3 CIR 335 (1977). Affirmed in part, and in part reversed and remanded. 203 Neb. 4, 277 N.W.2d 529 (1979).


Plaintiff, |
A Body Corporate, UNIVERSITY |
et al., |
Defendants. |

Filed December 22, 1977.


For the Plaintiff:J. Murry Shaeffer

For the Defendants: L. Bruce Wright

Before: Wall, P.J., Green and McGinley, J.J.


These cases bring before us the request for an election in a bargaining unit of University of Nebraska-Lincoln Police and Security Officers and the dispute between the parties as to alleged anti-union activity on the part of the defendants, such activity allegedly being directed toward discouraging union membership and activity on the part of officers in the department. We find we have jurisdiction of the subject matter of the disputes and of the parties.

We are met at the outset by the claim of the defendants that the Constitution inhibits this Court from taking jurisdiction of this matter. The Constitutional issue has been before us before, and has twice been raised before the Supreme Court. AAUP

v. Board of Regents, 3 CIR Adv. 71, 3 CIR 15-1, aff'd., 198 Neb. 243, 253 N. W. 2d 1 (1976); House Officers Assn. v. University of Nebraska Medical Center, 3 CIR Adv. 159, 3 CIR 152-1, aff#'d in part and rev#'d in part on other grounds, 198 Neb. 697 (1977). The same issue was raised as to similar constitutional language concerning the Board of Trustees of the State Colleges, but not appealed, in Vathauer v. HEAN, 3 CIR 215-1 (1977). In view of the rejection by the Supreme Court of the defendants' contention, albiet sub silentio, twice during substantially the same period of time that the Court had Exon v. Board of Regents, 199 Neb. 146, ___N. W. 2d (1977) before it, it seems reasonable to conclude that the Supreme Court has reached the conclusion that the two Constitutional provisions, one for the creation of the Board of Regents and one for the creation this tribunal, can be read together to make both operable. We adhere to our former decisions and reject the Constitutional claim of the defendants.

We then turn to the election request and to the tailoring of an appropriate unit. Plaintiff contends for a unit composed of all police and security officers below the level of immediate subordinates to the Chief or Director. We cannot agree. The exemption for police officers from the prohibition on including supervisors in the unit, § 48-816, R. R. S. 1943, extends only to municipal corporations and their fire and Police employees. We do not perceive that the Board of Regents fits the definition of a municipal corporation. Testimony that UNL Police Sergeants are first line supervisors, having the responsibility and authority responsibly to direct the disciplinary action, is uncontradicted. We find officers of the rank of Sergeant and above to be supervisors, and that they must be excluded from the unit.

Defendant contends that all C-line employees at the UNL Campus have a mutuality of interest, and that a unit of police and security officers should not be split off from other C-line emyployees in Lincoln. Since the inception of acts dealing with collective bargaining, it has been the judgment of the legislative or administrative agencies concerned that bargaining units including guards or persons with police functions, generally should not be broadened to include persons not closely associated with guard or police work. It is a reasonable judgment, considering that a guard or police officer may well come into conflict with other employees in performing their guard or police function. The Nebraska Legislature has itself found police officers to be a special occupation deserving separate consideration. SS 48-816, R. R. S. 1943. We conclude to adopt the cumulative wisdom and judgment of Congress, the President, and the Legislature, and hold that a unit of police and security officers, separate from secretaries and other C-line employees, is the appropriate unit in these circumstances. The parties have stipulated that there is no community of interest among police and security officers at UNL and security officers at UNO or UNMC.

We then turn to the far more difficult task of evaluating the evidence and determining the issues raised as to illegal practices or what is known elsewhere in labor law as "unfair labor practices."

The determination of these issues rests largely on the credibility of the witnesses. We note that except for Inspector Duve, who explained his statements as testified to by plaintiff's witnesses, and Chief Gade, who generally flatly denied his statements as testified to by union witnesses, the witnesses for defendant generally either admitted they might have made the statements, or avoided a direct confrontation by testifying that they did not recall the statement or incident. We have also taken into account the demeanor of the witnesses. While certainly not limited to Sgt. Kinion, his demeanor is useful as an example. Appearing extremely tense and worried under both direct and cross-examination, his dramatic relaxation upon apparently innocuous questioning by the Court was most visible. In making our findings, we have also considered such external documentation as has been provided by the parties, the independent corroboration of witnesses not in the UNL Police Department, the time frame and sequence in which events took place, and such admissions of the witnesses as occurred.

