V.
257
Filed
June 4, 1999, No. S-98-427
1. Commission of Industrial Relations: Appeal
and Error. Any order or decision of the Commission of Industrial Relations may
be modified, reversed, or set aside by an appellate court on one or more of the
following grounds and no other: if the commission acts without or in excess of
its powers; if the order was procured by fraud or is contrary to law; if the
facts found by the commission do not support the order; and if the order is not
supported by a preponderance of the competent evidence on the record considered
as a whole.
2. Commission of Industrial Relations:
Supreme Court: Evidence: Appeal and Error. In an appeal from a Commission of
Industrial Relations order regarding prohibited practices stated in Neb.
Rev. Stat. § 48-824 (Reissue
1998), the Nebraska Supreme Court will affirm a factual finding of the
commission if, considering the whole record, a trier of fact could reasonably
conclude that the finding is supported by a preponderance of the competent
evidence. The Supreme Court will consider the fact that the commission, sitting
as the trier of fact, saw and heard the witnesses and observed their demeanor
while testifying and will give weight to the commission's judgment as to
credibility.
3. Administrative Law: Due Process: Waiver:
Appeal and Error. Procedural due process defenses should not be waived if timely
raised in the first judicial tribunal to review an administrative action.
4. Constitutional Law: Administrative Law:
Supreme Court: Appeal and Error. It is the practice of the Nebraska Supreme
Court to consider constitutional questions in reviewing the orders of
administrative agencies when those questions are raised in the Supreme Court on
direct review.
5. Commission of Industrial Relations:
Constitutional Law. The Commission of Industrial Relations has no authority to
vindicate constitutional rights.
6. Employer and Employee: Due Process. A
discharged employee's claim that an employer denied him or her due process
depends on the discharged employee's having had a property right in continued
employment.
7. Constitutional Law: Employer and Employee:
Claims. The existence of a legitimate claim of entitlement to a property
interest in continued employment is to be determined in accordance with state
law.
8. Termination of Employment: Public Officers
and Employees. When employment is not for a definite term and there are no
contractual or statutory restrictions upon the right of discharge, an employer
may lawfully discharge an employee whenever and for whatever cause it chooses
without incurring liability. This maxim applies equally to public employees.
9. Employer and Employee. If no evidence is
submitted indicating the employment relationship status, a court will find that
the relationship was at will.
10. Pleadings. Proper pleading requires a
petition to state in logical and legal form the facts which constitute the cause
of action, define the issues to which the defendant must respond at trial, and
inform the court of the real matter in dispute.
11. Trial: Pleadings: Appeal and Error. An
issue not presented to or passed on by the trial court is not appropriate for
consideration on appeal. The Nebraska Supreme Court is obligated to dispose of
cases on the basis of the theory presented by the pleadings on which the case
was tried.
12. Labor and Labor Relations: Statutes.
Decisions under the National Labor Relations Board are helpful where there are
similar provisions under the
13. Labor and Labor Relations:
Discrimination: Intent. A violation of Neb.
Rev. Stat. § 48-824(2)(c) (Reissue 1998), similarly to a violation of §
8(a)(3) of the National Labor Relations Act (29 U.S.C. § 158(a)(3) (1994)),
normally turns on whether the discriminatory conduct was motivated by an
antiunion purpose.
14. ___: ___: ___. A violation of Neb.
Rev. Stat. § 48-824(2)(c) (Reissue 1998), similarly to a violation of §
8(a)(3) of the National Labor Relations Act (29 U.S.C. § 158(a)(3) (1994)), can
be found where an employer acted out of antiunion bias, whether or not the
employer may have had some other lawful motive.
15. Labor and Labor Relations:
Discrimination: Intent: Proof. The party asserting a Neb. Rev. Stat.
§ 48-824(2)(c) (Reissue 1998) violation has the burden to make a prima facie
showing sufficient to support the inference that protected conduct was a
motivating factor in the employer's decision.
16. Labor and Labor Relations:
Discrimination: Proof. The elements commonly required to make a prima facie case
of a Neb. Rev. Stat. §
48-824(2)(c) (Reissue 1998) violation are (1) union activity, (2) employer
knowledge of that activity, (3) timing between the employees' union activity and
the employer's discriminatory conduct, and (4) employer hostility or animus
toward employees' union activity.
17. ___: ___: ___. The inference that
protected conduct was a motivating factor in a violation of Neb.
Rev. Stat. § 48-824(2)(c) (Reissue 1998) must be shown by a
preponderance of the evidence, and the party asserting the violation carries
this burden throughout the proceedings.
18. ___: ___: ___. Regarding an asserted
violation of Neb. Rev. Stat. §
48-824(2)(c) (Reissue 1998), upon a prima facie showing, the defendant employer
may attempt to directly rebut the evidence supporting the prima facie case. If
the employer elects not to do so or fails in the attempt to do so, the burden of
proof shifts to the employer to demonstrate that the same action would have
taken place even in the absence of the protected union activity. Proof that the
discharge would have occurred in any event and for valid reasons amounts to an
affirmative defense on which the employer carries the burden of proof by a
preponderance of the evidence.
19. ___: ___: ___. A party asserting a Neb.
Rev. Stat. § 48-824(2)(c) (Reissue 1998) violation must show that the
particular supervisor responsible for the discriminatory action knew about the
employee's union activities. While circumstantial evidence may be relied upon to
infer that the knowledge of one supervisor has been communicated to another
supervisor, knowledge of a lower-level supervisor may not simply be imputed to
the decisionmaking supervisor.
20. Principal and Agent: Presumptions. It is
the duty of an agent to communicate to his or her principal all the facts
concerning the service in which the agent is engaged that come to the agent's
knowledge in the course of his or her employment, and this duty, in a subsequent
action between the principal and a third person, the agent is conclusively
presumed to have performed. However, if knowledge, as distinguished from reason
to know, is the important element in a transaction, and the agent who has the
knowledge is not one acting for the principal in the transaction, the principal
is not affected by the fact that the agent has the knowledge.
21. Labor and Labor Relations:
Discrimination: Intent. A discharge cannot stem from an improper motivation
where an employer is ignorant of an employee's union activity.
