AMERICAN
ASSOCIATION OF UNIVERSITY PROFESSORS,
V.
BOARD
OF REGENTS OF THE UNIVERSITY OF NEBRASKA, APPELLANT, UNIVERSITY OF NEBRASKA LAW
FACULTY ASSOCIATION, INTERVENER-APPELLEE, FACULTY OF THE COLLEGE OF DENTISTRY,
UNIVERSITY OF NEBRASKA-LINCOLN, INTERVENER-APPELLEE.
198
Filed
April 13, 1977,
1. Court of Industrial Relations: Labor and
Labor Relations: Statutes. The considerations set forth in section 48-838(2), R.
S. Supp., 1974, in regard to collective bargaining units of employees, are not
exclusive; and the Court of Industrial Relations may consider additional
relevant factors in determining what bargaining unit of employees is
appropriate.
2. Court of Industrial Relations: Labor and
Labor Relations: Employer and Employee. A basic inquiry in bargaining unit
determination is whether a community of interest exists among the employees which
is sufficiently strong to warrant their inclusion in a single unit.
3. ______: ______: ______. In determining
whether a particular group of employees constitutes an appropriate bargaining
unit where an employer operates a number of facilities, relevant factors include
prior bargaining history; centralization of management, particularly in regard
to labor relations; extent of employee interchange; degree of interdependence of
autonomy of the facilities; differences or similarities in skills or functions
of the employees; geographical location of the facilities in relation to each
other; and possibility of over-fragmentation of bargaining units.
4. ______: ______: ______. The faculties of
the College of Law and the College of Dentistry were entitled to separate
bargaining units where the evidence showed that those faculty members shared a
community of interest separate from other faculty members, in that they have
separate buildings; have separate accreditation standards; have different
academic calendars; have significant operational independence on a day-to-day
basis; and receive higher salaries, and promotions and tenure in a shorter
period of time, than do other faculty members of the University.
5. ______: ______: ______. Department
chairmen are properly included in bargaining units of faculty employees at the
University where their decision-making power is diffused among the department
faculty under the by laws of the Board of Regents of the
6. Court of Industrial Relations: Labor and
Labor Relations: Appeal and Error. Review by this court of orders and decisions
of the Court of Industrial Relations is restricted to considering whether the
order of that court is supported by substantial evidence justifying the order
made, whether it acted within the scope of its statutory authority, and whether
its action was arbitrary, capricious, or unreasonable.
Appeal from the
L. Bruce Wright of Cline, Williams, Wright,
Johnson & Oldfather, for appellant.
Patrick W. Healey of Healey, Healey, Brown
& Wieland, for appellee.
Theodore L. Kessner of Crosby, Guenzel,
Davis, Kessner & Kuester, for intervener-appellee University of Nebraska Law
Faculty Assn.
Heard before WHITE, C. J., SPENCER, BOSLAUGH,
MCCOWN,
BRODKEY, J.
This is an
appeal by the Board of Regents of the
On July 28,
1975, the American Association of University Professors,
The
respondent, the Board of Regents of the
The faculties
of the
Hearing was
had on September 25, 1975, at which time all parties introduced evidence on the
issues. In its opinion filed November 26, 1975, the Court of Industrial
Relations established three bargaining units, as follows:
"1. All
full-time members of the University of Nebraska at Lincoln faculty other than
members of the Faculty of Law and Dentistry, who are employees of the University
of Nebraska at Lincoln and who hold faculty rank conferred on the recommendation
of an academic department or academic school of the University of Nebraska at
Lincoln, and who do not hold administrative positions higher than that of a
chairman of a department or of director of a school or their equivalent. A
faculty member holding an administrative position who reports directly to a Vice
Chancellor holds a position higher than that of chairman of a department or of
director of a school. County and Home Agents shall be included in this unit.
"2. All
full-time 'A' line employees of the College of Dentistry not above Department
Chairman or equivalent.
"3. All
full-time 'A' line employees of the
The Board's
motion for rehearing filed December 3, 1975, was overruled February 10, 1976,
and it then filed a notice of appeal and motions to stay the elections and fix
the amount of a supersedeas bond, the motions being directed at postponing the
elections until final resolution by this court of the propriety of the
bargaining units established by the Court of Industrial Relations. The motion to
stay the elections was overruled, and the CIR deferred judgment on the motion to
fix the amount of a supersedeas bond until after the elections. Elections in
each unit were held on February 16, 1976, and only the faculty of the
Although the
Board lists 28 assignments of error in its brief, essentially the issues
involved in this appeal are: (1) Whether the CIR erred in establishing the three
bargaining units, as set forth above, rather than finding that one bargaining
unit for all academic employees of the University of Nebraska was appropriate,
as claimed by the Board in its answer; and (2) whether it was error to include
chairmen and directors of departments in the bargaining units.
The evidence
presented in this case was voluminous, and a summary of the relevant facts is as
follows. The
Both prior to
and subsequent to the addition of UN-O, the University has been a statewide
University with its general government vested in an executive body known as the
Board of Regents of the University of Nebraska. Article VII, section 10, of the
Constitution of Nebraska, provides that the general government of the University
shall, under the direction of the Legislature, be vested in the Board, the
members of which are elected from districts established by the Legislature.
