|AMERICAN FEDERATION OF|||||CASE NO. 507|
|STATE, COUNTY AND||||
|v.|||||OPINION AND ORDER|
|DAKOTA COUNTY, NEBRASKA||||
|CHARLES RUSH, PAUL||||
|CULBERTSON, LEO ENGEL,||||
|ROBERT GARVEY, County||||
|Commissioners of Dakota||||
|County, Nebraska, and||||
|BETTY BARNES, County Assessor||||
|of Dakota County, Nebraska,||||
For Petitioner: Mr. Brad Ashford
For Respondents: Mr. Bruce Smith
Before: Judges Kratz, Berkheimer and Davis
This case was heard on the amended petition of Petitioner and answers of the several Respondents to the amended petition.
The essential allegations of the amended petition are that on February 4,1983, Respondent Betty Barnes, Dakota County Assessor, terminated the employment of Nellie June Beardshear, Lillian Rager, and Jeanette Ramirez who had been employed in the Dakota County Assessor's office with the termination of Ms. Ramirez and Ms. Beardshear being effective on February 7, and with the termination of Ms. Rager being effective on February 8, 1983. Petitioner alleges that such terminations were in retaliation for the terminated employees' union activity and the filing by said employees of grievances against Respondent Betty Barnes and that the failure of the Dakota County Board of Commissioners to act upon the request of Petitioner to hear the question of terminations denies Petitioner and the employees' represented by Petitioner the right to participate in an employee organization and bargain collectively with the public employer. Petitioner prayed for an order reinstating the terminated employees with back pay and such further relief as the Commission may deem proper.
Respondents raised jurisdictional issues, denied the allegations that the termination were in retaliation for union activity or for filing grievances, and all Respondents except Ms. Barnes denied being an employer of the terminated employees.
Respondent introduced a collective bargaining agreement. This agreement with Petitioner was signed on August 30, 1982, on behalf of the County Board and by the various County officers including the then County Assessor. The collective bargaining agreement has language relating to "discharge," "lay-off," "grievance procedure" and "subcontracting." Respondent also produced a copy of a petition filed in the District Court of Dakota County, Nebraska February 28, 1983, by the above-named terminated employees as plaintiffs against Dakota County, Nebraska and the same individuals named as Respondents in this proceeding. The District Court action which was filed following the commencement of this proceeding was pending at the time of the hearing herein.
In the District Court petition, the employees alleged that the terminations and the failure of the Dakota County Board to act thereon violated the collective bargaining agreement above referred to, denied the plaintiffs due process of law and constituted a violation of Article XIV, Section 13 of the Constitution of the State of Nebraska which prohibits denial of employment because of membership in a labor organization or refusal to join a labor organization. In that petition plaintiffs prayed for their own reinstatement with back pay.
Respondents' primary objections to the Commission's jurisdiction are that exclusive jurisdiction over the dispute in question is in the District Court and that in any event the employees by filing a District Court action have made an election of remedies precluding Petitioner from seeking relief before the Commission. These issues were raised by Respondents in motions to dismiss which were denied and the issues were preserved in their answers.
In International Brotherhood of Electrical Workers, Local 1536 and Ronald Lobner v. City of Fairbury, 6 CIR 205 (1982), the Petitioner had alleged his suspension from duty was motivated by the desire to discourage the filing of grievances by employees and their joining and remaining members of the union. The Commission in that case noted that under Nebraska Department of Roads' Employees Association v. Department of Roads, 189 Neb. 754, 205 N.W.2d 110 (1973), the Commission lacks subject matter jurisdiction over purely personal disputes and that the Commission also lacks subject matter jurisdiction to adjudicate an alleged breach of collective bargaining agreement as determined by the Supreme Court in Transport Workers of America v. Transit Authority of the City of Omaha, 205 Neb. 26, 286 N.W.2d 102 (1979). The Commission in the Lobner case pointed to language in the Department of Roads 'decision wherein the Supreme Court rested its affirmance of the Commission's dismissal for lack of jurisdiction on the Commission's finding that no "antiunion animus" bad prompted the dismissal of the employee in that case. The Commission in the Lobner case concluded that the allegation of "antiunion animus" required a hearing on the merits.
