1 CIR 33 (1971). Affirmed. 189 Neb. 37, 199 N.W.2d 747 (1972).

IN THE COURT OF INDUSTRIAL RELATIONS

OF THE STATE OF NEBRASKA

March 12, 1971

JOHN R. BAYLOR, JUDGE

Hearing having been had March 8, 1971, pursuant to Order entered February 12, 1971, evidence having been adduced and oral arguments having been made without either written briefs or citations of authorities, Now Therefore the Court makes findings as follows:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Objections to Jurisdiction . By a pleading entitled "Special Appearance", the defendant contends that the Court is without jurisdiction on contended grounds, which we summarize as follows:

a. Attached to the petition is a copy of a demand dated November 15, 1970, from the plaintiff to the defendant stating in part: "The Mid-Plains Education Association represents a majority of the certificated full-time employees of Mid-Plains Voc-Tech...." The defendant does not have any certificated employees as that term is used in the Nebraska Teachers Professional Negotiation Act, and so the notice and accordingly the petition and this court's jurisdiction is fatally defective.

b. The provisions of Section 79-1445.23 R.R.S. Neb. to the effect that the school shall be governed by its governing board supersedes all the provisions of Article 8, Chapter 49 being the Court of Industrial Relations act.

c. Allegations of the petition amount to a prayer for compelling a contract with a labor organization contrary to Section 48-810.01.

d. "The laws of the State of Nebraska establishing the court are unconstitutional and void."

e. In the caption of the petition, the summons, and return the defendant is referred to as "Mid-Plains Voc-Tech College, whereas Section 79-1445.22 provides, "A school established under the provisions of Section 79-1445.33 shall be known as Nebraska Technical College,..." so that the true name of the defendant is Mid-Plains Nebraska Technical College.

2. Sufficiency of demand and effect on jurisdiction of plaintiff's reference to "certificated employees." This court consistently has held that neither the pleading nor the proof of any ante litem demand whatsoever is a jurisdictional sine qua non. In Kramer Power Station Employees Committee vs. Loup River Public Power District et al., Case No. 16, paragraph numbered 3, said:

"We hold that where the plaintiff and the defendant are properly within the jurisdiction of this court, and the pleadings themselves present a demand by or on behalf of employees and the employer's denial of relief, nothing further need be shown to invoke and maintain the jurisdiction of the court to settle the dispute."

See also International Brotherhood of Electrical Workers vs. City of Hastings, Case No. 17, page 5 of opinion of 10-5-64, (reversed on other grounds, 179 Neb 455, 138 NW 2d 822) (1965); and Public Service Employees Council et al. vs. Metropolitan Utilities District of Omaha, Case No. 21, page 6 of opinion of 1-17-68.

As in the Metropolitan Utilities District Case, supra, the petition here alleges four kinds of statutorily defined controversies:

a. "Refusal to discuss terms or conditions of employment":

b. A controversy "concerning terms, tenure, or conditions of employment;"

c. A controversy "concerning wages, hours, and conditions of employment;" and

d. A controversy "concerning the association or representations of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment;"

and for the reasons discussed in subsection (B) pages 1 through 3, Public Services Employees Council, et al. vs. Metropolitan Utilities District of Omaha, Case No. 21, opinion of 1-17-68, at least all four controversies together constitute an industrial dispute of which this court has jurisdiction.

Accordingly we hold that the plaintiff's reference to its representation of "certificated employees" in the demand letter is not fatal to the jurisdiction of this court, and that the Special Appearance may not be sustained on any of the grounds designated (3) through (7) of the Special Appearance.

3. The contention that 79-1445.23 effectively supersedes the Court of Industrial Relations Act. This contention, is similar to that made by Metropolitan Utilities District with respect to its governing statutes, Article 11 Chapter 14 R.S. Neb. and thoroughly analyzed and rejected by this Court in Public Service Employees Council et al vs. Metropolitan Utilities District of Omaha, Case No. 21, Section (D) 8 and 9 of opinion 1-17-68. Accordingly the Special Appearance will not be sustained on either of the grounds set forth in paragraphs numbered (8) and (9) of that pleading.

4. The contention that 48-810.01 (LB 583 1967 Legislative Session) prohibiting the compelling of a contract with a labor organization effectively supersedes all the Court of Industrial Relations Act. This contention has been thoroughly analyzed and rejected by this court in Public Service Employees Council et al vs. Metropolitan Utilities District of Omaha, Case No. 21, Section (C) pages 3 through 7 of opinion of 1-17-68. Accordingly the Special Appearance cannot be sustained on either of the grounds designated by paragraphs numbered (10) and (11) of that pleading.

