| OMAHA CITY EMPLOYEES LOCAL UNION NO. 251, | | | CASE NO. 296 |
| AMERICAN FEDERATION OF STATE, COUNTY AND | | | |
| MUNICIPAL EMPLOYEES, AFL-CIO, | | | |
| | | ||
| Plaintiff, | | | |
| | | ||
| vs. ) OPINION AND ORDER | | | |
| | | ||
| CITY OF OMAHA, NEBRASKA, | | | |
| | | ||
| Defendant. | | |
Appearances:
For the Plaintiff: Thomas F. Dowd
For the Defendant: Kent N. Whinnery
Before: McGinley, Gradwohl and Orr, JJ.
GRADWOHL, P.J.:
This matter came on for trial on May 21, 1979. Plaintiff seeks reinstatement of employee James Armstrong and a cease and desist order against City limitations on employees' rights of free speech, press, and association. Defendant filed pretrial pleadings and an Answer. The Commission has jurisdiction of the parties and of the subject matter of this industrial dispute.
1. Applicable Statutes.
The Commission has jurisdiction in this matter under Section 48-810, which provides:
All industrial disputes involving governmental service, service of a public utility, or other disputes as the Legislature may provide shall be settled by invoking the jurisdiction of the Commission of Industrial Relations; . . . .
This matter involves an "industrial dispute," concerning the terms and conditions of employment for some Omaha civilian employees, under Section 48-801(7):
As used in sections 48-801 to 48-823, unless the context otherwise requires:
(7) Industrial dispute shall include any controversy conceming terms, tenure or conditions of employment, or conceming the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, or refusal to discuss terms or conditions of employment;
In addition, Section 48-823 states:
The provisions of sections 48-801 to 48-823 and all grants of power, authority and jurisdiction herein made to the Commission of Industrial Relations shall be liberally construed to effectuate the public policy enunciated in section 48-802. All incidental powers necessary to carry into effect the provisions of sections 48-801 to 48-823 are hereby granted to and conferred upon the commission herein created.
Section 48-837 provides:
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 administratikon of grievances arising thereunder; . . . .
Section 8 of LB 444, which became law with the emergency clause on May 21, 1979, states:
Whenver it is alleged that a party to an industrial dispute has engaged in an act which is in violation of any of the provisions of sections 48-801 to 48-838, or which interferes with, restrains, or coerces employees in the exercise of the rights provided in sections 48-801 to 48-838, the commission shall have the power and authority to make such findings and to enter such temporary or permanent orders as the commission may find necessary to provide adequate remedies to the injured party or parties, to effecuate the public policy enunciated in section 48-802, and to resolve the dispute.
Section 8 of LB 444 is a procedural and remedial provision applicable to actions pending at the time of its enactment. See, State v. Schiffbauer , 197 Neb. 805, 251 N. W. 2d 359 (1977); Durousseau v. Nebraska State Racing Commission , 194 Neb. 288, 231 N. W. 2d 566 (1975); Lynch v. Metropolitan Utilities Dist. , 192 Neb. 17, 218 N. W. 2d 546 (1974); Oviatt v. Archbishop Bergan Mercy Hospital , 191 Neb. 224, 214 N.W. 2d 490 (1974); Ha iar v. Kessler , 188 Neb. 312, 196 N. W. 2d 380 (1972), Happy Hour, Inc. v. Nebraska Liquor Control Commission , 186 Neb. 533, 184 N. W. 2d 630 (1971); Hargleroad Bulk Carriers, Inc. v. Ruan Transp. Corp. , 173 Neb. 151, 112 N. W. 2d 743 (1962). Its provisions constitute authority in the present case for the Commission of Industrial Relations to enter Orders to provide remedies thereunder on and after May 21, 1979.
2. General Statement of Facts.
James Armstrong was an employee of the City of Omaha for three and a half years, working with the Parks, Recreation, and Public Property Department in the job classification of AEO III, Heavy Equipment Operator. James Armstrong also served as the Vice President of the Omaha City Employees Union, Local No. 251, for approximately eight months prior to the time that he severed his employment. The Union publishes a newsletter entitled "The United Civilians", in which James Armstrong authored an article in the October 1978 edition, set out below, dealing with Parks Department morale. James Armstrong and the Union President were advised of management's displeasure regarding the content of the article. They were directly warned that the publication of similar articles in the future could be the basis for disciplinary action by the City.
