                 IN THE SUPREME COURT OF IOWA
                              No. 08–1208

                           Filed June 4, 2010


CLAY COUNTY, IOWA,

      Appellant,

vs.

PUBLIC EMPLOYMENT RELATIONS
BOARD and INTERNATIONAL UNION OF
OPERATING ENGINEERS LOCAL 234,

      Appellees.


      Appeal from the Iowa District Court for Clay County, David A.

Lester, Judge.



      The county appeals a district court judgment affirming a decision

of the Iowa Public Employment Relations Board requiring it to reinstate a

terminated employee. DISTRICT COURT JUDGMENT REVERSED AND

CASE REMANDED WITH INSTRUCTIONS.


      Michael J. Houchins, County Attorney, for appellant.



      Jan V. Berry, Des Moines, for appellee Board.

      MacDonald Smith of Smith & McElwain Law Office, Sioux City, for

appellee Union.
                                    2

WIGGINS, Justice.

      In this appeal, we must determine whether Iowa’s Public

Employment Relations Act (PERA) protects a public employee’s activity in

negotiating wages for himself and others with a nonpublic employer.

Because we find the PERA does not protect such activity, we reverse the

judgment of the district court affirming the Public Employment Relations

Board’s decision and remand the case to the district court with

instructions to remand the case to the board and order the board to

reverse its decision and dismiss the complaint.

      I. Background Facts and Proceedings.

      From October 19, 1984, until his termination on October 29, 2004,

James Sikora was a full-time equipment operator for Clay County. The

head of the department at the time of Sikora’s termination was county

engineer, Scott Rinehart. During Sikora’s employment with the county,

the International Union of Operating Engineers, Local 234 was the

certified bargaining representative of a bargaining unit consisting of

certain Clay County secondary roads department employees, which

included Sikora.

      In addition to his full-time job, the Clay County Fair Board, a

private nonprofit corporation, also employed Sikora part-time.    Sikora

worked for the fair since 1993.     Sikora was one member of a crew

performing maintenance on the gravel streets and the racetrack area

using equipment either loaned or rented to the fair by the county. The

other crewmembers consisted of two other full-time county employees,

Rob Kluender and Jim Montgomery, and two other men who were

employed full-time in the private sector. Sikora worked part-time for the

fair by working after his normal hours for the county, working on days

off, and working on vacation days.          In 2003 Sikora was paid
                                     3

approximately $7.50 an hour at his part-time job with the fair and

roughly $16 an hour at his full-time job with the county.

      In 2003 Sikora and Kluender met with Phil Hurst, the manager of

the fair, to request a raise for the crew. Sikora told Hurst he felt he and

the crew were doing a good job and that they needed to receive more

compensation for their work. Hurst told Sikora he would think about the

issue and get back to him.       Hurst failed, however, to get back with

Sikora.   In April 2004, and again in May or June, Sikora spoke with

Hurst alone in his office and asked about the status of wage increases for

himself and the crew. Hurst told Sikora the fair had a tight budget and

he had not yet made a decision on the issue.

      In July Sikora went to Hurst’s office and discussed the issue of

wage increases again. Hurst said he had not yet decided to implement a

raise. At this point, Sikora claims he merely told Hurst that he did not

know if he could continue to work for the fair if he did not receive a raise.

Hurst claims Sikora told him, due to the expensive nature of the county’s

equipment the crew was using at the fairgrounds, Rinehart told Sikora

he could not operate the equipment unless he was being paid at the

same or a comparable salary as the salary he earned working for the

county.   Regardless of which account is accurate, after learning how

much Sikora earned an hour while working for the county, Hurst asked

Sikora whether a raise to $12.50 an hour for Sikora, a raise to $10.50 an

hour for Kluender, and a $1.00 an hour raise for the rest of the crew

would be a sufficient raise.        Sikora agreed to the raise, Hurst

implemented it, and Sikora and the rest of the crew continued to work

for the fair in the summer and fall of 2004.