The UNL Police Department over the past year or so has been faced with the necessity of adapting both to the changing roles of the sexes in employment and the initiation by the employees of a union. While it might have been flexible enough to accommodate to one, it appears to have failed when faced with both.

While Chief Gade is ultimately the responsible person for actions of his department, it also appears to a certain extent that he was the victim of the departmental structure, of senior employees who were not sensitive to social and role change in society, of employees who kept him isolated from reality by reporting only what they thought he would like to hear, of his own inability to distinguish a desire for collective representation from an attack on himself and, ultimately, his inability to communicate sufficiently to master the situation and maintain control of his department.

It is clear that the department's failure to provide proper equipment to its female officers prior to the formation of the union in late 1976, and the department's continued "inability" to master the simple administrative task of adequate logistics after the union came on the scene is sex discrimination, in violation of the Equal Protection Clause of the 14th Amendment to the Constitution of the United States. See opinion of Burger, Chief Justice, in Reed v. Reed, 404 U. S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971). See also Frontiero v. Richardson, 411 U. S. 677, 93 S. Ct. 1764, 36 L. Ed. 583 (1973). Fortunately, we do not have to decide whether the actions of the department after the formation of the union were motivated solely by one animus or another. Recognizing that we are operating in a non-Aristotelian world where a single action may proceed from many motivations, we adopt NLRB precedent as guidance, that if an action be shown in part to be motivated by an anti-union attitude, then that is sufficient to make the action illegal. Youngstown Osteopathic Hospital Assoc., 216 NLRB No. 136 (1975); 0 & H Rest, Inc., 232 NLRB No. 173 (1977). See also an excellent collection of cases on the entire subject, 35 ALR Fed.132.

We discuss first the incident of Officer Citta's hat, since it is relatively the simplest. Joy Citta was elected President of the plaintiff union in March, 1977. The relationship between Citta, as President, and Gade, as Chief, was good up until the filing of Case No. 223 on July 11, 1977. On July 12th, having previously agreed with the Chief that they would maintain lines of communication, Citta informed the Chief that the petition for a representation election had been filed. Since that time, the Chief refuses to speak to her or to recognize her presence other than to make derogatory remarks. The Chief testified that he did not like the Union, that he felt he could accomplish more for the employees than the union, and that he knew ordering WAC-style hats for the female officers to replace the unisex cowboy hats previously in use would upset Citta.' Citta felt the money could be better spent for safety equipment (shotgun racks) than for four new hats when only Officer Knott was missing a serviceable hat. Sgt. Busching reported to the Chief that Citta refused to give him her hat size, whereas it is uncontradicted that she did not know her hat size, and had never been furnished a hat that fit. It is, likewise, uncontradicted that when she found that her wedding hat had been a size 4, that she reported that matter. The department proceeded to order four medium size WAC hats, despite the advice of Mr. Overton, an experienced supply officer, that it was highly unlikely that the same size would fit four different persons. In fact, the hats fit only Officer Knott, and were too small for Officer McGill, too large for Officer Citta, and functional only with adaptations for Officer Fleming. At about the same time, the department issued a memorandum addressed to the female officers that they were to wear the female hats and act more "ladylike." We agree with Citta's opinion that it is difficult to act ladylike while arresting a 200 pound drunk. On October 15, 1977, preparing for duties at a football game, Citta demonstrated that the hat purchased for her made her look foolish and was not functional. In fact, the hat, when placed on her head so that it would stay on, came down over her eyes. The Chief himself characterized her appearance in the hat as making her look like an ass. Despite the simple alternative of returning to the use of her old cowboy-style hat which was functional, even though it, too, did not fit, Citta was ordered to wear the new hat. She was subjected to considerable teasing in the department, and herself caricatured the situation by groping her way to the 50-yard line. A person in a uniformed force is, by being in that uniform, set off as special from the rest of the populace. Acts of one member of a uniformed force bring credit or discredit, according to the nature of the action, on the entire membership of the force. An ill-fitting uniform has been recognized for centuries as being embarrassing to the individual, and as bringing discredit to the force so uniformed. For a command officer not only to permit the appearance in public of an ill-uniformed officer, but also actually to direct it, is unforgivable by anyone who has ever worn any uniform. It can only be disruptive of the continued service from public servants to which the citizen is entitled. We find that the department, recognizing Officer Citta's heightened perception of the nuances that indicate sex discrimination, used that perception as a weapon to discredit her as union president and to bring her into disgrace in the department. We also find that the department used the "inefficiency" of its supply operations to harass Citta as union president. We find that the actions against Citta were of a nature also to serve as wamings to others in the department that their life, too, could be made miserable if they joined or supported the union. We conclude that the actions violated Section 48-811, R. R. S. 1943, were illegal, and constitute what is known in labor circles as an unfair labor practice. Mid-Plains Educational Assn. v. MidPlains Voc-Tech College, 1 CIR 33-1, aff#'d., 189 Neb. 37, 199 N. W. 2d 747 (1972); Local Union No. 647 v. City of Grand Island, 3 CIR 142-1 (1975), aff'd., 186 Neb. 693 (1976).