22. Labor and Labor Relations:
Discrimination: Proof. Under the "animus" element of the prima facie
case for a Neb. Rev. Stat. §
48-824(2)(c) (Reissue 1998) violation, the party asserting the violation has the
burden to produce evidence of union hostility. The evidence indicating hostility
may arise from events not directly related to the discriminatory actions at
issue and may arise from events far predating the action at issue, but the
evidence must nonetheless reasonably infer a causal connection between antiunion
animus and the discriminatory act.
23. ___: ___: ___. Statements of antiunion
bias may be considered with the qualification that the expressing of any view,
argument, or opinion, or the dissemination thereof, whether in written, printed,
graphic, or visual form, is not evidence of any unfair labor practice under any
of the provisions of the Industrial Relations Act if such expression contains no
threat of reprisal or force or promise of benefit.
24. ___: ___: ___. Under certain
circumstances, antiunion animus will be inferred in the absence of direct
evidence in determining elements of a prima facie case under Neb.
Rev. Stat. § 48-824(2)(c) (Reissue 1998).
25. Labor and Labor Relations. An employer is
free to communicate to his or her employees any of the employer's general views
about unionism and may even make a prediction as to the precise effects the
employer believes unionization will have on his or her company. In such a case,
however, the prediction must be carefully phrased on the basis of objective fact
to convey an employer's belief as to demonstrably probable consequences beyond
his or her control. If there is any implication that an employer may or may not
take action solely on his or her own initiative for reasons unrelated to
economic necessities and known only to the employer, the statement is no longer
a reasonable prediction based on available facts but a threat of retaliation
based on misrepresentation and coercion.
26. Labor and Labor Relations:
Discrimination. A violation of Neb. Rev.
Stat. § 48-824(2)(d) (Reissue 1998), similarly to a violation of §
8(a)(4) of the National Labor Relations Act (29 U.S.C. § 158(a)(4) (1994)),
turns on the motivation of the employer.
27. ___: ___. Neb. Rev. Stat. § 48-824(2)(d) (Reissue 1998), like §
48-824(2)(c), requires the court to distinguish an employer's pretextual and
retaliatory conduct from conduct motivated by legitimate business purposes.
Appeal from the
M.H. Weinberg, of Weinberg & Weinberg,
P.C., for appellant.
Max J. Kelch, Otoe County Attorney, for
appellee.
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD,
STEPHAN, MCCORMACK, and MILLER-LERMAN, JJ.
CONNOLLY, J.
Appellant,
Nebraska Public Employees Local Union 251 affiliated with the American
Federation of State, County, and Municipal Employees (
I.
ASSIGNMENTS OF ERROR
The Union
assigns, reorganized, that the CIR erred (1) in failing to find that the County
violated the discharged employees' constitutional due process rights as
described in Cleveland Board of Education v. Loudermill, 470 U.S. 532,
105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985); (2) in "failing to find that a
unilateral change in the terms and conditions of employment contained in the
collective bargaining agreement" was a prohibited practice under §
48-824(2)(a); (3) in failing to find that the county commissioners had actual
knowledge of protected union activities; (4) in finding that the law required
that the county commissioners have actual knowledge of protected union
activities before there can be an unfair labor practice; (5) in holding that the
organizing activities of the discharged employees were too far removed in time
to provide evidence of protected union activities; and (6) considering the
appropriate analysis regarding timing and the county commissioner's knowledge of
union activity, in failing to find that the preponderance of competent evidence
supports a finding that the County acted in violation of § 48-824(2)(c) and
(d).
II.
BACKGROUND
1.
UNION ORGANIZATION AND COLLECTIVE BARGAINING AGREEMENT NEGOTIATIONS
In December
1994, after the road department employees voted for union representation, the
CIR certified the
On April 21,
1995, the
On March 12,
1996, the CIR issued an order disposing of the
While the
second wage and benefit petition was pending before the CIR, the County and the
A CBA was
signed and executed on April 4, 1996. Stoll stated that on that day, he told
Union representatives that the County intended to lay off four people. The CIR
concluded that Stoll specifically meant four bargaining unit employees. The CBA
provided that the County had "[t]he right at any time to . . . terminate
jobs" and "the right to lay off at any time."
Bargaining
unit members Terry Helms, Rex Bassinger, and Ervin Meyer (the discharged
employees) were subsequently terminated from employment on April 19, June 14,
and June 14, 1996, respectively. The County sent each a letter providing 15
days' notice and stating that the layoff was due to "budget
constraints." No other County employee, bargaining unit or otherwise, was
involuntarily terminated from employment.
2.
DISCHARGED EMPLOYEES' UNION ACTIVITIES
Cox testified
that Meyer and Helms were the individuals who initially contacted the union and
set up organizational meetings. Meyer served as a Union steward during its
organization through April 1995. The discharged employees all obtained union
authorization cards, by which employees gave their approval to hold a
representation election. All attended at least two of the first three Union
meetings. All spoke in favor of union representation at the second and third
Union meetings, and although Bassinger and Meyer attended the first meeting, the
record is silent as to whether they voiced support at that meeting.
3.
PROCEEDINGS BEFORE CIR
In its
petition, the
Otoe County
Highway Superintendent Robert D. Fleming and the foremen conducted performance
evaluations of all the road department employees in March 1996 and presented
those evaluations, ranked by score, to the county commissioners. The County did
not reveal these evaluations to the discharged employees. A road department
personnel policy supplement, executed in 1993, provided for employee review of
and comment on individual evaluations. The discharged employees' evaluation
scores were at the low end of the ranking.
The county
commissioners each recommended one employee to be laid off, citing various
factors such as job evaluations, lack of skills, and complaints from taxpayers.
The CIR
concluded that Fleming and the foremen did not participate in the layoff
process. The record reflects that Fleming and the foremen performed the March
1996 evaluations and that Fleming tabulated the results for the county
commissioners. Fleming and a foreman testified that they did not recommend any
individual be discharged. Richard W. Kuenning, a road department foreman,
testified that he did not recommend Meyer's termination from employment,
although Kuenning later testified that after the evaluation list was submitted,
he recommended Meyer and two other employees (not involved in this appeal) be
terminated from employment.
4.