      Also in July 2004 the fair needed more gravel for its streets. The

county informed Sikora that he was not permitted to use county trucks
                                      4

to transport the gravel. Instead, the county would transport the gravel to

the fairgrounds during its regular work schedule.       Accordingly, Sikora

told Hurst he could not haul gravel to the fairgrounds; instead, if Hurst

needed more gravel he should contact Rinehart’s office to arrange for the

county to haul the gravel to the fairgrounds during the county’s regular

workday.      Hurst contacted Rinehart’s office to request the use of the

county’s trucks to haul gravel to the fairgrounds. Subsequently, John

Rosacker, the road and maintenance foreman and Sikora’s immediate

supervisor, went to the fairgrounds and relayed the same message that

Sikora had given Hurst. During this conversation, Hurst told Rosacker

that he “had been led to believe that Mr. Rinehart was requiring that we

pay comparable wages” to Sikora and the crew as a condition of being

able to use the county’s equipment. Rosacker relayed this message to

Rinehart, who came to the fairgrounds and told Hurst this statement was

a lie.

         Upon Rinehart learning of Sikora’s alleged statement, he told Hurst

“there is probably some disciplinary action that needed to be taken” and

asked Hurst to write down what happened in a memo. Hurst agreed to

do so, but not until the fair ended due to his busy work schedule. At the

end of September or the first part of October, Rinehart called Hurst and

again asked him to write down what had happened.             Consequently,

Rinehart set up a meeting on October 20 between Hurst and Clay County

assistant attorney, Michael J. Houchins.      After the meeting, Houchins

summarized what Hurst had said in a letter and sent it to Rinehart.

Rinehart received the letter on approximately October 27 or 28 and it

stated in pertinent part:

         Soon after Ike stated that he would not be coming back,
         Sikora came to visit with Phil Hurst. At that time, Phil did
         not know [Rinehart] and had not visited with [him] about
                                     5
        using the County equipment at the fair. Sikora then stated
        to Phil Hurst that because of the expense of the equipment,
        approximately $100,000 worth of equipment, that [Rinehart]
        stated that Sikora could not be operating the equipment
        unless working at the same salary that he was receiving
        while working for the County. Sikora emphasized to Phil
        that they needed more money to work. He indicated that the
        only way they could work and use the County equipment
        was if they were paid more. It was then agreed that Jim
        Sikora would receive $12.50 an hour, and Rob Kluender
        would also receive a raise. Phil was led to believe that he
        had to pay the $12.50 per hour to Sikora, or the Clay County
        Fair would not be able to use County equipment.

        On October 29 Rinehart met with Rosacker and Sikora and

terminated Sikora’s employment with the county. Rinehart gave Sikora a

copy of the letter detailing Hurst’s statement, handed Sikora his last

paycheck, and told him the county had terminated his employment. The

only reason given for Sikora’s termination was Hurst’s allegations

contained in the above-mentioned letter.

        On November 29 the union filed a prohibited practice complaint

with the board against the county and Rinehart. The complaint alleged

the county and Rinehart had engaged in prohibited practices under the

PERA by discharging Sikora for engaging in “union activities and other

concerted activities for mutual aid and [protection] not prohibited by

law.”    The board held a hearing on the union’s complaint before an

administrative law judge (ALJ).

        The ALJ adopted Sikora’s version of events and stated, “I cannot

reasonably conclude that Sikora said what Hurst alleged without the

County providing Sikora with an opportunity prior to discharge to defend

himself against the allegation.”   Consequently, the ALJ concluded the

county wrongfully terminated Sikora for engaging in protected concerted

activities under the PERA and ordered the county to reinstate Sikora to
                                     6

his former job with full back pay and benefits. The county appealed to

the board from the ALJ’s proposed decision and order.

       The board did not adopt the ALJ’s findings of fact or conclusions of

law.   The board determined Sikora’s testimony was more credible and

Sikora did not make the coercive statements Hurst attributed to him as

set out in the letter. Although the board applied a different legal analysis

than the ALJ, it ultimately concluded the county wrongfully terminated

Sikora for engaging in protected concerted activities under the PERA—

negotiating wages—and ordered the county to reinstate Sikora with full

back pay and benefits.