Defendants' command officers have characterized Citta's actions in protesting the situation into which she was placed as insubordinate. We find to the contrary that Citta's actions were Constitutionally and statutorily protected speech, permissible as reasonable actions to object to the illegal harassment to which she was subjected. On October 14, 1977, Chief Gade, bypassing all normal command and disciplinary channels and procedures, issued a letter of reprimand (Exhibit 22) directly to Officer Citta by placing it in her letter box at the station and without, as is the normal procedure, calling her in to discuss it with her. We conclude from the testimony and circumstances that this was another attempt to harass Citta for her union activity. The letter is ordered removed from Officer Citta's personnel file.

We note that both parties have emphasized the use by the other of certain four and five-letter words of ancient Anglo-Saxon derivation. The NLRB has repeatedly held that strong language may reasonably be expected in certain tense labor-management situations. We conclude to follow the NLRB practice, and draw no inference from the use of "impolite" terminology.

In considering the next series of situations, it is necessary to consider what the employer has done in similar situations in the past, and contrast it with the actual situation before us, in order to determine whether the challenged action of the employer is illegal as harassment or intimidation. We note that the NLRB consistently holds past practice to be the guide in making decisions under Secs. 8a and 8b of the NLRA as to what is or is not an unfair labor practice. We consider the NLRB practice as sufficient confirmation of our own judgment as to the standard to be applied, and proceed on that basis.

Officer Barbara McGill is the Secretary-Treasurer of the union, and the first officer in the UNL Police Department to become pregnant. HEW Guidelines require the University, in order to remain eligible for Federal funding, to treat pregnancy as it treats any other disability. The University has adopted personnel regulations in conformity to the HEW requirements. Section 48#-811, R. R. S. 1943 requires union members to be treated exactly the same as they would be treated if not union members. McGill advised Chief Gade about July 20, 1977, that she was pregnant and that she would eventually have to come in off the street and, thereafter, would need leave to have her baby and recover. She understood that she was entitled to a year's leave of absence, but later found the year applied to insurance, not leave. The Chief told her that her pay would be reduced and that she could have only 6-8 weeks off. She went to the University Personnel Office to check on her leave rights. When the Chief found out that she had done that, he yelled at her about not taking his word for what her rights were, and when she protested that there were no orders or routine specifying that she could not consult the Personnel Office, he stalked off, after accusing her of going to Personnel in the company of Officer Citta. After this incident, she discussed the situation with her sergeant and Inspector Duve. Inspector Duve explained that the Chief was upset because of the Union idea in his department, and that might illuminate his abruptness and the accusation. At or about that time, Inspector Duve authorized her to wear matching smock tops instead of the uniform shirt, and to wear an underarm holster instead of a 15 pound gun belt. They also discussed the eventual need for her to come off street patrol, and inspector Duve assured her that there was plenty of work to be done inside the station. McGill remained on patrol duty until the end of September, when she found she was becoming excessively tired. She was asked to secure a letter from her doctor. Her doctor gave her a note dated September 30, 1977 (Exhibit 14). McGrill gave the note to Chief Gade, who took her over to help Officer Fleming-, counting parking spaces. There was no discussion at that time with the Chief. The next Thursday, October 6, 1977, she was told to report to the Chief's office. At that time, Gade informed her that she was disabled, and that she would have to take sick leave or leave of absence, or "because we like you" she could be reclassified as a Clerk-General Ill and continue to work, but at an annual pay cut of approximately $2,000.00. That afternoon, McGill was advised that the department was going to cut her pay, and that she should not talk to Fleming because they were going to reclassify her too. On or about October 10, 1977, McGill and Fleming discussed the reclassification with Inspector Duve. Inspector Duve expressed the opinion that the two of them were caught in a power play between Gade, Citta and the union. He also advised them not to seek union assistance because it couldn't help them. On October 12, 1977, McGill was purportedly reduced to a Clerk-General III by letter (Exhibit 12) from Chief Gade. The reduction was to be effective October 21, 1977, but was stayed by a protective order of this Court. On October 16, 1977, McGill received a second performance rating for the year from Sgt. Kinion. Kinion also marked up the June rating to show that it had been done because of McGill's "bad attitudes." McGill testified that her annual review had gotten shifted to June from October because she once contacted a Regent about a problem, the department ordered a special review, and she had been reviewed in June ever since. The June 1977 review was originally checked "annual" and that check later was smudged and "special" was x'd. (Exhibits 5 and 20). The personnel rules of the University require a review six months after hire and annually thereafter. The proper month for McGill's annual review would thus be April.

