AMERICAN
ASSOCIATION OF UNIVERSITY PROFESSORS,
V.
BOARD
OF REGENTS OF THE UNIVERSITY OF NEBRASKA, APPELLANT, UNIVERSITY OF NEBRASKA AT
OMAHA COLLEGE OF BUSINESS ADMINISTRATION FACULTY ASSOCIATION, INTERVENOR-APPELLANT.
203
Filed
June 5, 1979, No. 42214.
1. Court of Industrial Relations: Labor and
Labor Relations: Colleges and Universities. The Court of Industrial Relations
may acquire jurisdiction of an industrial dispute between the Board of Regents
of the
2. ____: ____: ____. Under the facts in this
case a bargaining unit consisting of employees holding academic rank and
administratively assigned to the
3. ____: ____: ____. Department chairmen are
properly included in bargaining units of faculty employees where their powers
are effectively diffused among the department faculty pursuant to the principle
of collegiality.
4. Court of Industrial Relations: Evidence:
Appeal and Error. An order of the Court of Industrial Relations that is
supported by substantial evidence and is not arbitrary or capricious will not be
disturbed on appeal.
5. Court of Industrial Relations:
Intervention. An intervenor in a proceeding before the Court of Industrial
Relations may be required to make a reasonable showing of interest in support of
the intervention.
Appeal from the
L. Bruce Wright of Cline, Williams, Wright,
Johnson & Oldfather, for appellant. William E. Pfeiffer of Spielhagen,
Pfeiffer, Miller & Moore, Associates, for intervenor-appellant.
David J. Cullan of Cullan, Cullan & Morrison, for appellee.
Heard before KRIVOSHA, C. J., BOSLAUGH,
MCCOWN, BRODKEY, WHITE, and HASTINGS, JJ.
BOSLAUGH, J.
The Board of
Regents of the University of Nebraska (Regents) appeals from an order of the
Court of Industrial Relations (CIR) finding and determining that all full time
A-line faculty employed by the University of Nebraska at Omaha, including
counselors, librarians, and assistant instructors, but excluding intercollegiate
athletic coaches and trainers, all persons holding rank of associate or
assistant dean or higher, as well as those specific individuals excluded by
stipulation as having management duties, constitute an appropriate bargaining
unit for collective bargaining purposes. The
The Regents
contend that the CIR has no jurisdiction over industrial disputes between the
Regents and their employees; that the bargaining unit is inappropriate because
it includes only employees administratively assigned to the University of
Nebraska-Omaha (UNO); and that department chairmen, librarians, academic
personnel holding special appointments, assistant instructors, and counselors
should be excluded from the bargaining unit.
In a recent
case, University Police Officers Union v. University of Nebraska, ante p.
4, 277
N. W. 2d 529, decided April 10, 1979, we held that the CIR may acquire
jurisdiction of an industrial dispute between the Regents and its employees. The
issue was fully considered in that case and the decision in that case is
controlling here.
The Regents'
contention that the bargaining unit is inappropriate because it includes only
employees administratively assigned to UNO presents an issue very similar to
that considered and determined in American Assn. of University Professors v.
Board of Regents, 198 Neb. 243, 253 N. W. 2d 1, decided April 13, 1977. In that case the Regents
contended that the bargaining unit should be a multicampus unit including all
university employees holding academic rank. We held that the members of the
faculty of the
The factual
situation in this case is similar to that involved in the previous case. We
believe the principles discussed in that case are applicable here and that a
bargaining unit consisting of employees holding academic rank and
administratively assigned to UNO is appropriate.
The remaining
assignments of error relate to the composition of the unit. The Regents contend
that department chairmen should be excluded from the bargaining unit because
they are supervisory personnel and a part of management. A similar contention
was rejected in American Assn. of University Professors v. Board of Regents,
supra. In that case we held that where the powers of the chairmen are
effectively diffused among the department faculty pursuant to the principle of
collegiality, chairmen should be included within the faculty bargaining unit.