The Board has,
since the addition of UN-O, established a branch, entitled Central
Administration, vested with the power and authority, subject to the direction
and control of the Board, to (1) exercise executive powers for proper governance
of the University; (2) enforce the regulations and orders of the Board and issue
directives and executive orders in accordance with existing policy of the Board;
and (3) direct planning and development, appraise all activities of the
University, and be responsible for their coordination and implementation. The
Central Administration is administered by the President of the University, and
the Board has also created positions of executive vice president in the Central
Administration.
The University
is divided into three major administrative units, each of which has its own
administrative staff headed by a Chancellor, who is also a University
vice-president. These major administrative units are UN-L, UN-O, and UNMC. Each
administrative unit is divided into colleges and departments. A Dean administers
each college, and a chairman or director administers each department.
Within the
foregoing general organization framework, the University employs approximately
5,900 full-time employees, who are designated as either "A" line,
"B" line, or "C" line individuals. "A" line
employees are those individuals holding the positions of professional staff,
academic-administration staff, or other academic staff. The University currently
employs approximately 2,200 "A" line personnel. The employees involved
in this case are all "A" line employees.
The governing
document of the University is the by laws of the Board of Regents. Under these
by laws, the Board has established its authority "to make such rules and
regulations as it deems appropriate and necessary for the proper governance and
administration of the University." The by laws set forth the structure of
the University, and define the duties and responsibilities of the President and
the Chancellors. The President, as previously stated, has the responsibility to
exercise powers of the Central Administration, and carry out policies
established by the Board. The by laws provide that the Chancellors of each
administrative unit, subject to the guidelines and policies of the Board and the
President, "shall do all things necessary for the development of the major
administrative unit for which he is responsible." These duties include
recommending personnel appointments to the President and the Board, planning and
developing all activities of his unit, and submitting annual budgets for
operations and construction to the President covering all activities assigned to
his unit.
Under the by
laws, the immediate government of each college within an administrative unit
shall be by its own faculty. See, also, §§ 85-111 and 85-108, R. R. S. 1943.
Such power expressly includes adoption of attendance rules, determination of
requirements for graduation and recommendations of candidates therefor,
developing research and extension programs, discipline of students for conduct
solely affecting the college, and providing to the Board recommended admission
requirements, courses of study and other relevant material for meeting statutory
requirements. Each college is to be administered by a Dean, who shall be
recommended to the President and the Board by the Chancellor of the
administrative unit.
The by laws
further provide that the Board may create departments of a college or school,
and that the chairman of the department shall be the officer primarily charged
with the administration of the department. Appointment of a department chairman
is by the Board upon recommendation of the Dean, after appropriate consultation
with the department faculty, and with concurrence by the Chancellor and the
President. The department chairmen have the responsibility of making
recommendations to the Dean concerning the welfare of their departments, but
shall consult with the appropriate departmental faculty before so doing.
The by laws
also provide that the faculties of each major administrative unit shall
establish a governing agency for dealing with matters of interest to more than
one college. Such governing agencies may appeal directly to the Board in regard
to matters of academic freedom and faculty status, after exhausting normal
administrative channels. Both UN-L and UN-O, pursuant to this provision of the
by laws, have established faculty senates. There is no system-wide faculty
senate.
The Board has
the sole power to make appointments or to contract for services of the
academic-administrative staff, and every appointment by the University to such a
position shall be in writing and signed by the Board or its authorized agent. It
is provided that each major administrative unit of the University shall prepare
written standards which shall be used in making all decisions on promotions,
awarding continuous appointments, and merit salary adjustments. Each unit is
also responsible for establishing procedures for gathering relevant information
from all sources, including student evaluations and peer judgments, as part of
an annual review of faculty performance, this review to be considered in
determining merit salary adjustments, promotions, and in awarding continuous
appointments. Each administrative unit shall also create an elected faculty
Committee on Academic Freedom and Tenure which has specified powers under the by
laws.
It is clear
under the by laws, as well as under its constitutional grant of authority, that
the Board is the ultimate governing body of the University of Nebraska, although
under the direction of the Legislature. The parties agree that the Board has
final formal authority to grant appointments, grant degrees, grant tenure and
promotions, and establish a budget for the University as a whole and for each
major administrative unit. It is also true, however, that the by laws themselves
indicate that power and authority to make decisions affecting employees is
diffused throughout the University; and that the Presidents, Chancellors, and
Deans play an important role in the decision-making process; and also that the
Board often acts upon the recommendation of such personnel.
The testimony
at the hearing below shows that the petitioner (AAUP/UN-L) has approximately 200
members, 12 to 24 of which are department chairmen. There are separate chapters
of the AAUP at UN-O and UNMC, but the petitioner is the only chapter of any
size, and no other chapters have expressed the desire or decided to pursue
collective bargaining.
The witnesses
for the petitioner were professors who are currently, or who have previously
been, officers of the petitioner; or who have been involved with the AAUP/UN-L
during various stages of its existence. In support of their position that a
separate bargaining unit for UN-L faculty is appropriate, these witnesses
testified that procedures of governance in the University are confined to the
administrative unit boundaries, and that system-wide bargaining would disrupt
longstanding, established practices of University administration. Although
petitioner's witnesses recognized that the Board has the ultimate, formal
authority to make decisions regarding the University, they stated that
traditionally, historically, and realistically the faculty of each major
administrative unit has been treated individually, has taken part in University
government on a unit basis, and has a community of interest and sense of
collegiality confined to the unit.