Defendants' witnesses all characterized the reclassification as "stretching" the rules. We have examined the applicable law and rules, and are unable to find any authorization for it at all. We hold it to be wholly illegal.

The longest period of time that any officer had previously spent full time in the office while temporarily disabled was two and one-half months. After a heart attack, one officer had worked four months part-time in the office. No officer had previously been terminated or reclassified because of disability.

We then turn to discovering the reasons for the Chief's change in attitude from October 6th, when he put McGill on light duty, to October 10-12, when he advised her that she would have to be reclassified, and then did reclassify her. The sequence of events with Citta now becomes significant. The hats were directed to be ordered by memo from Inspector Myers dated September 26, 1977 (Exhibit 19). New leather, cut to fit the feminine figure, was ordered by memo dated August 16, 1977. This order was cancelled by phone by inspector Myers a few days later. When Mr. Overton discussed the hat order with Inspector Myers in late September, he advised that Citta was to take a hat whether it fit her or not. On October 14th, Myers repeated to Overton that Citta had to wear the hat "or else." The next week, when Myers came over to see Mr. Overton to ask him to forget the conversation of October 14th, he told Mr. Overton that Citta was an agitator, just trying to stir up trouble. He reminded Overton that he, Myers, had been with the Lincoln police department and would be "prepared" if Overton told the truth about the October 14th phone call.

After examining all of the evidence, including the opinions of the participants, now admissible under § 27-701, R. R. S. 1943, we are left with the firm conviction that the defendant's actions against McGill were motivated by anti-union animus and are illegal. It is clear that sometime between October 6, 1977 and October 10, 1977, the command officers of the department concluded to push Citta to the brink of public embarrassment with the hat, and that the actions against McGill necessarily followed that decision.

We direct the removal of the evaluation of June, 1977, and its October annotations from McGill's personnel file. We find that McGill should have been permitted to work in the office full time for 2 1/2 months, plus an additional 1 1/2 months half-time, as her physical condition permitted. We direct the correction of her records of leave and sick pay to reflect that finding, and her return to full or part-time duty, as appropriate, for any unexpired portion of the four month period.

