3 CIR 277 (1977)


Petitioner. |
Respondent. |

March 9, 1977


For Petitioner: Quintin Hughes

For Respondent: Dixon Adams

Before: Kratz, DeBacker and green, J.J.


The issue of the discharge of Henry Eby remains in this case.[1] Section 48-811, includes the following:

"No adverse action by threat or harassment shall be taken against any employee because of any petition filing by such employee, and the employment status of such employee shall not be altered in any way pending disposition of the petition by the court."

Petitioner claims that Eby was discharged because of his union activity and should, therefore, be reinstated with back pay for time lost at this position. Respondent says Eby's discharge was motivated only by a reduction in force required because of financial considerations. Both parties claim the other has the burden of proof.

The chronology of events leading up to the discharge is as follows:

March 27, 1976organizational meeting of Petitioner Association

March 29-30Petition signed by Respondent employees requesting election

March 30Henry Eby elected president of Petitioner

April 9Petitioner requested recognition from Respondent by letter

May 5Respondent refused to recognize Petitioner by letter

May 19Petition for representation filed with the Court of Industrial Relations (CIR)

August 2Henry Eby discharged by Respondent

There is also evidence regarding some alleged illegal interrogation of custodian Lowell Vaughn by Floyd Peterson, and of custodian Glen Staack by Arnold Smith. The employer (Respondent), of course, is not prohibited from asking questions, but it must not make any threat of reprisal because of union membership or promise of benefits for non-union membership.[2] We find nothing in the evidence which illustrates anything improper in the conversation between Smith & Staack, but we conclude that Peterson's visit with Vaughn included threats and harassment. This single incident, however, was not sufficient in our opinion to interfere with the conducting of a fair election and therefore an election was ordered, rather than an order to bargain (see Dec. 27 decision in this case).

There is no direct testimony to indicate a non-union motive for the Eby discharge. There rarely is, and the National Labor Relations Board (NLRB) is constantly faced with the difficult task of determining a discharge motive only from circumstances surrounding it. While in a context of facts where the natural and probable results of the discharge would be to encourage or discourage union activity, the NLRB and the courts may infer an illegal motive, nevertheless, the NLRB has determined that the burden of proof in an illegal discharge case (Section 8 (a)(3), NLRA) is upon the government.[3]

In Columbus Marble Works , 111 NLRB 1162 (1955), 233 F. 2d 406, the Court said:

"The close family nature of this business, the practice to favor relatives in job openings and advancements, and the severe decline in the company's business stand here as disputed facts solidly proved. Each has a perfectly sufficient explanation for the discharge of the particular employee and would itself sustain the burden, if it rested upon the employer, that the discharge of each was for the stated reasons. But the employer does not bear this duty. It is rather on the general counsel to establish by acceptable substantial evidence on the whole record that discharge came from the forbidden motives of interference in employee statutory rights. The burden long imposed by this court, NLRB vs. Miami Coca-Cola Bottling Co. , 222 F. 2d 431, NLRB vs. Brady Aviation Corp. 224 F. 2d 23; NLRB vs. Alco Feed Mills , 133 F. 2d 419; NLRB vs. Tex-O-Can Flour Mills , 122 F. 2d 433; NLRB vs. Ray Smith Transport Co. , 193 F. 2d 142, has added sanction by the express terms of the act."

Respondent's claim of financial problems seems reasonable, but the Petitioner points out the structure of Respondent School District makes its dependence on federal funds a constant problem. Furthermore, the reduction of the budget by the amount paid to Mr. Eby is not sufficient to solve the possible financial problems of a School District of this size,[4] and it's not clear from this record that Eby's removal actually saved any money for Respondent.

Petitioner's claim that the facts and circumstances indicate a union motivated discharge inasmuch as Eby was fired after the union was formed, after Eby was elected president of the union, after the union had signed a petition requesting an election, and before the vote for union recognition. These are, of course, significant and influencing facts, but they cannot be considered alone as sufficient to determine an illegally union motivated discharge.

On the other hand, the law certainly is not intended to restrict employers from making discharges for financial reasons, and while this claim of Respondent is to some extent effectively answered by the Petitioner, we are influenced mostly in this matter by the fact that Exhibit #4 shows that the elimination of this position as a part of a contemplated reduction in expenditures was first discussed and contemplated two months prior to the formation of the Petitioner Association and at a time when the evidence clearly shows the Respondent had no information or indication that its employees were attempting to organize into a labor organization.

If the plan to discharge Eby originated prior to knowledge of the union organizational effort, then we cannot conclude that the discharge was union motivated. Consequently, we hold that the discharge was proper under the facts and circumstances of this particular case.

1On February 3, 1977, an election was held and the Petitioner, by a vote of 35 to 23, has been certified as the bargaining agent for the employees in the prescribed bargaining unit.

2This is the National Labor Relations Board interpretation and we would interpret the following language of the Nebraska statute in the same manner: "no adverse action by threat or harassment shall be taken against any employee because of any petition filing by such employee, and the employment status of such employee shall not be altered in any way pending disposition of the petition by the court.", Sec. 48-811

3The Nebraska Supreme Court has said that decisions under the National Labor Relations Act are helpful but not controlling upon this Court. City of Grand Island v. AFSCME , 186 Neb. 711, 185 N.W. 2d 860 (1971).

4The record shows the other people discharged with Eby were discharged in many cases for reasons other than financial.