       The county filed a petition for judicial review of the board’s final

decision. The district court affirmed the board’s decision. The county

appeals.

       II. Issue.

       The only issue we need to reach to dispose of this appeal is

whether the board correctly found that Sikora’s conduct in negotiating

wages for himself and others with a nonpublic employer was a protected

activity falling within the scope of the PERA.

       III. Scope of Review.

       To decide this issue, we must determine the proper scope of the

rights of public employees contained in section 20.8(3) of the PERA. See

Iowa Code § 20.8(3) (2003).     Specifically, we must decide whether the

rights contained in section 20.8(3)        protect Sikora’s   activities in

negotiating wages for himself and the other employees working for the

fair. Our primary goal when we interpret a statute is to ascertain the

legislature’s intent. State v. Pub. Employment Relations Bd., 744 N.W.2d

357, 360 (Iowa 2008). In doing so, we seek a “ ‘reasonable interpretation
                                          7

that will best effect the purpose of the statute.’ ” Id. at 361 (quoting IBP,

Inc. v. Harker, 633 N.W.2d 322, 325 (Iowa 2001)).

      Ordinarily, the interpretation of a statute is a matter of law for us

to decide. Id. at 360. However, when the legislature has clearly vested

the interpretation of a statute by a provision of law in the discretion of

the agency, we review the agency’s interpretation of the statute to

determine     if   its   interpretation   is   irrational,   illogical,   or   wholly

unjustifiable.     Iowa Code § 17A.19(10)(l).        This is not one of those

situations.

      We recently discussed the analysis used to determine whether the

legislature clearly vested an agency with the authority to interpret a

statute. See Renda v. Iowa Civil Rights Comm’n, 784 N.W.2d 8, 11–12

(Iowa 2010). When the legislature has not explicitly given an agency the

authority to interpret a statute, we must examine “the phrases or

statutory provisions to be interpreted, their context, the purpose of the

statute, and other practical considerations to determine whether the

legislature intended to give interpretive authority to an agency.”                Id.

Here, the legislature has given the board the authority to administer the

provisions of chapter 20, collect data, perform studies, establish

procedures, hold hearings, and adopt rules.             Iowa Code § 20.6.        The

legislature has not given the board the explicit authority to interpret the

PERA.   Therefore, we must examine the specific statutory provision at

issue in this case and decide whether the legislature intended the board

to have interpretive authority with respect to that provision.

      The outcome of this case depends on the scope of coverage of the

PERA as indicated by the public policy of the act. The legislature has set

forth the public policy of the act in the Code. Iowa Code § 20.1. Only

the legislature can define the scope of legislative actions. The board can
                                    8

only act within that scope of coverage. Thus, it is our task and not the

board’s to determine the scope of the PERA.      Accordingly, the board’s

interpretation of the scope of coverage of the PERA is not entitled to

review under section 17A.19(10)(l) and our review is for correction of

errors of law under section 17A.19(10)(c).

      IV. Discussion and Analysis.

      The Iowa Code provides:

            Public employees shall have the right to:

            ....

            3. Engage in other concerted activities for the purpose
      of collective bargaining or other mutual aid or protection
      insofar as any such activity is not prohibited by this chapter
      or any other law of the state.

Iowa Code § 20.8(3). The union claims even though the fair is a private

employer, Sikora’s activity in negotiating wages with the fair for himself

and his fellow employees is a protected activity under section 20.8(3);

thus, Sikora’s public employer, the county, was prohibited from

terminating him for engaging in this activity. In support of its claim, the

union relies on the federal courts’ interpretation of the National Labor

Relations Act (NLRA), 29 U.S.C. §§ 151–69 (2000).

