V.
METROPOLITAN
TECHNICAL COMMUNITY COLLEGE AREA,
A
POLITICAL SUBDIVISION, APPELLANT.
203
Filed
July 3, 1979. No. 42009.
1. Court of Industrial Relations: Evidence:
Appeal and Error. In our review of orders and decisions of the Court of
Industrial Relations, we are 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.
2. Labor and Labor Relations: Collective
Bargaining. Matters which are predominately matters of educational policy and
management prerogative are not subject to mandatory negotiation, whereas
conditions of employment are.
3. _____: ______. A matter which is of
fundamental, basic, or essential concern to an employee's financial and personal
concern may be considered as involving working conditions and is mandatorily
bargainable even though there may be some minor influence on educational policy
or management prerogative.
4. ______: ______. Those matters which
involve foundational value judgments, which strike at the very heart of the
educational philosophy of the particular institution, are management
prerogatives and are not a proper subject for negotiation even though such
decisions may have some impact on working conditions.
Appeal from the
Joseph J. Barmettler and Robert T. Cannella
of Fitzgerald, Brown, Leahy, Strom, Schorr & Barmettler, for appellant.
Theodore L. Kessner of Crosby, Guenzel, Davis, Kessner & Kuester, for
appellee.
Heard before KRIVOSHA, C. J., BOSLAUGH, MCCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
HASTINGS, J.
The plaintiff
Association filed its petition in the Court of Industrial Relations (CIR)
seeking to require the
The College is
a technical community college under the provisions of section 79-2636 et seq.,
R. R. S. 1943, and as such its board of governors is charged with the general
supervision, control, and operation of this particular college located in
"Contact
hours" are 50 minutes in length and generally, as to instructors, refer to
those times when the instructor must be available in the classroom, laboratory,
or clinic for teaching purposes, and as to counselors and evaluators, those
scheduled hours during which they will be available to students for counseling,
testing, and evaluation. Concerning librarians, the term refers to those hours
when they are "on duty" in the library. Presently the "teaching
load" for faculty has been fixed by the College at 24 hours per 40-hour
week and is set forth in the "Notice of Appointment" signed by both
the employee and president of the College. A similar document for all other
employees with which we are here concerned simply refers to a minimum 40-hour
workweek and makes no provision for "workload," "contact
hours," or "duty hours."
During
negotiations of wages and other terms and conditions of employment for the
1977-1978 contract year, the Association proposed that faculty "contact
hours" be set at a maximum of 14 hours per week and "contact or duty
hours" for counselors, evaluators, and campus librarians be established at
28 hours per week. The College refused to negotiate, alleging that
"workload" was "predominately a matter of educational policy,
management prerogative, and/or constitutes a demand for bargaining over the
statutory duties of the Board of Governors of the Metropolitan Technical
Community College Area." This litigation then followed.
The CIR in its
opinion rejected consideration of the College's evidence as to its educational
philosophy and its effect on whether "contact hours" are conditions of
employment or educational policy. Rather, it concluded that the only question
for the court to decide was whether it should adhere to its prior precedent or
overrule it. After referring to cases involving the Seward Educational
Association, Norfolk Educational Association, and Fremont Educational
Association, wherein the CIR had held that school calendar, hours at school, and
planning time were mandatory subjects of bargaining, its opinion goes on to say:
"After the Fremont case was decided, the Supreme Court decided the Seward
appeal, 188 Neb . 772, 784 (1972). In dicta, the Supreme Court listed the right to
schedule work as a management prerogative, possibly but not necessarily contrary
to our holdings. If we were to decide the question initially today, we might
well decide it differently. However, it seems more important to us that items
once decided and relied on for over six years remain decided."
In School
Dist. of Seward Education Assn. v. School Dist. of Seward, 188 Neb. 772, 199 N. W. 2d 752 (1972), which the CIR referred to as the
"Seward appeal," this court said: "The next question raised
involved an interpretation of the language 'conditions of employment.' While the
issue may be moot because the parties did reach agreement on all points referred
except wages we do feel some observations are pertinent. Generally, teacher
organizations have given the term 'conditions of employment' an extremely broad
meaning, while boards of education have tried to restrict that term to preserve
their management prerogatives and policymaking powers. While there are many
nebulous areas that may overlap working conditions, boards should not be
required to enter negotiations on matters which are predominately matters of
educational policy, management prerogatives, or statutory duties of the board of
education.
The only witness
for the Association was Melvin Solotorovsky, who was employed by the College as
an air-conditioning and heating inspector. He is also chairman of the welfare
committee of the Association and head of its negotiation team, and, by inference
at least, it can be assumed that he is a member of the College's faculty. After
outlining the nature of the dispute and the Association's demands as stated
above, he went on to explain the need for "non-contact time." He said
that such time was necessary in which to prepare lesson plans; to do research,
i.e., in order to keep up with new trends and technological changes in an
instructor's particular field; to grade tests; to serve on committees; and other
similar duties. However, he made no case at all for employees other than
instructors. He also conceded that the amount of time which a teacher spends in
direct contact with the student is "very critical" in its effect on
the education attained.
