STATE
COLLEGES EDUCATION ASSOCIATION, APPELLEE
V.
BOARD
OF TRUSTEES OF THE NEBRASKA STATE COLLEGES, APPELLANT.
CHADRON
V.
BOARD
OF TRUSTEES OF THE NEBRASKA STATE COLLEGES, APPELLANT, IMPLEADED WITH CHADRON
205
Filed
December 18, 1979, No. 42413.
1. Commission of Industrial Relations:
Jurisdiction: Colleges and Universities. The Commission of Industrial Relations
has jurisdiction in industrial disputes involving the Board of Trustees of the
2. Commission of Industrial Relations: Labor
and Labor Relations. The Commission of Industrial Relations, in determining an
appropriate unit for bargaining and voting, is required to consider, among other
proper criteria, the established bargaining units and established policies of
the employer. The prior bargaining history to be considered includes even that
which may not have taken place under the auspices of the commission.
3. Commission of Industrial Relations:
Jurisdiction: Labor and Labor Relations. The Commission of Industrial Relations
has no authority to enter declaratory judgments or exercise other judicial
functions. Its fact-finding powers are to be confined to the area of its
jurisdiction in resolving industrial disputes as that term is defined in
Transport Workers of America v. Transit Auth. of City of Omaha, ante p. 26, 286
N. W. 2d 102.
Appeal from the Commission of Industrial
Relations. Reversed and remanded.
George C. Rozmarin of Swarr, May, Smith &
Andersen, for appellant.
Crosby, Guenzel, Davis, Kessner & Kuester,
for appellee State Colleges Education Assoc.
Wright & Simmons and John A. Selzer, for appellee Chadron State College
Teaching Faculty Bargaining Unit.
Heard before KRIVOSHA, C. J., BOSLAUGH,
MCCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
CLINTON, J.
This is an
appeal by the Board of Trustees of the Nebraska State Colleges from an order of
the Court of Industrial Relations (now Commission of Industrial Relations, L.B.
444, Laws 1979), determining an appropriate unit for bargaining and voting
pursuant to the provisions of section 48-838, R. R. S. 1943. Government of the
four state colleges is vested in the Board by Article VII, section 13, of the
Nebraska Constitution, which provides in part: "The general government of
the state colleges as now existing, and such other state colleges as may be
established by law, shall be vested, under the direction of the Legislature, in
a board of seven members to be styled as designated by the Legislature, six of
whom shall be appointed by the Governor, with the advice and consent of the
Legislature, . . . and the Commissioner of Education shall be a member ex
officio. The duties and powers of the board shall be prescribed by law . . .
."
Two separate
petitions for a certificate election were consolidated and heard before the
commission. The first petition was filed by the State Colleges Education
Association (SCEA), one of the appellees, and prayed that the designated unit
consist of teaching faculty at the four state colleges at Chadron,
The Board
makes the following assignments of error: (1) The commission erred in assuming
subject-matter jurisdiction over the Board of Trustees of the Nebraska State
Colleges. (2) The order of the commission is contrary to law. (3) The order of
the commission is contrary to the evidence and is not supported by substantial
evidence.
The issue
raised by the first assignment has been decided by this court in Retail &
Professional Emp. Union v. Board of Trustees, 203 Neb. 829, 280 N. W. 2d 656, where we said that the issue was governed by
University Police Officers Union v. University of Nebraska, 203 Neb. 4, 277 N. W. 2d 529, and held that the Commission of Industrial
Relations has jurisdiction in industrial disputes involving the Board of
Trustees of the Nebraska State Colleges and its employees.
The second and
third assignments of error will be discussed together because, although one
involves an issue of law and the other issues of fact, the two assignments are
interwoven in that an error of law may have affected the fact-findings of the
commission to a degree which we cannot determine.
A brief
introductory description of the nature of the connection between the error of
law and the fact-findings of the commission may be helpful in following the more
detailed development of that matter in the balance of this opinion. The
commission discounted to some degree the prior bargaining history between the
Board and its employees because the commission had, in an earlier case, declared
void certain labor contracts between the Board and its employees. In so doing,
it acted beyond its jurisdiction. The prior bargaining history should have been
given full weight. However, since we do not review fact-findings of the court de
novo, we cannot resolve the issue as a matter of law and the case must be
reversed and remanded for rehearing under a proper criterium.
In the case of
American Assn. of University Professors v. Board of Regents, 198 Neb. 243, 253 N. W. 2d 1, we pointed out that the provisions of section
48-812, R. R. S. 1943, directing that this court review de novo findings of fact
of the commission, was unconstitutional because it purported to delegate to this
court an exercise of legislative power. See cases there cited on page 272. We
then established, in part at least, the appropriate standard of review in the
following language: ". . . 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."
Of particular
importance in this case is the portion of the standard, "whether it acted
within the scope of its statutory authority." Implicit in the portion of
the standard quoted are the principles that the commission may not exceed its
jurisdiction and that it is not free to disregard statutory standards governing
the exercise of its power.
