For Petitioner:Thomas F. DowdDowd, Howard & Corrigan, L.L.C.1411 Harney StreetSuite 100Omaha, NE 68102For Respondents:Bernard J. in den BoschAssistant City Attorney804 Omaha/Douglas Civic Center1819 Farnam StreetOmaha, NE 68183Before: Judges Blake, Orr, and Burger

BLAKE, J.

Omaha Police Union Local 101, IUPA, AFL-CIO, (hereinafter, "Petitioner") filed a Petition pursuant to Neb. Rev. Stat. ? 48-824 (2)(a) (Reissue 2004), claiming that the City of Omaha and Chief of Police Thomas Warren (hereinafter, "Respondents"), committed a prohibited practice by placing Sergeant Tim Andersen under an internal affairs investigation; by terminating and later suspending Sergeant Kevin Housh because of opinions he expressed in a union publication, involving matters of concern to its general membership; and by "chilling" the members expression of views, orally and in writing.

On September 12, 2005, Respondents filed an Answer stating that no practice of the Respondents falls within the scope of prohibited practices or interferes with or restrains the rights of the Union under the Industrial Relations Act.

The Commission held a hearing on November 9, 2005, before the Honorable William G. Blake. The issues presented at trial were:

1. Whether the internal affairs investigation of Tim Andersen, the termination of Kevin Housh, and the threat of disciplinary action by the Respondents against union officers for articles that appeared in The Shield, have chilled the exercise of union member rights under Neb. Rev. Stat. 48-837.

2. Whether the Petitioner has failed to state a cause of action against the Respondents in its Petition.

3. Whether the doctrines of res judicata and collateral estoppel raised by the Respondents bar the Petitioner from litigating this action in front of the Commission.

The parties submitted post-trial briefs, the Petitioner on November 28, 2005 and the Respondents on November 29, 2005.

The Commission finds the following facts to be true. This action arises from a dispute between the Union and the Mayor's office, as well as the Omaha Police Department Administration, regarding the proper calculation of response times to calls for service. There are three major instances surrounding the alleged prohibited practice in this dispute.

The first such instance occurred on December 14, 2004, when the Union had a regularly scheduled meeting. After the meeting, Paul Landow, Chief of Staff for Mayor Mike Fahey, received several phone calls, informing him of statements allegedly made by Union President Tim Andersen?s at a union meeting. Purportedly, Sergeant Andersen had instructed officers to act in a manner inconsistent with the Standard Operating Procedure (hereinafter, "SOP"). Mr. Landow then contacted Chief of Police Thomas Warren by e-mail, informing him of the information relayed to him during the telephone conversations. On December 20, 2004, Chief Warren authorized an internal affairs investigation of Sergeant Andersen?s alleged conduct at the union meeting. Sergeant Andersen was then interviewed on December 22, 2004 regarding the alleged violations of the SOP. Sergeant Andersen denied any wrongdoing, and then filed a lawsuit on December 23, 2004, seeking an injunction in the United States District Court for the District of Nebraska. Both the City of Omaha and Sergeant Andersen agreed to suspend the internal affairs investigation while the matter was pending in the United States District Court. On June 8, 2005, Judge Joseph Bataillon issued an Order in the United States District Court denying the City's Motion for Summary Judgment, but advised the parties that the City was now free to pursue the internal affairs investigation. On July 11, 2005, the internal affairs investigation was finished and the committee informed Sergeant Andersen that they found he had not violated the SOP. On September 6, 2005, a Motion to Dismiss the case with prejudice was filed in the United States District Court.

The second instance occurred after Sergeant Andersen?s alleged violation, but during his legal proceedings. In the February edition of The Shield, the union?s newspaper, Sergeant Kevin Housh wrote an article entitled, "This 'n That." In this article, Sergeant Housh was openly critical of the Mayor?s office and the Chief of Police regarding the calculation of response times. Sergeant Housh characterized the internal affairs investigation of Sergeant Andersen as harassment. Sergeant Housh also stated, ?A bunch of grown men and women, supposedly leaders acting like petty criminals trying to conceal some kind of crime. The article as a whole was sharply critical of Chief Warren's handling of the calculation of response times.