"The United Civilians" subsequently published another article by James Armstrong in the February edition which the City found objectionable. James Armstrong and the Union President were called to meet with the Mayor and Arthur Bradley Jr., Director of the Parks, Recreation, and Public Property Department, on February 15, 1979, in the Mayor's office conceming the content of the two articles and possible disciplinary action. James Armstrong and the Union President walked out of the Mayor's office during the meeting and went to the Omaha World Herald newsroom. James Armstrong did not report back to work that afternoon.
Disciplinary action was taken against James Armstrong for his authorship of the previously mentioned articles in the form of a written reprimand by Arthur Bradley Jr. dated February 16, 1979, set out below. On February 26, 1979, James Armstrong was given a one day suspension for allegedly falsifying his time card on February 15, 1979, the day of the meeting in the Mayor's office. James Armstrong appealed the disciplinary actions to the Omaha Personnel Board and both appeals were denied on March 29, 1979. James Armstrong severed his employment on March 30, 1979.
3. Publications.
The following article appeared in the October 1978 edition of "The United Civilians":
According to Mr. Webster, the word has a simple and short meaning. Morale-the state of mind of an individual or group with respect to confidence, cheerfulness, discipline, etc.
Sometimes I wish the supervisors of the Parks and Recreation Department would stand up and take a long look at the morale problems here, instead of always just looking out for ones self or his/her favorite little brown nose. I wish, just once, that these supervisors could get out of their over-stuffed chairs and off their overstuffed rear ends, put on some work clothes, get up at 6:00 a.m., start work at 7:30 a.m. under some of the most deplorable conditions, with the most obsolete equipment and around incompetent people for eight hours a day for one week. Of course that is a little too much to ask. But if the supervisors would at least take the time to talk to the men instead of getting their information second and third hand, some of the problems might be alleviated.
Also, at this point in time, I would like to remind all the members in this Local that at no time does management have the right to refuse your Union representation. Nor does management have the right to decipher what Union business is.
Now for a better slice of bread. This year's Cabaret, our second annual kegger, we hope will be a complete success. But we need everybody to pitch in because, after all, it is to benefit all of US.
District of the Month-District Four foreman, Joe Kolar, seems to have one of the smoothest running districts in town. Joe must be doing something right.
Congratulations to Al Fochek and his wife on the birth of their 8 lb. boy and to me and mine on our 7 lb. 3 oz. girl.
Thanks to all the members who gave me the opportunity to serve as vice-president in this great union of ours.
Jim Armstrong, V.P.
The following article appeared in the February 1979 edition of "The United Civilians":
Happy New Year Brothers and Sisters. At least I hope it can be. And if not, well what the Hell, let's give it our best shot.
But first, I'd like to take the time to dwell on the old.
Our Annual X-mas Party was cancelled this year because no scrap metal could be sold for management's pleasures. So Mr. Bob Martin sent out an inter-office communication stating that there will be no parties on city time, or on city property. This is all fine and dandy. But Mr. Martin, what goes for one should go for all. Or, Mr. Martin, are you like Farnam Street? One way.
But regardless, the party went on at Dist. 1.
It was held at the Garden Bar. Menu included: Bar-B-Q roast beef, baked beans, potato salad, bread and butter, and all the beer you could drink (no charge for beer). Needless to
say it was a total success.
Now to the New Year:
Well, this one started out with its usual raise of headaches. In short, to keep any one person from protesting middle management's raise. A verbal order from Mr. Heston to cancel all annual leaves. No explanation given. Word had it-because of a work overload. To this I say BULL! Where do our rights as a citizen of the City of Omaha start and stop. Mr. Al Veys, can you give me an answer to this question?
Promotion this Month: Don Parrel from landscape gardener to greens keep, at Knoll Golf Course. Was it deserved or is it because Don and Mr. B.B. Martin, super of golf courses, bowl together every Friday night?
Welcome Back Kauffeld?
I would like to welcome back Omar Kauffeld as foreman of Dist. 1. Keep up the good work. This dept. can use it. Too bad there's not more like you.
Congratulations to Bill Cramer, caretaker at Seymour Park, and his wife on their new addition, at 5 lb. 13 oz. baby girl. No harm intended Bill, but I hope she looks like your wife.
0 ya-don't forget to get out and vote for your choice for the Credit Union. Remember, it's your credit union since it takes your money to make it. Have a voice in it.