The College
presented three witnesses: The dean of administrative services, the director of
finance and business, and the president, Dr. Marm Harris. These witnesses
pointed out that a reduction in "contact hours," with no other
changes, would force elimination of six programs which are not courses, but an
entire listing of courses in a particular career field. On the other hand, if
the solution was to be a reduction in the number of students, the College would
face a financial squeeze because the amount of state aid has a direct
relationship to enrollment.
Particular
emphasis was placed on the philosophy of education as espoused by Dr. Harris.
This was what he called the "individualized self-paced" method of
instruction. Without going into great detail, this method recognizes that each
student has different aptitudes, ability, and experience, and by using the
traditional "lecture method," where each student is brought along with
the entire class, the brighter ones become bored and drop out of the program.
The individualized method, according to the witness, places some of the
responsibility for learning on the student. After a preliminary introduction to
a particular phase of the program, each student progresses at his or her own
speed and the instruction must be available in the classroom to give
individualized help to each student as the need arises. In other words, the
instructor is dealing with several levels of instruction and learning going on
during the same period and, rather than being just a lecturer, the instructor is
a "facilitator or a classroom manager that is available at the critical
times that the student needs him." This method, according to the witness,
requires more "student contact hours" than the traditional method of
teaching, but is the educational philosophy dictated by the board of governors
at his request.
Dr. Harris
also pointed out that there is no requirement for independent research or
publication on the part of the faculty as a prerequisite to retention or
promotion. At a technical school such as the College, according to the witness,
"It is not our job to increase or expand knowledge. It is our job to take
the basic information and teach that to students, keeping in mind that we are
talking about freshman-sophomore level students. We are a two-year school. We
are not talking about juniors and seniors or graduate students." He goes on
to point out that 96.5 percent of all the credit hours generated at the College
during the previous year came from vocational technical students and 3.5 percent
from academic students.
The parties
agree, and their position is supported by both case law and statutes, that
matters which are predominantly matters of educational policy and management
prerogative are not subject to mandatory negotiation, whereas conditions of
employment are. School Dist. of Seward Education Assn. v. School Dist. of
Seward, 188 Neb. 772, 199 N. W. 2d 752 (1972); § 48-816, R. R. S. 1943. It is also
obvious the number of "contact hours" or "duty hours" which
must be spent out of the 40-hour workweek has some effect on whether it is an
easy job or a difficult job and these hours are therefore, to that extent,
"conditions of employment." By the same token, if the number of
"contact hours" requires a change in the philosophy of education, the
number of teachers needed, the scope of the program offered, the number of
students, or the amount of financial aid, as was demonstrated by the record, it
affects educational policy and management prerogatives.
The College
recognized this dichotomy, or perhaps more accurately this overlapping, in its
formal response to the Association's demand for negotiation. In that document
the College said: "The allocation of the time and energies of its faculty
are consequences of the College's basic educational policy. This is an area of
management prerogative and policy-making powers, reserved to the Board of
Governors of the College. Accordingly, we decline to bargain concerning the
number of hours within the work week that are to be allocated to classroom time,
laboratory time or other time in contact with students. However, this is not to
say that we decline to bargain, at the appropriate time, concerning the affects
[sic] of the Board's allocation of faculty's time on the wages of bargaining
unit employees." (Emphasis supplied.)
In our review
of orders and decisions of the CIR, we are 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, American Assn. of
University Professors v. Board of Regents, 198 Neb. 243, 253 N. W. 2d 1 (1977). We have reviewed the evidence in some
detail and have set forth the general statutory authority of the CIR. The
problem is to determine whether "workload" is a condition of
employment or a prerogative of management.
A reference to
the decisions of other jurisdictions, although not necessarily determinative of
the issue, is nevertheless helpful. All seem to agree generally that a balancing
test is needed. In Dunellen Bd. of Ed. v. Dunellen Ed. Assn., 64 N. J. 17, 311
A. 2d 737 (1973), the court said: "* * * it would appear evident that the
consolidation of chairmanships represents a matter predominantly of educational
policy within management's exclusive prerogatives * * *" (emphasis
supplied), citing School Dist. of Seward Education Assn. v. School Dist. of
Seward, supra.
In
The final case
in the New Jersey trilogy, Bd. of Ed. Englewood v. Englewood Teachers, 64 N. J.
1, 311 A. 2d 729 (1973), provided that: "* * * major educational policies
which indirectly affect the working conditions of the teachers remain
exclusively with the Board and are not negotiable whereas items which are not
predominantly educational policies and directly affect the financial and
personal welfare of the teachers do not remain exclusively with the Board and
are negotiable."
