Omaha Police Union v. City of Omaha

736 N.W.2d 375

274 Neb. 70

OMAHA POLICE UNION LOCAL 101, IUPA, AFL-CIO, appellee and cross-appellant, v. CITY OF OMAHA, a municipal corporation, and the chief of police, Thomas Warren, appellants and cross-appellees.

No. S-06-403.

Supreme Court of Nebraska.

August 3, 2007.

Paul D. Kratz, Omaha City Attorney, and Bernard J. in den Bosch for appellants.

Thomas F. Dowd, of Dowd, Howard & Corrigan, L.L.C., Omaha, for appellee.

WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

This appeal presents the issue of whether a public employer engages in a prohibited practice under the Industrial Relations Act (the Act)¹ by taking disciplinary action against public employees belonging to a labor organization for statements made and published by those employees. In this action commenced by Omaha Police Union Local 101 (Union) against the City of Omaha and Omaha chief of police Thomas Warren (collectively the appellants), the Commission of Industrial Relations (CIR) concluded that disciplinary action taken against a police officer who authored an article in a Union publication constituted a prohibited practice. In reaching this conclusion, the CIR used a legal standard applied in private sector labor relations cases. We conclude that the CIR should have applied a different standard utilized by courts and administrative agencies to resolve protected speech issues in public sector employment cases.

I. BACKGROUND

1. ANDERSEN INVESTIGATION

On December 14, 2004, a Union meeting was held for the member police officers of the Omaha Police Department (OPD). During the meeting, OPD Sgt. Timothy Andersen, then president of the Union, was asked a question concerning how OPD calculated 911 emergency dispatch service response times. Andersen opined that the method by which OPD calculated response times was misleading. In expressing his view, Andersen provided a hypothetical example on how police officers were trained by OPD to respond to certain high priority 911 calls that required response by two officers.

Several days after the meeting, reports of Andersen's statements were relayed to Warren. On December 20, 2004, Warren initiated an Internal Affairs (IA) investigation of Andersen in which he sought to determine exactly what Andersen said at the December 14 meeting and whether Andersen had advised officers to disregard departmental standard operating procedures.

In June 2005, IA determined that Andersen had not violated departmental procedures and had not acted unprofessionally. Warren adopted those findings and took no disciplinary action against Andersen.

2. HOUSH INVESTIGATION AND DISCIPLINE

In response to the events involving Andersen, OPD Sgt. Kevin Housh wrote an article in the February 2005 issue of the Union newspaper, "The Shield," which is distributed to members of the Union as well as to members of the community. Housh's article was generally critical of the standard operating procedures for two-officer 911 calls and the manner in which the city and OPD calculated response time. Housh characterized city officials as "[a] bunch of grown men and women, supposedly leaders, acting like petty criminals trying to conceal some kind of crime."² He also stated that "[t]hey refuse to do it, they know they've screwed up, and rather than admitting guilt, they (whoever they are) will make history and try to control what is said/revealed during union meetings regarding response time."³

On February 7, 2005, Warren initiated an IA investigation of Housh based on his article in The Shield. Describing the language from the article as derogatory and inflammatory, Warren alleged that Housh's conduct constituted gross disrespect and insubordination and was unbecoming an officer, in violation of OPD rules of conduct.

After conducting its investigation, IA determined that the unprofessional conduct allegation against Housh should be sustained. On February 24, 2005, Warren adopted that finding. However, contrary to other recommendations for discipline, Warren terminated Housh's employment. The Union subsequently appealed Housh's termination to the city personnel board. Thereafter, the city and the Union reached an agreement whereby Housh was reinstated to OPD but was required to among other things, serve a 20-day suspension without pay and discontinue working on the emergency response unit.

3. MEETING WITH WARREN

On August 22, 2005, two Union representatives met privately with Warren in an attempt to discuss the appropriate methods of handling future Union speech issues as well as OPD's handling of Andersen's case. The Union claims that it sought assurances from Warren that he would not interfere with, investigate, or discipline off-duty officers for their conduct at Union meetings or in Union publications. Warren refused to discuss Andersen's case, as it was still an ongoing controversy. Warren also purportedly stated that he retained the right "to initiate an internal investigation on off duty union activities if he determines they involve either insubordination or gross disrespect of himself or his administration or false comments [or] slander." But, Warren also commented that he was not trying to censor anyone and that he would only initiate an IA investigation of an officer if he believed there was merit to such investigation.