Well, that's about it for this month. Remember, have a good one. This is your roving V.P.-
Jim Armstrong
These were the only publications by James Armstrong which formed the basis for his discipline. While the City threatened to take action against further publications of a similar nature, it did not respond to the publication of a special "Art Bradley"
edition of "The United Civilians" on February 23, 1979.
4. The City's Position as to Publications by City Employees.
The letter of February 16, 1979, to James Armstrong from Arthur D. Bradley, Jr., Director, Parks, Recreation and Public Property Department, stated:
In two recent issues of the United Civilians publication, articles appeared over your name that reflect unfairly on the Parks and Recreation Department, its management and some of its employees. I consider your attitude, as clearly indicated in these articles, to be improper. As you well know, there are established procedures for reporting valid complaints. Innuendos and statements that reflect on the integrity of this department and the capable and dedicated people who are a part of it will not be tolerated.
After the October, 1978 publication was printed wherein you took it upon yourself to question certain management judgments, I discussed the situation with Mr. Troutman and Mr. S.P. Benson. Mr. Benson advised me that he subsequently talked with Mr. Cox relative to my concem and I was under the impression that in the future your literary endeavors in "The United Civilians" would contain no further defamatory statements. The February issue of your publication, however, reveals that you have once again questioned the leadership of this department.
You are not qualified to pass judgment on management's decisions and your public comments relating to the qualifications of some of our employees is proof of your lack of judgment and immaturity. Loyalty and commitment are important to the effective operation of any organization whether it be a govemmental department, a business, or even a union. I am certain that if an employee of your union publicly criticized its management and operation his employment with the organization would be short lived.
Let me re-emphasize that further published utterances by you that are critical of department employees and management decisions will not be tolerated and will be viewed by me as insubordination.
You are to consider this a written reprimand and a copy of this letter will be forwarded to the Personnel Department with instructions that it be made a part of your personnel file.
It is my hope that we can rely on your cooperation so further disciplinary action will not be necessary.
The position of the City of Omaha is set out further in the testimony of Arthur Bradley Jr. at the trial of the case, a portion of which is attached hereto as Appendix A. His testimony reveals a policy of taking disciplinary action when an employee makes a statement that management feels is not in the best interests of the administration, efficiency, or morale of the department or which reflects unjustly or unfavorably upon the integrity of management or the department in whole. He indicated that he would not tolerate actions such as James Armstrong's and that if any problems were of a concern to an employee, the individual should have the courtesy and judgment to talk to him or should exhaust the grievance procedure before criticizing management. His testimony was that this would apply to any employee. This policy was stated orally to the Union President who was expected to communicate the policy to and apply it among employees within the unit.
5. Relevant Portion of the Collective Bargaining Agreement.
James Armstrong's discipline was based in part on Article IV, Discharge and Discipline, on pages 5-6 of the Collective Bargaining Agreement for 1979-1980 between the parties, which provides:
SECTION 1-DISCIPLINARY ACTION-CAUSE: Any action which reflects discredit upon the service or is a direct hindrance to the effective performance of the CITY government functions shall be considered good cause for disciplinary action. The following are declared to be good cause for disciplinary action against any employee, though charges may be based upon causes and complaints other than those listed:
For the following violations the assigned disciplinary action for the number offense shall be:
1. Written Reprimand
2. 3 Work Day Suspension
3. 5 Work Day Suspension
4. Demotion or Discharge
13. Make false, vicious, or malicious statements about any employee or the City.
6. Claim for Reinstatement of James Armstrong.
James Armstrong severed his employment on March 30, 1979, allegedly because of interference with his freedoms of speech and press and interference with his union and concerted activities. A public employee who voluntarily quits his or her employment is not ordinarily entitled to maintain an action in the Nebraska Commission of Industrial Relations for reinstatement. The union alleges that James Armstrong was constructively discharged from his employment. An employee is constructively discharged where the employer makes working conditions so difficult that the employee is forced to resign. An ostensible resignation may be a constructive discharge if the employer has imposed upon the employee such unreasonable or dangerous conditions as require him to quit. See NLRB v. Chicago Apparatus Co. , 116 F. 2d 753 (7th C*ir. 1940). Ordinarily, however, an employee must continue to perform his work and then file a grievance or seek other recourse.
