17 CIR 435 (2012)


                                  Petitioner, ) FINDINGS AND ORDER
         v. )  
NEBRASKA, A Political Subdivision, )  
                                  Respondent. )


For Petitioner: Joy Shiffermiller
Shiffermiller Law Office, P.C., L.L.O.
  1002 G Street
Lincoln, Nebraska 68508
For Respondent: Richard C. Grabow
  Lancaster County Attorney
575 South 10th Street
  Lincoln, Nebraska  68508

Entered September 17, 2012.

Before Commissioners Blake, McGinn and Spray

BLAKE, Commissioner 


            On May 11, 2012, Mr. John Hornung (“Petitioner”) filed a Petition pursuant to Neb. Rev. Stat. § 48-824(2)(a), alleging that Lancaster County (“County” or “Respondent”) committed prohibited practices in the course of terminating his employment with Respondent.


            Petitioner was employed by Respondent for 28 years in several capacities, most recently as a heavy equipment operator, and was a member of the bargaining unit represented by the American Federation of State, County, and Municipal Employees, Local Union No. 2468 (“Union”). Petitioner was required to hold a current and valid Commercial Drivers License (“CDL”) in order to perform his job duties.

            The City of Lincoln/Lancaster County Federal Highway Administration Program Drug and Alcohol Testing Program policies provide for random drug and alcohol testing of any employee of the City of Lincoln or Lancaster County who is required to hold a CDL and drives certain vehicles in the course of employment. Petitioner’s position was a job classification covered by this drug and alcohol testing policy. The policy details the drug and alcohol testing procedures as well as the consequences associated with a positive test result, which is a breath alcohol level of .02 and above. Employees who fail a drug or alcohol test may be disciplined by treatment and/or termination. It does not appear that other employees who tested positive for blood alcohol content had been terminated in the past.

            On the date in question, Petitioner was tested twice while on duty, with the first test registering a breath alcohol level of .084 and the second test registering a breath alcohol level of .071. There is no evidence that Petitioner had been drinking on the job. Petitioner was placed on leave.

            Petitioner received a letter dated November 3, 2011 from Mr. Don Thomas, the county engineer, informing Petitioner that disciplinary action was being proposed for him up to and including termination and that a pre-disciplinary meeting was scheduled for November 14, 2011. The operative collective bargaining agreement between the Union and Respondent provides that bargaining unit members have a right to union representation at pre-disciplinary meetings. It does not appear that the Union was given notice of Petitioner’s pre-disciplinary meeting. However, there is no requirement that such notice be sent to the Union.

When Petitioner’s pre-disciplinary meeting was held, Petitioner was not accompanied by a union representative. Petitioner walked into the pre-disciplinary meeting believing that he was meeting with Mr. Thomas. However, Petitioner found that he was not only meeting with Mr. Thomas, but also an employment technician who administers the tests and at least two other members of the county’s personnel administration staff. Petitioner testified that he felt nervous and did not know what was going to happen. Petitioner was asked to sign a form which stated that Petitioner understood that he had the right to have a union representative present and that he was waiving the right. Petitioner signed the waiver. Petitioner was ultimately terminated at the conclusion of the meeting. Petitioner appealed his termination to the Lancaster County Personnel Board, who upheld the termination. 


            Neb. Rev. Stat. § 48-824(2)(a) states that it is a prohibited practice for any public employer to interfere with, restrain, or coerce employees in the exercise of rights granted by the Industrial Relations Act (“the Act”). An employee’s rights under the Act are found in Neb. Rev. Stat. § 48-837:

“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 arising thereunder.” 

            Actions which could normally be deemed valid are prohibited when the result of the action is an interference with, restraint or coercion of employees in the exercise of their rights under the Act. Business decisions which interfere with the rights of public employees violate the Act only when the business justification does not outweigh the rights of public employees. Some employer actions are so peculiarly matters of management prerogative that they would never constitute an independent violation of § 48-824(a)(2) regardless of whether or not they involve sound business judgment. Additionally, a violation of § 48-824(a)(2) does not depend upon the employer’s motive. No proof of coercive intent or effect is necessary and employer actions taken in good faith are no defense. Metropolitan Technical Community College Education Association v. Metropolitan Community College Area, 13 CIR 180 (1998); Nebraska Public Employees Local Union 251 v. Otoe County, 13 CIR 79 (1998).         

Petitioner submitted significant evidence that could be construed to indicate that Petitioner was not treated similarly to others.  However, the Commission does not offer any determination or advice as to whether Petitioner in this case should have been disciplined by termination. That is not within our jurisdiction. Petitioner also did not appeal the Lancaster County Personnel Board’s decision to district court. The Commission shall not offer any determination regarding the actions of the Lancaster County Personnel Board, as we do not have jurisdiction to hear appeals of personnel matters. The Commission’s only jurisdiction in this case is to determine whether the actions were in violation of the rights protected by the Industrial Relations Act, specifically, whether the Respondent’s actions interfered with, restrained, or coerced Petitioner in the free exercise of his rights granted by the Act who tested positive for drugs or alcohol.  An employee’s rights under the Act do include the right to not be terminated as a result of an effort to interfere with, retain, or coerce employees in the rights granted by the Act.

            The most significant event in this case is the November 14, 2011 pre-disciplinary meeting. The evidence in this case does not establish that there was any activity taken in violation of the Petitioner’s rights under the Act. The collective bargaining agreement states that employees have the right to union representation during any meeting which may result in disciplinary action. Petitioner testified that he was asked before the meeting began if he had a union representative with him, and he believed that someone told him that he had a right to have a union representative present. However, Petitioner stated that he did not have a union representative with him. Petitioner was given a form which stated that the signee understood and was voluntarily waiving the right to have union representation present at the meeting. Petitioner signed the form and participated in the meeting voluntarily. See Exhibit 14.

            Petitioner described extenuating and mitigating circumstances to explain his positive test for alcohol. These circumstances may or may not have been considered by the administrators and the personnel board, but they were obviously not considered to be an adequate or acceptable explanation, and again, they are not matters that can be considered by the Commission.

The Commission finds that the County’s actions in this case did not interfere with, restrain, or coerce Mr. Hornung in the free exercise of his rights under the Industrial Relations Act. There is nothing to indicate that the matter was anything other than a personnel issue involving Mr. Hornung as an employee of the Respondent. There is nothing to connect the matter to Mr. Hornung’s membership in a collective bargaining unit or to connect the actions to the bargaining unit itself. The evidence does not establish that the Petitioner’s waiver of union representation was anything other than voluntary. Therefore, we find that the Petition should be dismissed.

        IT IS THEREFORE ORDERED that the Petition be, and is hereby, dismissed.

         All panel Commissioners join in the entry of this Order.