4. CIR PROCEEDINGS

On September 2, 2005, the Union filed a petition with the CIR against the appellants. The Union claimed that the appellants' investigations of Andersen and Housh and termination of Housh's employment had "chilled" other Union members' expression of opinions at Union meetings and in the Union publication. As a result, the Union alleged that the appellants had engaged in prohibited labor practices under § 48-824(2)(a) by interfering with, restraining, and coercing Union members in their exercise of rights granted under § 48-837. The Union prayed that the appellants should be restrained from interfering with Union members' rights to express their opinions at Union meetings or in Union publications relating to terms and conditions of their employment, the city's administration, and OPD's management. The Union also sought attorney fees and any other appropriate remedy within the CIR's jurisdiction. The appellants answered by denying the specific allegations in the petition and by raising several affirmative defenses, including a lack of CIR jurisdiction.

After conducting a trial in which testimony was heard and evidence was received the CIR issued a written order granting a portion of the relief sought by the Union. The CIR found that numerous employees had indicated that Warren's actions had limited their involvement with the Union, including decreased meeting attendance and fewer articles submitted for publication. However, the CIR concluded that the IA investigation of Andersen did not constitute an interference, restraint, or coercion in the exercise of the right to participate in Union activities.

As to Housh, the CIR reasoned that his article was a protected union activity if it was "concerted activity" falling under the protection of § 48-824(2)(a). Looking to federal labor cases for guidance, the CIR noted that employee speech was a protected concerted activity if it related to working conditions. It then determined that Housh's article pertained to officer safety, which was a working condition and a mandatory subject of bargaining. The CIR also found, based on federal labor case law, that an employee only loses protection for speech that is deliberately or recklessly untrue. The CIR concluded that "Housh's statements, while certainly constituting intemperate, abusive and insulting rhetorical hyperbole, fall short of deliberate or reckless untruth. The comments were made in a union publication in the context of a management/union disagreement, and they were therefore protected from interference, restraint or coercion by management."

As a remedy, the CIR ordered the appellants "not to interfere in any way" with statements made by employees in the Union publication which did not violate the standard of deliberate or reckless untruth. The appellants were also ordered to place a statement in the Union newsletter indicating that they would recognize the Union members' rights to protected activity. The appellants perfected this timely appeal, which we moved to our docket pursuant to our statutory authority to regulate the caseloads of the appellate courts of this state.⁴

II. ASSIGNMENTS OF ERROR

The appellants assign, restated, that the CIR erred in finding that (1) the calculation of response times was a mandatory bargaining issue and (2) all speech by employees in the Union newspaper is protected unless deliberately or recklessly untrue.

On cross-appeal, the Union assigns, restated, that the CIR erred in failing to (1) find the appellants' investigation of Andersen was a prohibited practice requiring the deletion of all investigation records, (2) make Housh whole for the losses he sustained from the appellants' prohibited practice, and (3) award the Union reasonable attorney fees.

III. STANDARD OF REVIEW

Any order or decision of the CIR may be modified, reversed, or set aside by the appellate court on one or more of the following grounds and no other: (1) if the CIR acts without or in excess of its powers, (2) if the order was procured by fraud or is contrary to law, (3) if the facts found by the CIR do not support the order, and (4) if the order is not supported by a preponderance of the competent evidence on the record considered as a whole.⁵

In an appeal from a CIR order regarding prohibited practices stated in § 48-824, an appellate court will affirm a factual finding of the CIR, if, considering the whole record, a trier of fact could reasonably conclude that the finding is supported by a preponderance of the competent evidence.⁶

IV. ANALYSIS

1. CITY'S APPEAL

(a) Mandatory Subject of Collective Bargaining

The CIR has jurisdiction over...