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A three-judge panel of the 8th U.S. Circuit Court of Appeals found itself at the center of a labor dispute this week, as the court, in a 2 to 1 decision, reversed a holding of the National Labor Relations Board (NLRB) involving Carleton College in Northfield, Minn., and an adjunct music instructor who was fired by the university. Instructor Karl Diekman, who was terminated by Carleton in September 1996, allegedly for inappropriate behavior at a meeting to discuss unionization of the adjunct faculty, was ordered reinstated last year by the NLRB. An administrative law judge employed by the NLRB held that Carleton’s refusal to extend Diekman’s employment contract amounted to an unfair labor practice because it was motivated by animosity towards his participation in the unionization effort. The 8th Circuit, hearing Carleton’s appeal of the NLRB decision, rejected the Board’s decision, holding that Diekman’s termination was not based on anti-union animus, but was justified by independent and unrelated grounds. “The Board believed that Diekman’s language at the meeting was merely ‘salty language’ that an employer must tolerate in labor matters,” wrote Judge Donald R. Ross for the majority. “However, in the context of a meeting with the dean of the college which was called to discuss professional expectations for the future, Diekman’s use of vulgarities . . . evidenced his disrespect of the music department and unwillingness to commit to act in a professional manner.” According to Professor David Larson, who teaches labor law at Hamline University School of Law in Saint Paul, the 8th Circuit’s decision is unique because it is rare for a U.S. Court of Appeals to overturn a holding of an administrative body based primarily on factual evidence. Appellate courts usually limit their review to questions of law, deferring to the factual conclusions of the lower court or administrative body. “Overall, they’ve gotten into an area where there is a lot of confusion,” Larson said. “When reviewing NLRB decisions, sometimes you have questions of law and sometimes you have questions of fact. There’s always been a sense that U.S. Courts of Appeals should be much more deferential to factual findings as opposed to legal issues.” The troubles at Carleton began in the spring of 1995, when Diekman, along with fellow adjunct instructors Eric Kodner and Lynn Deichert, formed an ad hoc committee that distributed a survey to the adjunct music instructors concerning salary, benefits, and other issues relating to employment. The following September, Diekman, Kodner and Deichert, along with instructors Jim Hamilton and Elizabeth Erickson, were elected as members of The Adjunct Faculty Committee, which was formed to address the issues with which the adjunct staff was most concerned. In early October 1995, then-Chairman of the Music Department Stephen Kelly informed the music faculty that the department intended to form its own committee to address the concerns of the adjunct faculty. Kelly, who did not learn until afterward that Diekman and his colleagues already had formed such a committee, stated that his committee would be the only one recognized to address adjunct faculty concerns. Five months after Diekman, Kodner and Deichert successfully petitioned the Faculty Affairs Committee to officially recognize their Adjunct Faculty Committee, Kelly wrote to the dean of the college, Elizabeth McKinsey, and recommended that she take disciplinary action against the three instructors for “unacceptable performance.” While she rejected Kelly’s recommendations for discipline, Dean McKinsey set up individual meetings with the three instructors to discuss professional expectations before extending their contracts for the next year. At his meeting, Diekman described the music department as a “laughingstock” and a “pig.” According to McKinsey, he also was unwilling to agree to act in a professional manner, expressed loyalty only to adjunct faculty and students, and indicated he did not need a job at Carleton. McKinsey decided to renew the contracts of Kodner and Deichert, but did not extend a renewal offer to Diekman. “In this case, the Board’s finding of unlawful motivation is based on nothing more than surmise,” wrote Judge Ross, explaining the court’s position that Diekman’s termination was not related to his union activities. “Diekman [in his testimony before the NLRB] acknowledged he had been sarcastic, used vulgarities, called the department a ‘laughingstock’ and a ‘pig,’ ‘sort of’ evaded McKinsey’s requests for a commitment to abide by professional expectations, and expressed loyalty only to adjunct faculty and students.” Dissenting Judge Myron H. Bright, looking at the college’s actions in their entirety, concluded that anti-union sentiment contributed to Carleton’s decision to terminate Diekman. “The [NLRB] drew reasonable inferences from the evidence to support its view that animosity toward Diekman’s union activity led to his termination of employment with Carleton College,” Bright wrote. “Diekman’s language in his individual meeting . . . with McKinsey, that the music department was a ‘laughingstock’ and a ‘pig’ upon which the majority cites as a focus for its decision, may well have been honest and sincere even though salty criticism of a music department which he and other adjunct faculty sought to improve.” Judge Bright opined that the majority was overstepping its authority by reviewing for a second time evidence that had already been evaluated by the NLRB. He also cautioned that, by finding in favor of Carleton, the majority opinion may discourage union activity at other institutions. “The College only needed one example to keep the adjuncts in line for the future. Diekman was that example,” Bright wrote. “As a result of this decision, the adjunct faculty of Carleton College and others similarly situated will hesitate to make any waves by attempting organized efforts to improve their conditions.”

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