In Midplains Education Association v. Midplains Nebraska Technical Community College, 189 Neb. 37, 40, 199 N.W.2d 747, 749, (1972) the Supreme Court said the Commission's decision in that case had correctly and succinctly stated the law to be "an employer's action or nonaction which results in cessation of an employee's employment is unlawful if the employer's motive in so doing is to discourage union membership or activity, or in reprisal or retaliation for the latter activities." The Petitioner's allegation here that the termination was in retaliation for union activities and for the filing of grievances alleges a dispute within the jurisdiction of the Commission.
With regard to the now pending District Court proceeding, it is significant that although the petitioning union in this case and the terminated employees in the District Court case are seeking similar remedies, the rights involved in the two proceedings are separate and distinct. In the District Court case the employees are seeking to enforce alleged individual contractual and constitutional rights. In this proceeding the union is seeking to protect organizational rights granted by Chapter 48, Article 8 of the Revised Statutes, more specifically §48-837 which the Commission has jurisdiction to protect. It alleges facts which if true violate those rights. If, as the petition alleges, the employment terminations occurred in retaliation for union activity, it is not only the rights of the individuals which are affected. The organizational rights of all employees in the bargaining unit are affected by a discharge in retaliation for union activity. It is well settled that a union is a proper party to seek protection of the organizational rights of the employees it represents in a proceeding before this Commission. See Mid-Plains Education Association v. Mid-Plains Tech. Community College, 189 Neb. 637, 38-39, 199 N.W.2d 747, 748-749 (1972). Therefore, while the prayers in the District Court and here may be the same, the parties and rights involved and the reasons for any remedies ordered would be different. The plaintiffs in the District Court case are not seeking a vindication of the organizational rights of their fellow employees, and their seeking individual redress from the District Court should not in this case bar Petitioner from protecting such rights. By filing their case in the District Court the terminated employees did not waive Petitioner's right to protect the rights of the bargaining unit employees it represents. The Commission concludes that the pendency of the District Court action does not affect the Commission's jurisdiction or authority in this case.
PETITIONER'S EVIDENCE ON TERMINATION MOTIVATION
The Commission finds the following facts on the evidence presented
in the Petitioner's case in chief.
Betty Barnes was elected Dakota County Assessor in November 1982 and became County Assessor on January 6, 1983. Nellie June Beardshear, Lillian Rager and Jeanette Ramirez were employed as appraisers in the Assessor's office when Ms. Barnes took office, and had been so employed for several years. These three employees were terminated by Ms. Barnes on February 4, 1983, effective as to Ms. Beardshear and Ramirez on February 7, 1983, and as to Ms. Rager on February 8, 1983. All three of these employees were officers of the union representing Dakota County employees. Ms. Barnes was aware that at least one of the three of these employees held an office in the union. Ms. Barnes was also aware that three clerks in the Assessor's office who were retained in employment had "dropped out" of the union.
Contemporaneously with the terminations Ms. Barnes retained an independent contractor to perform the work formerly performed by the terminated employees.
On January 27, 1983, the three terminated employees caused a written grievance to be presented to Ms. Barnes. The grievance was signed by the three employees and was presented to Ms. Barnes by the President of the local union and was intended to initiate the grievance procedure under the collective bargaining agreement referred to earlier in this opinion.
This grievance complained of changes in working conditions instituted by Ms. Barnes allegedly in violation of the collective bargaining agreement. The former County Assessor, Joy Nixon, had on several occasions over the years asked the County Board of Commissioners to authorize purchase of an automobile for use by the appraisers in the County Assessor's office, but such authorization was never forthcoming. Several years prior to Ms. Nixon leaving office she had herself purchased a used automobile which she made available to the appraisers. This automobile was Ms. Nixon's property and was no longer available after Ms. Barnes took office. Ms. Barnes required the appraisers to furnish their own automobiles. Under Ms. Nixon's supervision the appraisers had done their field work in pairs, and Ms. Barnes had begun to require that the appraisers do this field work by themselves. These changes were the subject matter of the grievances.
During the week prior to February 7, two of the three employees filing grievances had sought a hearing before the County Board on the automobile question and had received some indication that they would be placed on the agenda for the February 7 board meeting, but this was apparently not done, and when they sought to appear the Commission refused to hear them. After the filing of the grievance and prior to February 4 two of the three employees who were later terminated told Ms. Barnes that they had filed a grievance because they considered the union contract to have been violated but that they would use their own vehicles rather than lose their jobs.
Ms. Barnes had not prior to the terminations expressed specific dissatisfaction with the work of the terminated employees and at the time of termination no reason therefore was given to any of them. However, according to the testimony of one of the employees there was a communication problem between Ms. Barnes and these employees.