      In interpreting the NLRA, the federal courts have refused to limit

the scope of the NLRA’s right to engage in “concerted activity” for the

purpose of “other mutual aid or protection” to conduct directed at the

employee’s own employer. Instead, the federal courts have extended this

right outside of an employee’s own employment relationship to third

parties, administrative and judicial forums, appeals to legislators, and

“concerted activity” for the purpose of “other mutual aid or protection”

aimed at another employer. See, e.g., Eastex, Inc. v. NLRB, 437 U.S. 556,

565–67, 98 S. Ct. 2505, 2512–13, 57 L. Ed. 2d 428, 438–39 (1978)
                                    9

(recognizing employees can seek to improve the terms and conditions of

their employment outside the immediate employee-employer relationship

such as through administrative and judicial forums, and by appealing to

legislators to protect their interests); Compuware Corp. v. NLRB, 134 F.3d

1285, 1291 (6th Cir. 1998) (recognizing “[e]mployees have the right to

engage in concerted communications with third parties regarding

legitimate employee concerns”); NLRB v. J.G. Boswell Co., 136 F.2d 585,

595 (9th Cir. 1943) (finding the fact that an alleged union activity

extends outside the employee’s own employment is immaterial when

determining if the NLRA was violated); Fort Wayne Corrugated Paper Co.

v. NLRB, 111 F.2d 869, 874 (7th Cir. 1940) (recognizing employees have

the right to join and participate in union activities outside of their

employment); A-W Wash. Serv. Station, Inc., 258 N.L.R.B. 164, 165 (1981)

(recognizing the NLRA forbids discrimination intended to discourage

union activity aimed at another employer); Wash. State Serv. Employees

State Council No. 18 & Local 6, 188 N.L.R.B. 957, 958–59 (1971) (holding

protesting employee was engaged in concerted activity for mutual aid or

protection even though demonstration was not aimed at the hiring

practices of her own employer); Bob’s Casing Crews, Inc., 178 N.L.R.B. 3,

5 (1969) (recognizing employee was engaged in concerted activity for

mutual aid or protection when he left jobsite of different employer in

protest of excessive work hours); Gen. Elec. Co., 169 N.L.R.B. 1101,

1103–04 (1968) (recognizing that collecting money in support of

employees of other employers is concerted activity for the purpose of

other mutual aid or protection), enforced, 411 F.2d 750 (9th Cir. 1969)

(per curiam). These courts have recognized that: (1) nothing in the NLRA

limits this right to conduct directed at the employees’ own employer,

(2) the NLRA describes this right with the extremely broad language of
                                    10

“mutual aid or protection,” and (3) the rationale and public policy

underlying this right forbids such a limitation.   See, e.g., Eastex, Inc.,

437 U.S. at 565–67, 98 S. Ct. at 2512–13, 57 L. Ed. 2d at 438–39

(recognizing the broad language of “mutual aid or protection” allows

employees to improve the terms and conditions of their employment

outside of the employee-employer relationship and to hold otherwise

would frustrate the policy of the NLRA); Fort Wayne Corrugated Paper

Co., 111 F.2d at 874 (citing the national scope of unionism as a policy

reason for refusing to limit protected union activities to intracompany

relations); Wash. State Serv. Employees State Council No. 18 & Local 6,

188 N.L.R.B. at 958–59 (noting nothing in the NLRA places any limitation

on the term “concerted” which would warrant finding an employee who

engages in concerted activities with employees of other employers is not

protected under the NLRA); Gen. Elec. Co., 169 N.L.R.B. at 1103

(recognizing the NLRA does not limit the scope of the term “concerted

activities” to the employee-employer relationship and its rationale forbids

such a limitation).

      Even though the federal courts have held the protection of the

NLRA extends to protected activities outside the direct employer-

employee relationship, we find the PERA does not protect a public

employee’s activities with another nonpublic employer.      We reach this

conclusion for a number of reasons.

      First, the purposes of the NLRA and the PERA are different.       In

regards to the NLRA, Congress has stated:

            It is declared hereby to be the policy of the United
      States to eliminate the causes of certain substantial
      obstructions to the free flow of commerce and to mitigate
      and eliminate these obstructions when they have occurred
      by encouraging the practice and procedure of collective
      bargaining and by protecting the exercise by workers of full
                                    11
      freedom of association, self-organization, and designation of
      representatives of their own choosing, for the purpose of
      negotiating the terms and conditions of their employment or
      other mutual aid or protection.