COUNTY'S KNOWLEDGE OF UNION ACTIVITIES
The CIR
determined that the County's foremen Walter Pohlman and Kuenning knew that the
discharged employees supported the union organizing effort. It determined,
however, that there was no evidence that Pohlman or Kuenning relayed this
knowledge to either Fleming or the county commissioners. The CIR also determined
that none of the foremen knew or presumed that the discharged employees were the
principal organizers of the
Both Pohlman
and Kuenning testified that they did not communicate their knowledge of the
discharged employees' union activity to Fleming or any of the county
commissioners. The county commissioners testified that they did not speak with
any of the foremen regarding the discharged employees' union activity. They all
denied having knowledge of the discharged employees' union activity and stated
that the discharged employees' union activity thus played no part in the county
commissioners' decision to lay them off.
The CIR
determined that the county commissioners knew Meyer had held the Union steward
position.
5.
COUNTY BUDGET EVIDENCE
To support its
contention that budgetary considerations were not a valid reason for the
employment terminations, the
The CIR
determined that the County's layoffs of the discharged employees did not violate
§ 48-824(2)(a), as the layoffs "were consistent with the position
maintained by
III.
SCOPE OF REVIEW
[1] Our scope
of review of CIR orders relating to § 48-824 violations is specifically set
forth in Neb. Rev. Stat. §
48-825(4) (Reissue 1998), which states:
Any order or decision of
the commission may be modified, reversed, or set aside by the appellate court on
one or more of the following grounds and no other:
(a) If the commission acts without or in excess of its powers;
(b) If the order was procured by fraud or is contrary to law;
(c) If the facts found by the commission do not support the order; and
(d) If the order is not supported by a preponderance of the competent evidence
on the record considered as a whole.
We have never been called upon to interpret
§ 48-825. We have dealt with the language set forth in clauses (a) through (c)
in other contexts. However, we have never interpreted language similar to that
found in clause (d).
[2] We
conclude that in an appeal from a CIR order regarding § 48-824 prohibited
practices, concerning a factual finding, we will affirm that finding if,
considering the whole record, a trier of fact could reasonably conclude that the
finding is supported by a preponderance of the competent evidence. This court
will consider the fact that the CIR, sitting as the trier of fact, saw and heard
the witnesses and observed their demeanor while testifying and will give weight
to the CIR's judgment as to credibility. See Universal Camera Corp. v. Labor
Bd., 340
IV.
ANALYSIS
1.
DUE PROCESS VIOLATION; LOUDERMILL
The Union
asserts that pursuant to Cleveland Board of Education v. Loudermill, 470
The County
argues that the Loudermill claim is not properly before this court
because the
[3,4] In Ashby,
we stated that "procedural due process defenses should not be waived if
timely raised in the first judicial tribunal to review the administrative
action." Id. at 993, 492 N.W.2d at 853. Furthermore, we recognize
that we have considered constitutional issues that were not raised until the
appeal reached a court, with this court being the first forum. See id. We
have stated that it is the practice of this court to consider constitutional
questions in reviewing the orders of administrative agencies when those
questions are raised in this court on direct review. In re Appropriations
D-887 and A-768, 240 Neb. 337, 482 N.W.2d 11 (1992); Metropolitan
Utilities Dist. v. Merritt Beach Co., 179 Neb. 783, 140 N.W.2d 626 (1966).
In effect, the constitutional issue in Ashby is similar to one that the
Union presents here. In Ashby, the discharged employee asserted that his
employer violated his federal constitutional due process rights when his
employment was terminated. Thus, we reach the Loudermill claim.
[5] To be
clear, the CIR's order is properly silent on the Loudermill issue. The
CIR "has no authority to vindicate constitutional rights." Wood v.
Tesch, 222 Neb. 654, 659, 386 N.W.2d 436, 441 (1986), overruled on other
grounds, Landon v. Pettijohn, 231 Neb. 837, 438 N.W.2d 757 (1989). See Calabro
v. City of Omaha, 247 Neb. 955, 531 N.W.2d 541 (1995) (stating that Nebraska
Constitution, through separation of powers provisions, prohibited CIR from
declaring whether party acted in an unconstitutional manner). Therefore, the CIR
did not err in failing to determine the Loudermill issue.
[6,7] The
Union's claim that the County denied the discharged employees due process
"depends on [the discharged employees'] having had a property right in
continued employment." Cleveland Board of Education v. Loudermill,
470 U.S. 532, 538, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). Apparently, the
Union presumes in making the due process argument that the discharged employees
had a property interest that the federal Constitution protects. "It is
well-settled that a unilateral expectation of continued employment does not
create an entitlement that the due process clause protects." Simpkins v.
Sandwich Community Hosp., 854 F.2d 215, 218 (7th Cir. 1988). See Board of
Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972).
"The existence of a legitimate claim of entitlement to a property interest
in continued employment is to be determined in accordance with state law." Nicholson
v. Gant, 816 F.2d 591, 597 (11th Cir. 1987). See Loudermill, supra.
[8,9] "
'It is well established in Nebraska that when employment is not for a definite
term, and there are no contractual or statutory restrictions upon the right of
discharge, an employer may lawfully discharge an employee whenever and for
whatever cause it chooses without incurring liability.' " Blair v.
Physicians Mut. Ins. Co., 242 Neb. 652, 656, 496 N.W.2d 483, 486 (1993).
This maxim applies equally to public employees. Myers v. Nebraska Equal Opp.
Comm., 255 Neb. 156, 582 N.W.2d 362 (1998); Smith v. City of Omaha,
220 Neb. 217, 369 N.W.2d 67 (1985). If no evidence is submitted indicating the
employment relationship status, a court will find that the relationship was at
will. See Smith, supra. Finding no statute to the contrary, in order for
the Union to assert a due process violation, the employment contract (the CBA)
must provide for substantive restrictions upon the right of discharge. See Loudermill,
supra.
A review of
the CBA leads us to the conclusion that the employees had no protected interest
in continued employment. Article 3 of the CBA provides that the Union recognize
that the County has the following rights:
(g) The right at any time to determine, create, modify, and terminate jobs, job
vacancies, departments, job classifications, and job duties;
. . . .
(i) The right to discipline, suspend, and discharge employees, as set forth in
this contract;
(j) The right to lay off at any time.