Officer Mary (Rusti) Fleming was injured off-duty while running on September 19, 1977. She was put to work in the office September 22nd without question by the command officers. On October 7, 1977, She was called into the Chief's office and told she would be reclassified. Under the LEEP program, which provides grants-in-aid for full time police officers attending college, she would be liable to repay all of the grants she had received if she did not maintain her status as an officer. The Chief promised her he would give her back her job as an officer when her knee got better, but would not put the promise in writing. Inspector Duve told her the change in policy was because of the presence of the union - "if there had never been a union, it never would have happened." Fleming is a member of the union, but not a union officer. On October 12th, Fleming talked to Gade to try to explain the situation, and he was very nice to her, saying that if anybody harassed her, to tell him and he would take care of it. On October 13th, the Chief had heard that McGill was going to take some action in protest of the proposed reclassification and asked her if she were part of it. She replied that she was not. On October 19th, she pleaded with Dr. Styner to release her to full duties lest she lose her job. On October 21st, with a conditional release from her doctor, she returned to street patrol. On the same day, the department, being in receipt of her Affidavit accompanying the Petition in Case No. 237, thru Inspector Myers, on the Chief's orders, inquired if she really were involved in the union action. On October 26th, the Chief asked her to call the attorney for the defendants, but later countermanded that order. Officer Fleming had knee surgery over the weekend of October 30-31st. She was of the opinion that the actions taken against her were because of the union - that the command officers had decided to take action against McGill and had to treat her the same way.

Without reviewing all of the confirmatory evidence, suffice it to say that after examining all the evidence, we are left with the firm conviction that the actions against Officer Fleming were motivated by anti-union animus. We find that she should have been permitted to work full time on light duty for 2 1/2 months and half-time on light duty for an additional 1 1/2 months, as her physical condition permitted. We direct the correction of her leave and sick leave records to reflect that finding, and her return to full or part-time duty, as appropriate, for any unexpired portion of the full four month period. If she has not recovered by that time, she shall be placed in leave without-pay status until her knee heals. The option of termination, having never been used before, is not open to the defendants. Reclassification, as we have noted, is not permitted.

Officer Jacobsen is a UNL police officer and member of the union Executive Board. On the evening of October 26th, he was called in and told that he would be transferred to the first shift effective the next morning. He was permitted to leave work that night at 10:30 P.M., about 1 1/2 hours early, so he could get some sleep before reporting at 7:30 A.M., October 27th. The first shift had been short of manpower since McGill was brought inside October 6th. Inspector Duve testified that Jacobsen was trans ferred because he seemed to be stagnating on the second shift, and that the earlier request for transfer to the first shift of an officer senior to Jacobsen had not been denied - the department had merely picked another man. Jacobsen's opinion was that his short-notice transfer was for the purpose of intimidating union members, and that it had, in fact, achieved that result. His perception of events is that in the year since the union was formed, members of the union have been targets of discipline and transfer actions. Approximately 75% of the officers in the department belong to the union.

In August, 1977, Officer Jacobsen had a motorcycle accident on his way to work, and ruined his uniform. The department refused to reimburse him for a new uniform, despite the fact that it had routinely replaced uniforms for other officers when the uniform was not intentionally damaged, even though the occurrence was off-duty.

We find, from the suddenness of the change, that the transfer was intended to cause at least the temporary discomfiture of Officer Jacobsen and was, in part, motivated by anti-union animus. Since the result was only temporary, and since the first shift is ultimately a more desirable shift, we direct no change. We find that the defendants have articulated a valid reason for not replacing the uniform and in view of the fact that it occurred before the time at which we find the department's attitude to have hardened against the union, find the refusal not illegal. We, likewise, find against the plaintiff on the question of the disciplinary action taken against Officer Jacobsen.

The disputed over illegal activity by the defendants directed against the plaintiff was ordered settled as outlined above. We will retain jurisdiction in Case No. 237 for a reasonable period of time, in order to assure that the department fully complies with the requirement to remain absolutely neutral during the election process. We have considered requiring the defendants to post a "mea culpa" notice as is often required by the NLRB and many state agencies. We have determined that since an election is ordered, that the warnings and statements on the election notice are sufficient. If the case is appealed, and the election thereby delayed, we will reconsider what may be necessary to preserve the status quo.

An election to determine the collective bargaining agent, if any, within the unit herein determined to be appropriate shall be held as soon as reasonably possible. Judge Benjamin M. Wall is designated as the Court's representative for such election, which shall be held under the immediate supervision of the Clerk of this Court, Janet Stewart Arnold. Janet Stewart Arnold is appointed Hearing Examiner, to determine initially all questions arising during the election process. The parties shall meet with the Clerk at 10:00 o'clock, A.M., on the 28th day of December, 1977, to agree upon or have determined all questions concerning the election not covered by Rule 9.