Having made
the foregoing introductory statement, we now develop our consideration of the
second and third assignments. On one point the positions of the Board and SCEA
seem to be in agreement. The Board and the SCEA contend the commission
misapplied the standards of section 48-838, R. R. S. 1943, in its findings that
the teaching faculty at Chadron State College should be in a bargaining unit
separate and apart from the teaching faculties at
Section
48-838(2), R. R. S. 1943, provides in 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." (Emphasis supplied.) Although
this is the only specific consideration mentioned in the statute, it is evident
the Legislature did not intend that it be the sole consideration, for if it were
there would be nothing for the commission to determine in cases where there
existed no prior bargaining history.
In American
Assn. of University Professors v. Board of Regents, supra, we said: "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. . . . 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. . . . 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."
In its opinion
in this case, the commission discussed the various relevant factors mentioned
above, made specific findings pertaining to each factor, and, with reference to
prior bargaining history, said: "[T]his factor constitutes the primary
difference between the Board of Regents case and this one. There was no history
of bargaining in that case, but there is in this one. The significance of this
factor, however, is somewhat diminished by the decision of this court in
(emphasis supplied) Vathauer, et. al., v. HEAN (Higher Education Association of
Nebraska) and Board of Trustees, Nebraska State Colleges, 3 CIR 215-1 (1977),
where this court determined that the agreement between HEAN and the Board for
the year 1977-1978 was unenforceable and void, ...."
From 1970
until 1977, faculty of the four campuses was represented by a labor organization
called Higher Education Association of Nebraska (HEAN). This group was the
bargaining unit for faculty members and negotiated three contracts with the
Board during that time period.
The
commission's opinion in No. 215, referred to in the second preceding paragraph,
was offered and received in evidence at the hearing in this case. The
introductory paragraph in opinion No. 215 is as follows: "This action is
one praying for a declaratory judgment that the contracts between the Board of
Trustees of the Nebraska State Colleges and Higher Education Association of
Nebraska and Chadron State College Education Association for the years 1976-77
and 1977-78 are void and unenforceable. We find that we have jurisdiction of the
parties and of the subject matter." The commission then went on in that
opinion to declare labor contracts between CSEA and the Board of Trustees and
between HEAN (a predecessor to CSEA) unenforceable and void. That opinion was
entered on September 26, 1977.
Section
48-838, R. R. S. 1943, was first enacted in 1972 as section 4 of L.B. 1228, Laws
1972. It is clear from the context of that statute that prior bargaining
history, whether it occurred under the auspices of the Court of Industrial
Relations or not, was to be considered, for if that were not so, section
48-838(2), R. R. S. 1943, could not have had any initial application. The
statute contains no indication whatever that this was intended. This is also
clear from the fact that the last sentence of section 48-838(2), R. R. S. 1943,
contains the provision that in the case of certain governmental entities
"with no previous history of collective bargaining" that units of less
than departmental size shall not be appropriate. The reference to no previous
bargaining history would not have had any meaning unless it included bargaining
history other than under the act. This conclusion is also apparent from the
historical development of the jurisdiction of the commission.
Until the
enactment of L.B. 15, Laws 1969, jurisdiction of the commission, insofar as
governmental employees were concerned, could not be invoked other than on a
voluntary basis, except in "industrial disputes involving governmental
service in a proprietary capacity." L. B. 537, Laws 1947, c. 178, § 10, p.
590; L. B. 875, Laws 1967, c. 305, § 1, p. 828. L. B. 15, Laws 1969, permitted
governmental employers to recognize, negotiate collectively with, and enter into
contracts with employee organizations. It also provided a method for
certification of employee organizations and granted them the right to bargain
collectively. In 1972, the certification procedure was greatly amplified.
Elections to determine bargaining representatives were included. The provision
of section 48-838(2), R. R. S. 1943, previously quoted, to wit, "the court
shall consider established bargaining units and established policies of the
employer," came into law for the first time. L. B. 1228, Laws 1972.
It is quite
clear that under our recent holding in Transport Workers of America v. Transit
Auth. of City of Omaha, ante p. 26, 286 N. W. 2d 102, the commission has no
authority to enter declaratory judgments or exercise other judicial functions.
Its fact-finding powers are to be confined to the area of its jurisdiction in
resolving industrial disputes as that term is defined in Transport Workers of
America v. Transit Auth. of City of Omaha, supra. Its declaration of invalidity
of the HEAN contract in No. 215 should not have been given any weight by the
commission in its consideration of prior bargaining history in this case. It is
apparent from the commission's opinion that it, to some extent, discounted or
disregarded that bargaining history. This it was not free to do. Had it fully
considered prior bargaining history, it may be that its finding would have been
different.
The
commission, in its opinion, noted that "the agreement between the Board and
HEAN apparently did not contain all the applicable terms and conditions,
inasmuch as the wages were left to be determined separately by each of the four
individual institutions." That observation by the commission was, of
course, a pertinent portion of the prior bargaining history and was a
consideration which the commission could properly take into account and
apparently did.
We have
examined the record in this case. We will not summarize the evidence. The
commission's findings on all the points it considered is supported by
substantial evidence. However, the error of law requires reversal.
The order of
the commission is reversed and the cause is remanded for rehearing.
REVERSED AND REMANDED.