The evidence
here is that the department chairmen at UNO are faculty members who serve as
chairmen at the pleasure of the dean of the college. To compensate for the
additional administrative responsibilities which the chairmen assume, it is
customary to reduce their teaching load while they serve as chairmen. In
performing their duties, the chairmen consult with the other members of the
faculty and, generally, there is little or no disagreement between the chairmen
and the faculty of the department concerning recommendations and other decisions
which the chairmen make. The evidence sustains the finding of the CIR that
chairmen of the department should be included within the faculty bargaining
unit.
Although the
library at UNO is not a college, it is considered to be an academic unit in some
respects. The librarians do not perform instructional duties but their work is
related to the teaching and research functions performed by the faculty. To that
extent there is a community of interest between the faculty and the librarians.
A document, Guidelines for Reappointment, Promotion, and Tenure of Faculty
Members of the University Library, has been under consideration at UNO since
1973. We think the record sustains the finding by the CIR that librarians should
be included in the faculty bargaining unit.
Academic
personnel holding special appointments are members of the faculty who engage in
all the normal academic pursuits that other members of the faculty engage in
while they are serving at UNO. In some cases their period of service may be of
relatively short duration, but others serve for extended periods of time and
some become regular members of the faculty. During their period of service the
personnel holding special appointments function in the same manner as regular
members of the faculty.
The assistant
instructors are members of the faculty with the lowest academic rank. Although
assistant instructors are considered to have an interim position, they teach and
do research in much the same manner as other members of the faculty. While there
is a relatively high turnover rate among assistant instructors, the evidence
indicates the assistant instructors are a necessary part of the instructional
staff.
There is
little in the record concerning the exact nature of the duties performed by the
counselors. There is nothing to indicate they are management or supervisory
personnel. The title suggests that the counselors work with the students in
academic matters, and might be presumed to have some community of interest with
the faculty. In the present state of the record we hesitate to interfere with
the finding of the CIR.
We conclude
that finding of the CIR as to the composition of the bargaining unit is
supported by substantial evidence and was not arbitrary or capricious.
The appellee
filed its petition in the CIR on January 18, 1978. The appellant filed its
answer on February 14, 1978. The case was set for trial on May 18, 1978. On May
16, 1978, 2 days before the date set for trial, the
The petition
in intervention prayed that the faculty of the College of Business
Administration of UNO be designated as a separate bargaining unit. The clerk of
the CIR dismissed the petition in intervention because the 20 persons listed in
the intervenor's showing of interest was less than 10 percent of the membership
in the appellee's claimed bargaining unit as required by Rule 4 (B) (7) of the
CIR. Upon appeal to the determination panel of the CIR the ruling of the clerk
was affirmed. The intervenor has now appealed to this court.
The intervenor
contends that CIR Rule 4 (B) (7) is illegal and void and that the order
dismissing the petition in intervention was contrary to law.
Section
48-812, R. R. S. 1943, provides that, except as modified by the CIR or other
provisions of sections 48-801 to 48-823: "* * * proceedings before the
court shall conform to the code of civil procedure applicable to the district
courts of the state * * *." There is no provision in sections 48-801 to
48-823 relating to intervention in proceedings before the CIR and the record
does not show any modification by the CIR except with respect to the showing of
interest required by CIR Rule 4 (B) (7) referred to in the order of the CIR and
the briefs of the parties.
Since Rule 4
(B) (7) of the CIR does not appear in the record we decline to consider its
validity or application to the facts in this case at this time. It would appear
that the CIR may require that an intervenor make a reasonable showing of
interest. Under the National Labor Relations Act a petition must be supported by
a substantial number of employees and this requirement is applied to a
crosspetitioner or intervenor seeking approval of a substantially different
unit. See Morris, The Developing Labor Law, p. 155; Sanderson and Porter, 100
NLRB 1487; Boeing Airplane Co., 86 NLRB 368.
In view of the
result which we have reached in this case, and the strong policy against undue
fragmentation of bargaining units in the public sector, it is doubtful that the
ruling of the CIR prejudiced any substantial right of the intervenor. In any
event, the issue may again be presented to the CIR by the intervenor in a new
proceeding.
The order of
the CIR is affirmed.
AFFIRMED.
CLINTON, J., participating on briefs.