The circumstances surrounding James Armstrong's termination of his employment do not indicate such a hostile atmosphere that would categorize the resignation as a constructive discharge. James Armstrong severed his employment with the Defendant one day after the Omaha Personnel Board denied his two appeals of the disciplinary actions taken against him. The disciplinary actions that were taken, the threats of discharge in connection with "United Civilians" publications, and the personnel changes allegedly under consideration to cause his layoff, do not amount to such sufficient evidence as to warrant a finding of a constructive discharge.
7. Union Claim for Speech, Press and Associational Rights.
The record establishes that through the statements and actions of its department head, Arthur Bradley, Jr., the City of Omaha imposed a policy affecting its employees' rights of speech, press and association. The policy was declared in the meetings following the October 1978 publication, the meeting on February 15, 1979, in the Mayor's office, the letter dated February 16, 1979, and the testimony at the trial, especially the testimony of Arthur Bradley Jr.
This employment policy established "terms . . .or conditions of employment" within the definition of "industrial dispute" in Section 48-801(7). An employee who does not comply is subject to discipline and discharge. The policy is one of general application to all department employees, and does not refer only to the prior publications of James Armstrong. In Nebraska Department of Roads Employees Assoc. v. Nebraska Department of Roads , 2 CIR 57 (1972), affirmed 189 Neb. 754, 205 N. W. 2d 110 (1973), the Commission held that a uniquely personal termination of employment does not constitute an industrial dispute. The present case, however, (1) involves a condition of employment applicable to all department employees, and (2) directly pertains to all departmental employees' associational rights, since the City's condition is directed at publications by a union official in a union newspaper, and, therefore, has a substantial effect apart from the personal rights of the author of the article. These distinctions from the circumstances in Nebraska Department of Roads Employees Association bring the dispute within the Commission's jurisdiction. An industrial dispute within the Commission's jurisdiction can be maintained by an individual employee or by a labor organization. See Section 48-811; Minshull v. School District , 3 CIR 138 (1976), affirmed 198 Neb. 418, 253 N. W. 2d 45 (1977); Kot v. School District of Omaha , 3 CIR 11 (1975); Bickford v. School District , 3 CIR 195 (1976); Chambers v. City of Omaha , 3 CIR 296 (1977).
The sources of the applicable employee rights of speech, press, and association are the First and Fourteenth Amendments to the United States Constitution, and Article I, Section 5 of the Nebraska Constitution, which are set forth below, and Section 48837 R.R.S., 1943, quoted above.
The First Amendment states in part:
Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Section 1 of the Fourteenth Amendment makes the First Amendment rights applicable to state actions. It states in part:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Article 1, section 5 of the Constitution of Nebraska provides:
Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth when published with good motives, and for justifiable ends, shall be a sufficient defense.
The United States Supreme Court has examined the interplay between public employment and constitutionally protected employee rights on numerous occasions. See especially, Pickering v. Board of Education , 391 U.S. 563 (1968); Perry v. Sindermann , 408 U.S. 593 (1972); Mt. Healthy City School District Board of Education v. Doyle , 429 U.S. 274 (1977); Givhan v. Western Line Consolidated School District , 99 Sup. Ot. 693 (1979). See also, United Public Workers v. Mitchell , 330 U.S. 75 (1947); Wieman v. Updegraff , 344 U.S. 183 (1952); Shelton v. Tucker , 364 U.S. 479 (1960); Torcaso v. Watkins , 367 U.S. 488 (1961); Cafeteria Workers v. McElroy , 367 U.S. 886 (1961); Cramp v. Board of Public Instruction , 368 U.S. 278 (1961); Baggett v. Bullitt , 377 U.S.
360 (1964); Elfbrandt v. Russell , 384 U.S. 11 (1966);
Keyishian v. Board of Regents , 385 U.S. 589 (1967);
Whitehill v. Elkins
, 380 U.S. 54 (1967);
United States
v. Robel
In Perry v. Sindermann , 408 U.S. 593, 597 (1972), the Court stated:
For at least a quarter-century, this Court has made clear that even though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. lt may not deny a benefit to a person on a basis that infringes his constitutionally protected interests-especially his interest in freedom of speech.
The premise that public employment may be conditioned upon the surrender of constitutional rights which could not be abridged by direct govemment action was rejected in Keyishian v. Board of Regents , 385 U.S. 589, 605-606 (1967).