The procedure
provided to terminate an employee's employment states, in article 16: "If
it becomes necessary to decrease staff or employees for any reason, including
financial reasons or for reduction of work, the Supervisor or the Otoe County
Commissioners may separate any employee, without prejudice, after 15 days
written notice." We conclude that the CBA did not provide the discharged
employees with a property interest in continued employment. Thus, the discharged
employees were not entitled to the due process procedures described in Loudermill,
supra, and the Union's assignment of error on this issue fails.
2.
SECTION 48-824(2)(a) VIOLATION
Section
48-824(2) states in part: "It is a prohibited practice for any employer or
the employer's negotiator to: (a) Interfere with, restrain, or coerce employees
in the exercise of rights granted by the Industrial Relations Act."
The CIR
determined that the County's layoffs of the discharged employees did not violate
§ 48-824(2)(a), as the layoffs "were consistent with the position
maintained by Otoe County during negotiations" and "do not appear to
be related to the union organizing effort." The Union does not appeal the
CIR's conclusion that the layoffs did not violate § 48-824(2)(a); rather, it
argues that the County's failure to provide the discharged employees an
opportunity to review their job evaluations prior to being discharged was a
violation of § 48-824(2)(a) because it was a unilateral change to the CBA. The
County argues that the method of its layoffs was not before the CIR,
because the method of the layoffs was not set forth as an alleged violation in
the Union's petition. The County contends that this court has no jurisdiction to
consider this argument. We read the County's argument as a question of whether
the Union has waived the issue. Although the CIR's order discussed the
evaluations, it did not address the contention that the failure to permit review
of the evaluations prior to the discharges was a violation of § 48-824(2)(a).
The petition
states in pertinent part:
That on or about June 14, 1996, the [County] laid off three (3) employees in the
bargaining unit represented by the [Union] who were known by the [County] to be
union organizers and adherents who were instrumental in organizing the employer
in order to:
(a) retaliate against said employees for the exercise of their rights under the
Nebraska Industrial Relations Act in violation of N.R.S. 48-824(2)(a) . . . .
The petition does not expressly allege the
failure to provide pretermination review of the evaluations as a § 48-824(2)(a)
violation. Rules of the Nebraska Commission of Industrial Relations 22(K) (rev.
1996) states: "The case will be tried upon the pleadings as formalized at
the time of the Pretrial Conference, and no further amendments will be allowed
except in cases of undue hardship, or in the furtherance of justice." No
petition other than the one quoted above is presented to us in the transcript.
[10,11] Proper
pleading requires a petition to state in logical and legal form the facts which
constitute the cause of action, define the issues to which the defendant must
respond at trial, and inform the court of the real matter in dispute. See McCurry
v. School Dist. of Valley, 242 Neb. 504, 496 N.W.2d 433 (1993). "An
issue not presented to or passed on by the trial court is not appropriate for
consideration on appeal." Ashland State Bank v. Elkhorn Racquetball,
Inc., 246 Neb. 411, 419, 520 N.W.2d 189, 194 (1994). "This court is
obligated to dispose of cases on the basis of the theory presented by the
pleadings on which the case was tried." Id.
While we
recognize that the Union did not know of the evaluations until after it filed
the petition in this case, an amended petition could have been filed presenting
the job evaluation issue as an alleged § 48-824(2)(a) violation. The Union's
pleadings did not present the issue of whether the failure to provide a
pretermination review of the job evaluations was a violation of § 48-824(2)(a),
and the CIR did not pass on that claim, as is evident by its order. Thus, we
decline to consider this assigned error.
3.
SECTION 48-824(2)(C) ANALYSIS
(a)
Prima Facie Case and Burden of Proof for § 48-824(2)(c) Violation
The Union's
remaining assignments of error all contest factual conclusions and legal
analysis that the CIR made in relation to the alleged § 48-824(2)(c) and (d)
violations. Because this court's review of § 48-824 violations is one of first
impression, we first determine and set forth the proper legal framework for
determining whether an employee has met his or her burden of proof and what
defenses the employer has to defeat the employee's claim.
[12] Section
48-824(2) states: "It is a prohibited practice for any employer or the
employer's negotiator to: . . .(c) Encourage or discourage membership in any
employee organization, committee, or association by discrimination in hiring,
tenure, or other terms or conditions of employment." As stated earlier, the
NLRA has provisions similar to those found in § 48-824(2). Section 8(a) of the
NLRA (29 U.S.C. § 158(a) (1994)) states in part: "It shall be an unfair
labor practice for an employer . . . (3) by discrimination in regard to hire or
tenure of employment or any term or condition of employment to encourage or
discourage membership in any labor organization . . . ." "[D]ecisions
under the NLRB [National Labor Relations Board] are helpful where there are
similar provisions under the Nebraska statutes." University Police
Officers Union v. University of Nebraska, 203 Neb. 4, 12, 277 N.W.2d 529,
535 (1979). We conclude that to the extent quoted, § 8(a)(3) of the NLRA is
similar to § 48-824(2)(c), and we look to federal decisions interpreting §
8(a)(3) for guidance.
[13,14]
"The statutory language 'discrimination . . . to . . . discourage' means
that the finding of a violation [of § 8(a)(3) of the NLRA] normally turns on
whether the discriminatory conduct was motivated by an antiunion purpose." NLRB
v. Great Dane Trailers, 388 U.S. 26, 33, 87 S. Ct. 1792, 18 L. Ed. 2d 1027
(1967). In American Ship Bldg. v. Labor Board, 380 U.S. 300, 311, 85 S.
Ct. 955, 13 L. Ed. 2d 855 (1965), the Supreme Court stated:
It has long been
established that a finding of violation under this section will normally turn on
the employer's motivation. . . . Thus when the employer discharges a union
leader who has broken shop rules, the problem posed is to determine whether the
employer has acted purely in disinterested defense of shop discipline or has
sought to damage employee organization.
(Citations omitted.) The NLRB and the federal
courts do not require an employee's union activity to be the sole motive for a
discharge in order for a violation of § 8(a)(3) to be found. To be sure, under
§ 8(a)(3), "if the employer fires an employee for having engaged in union
activities and has no other basis for the discharge, or if the reasons that he
proffers are pretextual, the employer commits an unfair labor practice." NLRB
v. Transportation Management Corp., 462 U.S. 393, 398, 103 S. Ct. 2469, 76
L. Ed. 2d 667 (1983). However, a violation can be found where the employer acted
out of antiunion bias, " 'whether or not the [employer] may have had some
other motive . . . and without regard to whether or not the [employer's]
asserted motive was lawful.' " 462 U.S. at 398, quoting Dow Chemical
Co., 13 N.L.R.B. 993 (1939).