Although
witnesses for the petitioner testified to a large number of facts which
petitioner contends support its position, the following facts appear to be the
most important. UN-O and UN-L have separate administrative unit by law faculty
senates, committees, and catalogs at both the graduate and undergraduate level.
A faculty member in one administrative unit has no claim of position in another
unit, there is no interchange of faculty between the units except in limited and
unusual situations, transfers of faculty from one unit to another are rare, and
the faculty of the units do not have close contact with each other or
understanding of each other's problems. Peer review and tenure are effectively
departmental and college matters, even though the Board makes final appointments
and officially grants tenure; and meaningful management decisions and faculty
input to University government can only be made at a local level. The Chancellor
of each administrative unit is charged with the development of standards for
promotion, tenure, and merit salary increases, and these standards are
promulgated in the first instance by colleges and departments. No employee group
exists to represent all three administrative units, as faculty organizations
have previously been limited in scope to the administrative unit. Under the
University 5-year plan, UN-L is, and should remain, the primary locus of
doctoral education; and it is recognized that UN-O's primary mission is
distinctly urban in its orientation, and will remain so. There is no systemwide
committee on academic freedom and tenure, or range of faculty committees at the
systems level comparable to that at the unit level. Finally, previously, and at
the present time, matters relating to the faculty of each unit have been dealt
with by the Board and Central Administration on a campus basis.
The AAUP/UN-L
relies on these and similar facts in support of its position that the UN-L
faculty has a community of interest confined to the boundaries of UN-L, and that
there are fundamental differences between the major administrative units such
that a bargaining unit for UN-L faculty is appropriate.
Witnesses for
the petitioner also described the actual decision-making process in regard to
tenure, promotions, hiring, and academic programs. Decisions on these issues are
initially made at the departmental or college level, and recommendations are
made to the Chancellor of the administrative unit. The Chancellor then makes his
recommendations to the President, who in turn makes recommendations to the
Board. The Board, in the vast majority of cases, follows the recommendations
which were first made at the department or college level. Thus, the petitioner
points out, although the Board does have the authority to make the final
decision, each administrative unit, and the colleges and departments therein,
play an important, if not dominant, role in the actual day-to-day decisions
which affect the faculty of that unit. This fact is recognized in the by laws of
the Board, which acknowledge and establish the unit structure of the University,
and which acknowledge the authority and role of various parts of the unit in
contributing to the decision-making process. The 5-year plan adopted by the
Board also acknowledges and reemphasizes the basic structure set out in the by
laws.
The witnesses
for the Board were officials in the Central Administration, and an expert on
collective bargaining in institutions of higher education. The relevant
testimony in favor of the Board's position was as follows: In 1972, the Board
first adopted a policy that there should be a single, multi-campus bargaining
unit. This policy was adopted in response to a petition by UN-O professors who
sought to establish a bargaining unit for UN-O faculty. There was testimony that
University labor policies operate within the confines of Board policies, and are
carried out by Central Administration. The Board has adopted equalized fringe
benefits for employees on a University-wide basis, is developing system-wide
contract form procedures, and is establishing a unified academic calendar.
Budget planning is done by the
The expert
witness for the Board was of the opinion that one, system-wide bargaining unit
would be appropriate. He believed that the interests of all faculty, including
the faculty of the Law, Dental, and
Additional
facts relevant to the issue of whether department chairmen should be in a
bargaining unit, and whether the Law and
In
establishing the AAUP/UN-L as a separate bargaining unit, the CIR made the
following findings of fact:
"1. There
has never been any substantial continuing effort at organization at either of
the other two campuses.
"2. There
is no bargaining history at any campus. Respondent permits AFSCME and NAPE dues
checkoff rights on its 'B' line and 'C' line employees, but denies this right to
petitioner.
"3.
Within guidelines and subject to central approval, hiring, firing, tenure and
employment conditions decisions are made not just at the local campus level, but
at the Department or College level, rather than at the system-wide level.
"4. There
is little interchange of faculty members between campuses.
"5. There
is little integration of operations between campuses.
"6. While
the University as a whole has a unified mission, the campuses each have a
substantially different part in carrying out that mission.
"7. The
University of
"8. The
College of Law, the
"9. Each
campus and the College of Law and Dentistry perceive themselves as separate and
distinct entities. The faculty at the
In its brief,
the Board contests most of these findings of fact. However, as indicated by the
above summary of the evidence, we believe the findings of the CIR find support
in the record.
Before
proceeding to a discussion of the merits of this case, there is an initial
procedural issue raised which is entitled to consideration even though it does
not affect the outcome of the controversy. The Board sought to appeal to this
court from the Court of Industrial Relation's determination establishing
bargaining units, before elections in those units were held.
The CIR overruled the
Board's motion to stay the elections pending the appeal. The Board contends that
an order determining the composition of bargaining units is a final order, and
thus it should not have been required to wait until the elections took place
before it could appeal.
While no
longer important in the instant case, we deem it advisable to settle this issue
for guidance of future litigants. Section 48-812, R. R. S. 1943, provides that
appeals from the Court of Industrial Relations to this Court are to be taken in
the same manner as appeals from the District Court to this court. Section
25-1912, R. R. S. 1943, permits parties to appeal to this court from judgments
and decrees rendered or "final orders" made by the District Court.