In Pickering v. Board of Education , supra, the Court found that the employee, a teacher, had made erroneous public statements upon issues then currently the subject of public attention, which were critical of his employer, the school board. The statements were not shown to have impeded the employee's proper performance of his daily duties or to have interfered with the regular operation of the public employer. In such circumstances, the Court held that the interests of the public employer in limiting the employee's speech was not significantly greater than its interests in limiting a similar contribution by any member of the general public. The Court then applied the standard adopted in New York Times Co. Sullivan , 376 U.S. 254 (1964), holding that absent proof that false statements were knowingly or recklessly made, the public employer was not justified in dismissing the employee from public employment.
The rules set forth in Pickering were applied in Kiernan v. Nebraska Dept. of Roads , 364 F. Supp. 251 (D. Neb. 1973). This was a federal civil rights action following the decision of the Nebraska Supreme Court in Nebraska Department of Roads Employees Assoc. , above. The United States District Court held for the individual employee on a freedom of speech issue similar to Pickering. Kiernan had been discharged for criticizing the qualifications of Thomas D. Doyle, State Engineer and Director of the State Department of Roads, the department at which Kiernan was employed. Kiernan did not work in a close relationship with Doyle that would "demand such personal loyalty or confidence or harmony" that his statement would be presumed detrimental absent proof of a specific detrimental effect upon the Department or upon Kiernan's ability to perform his work.
These constitutional doctrines have continued to be applied by the United States Supreme Court. Mt. Healthy City School District Board of Education v. Doyle , 429 U.S. 274 (1977), a unanimous decision, held that a teacher's call to a local radio station with what turned out to be factually erroneous information was constitutionally protected free speech under the Pickering holding. Similarly, a unanimous Court recently held that critical remarks by a public school teacher to her principal in a private meeting fall within the constitutional protections of the Pickering holding. Givhan v. Western Line Consolidated School District , 99 Sup. et. 693 (1979).
All of these cases also illustrate that it is not mere discomfort on the part of a public employer which allows the employer to limit the employees' rights of free speech and press. Mr. Justice Douglas wrote in Terminello v. City of Chicago , 337 U.S. 1, 4 (1949), that, "Accordingly a function of free speech under our system of govemment is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."
It cannot be said that by entering into the Collective Bargaining Agreement, the Union waives its members' constitutional rights of freedom of speech, press and association. The waiver of such constitutional rights must be clear, positive, and unequivocal. See, Funentes v. Shevin , 407 U.S. 67 (1972), Brookhart v. Janis , 384 U.S. 1 (1966). See
also Pickering , supra, and Keyishian , supra. The Collective Bargaining Agreement provisions set out above are not such a clear, positive, and unequivocal waiver of the individual employees' fundamental constitutional rights.
The policy of the City of Omaha as expressed in the meetings following the October 1978 publication, the meeting on February 15, 1979, in the Mayor's office, the letter dated February 16, 1979, and the testimony at the trial, is more restrictive in some respects than the foregoing constitutional decisions. To the extent that the policy does restrict the employees' constitutional rights more than allowable under the holdings in Pickering and the subsequent decisions, it is invalid. The claim of the Union is
correct that the policy is over broad in scope and improperly limits constitutional rights of speech, press and association by Parks, Recreation and Public Property Department employees.
8. Commission Authority to Resolve Industrial Dispute by Issuance of a Cease and Desist Order.
The Plaintiff seeks an injunction against the City's limitation of the free speech, press and association rights of the Union and the employees it represents. This claim pertains to future enforcement of the City policy as distinguished from its prior application to James Armstrong. For the reasons discussed
above, James Armstrong's voluntary quit on March 30, 1979, ended that individual controversy insofar as this Commission is concerned. The Plaintiff seeks relief against the future application of what the Commission has determined above is an unconstitutional limitation of employees' free speech, press, and association. The policy the Plaintiff seeks to restrain is that expressed in the meetings following the October 1978 publications, the meeting on February 15, 1979, the letter dated February 16, 1979, and the testimony at the trial. We determine that such relief is appropriate in this case and that it is necessary to provide adequate remedies herein to effectuate the public policy of the statutes and to resolve the industrial dispute.
Section 48-810 provides that "all industrial disputes . . . shall be settled by invoking the jurisdiction of the Commission of Industrial Relations. . . ." Section 48-823 states that "all grants of power, authority and jurisdiction" made to this Commission are to be liberally construed to carry out the statutes. The same section grants to this Commission "all incidental powers necessary to carry into effect the provisions of sections 48-810 to 48-823." Section 8 of LB 444 provides that "Whenever it is alleged that a party to an industrial dispute has engaged in an act which is in violation of any of the provisions of sections 48-801 to 48-838, or which interferes with, restrains, or coerces employees in the exercise of the rights provided in sections 48-801 to 48-838, the commission shall have the power and authority to make such findings and to enter such temporary or permanent orders as the commission may find necessary to provide adequate remedies to the injured party or parties, to effectuate the public policy enunciated in section 48-802, and to resolve the dispute."
