7 CIR 83 (1983)


LODGE 11, and ROBERT H. M. |
Petitioners, |
and FRED WELSH, Mayor of Seward; |
Chief of Police of Seward; |
JOHN YELDEN, Commission Chairman; |
NANCY ROLL, Commission Member; |
Member, |
Respondents. |


For the Petitioners: Mr. Thomas C. Lansworth

Bauer, Galter & Geler

811 South 13th Street

Lincoln, Nebraska

For the Respondents: Mr. C. Kelley Baker

500 The Atrium

Lincoln, Nebraska

Before: Judges Davis, Kratz and Berkheimer.


Hearing was held in this matter upon Petitioners' Amended Petition and Respondents' Answer to Amended Petition. Petitioners in their Amended Petition allege that Petitioner Robert H. M. Chalmers is an employee of the Respondent City of Seward and president of Petitioner Fraternal Order of Police, Lodge 11; that on or about February 10, 1983, Chalmers was temporarily suspended from active duty with the Seward Police Department; that on or about the llth day of February, 1983, the Seward Civil Service Commission met and affirmed the temporary suspension of Chalmers; that on or about March 1, 1983, the Seward Civil Service Commission approved a resolution recommending the permanent termination of Chalmers' employment and that on or about March 1, 1983, the City Council of Seward, Nebraska met in regular session and received the report and recommendation of the Civil Service Commission, but no formal action was taken at that time by the City Council. The Petitioners further allege that the suspension of employment of Chalmers was motivated by a desire and constituted an attempt to discourage Chalmers and other employees of the Seward Police Department from joining and/or remaining members of Lodge 11 of the Fraternal Order of Police and exercising their rights under Neb. Rev. Stat. §48-816 and §48-837, and Article XV, Section 13 of the Constitution of the State of Nebraska. Petitioners pray for an order reinstating Chalmers to his previous position as police sergeant and for temporary relief pursuant to Neb. Rev. Stat. §48-811 and §48-819.01 pending a final order of this Commission and restraining and preventing Respondent City of Seward from taking any further adverse action against the Petitioner Chalmers or his employment status.

Respondents, in their Answer to the Amended Petition, deny any antiunion animus and assert the following defenses: 1) That the Amended Petition does not state a claim upon which relief may be granted; 2) that Petitioner Chalmers is a supervisor and, as such, his efforts to cloak himself with the protection of Section 48-811 is improper because the labor organization through which he claims protection is an organization of employees, not supervisors; and 3) that Section 48-819.01 is unconstitutional because its grant to the Commission of Industrial Relations is so broad as to be void for vagueness.

The Nebraska Supreme Court in Nebraska Department of Roads Employees Association v. Department of Roads, 189 Neb. 754, 205 N.W.2d 110 (1973) held that the Commission of Industrial Relations does not have subject matter jurisdiction with respect to a "uniquely personal" termination of employment for the reason that such a termination of employment does not constitute an industrial dispute within the meaning of Section 48-810. The Commission has recently applied this holding in AFSCME v. Adams County, 6 CIR 367 (1982), and IBEW v. City of Fairbury , 6 CIR 205 (1982).

However, the Supreme Court in the Department of Roads case, also held that violations of Section 48-837 and Article XV, Section 13, of the Nebraska Constitution do fall within the subject matter jurisdiction of the Commission of Industrial Relations. The Court in the Department of Roads opinion, speaking to the termination of employment of Richard Kiernan, an organizer and chairman of the local labor organization, by the Department of Roads, stated (189 Neb. at 761-763, 205 N.W.2d at 114-115):

"We again briefly review the pertinent evidence with relation to whether the determination of the Court of Industrial Relations is supported by evidence. The evidence does disclose something more than the simple discharge of an employee by his superior. Of course, it is true, that there is no allegation that Kiernan's performance prior to the time he became involved in union activities was anything less than superior. But, as the court below noted in its findings and order, and as the evidence we have reviewed clearly demonstrates, there developed a substantial and apparently irreconcilable personality conflict between Doyle and Kiernan. The court below said 'We do not analyze this evidence in detail nor reach a conclusion as to 'fault,' because interpreted most favorably to Mr. Kiernan it could only support further inference that Mr. Doyle's letter purporting to remove Mr. Kiernan from his employment was motivated by anti-Kiernan animus rather than by anti-labor organization animus. It is clear that Mr. Kiernan gave no indication that he was acting or speaking for the Association when he did any of the things Mr. Doyle found offensive.' (Emphasis supplied.)

"We agree. We hold, as did the court below, that the discharge of Richard Kiernan from his employment from the State of Nebraska, Department of Roads, constituted a uniquely personal termination of employment and not an industrial dispute. The plaintiffs simply fail adequately to show reasons for the discharge other than the direct insubordination and it clear personality conflict between Doyle and Kiernan. Accordingly, the Court of Industrial Relations was correct in finding that it lacked jurisdiction over the subject matter of this action under section 48-810, R.S.Supp., 1972.

"The same argument disposes of the plaintiffs' contention that Doyle's action in dismissing Kiernan violated rights guaranteed to Kiernan under Article XV, section 13, of the Constitution of the State of Nebraska, and section 48-837, R.S.Supp., 1972. The former provides: 'No person shall be denied employment because of membership in or affiliation with or resignation or expulsion from a labor organization * * *.' The latter provides: 'Public employees shall have the right to form, join and participate in* * * any employee organization of their own choosing.' The finding by the Court of Industrial Relations that no antiunion animus was shown to have prompted Kiernan's dismissal dictated a finding that Kiernan had not been denied rights under either of these provisions. The two findings rest on the same factual base, and were necessary to determine the jurisdictional issue."