This
interpretation of § 8(a)(3) permits a violation to be found where a "
'dual motive' " is involved, that is, where it has been shown that an
unlawful motive was involved, but the employer advances a legitimate reason for
the discharge and it is not shown that this reason is untrue. See N.L.R.B. v.
Thermon Heat Tracing Services, 143 F.3d 181, 186 (5th Cir. 1998); Wright
Line, 251 N.L.R.B. 1083 (1980), enforced 662 F.2d 899 (1st Cir.
1981).
[15,16] In Wright
Line, the NLRB set forth a "causation test"---the legal framework
and burdens of the parties---in analyzing a § 8(a)(3) assertion where dual
motives are allegedly involved. The Supreme Court approved this test in Transportation
Management Corp., supra, and the CIR concluded that Wright Line
provided the proper framework for its analysis of a § 48-824(2)(c) violation.
First, the party asserting the violation has the burden to "make a prima
facie showing sufficient to support the inference that protected conduct was
a 'motivating factor' in the employer's decision." Wright Line, 251
N.L.R.B. at 1089. The elements commonly required to make a prima facie case of
an § 8(a)(3) violation are (1) union activity, (2) employer knowledge of that
activity, (3) timing between the employees' union activity and the employer's
discriminatory conduct, and (4) employer hostility or animus toward employees'
union activity. Best Plumbing Supply, 310 N.L.R.B. 143 (1993).
[17,18] The
inference that protected conduct was a motivating factor must be shown by a
preponderance of the evidence, and the party asserting the violation carries
this burden "throughout the proceedings." Transportation Management
Corp., 462 U.S. at 401. See 29 U.S.C. § 160(c). Upon a prima facie showing,
the employer may attempt to directly rebut the evidence supporting the prima
facie case. If the employer elects not to do so or fails in the attempt to do
so, the burden of proof shifts to the employer to demonstrate that the same
action would have taken place even in the absence of the protected union
activity. Wright Line, supra; Transportation Management Corp., supra.
"It thus became clear, if it was not clear before, that proof that the
discharge would have occurred in any event and for valid reasons amounted to an
affirmative defense on which the employer carried the burden of proof by a
preponderance of the evidence." Transportation Management Corp., 462
U.S. at 400.
The NLRB now
applies the Wright Line test to all § 8(a)(3) cases regardless of
whether a case involves pretextual reasons or dual motivation. See, Frank
Black Mechanical Services, 271 N.L.R.B. 1302 (1984); Limestone Apparel
Corp., 255 N.L.R.B. 722 (1981), enforced 705 F.2d 799 (6th Cir.
1982). "[A] finding of pretext necessarily means that the reasons advanced
by the employer either did not exist or were not in fact relied upon, thereby
leaving intact the inference of wrongful motive established by the [party
asserting the violation]." Limestone Apparel Corp., 255 N.L.R.B. at
722.
We conclude
that Wright Line provides a satisfactory means to analyze alleged
prohibited practices under § 48-824(2)(c), and we adopt Wright Line for
that purpose. The CIR found that the discharged employees all engaged in union
organizing activity as the Union asserted; thus, the Union met the first element
of its prima facie case, and we advance to the second element, knowledge.
(b)
Actual Knowledge of Union Activity
The CIR made a
number of factual findings regarding what knowledge of union activity the county
commissioners had. Ultimately, the CIR concluded that "the County
Commissioners were unaware of much of the protected activity engaged in by
Bassinger, Helms and Meyer." The Union assigns this conclusion as error,
asserting that direct evidence proves that the county commissioners were aware
that Meyer had been a Union steward and that circumstantial evidence proves that
the county commissioners knew that Helms and Bassinger were union supporters.
The CIR
concluded that "all three Commissioners knew that Meyer was a union
steward." That finding is supported by the record, and thus, as to Meyer,
the Union has met its burden on the knowledge element of its § 48-824(2)(c)
prima facie case.
The Union
asserts that the county commissioners had direct knowledge of Bassinger's union
activity through a conversation Bassinger had with Ross about seniority.
Bassinger testified that while CBA negotiations were proceeding, he told Ross
that he supported seniority protection and asked him why the county
commissioners were opposed to such protection. However, Bassinger did not state
that he told Ross he was a union activist. Ross testified that at no time was he
aware of the extent of the discharged employees' union activities. The Union
nonetheless asserts the conversation displayed Bassinger's prounion feelings.
The CIR's order is silent as to this alleged conversation. With the testimony in
conflict, we must presume that the CIR chose to believe Ross' testimony rather
than Bassinger's. Thus, we conclude the CIR did not err in finding the county
commissioners had no actual knowledge of Bassinger's union activity.
Finally, the
Union asserts the County had actual knowledge of Helms' union activity because
of a conversation between Helms and Ross wherein Ross stated that he had heard
that attendance at the Union meetings was low and encouraged Helms to attend the
meetings and vote "because that was his right as an employee." The
Union asserts that the inference to be made is that Ross must have known Helms
was a Union member because only Union members attend the meetings and vote. The
CIR determined that this conversation took place; however, it never concluded
from that conversation that the County had knowledge of Helms' union activity.
Several inferences could be made from that conversation, one of which is that
Ross actually believed Helms was not a Union member and was encouraging him to
join. Thus, we determine the CIR did not err in not inferring knowledge of union
activity from that conversation.
(c)
Knowledge of Union Activity Imputed to County Commissioners
The Union
asserts that even though the CIR found that the county commissioners lacked
actual knowledge of some of the discharged employees' union activity, the
knowledge that the foremen had must be imputed to the county commissioners. The
Union argues that the CIR erred in this regard, asserting that as a matter of
law, "knowledge to a supervisor is knowledge to the employer." Brief
for appellant at 32.
The CIR did
not expressly state that it would refuse to or that it could not impute a
supervisor's knowledge to an employer. However, it rested its conclusion that
the county commissioners did not know of much of the discharged employees'
activities because "there is no evidence that they relayed this information
to . . . Fleming or any of the . . . Commissioners."
