union activity. The union
newsletter had been distributed to the 500 bus driver members of the union.
We therefore must find that Sergeant Housh’s statements, while certainly constituting intemperate, abusive and insulting rhetorical hyperbole, fall short of deliberate or reckless untruth. The comments were made in a union publication in the context of a management/union disagreement, and they were therefore protected from interference, restraint or coercion by management.
As to the appropriate remedy, the Respondents should be ordered to not interfere in any way with statements made in the union publication which do not violate the standard of deliberate or reckless untruth. The Respondents should be ordered to place a statement in the next union newsletter indicating that they recognize and will abide by the right of union members to conduct union activity without interference, restraint or coercion by the Respondents.
Sergeant Andersen and Sergeant Housh are not parties to this action, and they have, in fact, each made their individual agreements and settlements with the Respondents. We will not interfere with or add to those agreed upon settlements. As to the request for attorney fees, we find that the evidence does not establish a willful pattern or practice of violation of the Petitioner’s freedom in conducting union activities, and it does not establish that the investigations were undertaken in bad faith. Therefore, payment of attorney fees will not be ordered in this case.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED
Respondents shall not interfere in any way with statements made in the union
publication which do not violate the standard of deliberate or reckless untruth.
Respondents shall be ordered to place a statement in the next union newsletter
indicating that they recognize and will abide by the right of union members to
conduct union activity without interference, restraint or coercion by the