Recent past decisions of the Commission indicate a reluctance on the part of the Dakota County government to recognize employees' organizational rights.
Nebraska State Council of Local Unions No. 32, AFSCME v.
Dakota County,Case No. 386, the Plaintiff Union in its Petition, filed September 15, 1980, requested an Order of the Commission requiring Dakota County to bargain in good faith for the reason that the county had refused to bargain in good faith notwithstanding a certification order. The Defendant County in its Answer asserted a number of defenses as grounds to dismiss Plaintiff's Petition and in its Cross Petition requested an Order requiring Plaintiff to bargain on those issues found by the Commission to be subject to collective bargaining. The Commission in an Order entered October 28, 1980, directed the parties to resume bargaining in good faith. The Defendant County appealed this Order to the Nebraska Supreme Court, which it dismissed on December 28, 1981.
Nebraska State Council of Local Unions No. 32, AFSCME v.
Dakota County,5 CIR 214 (1981), [Case No. 410], the Commission found during the pendency of an appeal to the Nebraska Supreme Court of a Commission bargaining order, involving the parties, the Defendant County Board had approved pay increases for some of the employees represented by the Plaintiff Union. The Commission further found that the Dakota County Board or elected officials had not made any attempt to negotiate with the bargaining agent prior to instituting the pay increase. The Commission ordered the Dakota County Board to cease and desist from continuing its unilateral change in the wages of bargaining unit employees during the pendency of Case No. 386 and to rescind its previous actions taken in that regard. The Defendant County appealed this Order to the Nebraska Supreme Court, which it dismissed on December 28, 1981.
The Commission finds that the above facts, together with the inferences which properly may be drawn from the timing of the discharges and the union animus of the Dakota County government indicated by the prior cases decided by the Commission, to be a prima facie showing that the terminations were motivated, at least in part, because of the employees' union activity or their presentment of grievances or both.
The rational of Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (977) which dealt with constitutional issues involved with public employee terminations and of NLRB v. Wright Line, Inc. 662 F.2d 899 (1st Cir. 1981) which dealt with a termination under the National Labor Relations Act, is that the establishment of a prima facie case of an unlawful termination motive shifts the burden of going forward to the Respondent, to show that the employees would have been discharged absent participation in the protective activity or conduct, but the ultimate burden of proving the terminations unlawful remains with Petitioner.
The Petitioner alleged that the "failure of the County Board to act upon the request of Petitioner to hear the questions of termination constituted an unfair labor practice and is a violation of §48-837 R.R.S. 1943, in that it denies Petitioner and employees represented by the Petitioner the right to participate in an employee organization and bargain collectively with the public employer."
Section 48-801 et seq. do not establish "unfair labor practices" as such; however, pursuant to §48-819.01 the Commission has authority to enter remedial orders for an act which violates §§48-801 to 48-838 or which interferes with, restrains or coerces employees in the exercise of their rights provided in those sections. The Board of Commissioner's acts in allegedly failing to hear the termination questions will be examined by the Commission under §§48-837 and 48-819.01.
As noted above during the week preceding the effective dates of termination and prior to the three appraisers receiving notices of termination, two of the three terminated employees requested the clerk that they be placed on the agenda at the February 7, 1983 board meeting. The Dakota County Clerk testified that under the County Board procedures the agenda for each board meeting was made up prior to the end of the week preceding the board meeting and that requests to appear before the board must reach him prior to its completion of the agenda. The purpose of these employees' requests to appear was to take up with the County Board the issue of the County Board furnishing an automobile for the appraisers' use. This was related to the subject matter of one of the grievances previously filed; however, the employees' request to appear before the Board was not made as a part of the grievance process. Petitioner's local president testified under the grievance procedure in the collective bargaining agreement above referred to, the first step was presentation of a grievance to the department head, in this case Betty Barnes, and the Petitioner could "refile" it with the Commission if no word was received from the department head after ten days. The grievances filed with Ms. Barnes were never taken to the County Board by Petitioner or the terminated employees.
The Petitioner's local president and certain of the terminated employees did seek to appear before the County Board on February 7 ostensibly to learn the reasons for the terminations. However, if the employees or Petitioner were on the agenda for the February 7meeting it was not for a purpose relating to the terminations. The record does not indicate that grievances were filed regarding the terminations, and it does not appear that Petitioner was seeking to appear before the County Board under either the Board's established procedures for being placed on the agenda or under any contractual grievance procedure.