Section 25-1902, R. R. S. 1943, defines a final order: "An order affecting
a substantial right in an action, when such order in effect determines the
action and prevents a judgment, and an order affecting a substantial right made
in a special proceeding, or upon a summary application in an action after
judgment, is a final order * * *." Thus the issue is whether an order by
the Court of Industrial Relations establishing bargaining units is an appealable
order under sections 25-1912 and 25-1902, R. R. S. 1943.
In Dorshorst
v. Dorshorst, 174 Neb. 886, 120 N. W. 2d 32 (1963), this court stated that an "order is
final and appealable when the substantial rights of the parties to the action
are determined, even though the cause is retained for the determination of
matters incidental thereto." In Lund v. Holbrook, 157 Neb. 854, 62 N. W. 2d 112 (1954), this court stated: "The law, as we
understand it, is that an order is final for the purpose of an appeal when it
determines the rights of the parties; and no further questions can arise before
the court rendering it except such as are necessary to be determined in carrying
it into effect." See, also, Sullivan v. Storz, 156 Neb. 177, 55 N. W. 2d 499 (1952). Under these cases, we believe that there
is merit to the Board's contention that it should have been permitted to appeal
immediately from the order establishing the bargaining units. The only issue
before the CIR was the propriety of the proposed bargaining units, and once that
issue was decided, the only real controversy between the parties was terminated.
All that remained to be done was the holding of elections in the units. When the
propriety of the bargaining units established by the Court of Industrial
Relations is to be contested in an appeal to this court, there is no economy of
time or money in first holding the elections, as this court may determine that
the bargaining units established by the CIR were erroneous. Courts in other
jurisdictions agree that a party may appeal from an order establishing
bargaining units prior to the holding of elections. See Civil Service Employees
Assn., Inc. v. Helsby, 31 App. Div. 2d 325, 297 N. Y. S. 2d 813 (1969), affirmed
24 N. Y. 2d 933, 302 N. Y. S. 2d 822, 250 N. E. 2d 230 (1969). Therefore we hold
that an order establishing bargaining units is a final order under section
25-1902, R. R. S. 1943, and a party may appeal therefrom prior to the holding of
elections.
Section
48-837, R. R. S. 1943, grants public employees the right to be represented by
employee organizations and to negotiate collectively with their public
employers. A preliminary question to be determined in connection with collective
bargaining is, of course, what bargaining unit of employees is appropriate.
Subsection (2) of section 48-838, R. S. Supp., 1974, provides, in relevant part:
"The court shall also determine the appropriate unit for bargaining and for
voting in the election, and in making such determination the court shall
consider established bargaining units and established policies of the employer.
It shall be presumed, in the case of governmental subdivisions such as
municipalities, counties, power districts, or utility districts with no previous
history of collective bargaining, that units of employees of less than
departmental size shall not be appropriate." (Emphasis supplied.) This
statute was originally enacted by the Legislature in L.B. 1228 in 1972.
The Board
contends on appeal, as it did below, that the provision in this subsection to
the effect that "the court shall consider established bargaining units and
established policies of the employer" places a limitation on what factors
the CIR may consider in establishing bargaining units, and eliminates as
considerations those referred to by this court in City of Grand Island v.
American Federation of S. C. & M. Employees, 186 Neb. 711, 185 N. W. 2d 860 (1971). In City of
The Court of
Industrial Relations rejected the Board's contention on this issue, and found
that the considerations set forth in subsection (2) of section 48-838, R. S.
Supp., 1974, were not exclusive, and that they are a guide rather than a
limitation. The CIR was correct in so finding. It is clear that in enacting
subsection (2) of section 48-838, the Legislature properly sought to avoid undue
fragmentation of bargaining units. The pertinent legislative history is reviewed
in IBEW v. State, II CIR 133/134 (1975). As noted in that case, the decision
primarily responsible for the introduction of L.B. 1228 was IBEW v. City of
Lincoln, 1 CIR 48-1 (1971), a case which dealt with the issue of when a
governmental unit is required to deal exclusively with a labor organization. The
legislative history to L.B. 1228 indicates that the Legislature, as a result of
IBEW v. City of
Three primary
issues are raised in this case by the parties. The first and most difficult
issue to be resolved in this case is whether the faculty of UN-L should be
permitted to have a separate bargaining unit, or whether the faculty of both
UN-O and UN-L should be included in one unit. A review of cases in other
jurisdictions indicates that courts have reached differing conclusions on the
issue of whether singlecampus bargaining units are appropriate, or whether units
should be system-wide. In
In
Even this
brief review of cases from other jurisdictions indicates that factual
color-matching of cases is difficult, if not impossible. First, the statutory
criteria for bargaining units vary from state to state, and secondly, each state
university system is unique. Cases from other jurisdictions are helpful,
however, in identifying important factors which are relevant in determining
whether a single-campus, or a system-wide, bargaining unit is appropriate. It
has long been held that a basic inquiry in unit determinations is whether a
community of interest exists among the employees which is sufficiently strong to
warrant their inclusion in a single unit. See Note, 59
Prior
bargaining history. -- There has never been formal collective bargaining at the
Centralization
of management and labor policy. -- The Board's evidence was that all labor
policy of the University is made by the Board or the Central Administration.
Chancellors of each major administrative unit, however, govern their units on a
day-to-day basis, and play an important role in labor management.
Extent of
faculty interchange between campuses. -- Although there has been limited
interchange of faculty between UN-L and UN-O, it has not been significant.
