Nebraska Public Employees Local Union 251 v. Otoe County

• Citation: 595 N.W.2d 237,257 Neb. 50
• Decision Date: 04 June 1999
• Docket Number: No. S-98-427,S-98-427
• Parties: , 161 L.R.R.M. (BNA) 2713 NEBRASKA PUBLIC EMPLOYEES LOCAL UNION 251 Affiliated with the American Federation of State, County, and Municipal Employees, an International Union, Appellant, v. OTOE COUNTY, Nebraska, Appellee.
• Court: Supreme Court of Nebraska

Page 237

595 N.W.2d 237

257 Neb. 50, 161 L.R.R.M. (BNA) 2713

NEBRASKA PUBLIC EMPLOYEES LOCAL UNION 251 Affiliated with the American Federation of State, County, and Municipal Employees, an International Union, Appellant, v. OTOE COUNTY, Nebraska, Appellee.

No. S-98-427.

Supreme Court of Nebraska.

June 4, 1999.

Syllabus by the Court

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 Nebraska statutes.

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)), normally turns on whether the discriminatory conduct was motivated by an antiunion purpose.

14. 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)), 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. Labor and Labor Relations: Discrimination: Proof. 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. Labor and Labor Relations: Discrimination: Proof. 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. Labor and Labor Relations: Discrimination: Proof. 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. Labor and Labor Relations: Discrimination: Proof. 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. Labor and Labor Relations: Discrimination: Proof. 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. Labor and Labor Relations: Discrimination. 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...