Under these circumstances the Board had nothing before it officially regarding the terminations and the Board's failure to hear Petitioner's president or the terminated employees at their last minute informal request on February 7 was not a violation of the rights of the Petitioner or of the employees represented by Petitioner under §48-837. Therefore failure of the County Board to act was not subject to remedy under §48-819.01 Nevertheless, the issue of the identity of the "employer" is an issue in this case and the County and its Board were not dismissed from the proceeding pending resolution of this issue if resolution of the issue became necessary.
Respondent's evidence showed that in January 1983, the Dakota County Assessor's office was behind in its work as mandated by the State Tax Commissioner pursuant to §77-1330, R.R.S. 1943, as that section was amended in 1979. In February 1982, the Nebraska Department of Revenue, pursuant to that section, conducted a proceeding in which the Department ultimately found that the Dakota County Assessor's Office had not yet assessed property as required, and the Department therefore ordered formulation of a plan for completion of the work and monthly progress reporting. By January 1, 1982, Dakota County was one of only approximately ten or eleven counties in Nebraska which had not completed the required assessment. In January 1983 a representative of the Department of Revenue met with the Dakota County Board of Commissioners with respect to this problem.
Ms. Barnes, in her election campaign had publicly stated she "was going to reorganize the office and have people in there that I wanted that I felt would work for me." On taking office on January 6, 1983 Ms. Barnes terminated the Deputy County Assessor and intended to terminate the later terminated three appraisers but was temporarily dissuaded from doing so. Ms. Barnes testified that she terminated the appraisers because she was under pressure and that it looked to her like she (Ms. Barnes) wasn't going to get her work done. Ms. Barnes testified that she would have terminated the employees sooner if an employee of the Nebraska Department of Revenue working in the Dakota County Assessor's office had not told her that if she did terminate them she might have a problem getting the work done, so she thought she would try it, but when she received charts on their work it did not appear that the office was progressing as well as it should. In the Revenue Department proceeding in February 1983 the former assessor was asked whether in the event the county had not considered or executed a contract with an independent appraiser or appraisal firm was there sufficient staff in the assessor's office to complete the work. The former assessor's answer was "no.
Given the work situation at the time of terminations being that the office's appraisal staff for whatever reason had not become current with its work and that the office was under great pressure to do so, it is not surprising that Ms. Barnes decided on using an independent contractor rather than the old system which had not been working satisfactorily and was not then working satisfactorily. Ms. Barnes also testified she did not feel comfortable with the terminated employees because she felt inferior to them, that she seemed to get the impression that they knew more than she, and that she felt they weren't working for her and were still back in "the case" where they worked for the former assessor. Ms. Barnes testified that if she was told by the employees of their capacities with the union she had not retained the knowledge, that she did not know about grievance procedure in the union contract and although the former assessor had given her a copy of the contract she did not read it. She said she did not know what to do with the grievances and didn't inquire because an hour after Ms. Barnes got the grievance, Ms. Beardshear told Ms. Barnes that Ms. Beardshear would use her own car if necessary to keep her job.
A few days before the terminations, Ms. Barnes told the County Attorney she was going to terminate the appraisers but did not consult him about the grievances. Whatever Ms. Barnes was told by the County Attorney in response to her statement to him that she was going to terminate the appraisers, the Commission will not infer that the reason for the terminations were changed to become retaliatory for union activity or for the filing of the grievance. An indication of union animus by the government of Dakota County exists in the files of the Commission. However, the fact that Ms. Barnes became County Assessor on January 6, 1983 and her unawareness of the union's role are sufficient to rebut any inference that prior union animus on the part of the County government is ascribable to her. Ms. Barnes testified that she did not terminate the employees either because of their union membership or because they filed a grievance.
The Commission finds upon Respondent's evidence that the terminations occurred either because of Ms. Barnes' understandable decision to change the system by using an independent contractor or because of her personal discomfort with the terminated employees and that such evidence is sufficient to rebut any inferences arising from the timing of the terminations in relation to the filing of the grievances. The Commission finds under all of the evidence that Petitioner has not met its burden in proving that the terminations were unlawful under §48-837.
All Respondents except Ms. Barnes denied being an employer of the terminated employees. In view of the Commission's findings, a determination of employer status is not necessary in this case.
IT IS THEREFORE ORDERED that the Petition be and hereby is dismissed.
All Judges assigned to the panel join in this Opinion and Order.
Filed June 6, 1983