In view of the holdings in the Department of Roads case, we must determine whether the action taken by the Respondents constituted a violation of Chalmers' rights under Section 48-837 and Article XV, Section 13, of the Constitution of the State of Nebraska or whether such action constituted a "uniquely personal" suspension of the employment of Chalmers.

The record reveals that Petitioner Chalmers began his employment with the Respondent City of Seward in its police department in August of 1976 as a Patrolman, that he was promoted in 1978 to Assistant Chief (Major), and served as Acting Chief after the resignation of Police Chief Hoge (the present Police Chief's predecessor). In April 1981, Respondent Kenneth Zike was sworn in as the Chief of Police and to this day remains in that position. In August of 1981, the new Police Chief changed Chalmers' title from Major to Sergeant, and accompanying the change in title was a change in job duties. Chalmers was second in command and reported directly to the Chief. The evidence clearly shows that Petitioner Chalmers was active in the organization of the Seward Law Enforcement Association in 1977, and all members of the police department except the Sheriff belonged to that association. When Chalmers was promoted to the position of Assistant Chief in the department in 1978, he resigned from that association since he was considered to be management and ineligible for membership. The Seward Law Enforcement Association became defunct sometime in 1978. The evidence also shows that in November of 1982 Petitioner Chalmers was active in the organization of Petitioner Fraternal Order of Police, Lodge 11, and became president of that organization. In the latter part of November 1982, Chalmers advised the Seward City Administrator, the Mayor-elect and the Chief of Police that a Union had been formed in the department. There is testimony indicating that the Chief became "upset" upon learning of the formation of the Union and indicated that "the city would never stand for it and just may contract law enforcement through the county." There is also testimony that the Chief advised Officer Agler that the city would do what was necessary to stop the Union, and further that the Chief advised Chief Dispatcher Walter that her position would be reclassified to Clerk Dispatcher and that "she would receive less of a raise if a union did go through, because supervisory personnel would not be allowed to be in the union or if they were their job title would have to be reclassified."

The testimony also discloses that Chalmers persistently ridiculed a dispatcher with a speech impediment by mimicking the dispatcher; that Chalmers delighted in telling jokes of a sexual nature and relating the theme of those jokes to the personal lives of the dispatchers; that he constantly ridiculed the memoranda prepared and circulated by the Chief of Police and wrote disparaging remarks on the memoranda; that he at times criticized the Sheriffs Department; and that on one occasion, after an orientation session regarding the Alko Sensor, Chalmers stated in the presence of subordinate officers that he did not intend to follow the County Attorney's or the Chief's directions regarding the use of that machine.

Testimony also discloses that on February 9,1982, the Chief learned that on January 21, 1983, Chalmers left his area of jurisdiction, climbed over or through a locked gate of a business establishment known as Twin Oaks Lumber Yard, entered the establishment, remained there for approximately one hour, and while there transacted personal business. While at that location, Chalmers reported to the dispatcher that he was at the airport, which is within the jurisdiction of the Seward Police Department. The evidence also indicates that on at least one other occasion Chalmers, while on duty, left his area of jurisdiction. There was also testimony that on February 9, 1983, Sergeant Chapp and Chief Dispatcher Walter approached the Chief and requested that he talk to Chalmers because Chalmers' conduct and attitude was "bringing down the morale of the department." The evidence does disclose that Petitioner Chalmers, prior to his suspension, has never been disciplined, including reprimands, and that he received two excellent evaluations by the Chief with no problem areas noted. Chalmers had, however, been counseled by the Chief at least six or seven times. The Chief testified that he did not note the problem areas on the evaluations because he was "trying to encourage Chalmers and get him working with him instead of against him."

The National Labor Relations Board in Wright Line, a Division of Wright's Line, Inc., 251 NLRB 1083,1089 (1980), following the reasoning of the Supreme Court of the United States in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), held:

"First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct."

In Wyman-Gordon Company v. National Labor Relations Board, 654

F.2d 134, 142 (1st Cir. 1981), the Court stated:

"As we have previously pointed out, this shift does not impose an overall burden upon the company to prove itself innocent of violating the statute. Rather, the company must come forward with evidence to the point where no longer does a preponderance of the evidence establish a violation."

We conclude from the evidence presented that the Respondentswere not completely neutral concerning Petitioner Chalmers' participation in the organization of and membership in the union and that Petitioners carried their burden of showing that antiunion animus was a motivating factor in Respondents' decision to suspend Chalmers. We also conclude, however, that the Respondents have met the burden of showing that they had good reasons, sufficient in themselves, to produce the suspension. The evidence clearly shows instances of misconduct, insubordination, dereliction of duty, and dishonesty on the part of Chalmers, all of which has had a disrupting effect on the Police Department of the City of Seward and constitutes a sufficient independent legal basis for Chalmer's suspension.

Since we have found that there has been no violation of Chalmers' rights under Article XV, Section 13, of the Constitution of the State of Nebraska, or under Section 48-837, it is unnecessary to consider the other defenses raised by the Respondents in their Amended Answer.

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

All Judges assigned to the panel in this case join in the entry of this Opinion and Order.

Filed May 20, 1983