5. Constitutionality of the Court of Industrial Relations Act . The plaintiff's contentions in this respect have been thoroughly analyzed and rejected by the court in Public Service Employees Council et al. vs. Metropolitan Utilities District of Omaha, Case No. 21, in its opinion of 5-13-68 entitled "Opinion as to General Constitutionality of Court of Industrial Relations Statutes." Accordingly the ground set forth in paragraph numbered (12) of the pleading will not be sustained.

6. Effect upon the jurisdiction of misnomer of the defendant. The Supreme Court of Nebraska never seems to have ruled upon this contention and in Clark vs. Village of Hemingford, 147 Neb. 1044, 26 NW 2d 15 (1947) seems expressly to have refused to rule upon the validity of a similar contention, preferring to place its decision on other grounds, not present here. Of course the defendant is not peripatetic, and no statute of limitations is involved, so that the plaintiff ultimately can obtain service in accordance with the purest technicalities of the law. It is noted that the evidence discloses that the defendant has used publicly the name under which the plaintiff served it. Since costs of service under the present Court of Industrial Relations Act must be paid for from the general fund, the defendant commendably has offered to withdraw paragraphs designated (1) and (2) of its special appearance and not to preserve them upon the plaintiff's making appropriate amendment of the petition, summons, and return and to waive issuance and service of another summons.

NOW THEREFORE IT IS ORDERED:

1. That on Friday March 12, 1971, the plaintiff, by amended petition or by interlineation shall make such amendments as will designate accurately as defendant the exact name of the employer of those employees whom the plaintiff claims to represent.

2. That upon the plaintiff's compliance with paragraph numbered 1 of this order, the paragraphs numbered (1) and (2) of the special appearance filed March 1, 1971, are deemed by virtue of the defendant's agreement, waived with prejudice.

3. That said special appearance grounded upon the contentions set forth in paragraphs numbered (3) through (12) thereof be and it hereby is overruled.

4. That on or before March 26, 1971, by answer the defendant shall assert every defense, claim, and objection, in law and in fact, available to it at the time of such assertion; that no defense, claim, or objection shall be waived by being joined with any other defense, claim, or objection; that all defenses then available to the defendant if not so asserted by March 26, 1971, shall be deemed to have been waived, except that the defense of failure to join an indispensable party or the objection that the Court lacks jurisdiction of the subject matter may be made at the trial on the merits in the light of evidence that may have been received; and that on or before March 26, 1971, the defendant shall transmit by ordinary United States Mail or hand delivery the original of such answer to the Clerk of this Court for filing and a copy thereof to each of the judges of this court at his private office address and to the plaintiff's attorney.

5. That on April 24, 1971, at 9:00 a.m. in the Supreme Court Hearing Room in the State Capitol Building in Lincoln will commence the trial of all issues in this case; and that in accordance with Section 48-808 R.S. Neb. 1943 Elmer Shamberg or Patricia Lewis is appointed reporter to take in short-hand and transcribe all testimony and other record of said trial.

6. That the clerk shall transmit by ordinary United States Mail a copy of this order to each of the judges of this Court other than the undersigned and to the attorney of each of the parties.

IN THE COURT OF INDUSTRIAL RELATIONS

OF THE STATE OF NEBRASKA

August 9, 1971

JOHN R. BAYLOR, JUDGE Commenced January 25, 1971, this action now by amended petition, answer, and evidence adduced discloses controversies between the defendant college and the plaintiff teachers' association as follows:

A. Concerning refusal to discuss terms or conditions of employment,

B. Concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, and

C. Concerning terms, tenure, or conditions of employment,

which by §48-801 (7) R.R.S. Neb. constitute an industrial dispute, which by §48-810 R.R.S. Neb. shall be settled by this court. Furthermore by application filed May 14, 1971, the plaintiff and five named individuals charge violation of §§48-811 and 48-837 R.R.S. Neb.

The defendant is an area vocational technical school established under the provisions of §§79-1445.15 through 79-1445.35 R.R.S. Neb. Campbell vs. Area Vocational Technical School No. 2, 183 Neb. 318, 159 NW 2d 817; Chaloupka vs. Area Vocational technical School No. 2, 184 Neb 196, 165 NW 2d 719. Although the defendant denies that it is subject to the Court of Industrial Relations Act, no argument has been made that it is not an employer within the meaning of §48-801 (4) R.R.S. Neb. as follows.

"Employer shall mean any political or governmental subdivision of the State of Nebraska..."

Accordingly we find from the evidence that the court does have jurisdiction of the defendant.