Although witnesses for the parties disagreed on the precise number and effect of
transfers, there was no evidence showing that transfers were common, or that
there has been a significant number of transfers.
Degree of
interdependence of autonomy of the campuses. -- There appears to be little
interdependence between UN-L and UN-O, as the campuses are generally regarded as
distinct entities, and the faculty of the two units do not have close contact.
The few system-wide programs which exist are in specific fields, and UN-O and
UN-L in effect function independently of each other.
Differences or
similarities in skills or functions of the employees. -- Generally, the faculty
at both UN-L and UN-O perform similar functions and have similar skills. It
should be noted, however, that the University 5-year plan recognizes that UN-L
shall remain the primary locus of doctoral education, and UN-O shall remain
primarily urban in orientation. This fact affects the role of the faculty at
each campus, and differences between faculty do exist due to the particular
nature of each campus.
Geographical
location of the campuses in relation to each other. -- Here, obviously, the
campuses are in two different cities, approximately 60 miles apart. Although
this fact is not in and of itself determinative of the issue, the location of
the campuses does affect the sense of collegiality and sense of community the
faculty on each campus have with each other.
Uniformity of
wages, benefits, and conditions of employment. -- The University, through the
Board, has attempted to provide uniform wage and fringe benefits to all
University faculty. Conditions of employment include, however, facilities in
which employees work, and academic programs which exist or are available on each
campus. These are clearly different at UN-O and UN-L. This fact is relevant in
that the petitioner is concerned not only with wages, but also with academic
planning, funding for programs, and the facilities available to the faculty.
Current means
of governing the University. -- It is undisputed that the by laws of the Board
provide that the Board has the ultimate power to make decisions regarding
tenure, hiring, firing, promotion, merit salary increases, academic programs,
and budgeting. Although the formal governing procedure for the University is
obviously a very important factor in this case, this court must examine how
decisions are made in fact, as well as how they appear to be made under the by
laws. It is clear that day-to-day decisions affecting employment issues are made
at the campus level, and that many of the decisions which affect employees are
made by the Board and the Central Administration on recommendation of
Chancellors, and other administrators within the campus unit. It should be noted
that in giving final approval of decisions in regard to hiring, firing, tenure,
and employment conditions, the Board has previously acted on a campus basis
rather than on an area of interest basis. The Board has, for example, previously
approved the grant of tenure to faculty at UN-O and UN-L separately.
Established
policies of the employer. -- The Board adopted its position that there should be
a single, system-wide bargaining unit in 1972, in response to a petition by
faculty members at UN-O who requested a bargaining unit limited to faculty on
that campus. No conclusive legal action was ever taken on that issue in 1972.
Community of
interest of employees. -- Witnesses for the petitioner emphasized their belief
that UN-L faculty share a community of interest with each other, and not with
faculty at UN-O. The Board acknowledged differences between the two campuses,
but attributed these differences to the fact that each campus contributes to the
overall mission of the University in different ways.
Possibility of
over-fragmentation of bargaining units. -- The Board relies heavily on the
argument that separate bargaining units would result in over-fragmentation of
the bargaining process. Having one bargaining unit, witnesses for the Board
stated, would avoid "whipsaw" tactics between different bargaining
units, and unnecessary bureaucracy. Two commentators, cited by the Board,
recommend that bargaining units in the public sector "should be as broad as
is consistent with viable negotiations." See, Shaw, L.C. & Clark Jr.,
R.T., Determination of Appropriate Bargaining Units in the Public Sector: Legal
and Practical Problems, 51 Ore. L. Rev. 152 (1971); Gee, E.G., Organizing the
Halls of Ivy; Developing a Framework for Viable Alternatives in Higher Education
Employment, Utah L. Rev. 233 (1973). Gee, for example, argues that units should
parallel the University structure, to "insure that unions bargain with
officials having final bargaining authority and to avoid alteration or
nullification of agreements by a higher authority."
Although the
Board relies on factors such as its ultimate authority to make decisions
affecting employee interests, its previous stance in 1972 on the issue of what
bargaining unit is appropriate, the uniformity of wages and skills of University
faculty, and the centralization of University management, its principal argument
is that separate bargaining units would result in undue fragmentation of
collective bargaining. In this case, however, that danger does not appear to be
serious, as there is a limitation to the likelihood of over-fragmentation.
Essentially, the issue is whether, in addition to the professional schools, hereinafter
discussed, one or two units is appropriate. It is not a case, as was true in
After
carefully reviewing the entire record and considering the relevant factors set
out above, we are of the conclusion that the Court of Industrial Relations was
correct in establishing a bargaining unit which included UN-L faculty, but not
UN-O faculty. Essentially, this conclusion rests on our belief that the UN-L
faculty has a sufficient community of interest, separate from the faculty of
UN-O, which warrants a separate unit. Recapitulating, we believe the following
considerations, as previously discussed, support this conclusion. Employee
bodies which represented faculty concerns, such as the faculty senate or
committee on academic freedom and tenure, exist on a campus level, and not at
the systems level. There is no significant faculty interchange between campuses.