This matter involves a "controversy conceming terms . . . or conditions of employment" within the definition of Section 48-801(7). The public employer has adopted unconstitutional terms and conditions of employment and threatens to enforce those terms and conditions of employment by discipline and discharge, if necessary. In addition, the evidence in this matter implicates the provisions of Section 48-837. Section 48-837 gives public employees a statutory right to form, join and participate in any employee organization of their own choosing. The Defendant has interfered with, restrained and coerced employees in the exercise of their rights under these statutes.
In Teamsters Public Employees Union Local No. 594 v. City of West Point , 338 F. Supp. 927, 930 (D. Neb. 1972), Judge Dier stated:
In addition, the Court would note that, if a dispute which falls within the jurisdiction of the Nebraska Court of Industrial Relations, involves a federal constitutional right, then either the Court of Industrial Relations must be deemed to have been granted sufficient power to as fully vindicate, preserve and protect said right as is possessed by a federal district court or a state court of general jurisdiction, or the statutory scheme creating the Court of Industrial Relations would be subject to immediate constitutional attack on the grounds that it does not pass the scrutiny of the federal constitution. In other words, if a federal constitutional right can be litigated before a state administrative tribunal but not protected to the extent that the federal constitution demands, then the extent of the right has been effectively reduced, watered down, or perhaps even quashed. This Court would express great doubt that any state has the power to reduce the measure of a federal constitutional right by state legislation. See Gilliam v. City of Omaha , 331 F. Supp. 4 (D. Neb. 1971). See also Ker v. Califomia , 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed. 2d (1963).
Defendant argued that the recent Nebraska Supreme Court decision in University Police Officers Union v. University of Nebraska , 203 Neb. 4, 277 N.W. 2d 529 (1979), establishes that the Commission lacks jurisdiction to enter injunctive relief in this matter. That decision is distinguishable from the present case on several bases.
The 1979 Nebraska Legislature promptly responded to the University Police Officers decision by supplying statutory authority not present in that case. Section 8 of LB 444, effective May 21, 1979, having been enacted with the emergency clause, authorizes the entry of a cease and desist order now.
In addition, the University Police Officers decision found that no condition of employment was involved under the statutory definition of Section 48-801(7). ln this case, there is a clear condition of employment conceming employee speech and press rights. In University Police Officers , the Commission had sought to remedy "illegal practices" or "illegal acts" under the statutes of the type "known elsewhere in labor law as unfair labor practices." The Supreme Court held that the Commission has no authority to apply such prohibitions in the absence of specific authority. Here, the Commission is simply settling an industrial dispute as it is specifically directed to do under the provisions of Section 48-810. The Order is a final Order settling the dispute and not interim relief pending a final determination.
Moreover, the action taken by the Commission in University Police Officers was primarily to remedy what had been done to individual employees in the past. Having dismissed the claim as to the individual James Armstrong, the cease and desist order in this case will relate exclusively to the application of general terms or conditions of employment in the future.
Finally, Chief Justice Krivosha's University Police Officers opinion emphasizes the rights of management of public employers in Nebraska. Here, we find no "right" of a public employer, but constitutional "limitations" on the power of public employers imposed under both the Constitution of the United States and the Constitution of the State of Nebraska.
We hold, therefore, that where a public employer has imposed as a condition of employment provisions which infringe upon employee constitutional or statutory rights, this Commission has authority to order the public employer to cease and desist from
such actions. It is necessary and appropriate that the Commission do so in this case.
IT IS THEREFORE ORDERED THAT:
1. The prayer of the Petition is denied insofar as
the claim on behalf of the individual James Armstrong is involved;
2. The Defendant City of Omaha is directed to cease desist from enforcing the provisions of its policies pertaining to employee speech, press and association unless the employee has made false statements knowing them to be false or with a reck-
less disregard for their truth, which statements impede the proper performance of employment duties by the employee or materially interfere with the regular operations of the employer; and
3. The pretrial motions and pleadings of the Defendant, upon which the Commission reserved ruling, are denied and overruled.
Filed August 3, 1979.
NOTE: APPENDIX A omitted
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