The Union
cites Pinkerton's Inc., 295 N.L.R.B. 538 (1989), to support its
contention that a supervisor's knowledge is always imputed to the employer. In
that case, while the NLRB affirmed the administrative law judge's imputation of
a supervisor's knowledge to an employer, it did so only after concluding that
the employer "did not affirmatively establish such a basis for negating the
judge's imputation . . . ." Pinkerton's Inc., 295 N.L.R.B. at 538.
That qualification is relevant here because all of the foremen expressly
testified and the CIR found that they did not pass their knowledge of union
activity to Fleming or the county commissioners.
This view is
reflected in other NLRB precedents. In Dr. Phillip Megdal, D.D.S., Inc.,
267 N.L.R.B. 82 (1983), two supervisors were found to be "well acquainted
with [an employee's] union organizing efforts." The administrative law
judge, however, found that both supervisors credibly testified that they did not
mention anything about those activities to the employer prior to the employee's
discharge. The judge, having credited both supervisors' denials, could find
"no reasonable ground" on which to impute the supervisors' knowledge
to the employer and thus determined the necessary knowledge of the employee's
union activity was not established. Id. The NLRB affirmed the judge's
order, stating, "[W]e will not impute knowledge of union activities where
the credited testimony establishes the contrary." Id.
Additionally,
a number of federal cases make a distinction between supervisors who had a role
in the discriminatory action (here the employment terminations), as opposed to
supervisors who had no role in the discriminatory action. In Delchamps, Inc.
v. N. L. R. B., 585 F.2d 91, 95 (5th Cir. 1978), the court rejected
"the theory that the law should mechanically impute the knowledge of
others" to the individual responsible for the discharge. The court
distinguished impermissible imputation from permissible scenarios where either
"a supervisor with such knowledge who was not nominally responsible for the
firing nevertheless played a significant role in procuring the discharge"
or the NLRB "has relied on circumstantial evidence to infer that the
knowledge of one supervisor has been communicated" to the individual
responsible for the discharge. Id.
[19] The Fifth
Circuit Court of Appeals reaffirmed this view in Pioneer Natural Gas Co. v.
N. L. R. B., 662 F.2d 408 (5th Cir. 1981), and N.L.R.B. v. McCullough
Environmental Services, Inc., 5 F.3d 923 (5th Cir. 1993), summarizing in Pioneer
Natural Gas Co. that to prove a § 8(a)(3) violation, one must show that the
particular supervisor responsible for the discriminatory action knew about the
employee's union activities, and that while the NLRB may " 'rel[y] on
circumstantial evidence to infer that the knowledge of one supervisor has been
communicated' " to another supervisor, the NLRB "may not simply
'impute' the knowledge of a lower-level supervisor to the decision-making
supervisor." Pioneer National Gas Co. v. N. L. R. B., 662 F.2d at
412.
[20] The Union
nonetheless argues that this state's common law of agency directs the result
that the foremen's knowledge must be imputed to the county commissioners. The
Union cites, among other cases, Equilease Corp. v. Neff Towing Serv., 227
Neb. 523, 528, 418 N.W.2d 754, 757 (1988), in which we stated:
It is the duty of an agent to communicate to his principal all the facts
concerning the service in which he is engaged that come to his knowledge in the
course of his employment, and this duty, in a subsequent action between his
principal and a third person, he is conclusively presumed to have performed.
This is the foundation of the doctrine that notice to an agent is notice to the
principal.
See City of Gering v. Smith Co., 215
Neb. 174, 337 N.W.2d 747 (1983). While § 275 of the Second Restatement of
Agency sets forth the proposition stated in Equilease Corp. and City
of Gering, a relevant exception to the proposition above is noted in the
Restatement (Second) of Agency § 275, comment b. at 599 (1985):
If knowledge, as
distinguished from reason to know, is the important element in a transaction,
and the agent who has the knowledge is not one acting for the principal in the
transaction, the principal is not affected by the fact that the agent has the
knowledge. In many situations, in order for one to be responsible, it is
necessary that the act should be done with knowledge in a subjective sense, and
it is not sufficient that one has means of information.
This exception
is applicable in the instant case, where, as opposed to Equilease Corp.
and City of Gering, it is both the principal's act and the principal's
intent that are at issue. A violation of § 48-824(2)(c), like a violation
of § 8(a)(3) of the NLRA, "turn[s] on the employer's motivation."
(Emphasis supplied.) American Ship Bldg. v. Labor Board, 380 U.S. 300,
311, 85 S. Ct. 955, 13 L. Ed. 2d 855 (1965).
The purpose of
applying the analytical exercise given in Wright Line, 251 N.L.R.B. 1083
(1980), is to determine whether the facts infer that union activity was a motivating
factor in the county commissioners' decision to lay off three employees. That
inquiry necessarily is concerned with the actor's subjective knowledge of union
activity rather than whether the principal had reason to know because an agent
to the principal knew. In short, to conclude that the rule in Equilease Corp.
and City of Gering applies to the instant case would be to conclude that
the foremen had a duty to inform the county commissioners of union
activity---information that the law directs should not be considered by an
employer. Thus, we conclude the proposition regarding imputing an agent's
knowledge to the principal found in Equilease Corp. and City of Gering
is inapplicable to this case.
The CIR
determined that there was no evidence that Pohlman or Kuenning communicated his
knowledge of Bassinger's or Helms' union activities to either Fleming or the
county commissioners. This conclusion is supported by the foremen's and the
county commissioners' testimony. The CIR also concluded that the foremen did not
participate in the layoff process. This conclusion is also supported by the
record. However, we must qualify that finding in that Kuenning testified that
upon the request of an unnamed party (presumably one of the commissioners), he
selected three bargaining unit employees whom he supervised as candidates for
discharge. One of them was Meyer. However, Kuenning's testimony does not alter
the result, because he did not recommend Bassinger or Helms for discharge and
thus played no role in their layoffs.
In conclusion,
the CIR did not err in failing to impute the foremen's knowledge to the county
commissioners. There was sufficient evidence to establish that the foremen did
not inform the county commissioners of the discharged employees' union
activities, and the record supports the CIR's finding that the foremen played no
"significant role in procuring the discharge." See Delchamps, Inc.
v. N. L. R. B., 585 F.2d 91, 95 (5th Cir. 1978).