The Alaska
Supreme Court has indicated the amount of paid time available to a teacher for
preparation of lesson plans affects the teacher directly and is negotiable; a
demand that such time be available during the academic portion of the day
presents a policy question. Kenai Peninsula Borough v. Kenai Peninsula Ed., 572
P. 2d 416 (
A provision
that secondary teachers not be required to teach more than 25 periods per week,
after having been held nonbargainable as a matter of inherent managerial policy
by an intermediate court of Pennsylvania, was referred back to the appropriate
administrative agency for reassessment in Pennsylvania Lab. Rel. Bd. v. State
Col. A. Sch. Dist., 461 Pa. 494, 337 A. 2d 262 (1975). Citing the same language
from Shawnee Mission as was set out in Kenai Peninsula, the court went on to
say: "Thus we hold that where an item of dispute is a matter of fundamental
concern to the employees' interest in wages, hours and other terms and
conditions of employment, it is not removed as a matter subject to good faith
bargaining under section 701 simply because it may touch upon basic
policy."
Although
holding that teacher load was a mandatory subject of negotiations, the court in
West Hartford Education Assn., Inc. v. DeCourcy, 162 Conn. 566, 295 A. 2d 526
(1972), went on to say: "Suffice it to say that, at the very least, matters
of educational policy are those which are fundamental to the existence,
direction and operation of the enterprise."
The majority
opinion in City of Biddeford v. Biddeford Teachers Ass'n., 304 A. 2d 387 (Me.,
1973), held that the Legislature's attempt to delegate to arbitrators binding
determination of labor disputes involving " 'Length of a Teacher's Working
Day' " was void for lack of adequate standards. However, the concurring
opinion of Wernick, J., is somewhat enlightening. "Similarly, the length of
the school day in terms of the number of hours the teacher will be required to
teach or be in attendance at school, is a matter concerning which the 'working
conditions' interests of teachers are fundamentally inseparable from a plurality
of non-teacher considerations involving important 'managerial' and 'policy'
areas.
"While it
is clear that the number of hours which any individual teacher shall be required
to work in a given day need not coincide with the number of hours the students
are obliged to be in attendance at school, this fact by itself fails to
establish that the length of the teacher's school day may be isolated as a
proper subject of mandatory collective bargaining. * * * negotiations aimed at
shortening the work-day of teachers would necessarily become directed toward
seeking alternatives to the hiring of additional personnel. * * *
"Thus,
the length of the teacher's working day is closely and heavily interwoven with
judgments bearing upon the welfare of the students, -- as reflected in the
ultimate quality of their education and the extent to which it may be improved
or weakened by use of various types of substitutes, technological or otherwise,
for the living presence and active participation of teachers. Such foundational
educational value judgments cannot reasonably be subordinated to the overlay of
teacher 'working conditions,' and for this reason, the length of the teacher's
working day must be held, fundamentally, that kind of 'educational policies'
subject-matter which was legislatively intended to remain outside the scope of
mandatory collective bargaining and, therefore, of binding arbitration."
Only subject
matters that are primarily related to wages, hours, or conditions of employment
are mandatorily bargainable in
A matter which
is of fundamental, basic, or essential concern to an employee's financial and
personal concern may be considered as involving working conditions and is
mandatorily bargainable even though there may be some minor influence on
educational policy or management prerogative. However, those matters which
involve foundational value judgments, which strike at the very heart of the
educational philosophy of the particular institution, are management
prerogatives and are not a proper subject for negotiation even though such
decisions may have some impact on working conditions. However, the impact of
whatever decision management may make in this or any other case on the economic
welfare of employees is a proper subject of mandatory bargaining.
At the outset
it should be said that all of the cases cited from other jurisdictions together
with those from the CIR involve purely academic and mostly elementary
educational units rather than a technical vocational school as involved here.
There is an obvious difference in the requirements made of both management and
faculty. It appears the CIR failed to recognize that distinction because, by its
own opinion, it failed to consider the evidence of the College and relied wholly
on its past decisions in cases involving elementary and secondary academic
institutions.
We find the
evidence supports the College's position that the number of instructor contact
hours involves a foundational value judgment which is essential to its basic
educational and learning philosophy and is therefore a prerogative of management
and is not bargainable. The evidence completely fails to support any
justification for reducing contact hours of counselors or evaluators or duty
hours of librarians below the basic workweek and is not negotiable.
Inasmuch as
there is no substantial evidence supporting the order made by the CIR, its
action must be held to be arbitrary, capricious, and unreasonable. Therefore,
the judgment is reversed and the Association's cause of action is ordered
dismissed.
REVERSED AND DISMISSED.