29 U.S.C. § 151.      The Iowa legislature has stated the purpose of the

PERA is as follows:

             The general assembly declares that it is the public
      policy of the state to promote harmonious and co-operative
      relationships between government and its employees by
      permitting public employees to organize and bargain
      collectively; to protect the citizens of this state by assuring
      effective and orderly operations of government in providing
      for their health, safety, and welfare; to prohibit and prevent
      all strikes by public employees; and to protect the rights of
      public employees to join or refuse to join, and to participate
      in or refuse to participate in, employee organizations.

Iowa Code § 20.1(1).

      We can understand how the federal courts interpret the NLRA’s

protected activities broadly because its purpose is to “eliminate the

causes of certain substantial obstructions to the free flow of commerce
and to mitigate and eliminate these obstructions.” 29 U.S.C. § 151. To

accomplish this purpose, it is necessary to protect an employee even

when that employee engages in a protected activity with an employer

other than his or her own employer.

      On the other hand, the purpose of the PERA is not to deal with the

free flow of commerce, but “to promote harmonious and co-operative

relationships between government and its employees.”           Iowa Code

§ 20.1(1). Thus, the PERA’s focus is more limited than the NLRA’s and is

centered on the relationship between government and its employees. The

protected activities under the PERA are not directed to any employer, but

rather are directed towards the government as the employer. The activity
                                     12

at issue in the present case was directed toward a private employer, a

relationship outside those identified in section 20.1(1).

      Another reason we find the PERA’s protection is not as expansive

as the NRLA’s is that the acts define the protected employee differently.

The NLRA states, “The term ‘employee’ shall include any employee, and

shall not be limited to the employees of a particular employer, unless this

subchapter explicitly states otherwise. . . .” 29 U.S.C. § 152(3) (emphasis

added). The Supreme Court relied on the language, “shall not be limited

to the employees of a particular employer,” to find a congressional intent

“to protect employees when they engage in otherwise proper concerted

activities in support of employees of employers other than their own.”

Eastex, Inc., 437 U.S. at 564, 98 S. Ct. at 2511–12, 57 L. Ed. 2d at 438.

      Iowa’s definition of public employee “means any individual

employed by a public employer, except individuals exempted under the

provisions of section 20.4.” Iowa Code § 20.3(10). By not including a

phrase similar to the phrase “shall not be limited to the employees of a

particular employer,” the Iowa legislature intended the PERA’s coverage

to be narrower than the NLRA’s.

      Moreover, we do not see how allowing a public employee to

negotiate a contract for nonpublic employees promotes harmonious and

cooperative relationships between the government and its employees.

Factually, it may do just the opposite. If a public employee negotiates

favorable terms of employment with a nonpublic employer, the terms of

the nonpublic employment may be such as to cause the public employee

to leave public employment or become dissatisfied with the terms of

employment with the public employer. Either situation will not promote

harmonious and cooperative relationships between the government and

its employees.
                                    13

      Accordingly, we hold the scope of coverage of the PERA does not

protect Sikora’s activity in negotiating wages for himself and other

employees with a nonpublic employer such as the fair. Consequently,

the board’s interpretation of section 20.8(3), holding these activities are

protected, is erroneous.

      V. Disposition.

      The board erroneously determined the PERA protected Sikora’s

activity in negotiating wages for himself and other employees with a

nonpublic employer.     The district court affirmed the board’s decision.

Therefore, we reverse the district court’s affirmance of the board’s

decision. For that reason, we remand this case to the district court to

enter an order remanding the case to the board with instructions

requiring the board to reverse its decision and enter an order dismissing

the union’s prohibited practice complaint.

      DISTRICT     COURT      JUDGMENT        REVERSED       AND     CASE

REMANDED WITH INSTRUCTIONS.