UN-L and UN-O function largely independent of each other so far as the faculty
on each campus is concerned. Although the general skills of the University
faculty are similar, the different missions and roles of each campus affect
faculty interests and conditions of employment on each campus. The geographic
location of the two campuses contributes to the lack of community of interest
between the faculty on each campus. Although the Board has ultimate power to
make decisions affecting the faculty on both campuses, this power in fact is
diffused throughout the system, and administrators on each campus play a
critical role in regard to employee matters. Faculty of UN-L perceive themselves
as having a community of interest different from, and often in contrast with,
the community of interest at UN-O. Finally, due to the unique situation
presented, the likelihood of undue fragmentations appears to be minimal under
the evidence adduced. Although no one of the above considerations is, in and of
itself, controlling, together they support the conclusion of the Court of
Industrial Relations that a separate bargaining unit for UN-L faculty is
appropriate.
We believe
this conclusion is in accordance with the decisions from other jurisdictions
cited previously in this opinion. Although the facts in this case are not
precisely on all fours with the facts of any other case, they are more closely
analogus to those cases where a single-campus bargaining unit was established.
The next issue
for determination is whether it was error to establish separate bargaining units
for the
Numerous other
cases have held that law, medical, and dental faculties are properly excluded
from the general faculty unit. See, In re Employees of
In our present
case, the factors relied on in the above cases to exclude law school, medical
schools, and dentistry schools were established by the evidence. The
Finally, we
turn to the question of whether department chairmen should have been excluded
from the employee bargaining units because they are supervisors, and therefore
part of the University administration and management. The Board contends that
department chairmen are a part of the administration because they receive
additional compensation for their administrative duties, and because they
perform managerial functions such as class scheduling, review of class content,
faculty evaluations and recommendation of appointments, promotions, grants of
tenure, contract terminations, and merit salary increases. Petitioner and
interveners contend that department chairmen in fact act in accordance with the
sense of collegiality which exists among all department faculty, and that their
role as administrators is secondary to their role as faculty in their
departments. The Court of Industrial Relations found that department chairmen
were "of the faculty, and not over it," and therefore included them in
the bargaining units.
Cases in other
jurisdictions are split on the issue of whether department chairmen should be
included in faculty bargaining units.
The testimony
of the petitioner in this case was that department chairmen are creatures of the
faculty, not the administration, and act in accordance with the desires of the
faculty of their departments. Department chairmen who testified stated that they
were only secondarily administrators, and that they made decisions on the basis
of interaction with their own department faculty. They stated that, although a
chairman may make final decisions in regard to recommendations, he does so
within the confines of the collegiality which exists among his faculty.
The Board
offered little evidence to contradict witnesses for the petitioner, and
essentially relied on the fact that, officially, department chairmen are charged
with administrative duties for which they are responsible. It also emphasized
that the department chairman is the person charged with providing the
administration with recommendations on such matters as promotions, tenure, and
contract termination. We note, however, that section 2.11 of the by laws of the
Board provides that the department chairman "shall be the presiding officer
of its faculty and the chief advisor to the dean or director of the
administrative unit to which the department is assigned. * * * The chairman of
the department may make recommendations to the dean and the faculty of the
college concerning the welfare of the department or its relations to other
departments. Before making such recommendations the chairman of the department
shall consult with the appropriate departmental faculty. Where the
recommendation of the chairman differs from the advice given by the appropriate
departmental faculty, the chairman shall so inform the dean." (Emphasis
supplied.) This by law provision itself recognized that department chairmen are
to consult with their faculty before making recommendations, and are to inform
the Dean of their college when the departmental faculty disagrees with a
recommendation.
After
reviewing the evidence on this issue, we believe that department chairmen, do,
except perhaps in extraordinary situations, act as a part of the faculty rather
than part of the administration. As stated in
We conclude by
noting the appropriate standard of review applicable in this case. Although in
previous cases we have held that appeals from the Court of Industrial Relations
to this court are heard de novo pursuant to section 48-812, R. R. S. 1943, we
now believe that a more limited review is required because the function the
Court of Industrial Relations exercises is a legislative one, and a statute
which purports to delegate to the courts de novo review of an exercise of a
legislative power is unconstitutional. See, Scott v. State ex rel. Board of
Nursing, 196 Neb. 681, 244 N. W. 2d 683 (1976); Orleans Education Assn. v. School Dist.
of Orleans, 193 Neb. 675, 229 N. W. 2d 172 (1975); School Dist. of Seward Education Assn. v.
School Dist. of Seward, 188 Neb. 772, 199 N. W. 2d 752 (1972). We now hold that review by this Court of
orders and decisions of the Court of Industrial Relations is restricted to
considering whether the order of that court is supported by substantial evidence
justifying the order made, whether it acted within the scope of its statutory
authority, and whether its action was arbitrary, capricious, or unreasonable. To
the extent prior cases hold that appeals from the Court of Industrial Relations
are heard de novo in this court, they are overruled.
In applying
the appropriate standard of review in the present case, we find that the
decision of the Court of Industrial Relations is supported by substantial
evidence, that the CIR acted within the scope of its statutory authority, and
that its action was not arbitrary, capricious, or unreasonable. The decision of
the Court of Industrial Relations was correct in all respects, and is affirmed.
AFFIRMED.
SPENCER, J., dissenting.
I respectfully
dissent from the majority opinion for three reasons: (1) The result reached by
the Court of Industrial Relations, hereinafter designated CIR, is contrary to
the substantial weight of the evidence; (2) the fragmentation of bargaining
units among public employees of the State of Nebraska is contrary to the public
policy of our state labor law as set forth in the provisions of section 48-802,
R. R. S. 1943; and (3) department chairmen should be excluded from any
bargaining unit organized to represent the academic employees of the Board of
Regents.