[21] An
analysis of a § 48-824(2)(c) violation ends if the county commissioners had no
knowledge of any of the discharged employees' union organizing activities.
"A discharge cannot stem from an improper motivation where the employer is
ignorant of the employee's union activity." Avecor, Inc. v. N.L.R.B.,
931 F.2d 924, 931 (D.C. Cir. 1991). Having determined that the county
commissioners had knowledge only of Meyer's union organizing and leadership
activity, we further consider only whether Meyer's discharge was in violation of
§ 48-824(2)(c).
(d)
Timing of Layoffs
In concluding
that the reasons related to the discharges were unrelated to union activities,
the CIR determined that "the layoffs did not occur around the time of the
union organizing effort." The Union contests this finding. While the
layoffs were approximately 1 1/2 years after the Union was organized, the Union
asserts that the CIR did not take into account the fact that for most of that
time the County was precluded by law from terminating the employment of any
employees. The Union asserts that the proper timeframe to determine the
relationship between the union organizing activity and the employment
terminations did not begin until April 5, 1996, when the second wage and benefit
action before the CIR was dismissed.
Beginning on
April 21, 1995, when the Union filed a wage and benefit action with the CIR, the
County was statutorily barred from altering the status quo regarding employee
status. See Neb. Rev. Stat. §
48-811 (Reissue 1998). From April 21, 1995, until April 5, 1996, there was at
least one proceeding before the CIR between the County and the Union. In
addition to the statutory prohibition, a CIR status quo order was in effect for
much of this time, so the County would have been in contempt had it discharged
any employees during that time. The employment terminations here occurred within
weeks after the County was legally permitted to terminate the employment of any
employees. While the County had the power to terminate the employment of union
organizers from the time the Union was organized in December 1994 until April
21, 1995, it is unclear what knowledge of union activity the County had at that
time, and it was only after then that the Union won a wage and benefit dispute
before the CIR and pursued a status quo violation. The CIR never considered the
effect of § 48-811 in concluding that the timeframe of the layoffs was too far
removed. Thus, we determine that contrary to the CIR's finding, the Union met
its burden to show that the timing of the employment terminations inferred an
unlawful motivation.
(e)
Employer Antiunion Animus
The Union
asserts that the evidence shows antiunion animus through statements that County
officials made during the CBA negotiations, specifically, statements that if the
CBA as proposed was signed, four bargaining unit employees would be laid off.
The CIR did not expressly analyze the question of antiunion animus, apparently
relying on its findings regarding timing and knowledge to support its conclusion
that the County did not violate § 48-824(2)(c). However, the CIR made specific
findings regarding the conversations that the Union claims display animus. The
CIR found that during CBA negotiations, Stoll stated that the County "would
have to lay off four men" if the CBA was signed, and it found, which we
conclude is a reasonable inference, that Stoll meant four bargaining unit
employees. The Otoe County Attorney sent the Union a letter during negotiations
which stated that four positions "may be lost" due to the benefits
that would have to be paid.
[22] In the
context of federal labor law, "animus" is used ambiguously, sometimes
meaning an employer's antiunion attitude generally and sometimes referring
directly to the employer's antiunion motive in a particular case. Theodore Kheel,
Labor Law § 12.04 (1990). Here, as the ultimate objective of applying
the analysis given in Wright Line, 251 N.L.R.B. 1083 (1980), is to
determine whether the evidence circumstantially proves that the terminations
were motivated in part by an antiunion purpose, see NLRB v.
Transportation Management Corp., 462 U.S. 393, 103 S. Ct. 2469, 76 L. Ed. 2d
667 (1983), the Union's burden is to produce evidence of union hostility, see W.F.
Bolin Co. v. N.L.R.B., 70 F.3d 863 (6th Cir. 1995) (stating that express
union hostility combined with knowledge of union activities may infer improper
motive).
[23,24] The
evidence indicating hostility may arise from events not directly related to the
discriminatory actions at issue and may arise from events far predating the
action at issue, but the evidence must nonetheless reasonably infer a causal
connection between antiunion animus and the discriminatory act. See, Florida
Steel Corp. v. N. L. R. B., 587 F.2d 735 (5th Cir. 1979) (concluding that
NLRB, in finding violation of NLRA, impermissibly relied solely on employer's
antiunion history and general bias, which had no causal connection with
employee's discharge); Monongahela Power Co., 324 N.L.R.B. 214 (1997)
(holding that employer statements from more than 2 years prior to discriminatory
act in question could be considered in determining antiunion animus); Best
Plumbing Supply, 310 N.L.R.B. 143 (1993) (considering evidence of animus
toward employees other than one discharged). Statements of antiunion bias may be
considered with the qualification that [t]he expressing of any view, argument,
or opinion, or the dissemination thereof, whether in written, printed, graphic,
or visual form, is not evidence of any unfair labor practice under any of the
provisions of the Industrial Relations Act if such expression contains no threat
of reprisal or force or promise of benefit.
§ 48-824(4). Additionally, "under
certain circumstances" animus will be inferred "in the absence of
direct evidence." Fluor Daniel, Inc., 304 N.L.R.B. 970 (1991)
(inferring animus where employer summarily rejected 48 job applicants and all
applications indicated some form of union membership, while employer
consistently hired those with experience in nonunion plants).
The CIR
concluded that "Otoe County hasn't exhibited hostility to the process of
collective bargaining." As to the specific statements made that four men
would be laid off if the CBA was signed, the CIR found that such statements
supported the conclusion that the layoffs were "unrelated to their union
activities," postulating that the Union had fair notice of the potential of
layoffs prior to signing the CBA. We do not agree. We conclude that the CIR
could not reasonably find that a preponderance of the evidence supports the
finding that the County's statements during CBA negotiations did not reflect
antiunion hostility. Instead, we determine that Stoll's and other County
representatives' statements that four men would be laid off if the CBA was
signed were threats against the Union.
[25] "[A]n
employer is free to communicate to his employees any of his general views about
unionism" and "may even make a prediction as to the precise effects he
believes unionization will have on his company." NLRB v. Gissel Packing
Co., 395 U.S. 575, 618 (1969). "In such a case, however, the prediction
must be carefully phrased on the basis of objective fact to convey an employer's
belief as to demonstrably probable consequences beyond his control. . .
." (Emphasis supplied.) Id.