On February 7, 2005, an internal affairs investigation was authorized to investigate whether the article written by Sergeant Housh in The Shield contained language that was insubordinate, and whether it resulted in conduct unbecoming an officer. On February 9, 2005, Sergeant Housh filed a complaint in the United States District Court for the District of Nebraska seeking an injunction to stop the internal affairs investigation. On February 15, 2005, Judge Bataillon issued an Order denying Sergeant Housh's request for an injunction. On February 25, 2005, Sergeant Housh was issued a letter of discipline in which Chief Warren recommended that his employment be terminated. Chief Warren found Sergeant Housh's comments to be derogatory and inflammatory. After his hearing, on March 11, 2005, Sergeant Housh was terminated from his employment with the Omaha Police Department. Sergeant Housh appealed his termination and on April 29, 2005 an agreement was reached which reinstated Housh with a 20-day suspension and the issuance of a public apology. On April 29, 2005 Judge Bataillon entered an Order of Dismissal with prejudice in Sergeant Housh's pending case in the United States District Court.

The third instance occurred on August 22, 2005, when the current union president, Aaron Hansen and the current union vice president Chris Circo met with Chief Warren to discuss the boundaries beyond which the Chief could not interfere with the rights of the union members. The Union suggested that the administration agree not to interfere with protected union speech voiced at union meetings and in articles published in The Shield. In the meeting, Chief Warren stated that he would conduct an internal affairs investigation if an officer's speech or conduct resulted in insubordination (as defined by Warren), gross disrespect for himself or the administration, or if he believed the comments to be false. In addition, such comments could not be inflammatory or derogatory. In addition to any speech or conduct, Chief Warren stated that any union member would be held responsible for any article printed in The Shield that advocates a deliberate violation of departmental policy.

Numerous employees in the Union alleged that Chief Warren?s stance in these three instances has limited their involvement with the Union . This includes a decrease in attendance at union meetings, a decrease in participation at union meetings, and fewer articles written by certain union members for The Shield. All members of the Union that testified stated a general increase in their fear of becoming involved in an internal affairs investigation.

The state law in question is Neb. Rev. Stat. 48-824 (2)(a), which states It is a prohibited practice for any employer . . . to interfere with, restrain, or coerce employees in the exercise of rights granted by the Industrial Relations Act. This provision is almost identical to ? 8 (a)(1) of the National Labor Relations Act (hereinafter, ?NLRA?). The National Labor Relations Board (hereinafter, ?NLRB?) determinations of employer conduct, which unlawfully restrains or interferes with the protected labor activity, are given considerable deference by the Federal courts. While NLRB decisions are not determinative of state law, we will generally look to direction from the determinations of the NLRB under the NLRA. See also Fraternal Order of Police, Lodge 41 v. County of Scotts Bluff , et. al., 13 CIR 270 (2000).

We need not enter into a lengthy discussion of intricacies of issue and claim preclusion, or the issues raised in the prior federal court litigation that was brought by Sergeants Andersen and Housh. Those cases were settled, and dismissed with prejudice. However, the cases did not involve final orders on the merits and were brought by the individual officers to enforce their individual rights. This case does not involve the individual rights of the officers, but rather, the rights of the Union and its members to engage in union activities. Therefore, the prior federal court litigation brought by each of the officers does not serve as res judicata or collateral estoppel in this case.

In this case, we are not determining whether the Chief of Police acted in conformance with, or contrary to, any standard operating procedure, and we are not questioning whether the Chief of Police was aware of the correct procedure. We are not here to act as a personnel review board. Instead, we are here to determine if the actions of the City of Omaha and Chief Warren, in three specific instances, constitute the prohibited practice of chilling union rights. The third instance is more in the nature of evidence of the Chief's reasons for his actions regarding Sergeants Andersen and Housh, and his intended manner of dealing with future instances. We will discuss the instances involving Sergeants Andersen and Housh in this light.

Petitioner argues that the investigation of Sergeant Andersen was unwarranted and designed to interfere with protected union activity. Petitioner urges that a strong inference can be made that Mr. Landow, the Mayor's Chief of Staff, never received any anonymous phone calls, but had a plant at the union meeting in question. Of course, the inference could just as easily be made that such calls were received. Similarly, Petitioner urges that a strong circumstantial case can be made that the investigation by Chief Warren was motivated by a desire to silence the Union . However, given the record before the Commission, such a conclusion would be mere speculation - at least as likely as would be the conclusion that the Chief was investigating to determine whether a sergeant was advocating disobedience to a proper order of the Chief of Police.

Petitioner complains that Sergeant Andersen was required to work under the threat of the ongoing investigation for a period of seven months. However, the evidence was that the investigation was put on hold at the request of Sergeant Andersen, and that this holding pattern lasted for approximately six of those seven months.