Two
predominant public policies lie at the heart of
The majority
opinion ignores the first of these problems by permitting undue fragmentation of
the bargaining unit. Not only may every professional college -- Law, Dentistry,
Medicine, Teachers, Engineering, Pharmacy, Agriculture, etc., have its own
bargaining unit, but other groups within the state University system may do
likewise. The record indicates the
As Doctor
Weinberg, Board's expert, testified, and as many of the commentators suggest,
fragmentation leads directly to development of expensive and administratively
unmanageable bargaining structures and to increased administrative costs once an
agreement is reached. It fosters proliferation of personnel necessary to bargain
and administer contracts on both sides of the bargaining table. It destroys the
ability of public institutions such as the University to develop, administer,
and maintain any semblance of uniformity or coordination in their employment
policies and practices. In the long run, it results in an inefficient,
ineffective, and unworkable relationship for all parties concerned. Its ultimate
effect is to substitute litigation for negotiation as the principal
dispute-resolving process in the public sector. In effect, it defeats the
purpose of
Shaw &
Clark, in their article on Determination of Appropriate Bargaining Units in the
Public Sector, Legal and Practiced Problems, 51 Ore. L. Rev. 152, epitomize the
problem as follows: "The more bargaining units public management deals
with, the greater the chance that competing unions will be able to whipsaw the
employer. Moreover, a multiplicity of bargaining units make it difficult, if not
impossible to maintain some semblance of uniformity in benefits and working
conditions. Unfortunately, in many states and localities bargaining units have
been established without consideration of the effect such units will have on
negotiations or on the subsequent administration of an agreement. The resulting
crazy-quilt pattern of representation has unduly complicated the collective
bargaining process in the public sector."
We last
considered the proper scope and composition of bargaining units in the public
sector in City of Grand Island v. American Federation of S. C. & M.
Employees, 186 Neb. 711, 185 N. W. 2d 860 (1971). In 1972, following that decision, the
Legislature passed L.B. 1228. That bill, which became effective in July 1972,
made two very important changes in
Further, City
of Grand Island v. American Federation of S. C. & M. Employees, supra,
delienated what I insist is the proper method of review in this case. We there
said: "The review in the Supreme Court of proceedings before the Court of
Industrial Relations is in the manner provided by law for equity cases."
See § 48-812, R. R. S. 1943. "We are required to reach an independent
conclusion as to disputed issues of fact. § 25-1925, R. R. S. 1943."
It is
significant that in adopting section 48-838, R. S. Supp., 1974, the Legislature
did not allude to an appropriate bargaining unit as did this court in City of
In adopting
L.B. 1228, the Legislature specifically incorporated a policy against
fragmentation by providing: "It shall be presumed in the case of
governmental subdivisions such as municipalities, counties, power districts, or
utility districts with no previous history of collective bargaining, that units
of employees of less than departmental size shall not be appropriate." §
48-838(2), R. S. Supp., 1974.
It is not
necessary to guess at the intent of the Legislature on the issue of
fragmentation. The comments before the committee and on the legislative floor
adequately portray the desire to avoid it. An attorney representing public
employees testified: "Of the attorneys involved in preparing this bill,
they represented both sides of the cases that have been before the court. They
represented government bodies as well as unions and associations and they all
agreed that broad industrial type bargaining units are advantageous for the
public employer, and that there is no purpose served in fragmenting units."
Finally, the
international representative for the International Brotherhood of Electrical
Workers specifically stated: "LB 1228 provides that the Court of Industrial
Relations shall determine what is a proper unit for the purposes of collective
bargaining and for the purposes of voting in collective bargaining elections,
and provide some ground rules for the Court to use in making such
determinations. The proper determination of a bargaining unit is important to
both parties in a collective bargaining arrangement, because it adds to
stability to the relationship between the employees and their employers. It
provides first, that the employer can deal with the employees with a common
interest to one representative, and secondly, it frees the employer from having
to deal with a number of collective bargaining agents each representing a small
segment of its employees."
Inexplicably,
the CIR has failed to follow its own prior finding in a case involving
"We agree
that LB 1228 was precipitated by a desire to avoid fragmented bargaining
units."
The CIR made a
number of factual findings which were crucial to its determination herein. These
findings are in some cases not supported by any evidence in the record
whatsoever and in a large part appear to be based on the hearing judge's
mistaken intuitive assessment rather than on the testimony and documentation
adduced at the hearing.
Specifically,
on page 4 of the order, the CIR found the
Similarly,
there is no evidence supporting the CIR's determination on page 5 of the order
relative to the dues check-off question or its finding in paragraph 9 on page 6
of the order that the faculty of the
I take
exception to the CIR's factual determinations because they wholly overlook the
uncontroverted testimony of the Board's witnesses which established that the
University of Nebraska is a highly integrated statewide University system which
employs academic staff who, subject to the highly centralized direction and
control of the Board and the Central Administration, enjoy substantial identity
in wages, fringe benefits, and other terms and conditions of employment.
The CIR finds
on page 5, paragraph 3 of its opinion, that hiring, firing, tenure, and
employment condition decisions are made at the department or college level
rather than at the system-wide level. This is wrong. In fact, the evidence below
clearly establishes that these decisions are made by the Board of Regents on a
system-wide basis pursuant to uniformly established and centrally administered
board policies. Apparently, the CIR has taken the delegation of certain
supervisory and administrative duties to the various campuses and their
respective colleges, schools, and departments to be a carte blanche grant of
autonomy or abdication of authority by the Board of Regents and the Central
Administration. Certainly, nothing could be further from reality.
