15 CIR 281 (2007) Appealed November 28, 2007.

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 APPEARANCES:

Entered November 7, 2007.

Before: Commissioners Blake, Orr, and Burger 

BLAKE, HC

NATURE OF THE PROCEEDINGS: 

            This matter comes on for consideration following the Nebraska Supreme Court’s opinion rendered on August 3, 2007, which was affirmed in part, and in part reversed and remanded with directions for the Commission to apply the legal standard set forth in the Supreme Court’s opinion to that claim on the existing record. The Commission’s prior decision is reported at 15 CIR 226 (2006) and the Supreme Court’s opinion is reported at 274 Neb.70, 736 N.W.2d 375 (2007). Per a joint stipulation from both parties, the remand was submitted for decision by the Commission with the filing of briefs by both parties.

SCOPE OF THE REMAND:

The Commission’s prior Order reasoned that the article written in the union newsletter by Officer Housh related to a working condition and a mandatory subject of bargaining. We noted that employee speech is a protected activity if it relates to working conditions, and that the protection is lost only if the speech is deliberately or recklessly untrue. In doing so, we studied cases under the National Labor Relations Act (NLRA), concluding that “Housh’s statements, while certainly constituting intemperate, abusive and insulting rhetorical hyperbole, fall short of deliberate or reckless untruth. The comments were made by Housh in a union publication in the context of a management/union disagreement, and they were therefore protected from interference, restraint or coercion by management.”

On appeal, the Nebraska Supreme Court reversed this finding and remanded with direction to the Commission to consider Housh’s statements under a different standard. The Court found that the “deliberate and reckless untruth” standard is inappropriate. The Nebraska Supreme Court found that 5 U.S.C. § 7102 is a more equivalent standard. In interpreting this standard, the Nebraska Supreme Court cited several Federal Labor Relations Authority (“FLRA”) cases, as helpful. Therefore, we will analyze both the cases presented by the Nebraska Supreme Court, applying the appropriate standard to the sole issue of whether Housh’s statements are protected.

FEDERAL EMPLOYEE SPEECH STANDARD:

In its decision, the Nebraska Supreme Court recognized that the labor conflict in this case involves parties serving a special purpose to the public. “As a police department, OPD (the Omaha Police Department) operates as a paramilitary organization charged with maintaining public safety and order. . . . [T]hese employers should be given ‘more latitude in their decisions regarding discipline and personnel regulations than an ordinary government employer’”, 274 Neb. 70, at 81.

In Tindell v. Caudell, 56 F.3d 966 (8^th Cir. 1995), the court recognized that members of police departments may be subject to stringent rules and regulations that could not apply to other government agencies. See also Crain v. Board of Police Commissioners, 920 F.2d 1402 (8^th Cir. 1990). The Nebraska Supreme Court cited Tindell’s finding with approval.

Our Supreme Court also cited with approval the decision in Hughes v. Whitmer, 714 F.2d 1407 (8th Cir. 1983), wherein the state patrol’s paramilitary status was recognized, with the Court finding that “[m]ore so than the typical government employer, the Patrol has a significant government interest in regulating the speech activities of its officers in order to promote efficiency, foster loyalty and obedience to superior officers, maintain morale, and instill public confidence in the law enforcement institution.”  714 F.2d at 1419.

The Nebraska Supreme Court concluded that the Commission should look to the Federal Service Labor - Management Relations Act (FLRA) for direction, which has similar language to the Nebraska Industrial Relations Act. In considering cases under the FLRA, our Court found that such employers have the right to discipline an employee who is engaged in otherwise protected activities for actions that exceed the boundaries of protected activities such as continued flagrant misconduct including remarks or actions that are of an outrageous and insubordinate nature which compromise the agency’s ability to accomplish its mission, disrupt discipline or are disloyal.        

The Supreme Court cited with approval the balancing of the employee’s rights to engage in protected activity, which permits leeway for impulsive behavior, against the employer’s right to maintain order and respect for its supervisory staff on the job site, including (but not necessarily limited to): (1) the place and subject matter of the discussion; (2) whether the employee’s outburst was impulsive or designed; (3) whether the outburst was in any way provoked by the employer’s conduct; and (4) the nature of the intemperate language and conduct.” Our Supreme Court referred to the case of Department of the Navy, Naval Facilities Eng. Command W. Div. San Bruno, CA, 45 FLRA 138 (1992). In that case, a union steward made statements in a union letter to the membership responding to a proposed reduction in force.  He used profanity in referring to the management. He went on to state that “intrigue, and graft is still with us”, and suggested that in Russia not too long ago such antics “would result in ten well-aimed pieces of lead right between the ears”. He referred to one of the management personnel as “Caecilian Frank” and suggested that he, the author, might get kneecapped for his remarks. In response, the Department of the Navy issued a letter of reprimand. In its opinion, the Federal Labor Relations Authority quoted the Supreme Court’s decision in Letter Carriers v. Austin, 418 U.S. 264 (1974) and found that “federal law gives union members license to use intemperate, abusive, or insulting language without fear of restraint or penalty if it believes such rhetoric to be an effective means to make its point.” The U.S. Supreme Court concluded that there might be situations where the use of this writing or other similar rhetoric in a labor dispute could be actionable, particularly if some of its words were taken out of context and used in such a way as to convey a false representation of fact. Using the word “scab”, which is most often used as an insult or epithet, as was true in the context of Letter Carriers, is simply rhetoric which is equally entitled to the protection of the federal labor laws.

In applying the relevant factors given to us by the Nebraska Supreme Court, we note that the subject matter has been properly recognized as a mandatory subject of collective bargaining.  While the newsletter in which it was stated is not distributed exclusively to union members, it is nonetheless primarily a union newsletter. It is written, published and distributed by the local police union to its members. The employee’s outburst was designed, rather than impulsive, and we cannot say that it was provoked by the employer’s actions or words. The nature of the conduct was, as we have previously found, intemperate, abusive and insulting. It would certainly have been better for Officer Housh or the newsletter editor to temper the remarks substantially. 

However, in evaluating whether the remarks were flagrant misconduct, we considered whether the remarks were of an outrageous and insubordinate nature, compromised the agency’s ability to accomplish its mission, disrupted discipline, or exhibited disloyalty. We find that the remarks while, quite close to reaching such level of flagrant misconduct, did not reach that level. They were in fact rhetorical hyperbole, which would not be reasonably believed by any reader as accusing of any crime or wrongdoing. They were intemperate, immature hyperbole, but they were nonetheless protected union speech in the context of the newsletter. There is no evidence of any loss of discipline, respect, or ability to accomplish the mission of the police department, and it is doubted that the remarks of Officer Housh would reflect poorly on anyone other than Officer Housh and the editor of the newsletter.

Having applied the standard set forth by the Supreme Court of Nebraska, we conclude that the remarks of Officer Housh were protected speech. The order of the Commission should be reissued on the condition that it is limited to those statements which do not violate the standard of flagrant misconduct. The Respondents should not interfere with statements made by employees of the union and the union publication. We reissue the order that the Respondents place a statement in the union newsletter indicating that they will recognize the union members’ rights to protected activity. The order on the remand taxes each party for their own costs and it is so ordered.

IT IS THEREFORE ORDERED THAT:

1.                  The Respondents shall place a statement in the union newsletter indicating that they will recognize the union members’ rights to protected activity. 

2.                  Each party shall pay their own costs.

All commissioners join in the entry of this order.