As to the investigation of Sergeant Andersen, the evidence does not show that it was improperly conceived or that it was improperly performed. The Petitioner asks why Chief Warren did not simply call Sergeant Andersen and ask him what was said at the meeting. While this may be a good question, we again note that we are not a personnel board, nor do we establish management policy for the City or its Police Department. Similarly, we are not persuaded by the Petitioner's argument that Chief Warren could have, or should have, used some lesser means of investigating Sergeant Andersen's statements. There is no evidence that his action was an improper or unestablished police procedure. The evidence does not prove that the procedure has been overused or otherwise used abusively. A pattern or practice of using an internal affairs investigation based upon "anonymous" phone calls could well establish interference, restraint or corrosion in the exercise of the right to participate in union activities, but the evidence here does not establish such a pattern or practice.

Petitioner also argues that Sergeant Housh's article is a protected labor speech and that the comments of Chief Warren had a chilling effect on other union activities. In determining whether Chief Warren's actions regarding Sergeant Housh inferred with the rights of the union, we must determine whether Sergeant Housh?s article was a protected union activity. To do this, we must determine whether Sergeant Housh?s article was concerted activity falling under the protection of 48-824 (2)(a).

Under the NLRA, employees are protected whose actions are (1) concerted, (2) directed toward an appropriate end and (3) conducted under an appropriate means of action. "Concerted activity" is any activity by individual employees who are united in pursuit of a common goal. To find an employee's activity to be "concerted," the action must be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself. An employee's conduct is not "concerted" unless it is engaged in with or on authority of other employees. Meyers Industries & Kenneth P. Prill, 281 NLRB 882 (1986). The definition of concerted activity encompasses those circumstances where individual employees seek to initiate, induce, or prepare for group action, as well as actions by individual employees bringing truly group complaints to the attention of management.

For example, in Eastex, Inc v. NLRB, 437 U.S. 556 (1978), the Supreme Court adopted the Board?s ruling that a company violated Section 8(a)(1) by prohibiting distribution of a newsletter that urged employees to write their legislators to oppose incorporation of the state "right-to-work" statute into a revised state constitution. The newsletter also criticized a presidential veto of an increase in the federal minimum wage, and urged employees to register to vote to "defeat our enemies" and "elect our friends." The subject matter of the newsletter, in the Court?s judgment, bore such a relation to employees' interests as to come within the guarantee of Section 7. The Supreme Court noted that few topics are of such immediate concern to employees as the level of their wages. Employee conduct that disparages management officials of the employer may be protected activity, if the remarks or conduct relate to employee working conditions and are not egregious in nature. Community Hospital of Roanoke Valley v. NLRB, 538 F.2d 607, 92 LRRM 3158 (4th Cir. 1976), enforcing 220 NLRB 217, 90 LRRM 1440 (1975).

In this particular case, the Commission has not been asked to make a finding as to the appropriate method of how the City calculates response times and we have no jurisdiction do so in this case. However, the manner and method of calculating response time is of vital concern to the Union and its membership since it involves officer safety. In Norfolk Education Ass?n v. School Dist. of Norfolk, 1 CIR 40 (1971) & (1973), the Commission quoted NLRB v. Gulf Power Co., 384 F.2d 822, 56 LC 12, 258 (5th Cir. 1967) by stating ?company rules relating to safety and work practices are mandatory subjects for collective bargaining. The calculation of response times is a working condition which affects safety and is a mandatory subject of bargaining. The focus of Sergeant Housh?s article was the calculation of response times ? an issue important to the entire union in light of the recent union meetings and Sergeant Andersen's investigation, which falls within the definition of concerted activity. However, we must still determine if Sergeant Housh?s article is protected.

Sergeant Housh accused the Chief of Police and the Mayor of "acting like" petty criminals. While it may be a rather fine line between accusing them of "acting like" and "being" petty criminals, there is a difference. It would not be expected that anyone reading the article by Sergeant Housh would actually believe he was accusing anyone of criminal activity. Petitioner correctly describes his statements as "rhetorical hyperbole." The statements certainly were this, to the extreme. We note that just the slightest exercise of discretion by Sergeant Housh or by the editors of the newsletter could have avoided this situation without detracting from the conveyed message. However, as has been noted in a number of cases, union activities often involve hot debate and rhetorical hyperbole. In fact, the right to engage in open communication, even hot debate, is strongly encouraged by the National Labor Relations Act.