In paragraph
7, on page 6 of its order, the CIR found that the
Finally, I
note that although the CIR specifically finds in its opinion that there is
little interchange or integration among the campuses, the record itself shows
that there is a high degree of administrative and functional integration and
substantial interchange in the common missions, common administration
structures, common academic calendar and composition and structure, common
budgetary planning, University-wide accreditation, common labor relation
policies, common affirmative action, and central accounting and payroll
programs. Further, the campuses are integrated through a number of duplicated
programs, intercampus programs, University-wide councils and committees, a
University-wide graduate college, and a substantial identity of employment
practices. It is apparent to me that the findings of the CIR are not supported
by the record.
The CIR has
completely ignored other facts which are highly relevant herein. It failed to
recognize the common and centrally administrative and academic structure of the
University. It has overlooked centralized control of curriculum and budgetary
planning. It has largely ignored the University's uniform employment
classification system, employment contract procedures, evaluation procedures,
and uniform standards for promotion, tenure, and merit pay.
As the Board
suggests, even more significantly, the CIR has not even mentioned the fact that
all the Board's academic employees enjoy a common centrally controlled wage
policy, and have identical fringe benefit programs. They enjoy the same terms
and conditions of employment in the following areas: Vacation policies; salary
determination; professional leave policies; outside employment policies; patent
policies and political activity policies; and conflict of interest policies.
I do not
accept the conclusions and findings of the CIR. If this court puts its stamp of
approval on the findings of the Court of Industrial Relations in this case, it
is abdicating its authority as a court of last resort and is in effect giving
that authority to the Court of Industrial Relations.
The Board has
directed our attention to several state university cases which support its
position. The Minnesota Supreme Court, in Minnesota State College Board v.
Public Emp. Rel. Board, 303 Minn. 453, 228 N. W. 2d 551 (1975), affirmed a
holding that the appropriate geographical scope of a bargaining unit for faculty
employed at seven state colleges was a statewide bargaining unit. In that case,
unlike the instant one, there were local adaptations, different programs, local
constitutions, grievance procedures, and local administrative policies on each
of the college campuses. Also, the president of each state college had the
apparent authority to recruit, appoint, retain, remove, sanction, grant salary
increases, tenure, and promotions to and define the duties of all persons
employed by the college. The
In Board of
Regents of Eastern Michigan University v. Eastern Michigan U., 46
In
Similarly, in
State University of New Jersey, P. E. R. C., cases Nos. RO-210 and RO-221
(1973), the New Jersey Commission reversed an earlier stand assumed in 1969, and
determined that a statewide unit encompassing all academic employees of New
Jersey's various state colleges was an appropriate bargaining unit.
In State
University of New York, P. E. R. B., cases Nos. C-0253, C-0260, C-0262, C-0263,
C-0264, and C-0351 (1969), the New York Public Relations Board refused to
establish separate bargaining units for the State University of New York
although it consisted of 4 university centers, 11 4-year colleges, 2 medical
centers, a college of forestry at Syracuse, and Green College at Fort Schuyler,
4 contract colleges at Cornell, a college of ceramics at Alfred University, 6
2-year agricultural and technical colleges, and 31 community colleges.
Two of the
cases relied on by the Court of Industrial Relations -- Oregon State Employees
Assn., cases Nos. C-277, C-319, C-326, C-375, and C-230 (1974), and In re Kansas
State College of Pittsburgh, P. E. R. B., case No. UE2-1974 (1974), do not lend
support to the decision. Both these cases are distinguishable by their facts,
and the
The decision
herein should be based on our own act. I have set out the Board's authorities
merely to show how other states have met the problem. In my judgment, the
bargaining units established by CIR are not appropriate, either in scope or
composition. I believe the intent of L. B. 1228 (section 48-838, R. S. Supp.,
1974), mandates a multi-campus bargaining unit, encompassing all academic
employees, regardless of their physical location. At the very least, there
definitely should not be any fragmentation on any campus.
Individuals
holding the position of department chairmen are appointed by the Board of
Regents and not elected by the faculty. They receive additional compensation for
their administrative duties. In actual performance of management functions, the
evidence indicates they are responsible within their departments for class
scheduling, class assignments, review and approval of individual class content,
and faculty evaluations. They are the individuals who recommend appointments,
promotions, grants of tenure, nonrenewal of contracts, terminations, and merit
salary increases. As one of petitioner's witnesses testified, chairmen are
responsive to the needs and desires of the faculty within their departments, but
when the decision has to be made, the department chairman has to make a
decision. "That's what leadership is all about."
Historically, in the
private sector, supervisors have been considered a part of management. The
National Labor Relations Act specifically provides: "* * * no employer
subject to the act shall be compelled to deem individuals defined herein as
supervisors as employees * * *." N. L. R. A., § 14a, 29 U. S. C., § 164a
(1970 Ed.). It seems to me this is even more important in the public sector. I
agree with the position of the Board of Regents that department chairmen are not
representatives of the faculty but are in effect administrative management
personnel.
I would
reverse the judgment of the Court of Industrial Relations for each of the three
reasons delineated above.
WHITE, C. J.,
and