If there is any implication
that an employer may or may not take action solely on his own initiative for
reasons unrelated to economic necessities and known only to him, the statement
is no longer a reasonable prediction based on available facts but a threat of
retaliation based on misrepresentation and coercion . . . .
Id.
The County
representatives' statements in negotiations that four jobs would be lost if the
CBA was signed infer that the County intended to dissuade the Union from
pursuing the proposed CBA by threatening retaliation against the employees that
the Union represented. Those statements are proof of antiunion animus relevant
to this proceeding.
Having
concluded our review of the CIR's order as to the Union's prima facie case, we
determine the Union sufficiently proved that Meyer engaged in Union organizing
and leadership activity of which the county commissioners knew, that the timing
of his employment termination was suspect, and that the County through the
county commissioners held hostility toward the Union contemporaneous to Meyer's
employment termination. We conclude that contrary to the CIR's findings, the
Union has made a prima facie showing sufficient to infer that Meyer's union
organizing activity was a motivating factor in his employment termination.
(f)
Affirmative Defense
Proof by a
preponderance of the evidence that the discharge "would have occurred in
any event and for valid reasons" would nonetheless preclude a finding that
Meyer's employment termination was in violation of § 48-824(2)(c). See NLRB
v. Transportation Management Corp., 462 U.S. 393, 400, 103 S. Ct. 2469, 76
L. Ed. 2d 667 (1983). The County's asserted justification for the employment
terminations was "budget constraints."
Although the
CIR did not analyze the issue in terms of the affirmative defense given in Wright
Line, 251 N.L.R.B. 1083 (1980), it thoroughly analyzed the budget evidence
presented. While it found that much of the budget evidence indicated that the
County could have continued the discharged employees' employment, it gave weight
to the county commissioners' budget concerns and determined that percentage
increases in the budget for the bargaining unit (the largest subpart of the
County's budget) created large increases in relation to the overall County
budget.
As to the
specific selection of Meyer for termination of employment, the CIR determined
that the selection was "not without merit" and found credible the
County's use of job evaluations in choosing whom to terminate. It gave weight to
the most recent job evaluation as well as job evaluations conducted prior to the
union organizing effort that indicated his job performance "was either not
acceptable or marginally acceptable." The CIR gave weight to evidence
indicating that Meyer's performance merited no pay increase for a 2-year period.
It ultimately concluded that the employment terminations were a legitimate
"business decision by the Otoe County Commissioners to exercise their
management prerogative in choosing the level of
Although there
is contradictory evidence that the County was not suffering from budget
constraints, the CIR's findings support, by a preponderance of the evidence, the
conclusion that budget concerns were a legitimate reason for the employment
termination and combined with Meyer's job performance would have led to Meyer's
termination of employment regardless of any unlawful motivation. Thus, we affirm
the CIR's order that Meyer's employment termination was not in violation of §
48-824(2)(c).
4.
SECTION 48-824(2)(d) ANALYSIS
[26,27]
Section 48-824(2)(d) makes it a prohibited labor practice to "[d]ischarge
or discriminate against an employee because the employee has filed an affidavit,
petition, or complaint or given any information or testimony under the
Industrial Relations Act. . . ." As with § 48-824(2)(c), a similar
provision exists within the NLRA. Section 8(a)(4) of the NLRA (29 U.S.C. §
158(a)(4)), which makes it unlawful "to discharge or otherwise to
discriminate against an employee because he has filed charges or given testimony
under this subchapter." A violation of § 8(a)(4), similarly to a violation
of § 8(a)(3), turns on the motivation of the employer. 1 Patrick Hardin, The
Developing Labor Law (3d ed. 1992). It similarly requires the court to
distinguish an employer's pretextual and retaliatory conduct from conduct
motivated by legitimate business purposes, so the NLRB and the courts also apply
the Wright Line analysis to alleged § 8(a)(4) violations.
The
The record and
the CIR's findings reflect that Bassinger testified at a CIR proceeding
regarding an alleged status quo violation and that the county commissioners had
direct knowledge of that activity, meeting the first two elements of the test in
Wright Line, 251 N.L.R.B. 1083 (1980). Consistent with our determination
under § 48-824(2)(c), the timing of Bassinger's employment termination was
suspect, as it occurred only weeks after the County regained the ability to
terminate a bargaining unit member's employment without its being in express
violation of statute and a CIR status quo order. Also, the same evidence proving
antiunion animus under § 48-824(2)(c) is applicable to a § 42-824(2)(d)
analysis. Thus, the
However, the
CIR's findings regarding the County's asserted justification for the employment
terminations (budget constraints) and our analysis of those findings, set forth
in our earlier § 48-824(2)(c) analysis, apply equally here as an affirmative
defense to finding a § 48-824(2)(d) violation. In addition, the County's
affirmative defense argument is stronger as to Bassinger because the CIR
findings reflect an additional legitimate and perhaps more compelling reason
than the general budget concerns to terminate his employment. The record
indicates that when the county landfill where Bassinger worked closed, rather
than terminate Bassinger's position, the County created his position with the
road department. Fleming testified that since that time, the County has
discovered that by state law much of the work Bassinger was doing was to be the
responsibility of landowners and not the County. Consistent with our conclusion
under § 48-824(2)(c), the CIR's findings support the conclusion that a
preponderance of the evidence shows that the County would have terminated
Bassinger's employment even in the absence of his testimony before the CIR.
As to Meyer,
the record does not reflect that he filed an affidavit, petition, or complaint
or gave any information or testimony under the Industrial Relations Act. Thus,
we agree with the CIR that, at least to the portion of § 48-824(2)(d) that the
V.
CONCLUSION
The County did
not violate the discharged employees' constitutional due process rights as
described in Cleveland Board of Education v. Loudermill, 470 U.S. 532,
105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). We affirm the CIR's conclusion that
the County did not violate § 48-824(2)(a). We conclude, contrary to the CIR's
conclusion, that the Union presented a prima facie case that Meyer's employment
termination was in violation of § 48-824(2)(c) and that Bassinger's employment
termination was in violation of § 48-824(2)(d). However, we affirm the CIR's
conclusion that the County did not violate either § 48-824(2)(c) or (d),
because we conclude that the record supports the CIR's findings that the
employment terminations would have occurred regardless of any unlawful motive.
AFFIRMED.