Petitioner claims that a union member can say anything about management in a union publication with immunity, provided the statements fall short of a deliberate or reckless untruth. This effectively gives license to intemperate, abusive or insulting language, or rhetorical hyperbole. Petitioner relies upon Linn v. Plant Guard Workers Local 114, 383 U.S. 53, 86 S Ct. 657 (1966), and Letter Carriers v. Austin, 418 U.S. 264, 94 S Ct. 2770 (1974) as the primary support for this position. Linn was not a union interference suit. Rather, it was a defamation action brought in state court for statements made by a union member during a labor dispute. The threshold issue was whether a state defamation suit can ever be heard, or is the NLRB the sole tribunal for review of statements made during such disputes. The Supreme Court held that a defamation suit may be an available remedy, but that utterances, or writings, in a labor dispute, are actionable for defamation only if publicized with knowledge of the falsity or with reckless disregard for truth or falsity. Linn, 383 U.S. at 65.

Similarly, Austin involved a defamation suit. The Union had published a list of "scabs" and "traitors" in its newsletter, in an effort to better organize the Union of Letter Carriers. A libel action was brought by some of the "scabs." The Court relied upon the federal labor laws favoritism of free and robust debate in labor disputes, whether it relates to organizational or post- organizational activity. The federal law relied upon was the NLRA. The Court found that the protection goes beyond representation or membership campaigns. It covers ongoing union organizational activity. A defamation suit could result from a union publication only if the offending statements are false or made with reckless disregard as to whether they are false. Austin, 418 U.S. at 286.

The Petitioner cites a number of cases in support of its argument where the courts have made the jump from restricting defamation suits to protecting the union and its members from responsive actions by management. Most of these cases do not involve a similar factual pattern, and some of the cases do not even involve this issue. Therefore, most of the case law relied upon by Petitioner is inapplicable. However, this extension of the protection of union activity statements has been made. In particular, see Phoenix Transit System & Amalgamated Transit Union, Local Union No. 1433, AFL-CIO, 337 NLRB 510 (2002). In that case, a union officer and newsletter editor was discharged because of articles he wrote in the union newsletter concerning management?s handling of sexual harassment complaints. It was determined that the articles in the newsletter constituted protected union activity. The union newsletter had been distributed to the 500 bus driver members of the union. Phoenix Transit System, 337 NLRB at 512. The management of the transportation system felt that the statements made in the newsletter were inflammatory, extremely derogatory and disparaging and constituted character defamation.Id. The NLRB felt that the statements in the newsletters went over the line. Id. The NLRB noted that there was no assertion that the editor's statements were either inaccurate or deliberately false. The NLRB also determined that such speech is the common currency used to promote the cause of unionism with other employees. The core right of employees to organize for collective bargaining includes their day-to-day discussions and interchange of ideas. The right of freedom of communication is not limited to organizational rights, and non-organizational protected activities are entitled to the same protection. The NLRB found that when an employer disciplines an employee for utterances in a union publication, the employer acts at its own peril. It found that the alleged offense that the editor had committed, a verbal assault, was so nebulous and ambiguous that it can only be said to exist in the eye of the beholder. As to going ?over the line,? the editor had only engaged in rhetorical hyperbole. Phoenix Transit System, 337 NLRB at 514. The NLRB recognized that federal law gave license in the collective-bargaining arena to use intemperate, abusive, or insulting language without fear and restraint or penalty if the speaker believes such rhetoric to be an effective means to make a point, provided that it falls short of "deliberate or reckless untruth." Id.

We therefore must find that Sergeant 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 to the appropriate remedy, the Respondents should be ordered to not interfere in any way with statements made in the union publication which do not violate the standard of deliberate or reckless untruth. The Respondents should be ordered to place a statement in the next union newsletter indicating that they recognize and will abide by the right of union members to conduct union activity without interference, restraint or coercion by the Respondents.

Sergeant Andersen and Sergeant Housh are not parties to this action, and they have, in fact, each made their individual agreements and settlements with the Respondents. We will not interfere with or add to those agreed upon settlements. As to the request for attorney fees, we find that the evidence does not establish a willful pattern or practice of violation of the Petitioner's freedom in conducting union activities, and it does not establish that the investigations were undertaken in bad faith. Therefore, payment of attorney fees will not be ordered in this case.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that:

1. The Respondents shall not interfere in any way with statements made in the union publication which do not violate the standard of deliberate or reckless untruth.

2. The Respondents shall be ordered to place a statement in the next union newsletter indicating that they recognize and will abide by the right of union members to conduct union activity without interference, restraint or coercion by the Respondents.

All panel judges join in the entry of this order.