The plaintiff is an association of some of the employees of the defendant who teach full time but who are not certificated teachers and accordingly not subject to the provisions of the Nebraska Teachers' Professional Negotiations Act §§ 79-1287 to 79-1295 R.R.S. Neb. and the proviso to §48-810 R.R.S. Neb. The undisputed evidence is that qualification for membership in the plaintiff is limited to employees of the defendant who are also members of the Nebraska State Education Association, that all the members participate in the plaintiff and in the formulation of its activities, and that its purpose, both in the formal declaration and in practice, is dealing with the defendant concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of work. Accordingly we find that the plaintiff Association is a labor organization within the definition of §48-801 (6) R.R.S. Neb. and accordingly entitled to invoke the jurisdiction of the court under §48-811 R.R.S. Neb. The five individuals who joined the Association in this Action are employees of the defendant, and therefore they likewise are subject to the jurisdiction of this court. Regardless of whether the individual plaintiffs Richard Hawley, and Charles Suiter, as "department heads" are members of an appropriate unit for bargaining, they are employees subject to the jurisdiction of this court.

Issues first raised by the defendant's special appearance have been preserved in subsequent pleadings, but we find that there is no evidence after trials on April 24th and June 10th justifying the alteration of the application of the principles with respect to said issues announced by the court in its order entered in this case March 12, 1971.

The key issues now to which the evidence, arguments, and briefs have been directed are:

1. Is it appropriate for the court to order discussions between the plaintiff and the defendant of terms or conditions of employment?

2. Regardless of such propriety, must or may an employer refuse to negotiate or enter into discussions of any kind with an association on the ground that the latter represents less than a majority of an appropriate unit?

3. What unit of the defendant's employees is appropriate for such discussions?

4. Is the plaintiff association, or are any of the five individuals who have joined with the association as plaintiffs, entitled to any relief because of the defendant's failure to renew said individuals' employment?

5. What relief is appropriate?

The Court is not yet ready to declare its decision on the issues stated and numbered 1, 2, and 3 above. An order with respect to the issue stated and numbered 4 above should not be delayed. Accordingly this order is dispositive of and final with respect to only the Application filed May 14, 1971, by the Mid-Plains Education Association and joined individually by Charles Suiter, Lois J. Didriksen, Richard Hawley, Iona Hawley, and Arnold Beyersdorf.

The legislation under which the defendant operates was enacted without much precedent in 1965 and substantially revised in 1967. The two older trade schools, one at Sidney and one at Milford, exist under different statutes and are controlled directly by the State Board of Vocational Education, a division of the State Board of Education, and the State Personnel Office, so that in setting up the operating procedures for the second area vocational-technical school to be formed in the state, the defendant could not rely entirely on either those older schools or the public high schools and junior colleges of this state as models. The defendant's classes first started in September, 1968. For the first two years the Board of Governors' policy, the teachers' authority, lines of communication, duties, responsibilities, and the relationship to each other of the administration, the faculty, and the Board were not defined. Nevertheless in January or February of each of the years 1968, 1969, and 1970, the President of the defendant gave to each of the teachers a written contract for his services for the succeeding school year, and each teacher signed and returned it within a week or two. During the first two years the school operated at several temporary sites, but in September, 1970, moved into a new building expressly designed for it. Among the full-time faculty the feeling was beginning to crystallize that now was the time to get more clarification of the lines of authority and the rules and policy of teaching at the defendant. Despite the lack of policy and rules as to how to get things done administratively, the President continuously admonished members of the faculty that they might not communicate directly with the Board or any member thereof, and reprimands were stated to be based on, or suggestions brushed aside because, "contrary to Board policy." Noting the statewide services, forms, and policies being formulated by the Nebraska State Education Association, three of the defendant's faculty who had taught in public high schools and were members of the Nebraska State Education Association in October, 1970, passed out at a faculty meeting membership-application forms and brochures of the NSEA and invited all full time teachers at the defendant to join the NSEA and participate in the forming of the plaintiff. Following generally the form recommended by the NSEA the plaintiff formulated and transmitted to the defendant a letter dated November 15, 1970, as follows:

"The Mid-Plains Education Association represents a majority of the certificated full-time employees of Mid-Plains Voc-Tech on matters of employment relations.

Pursuant to law, you are requested to:

1. Recognize the Mid-Plains Education Association as the representative of the certificated full-time employees of Mid-Plains Vod-Tech in their professional and employment relations.

2. Bargain with the negotiating committee of the Mid-Plains education Association in good faith regarding...

(a) Grievance procedures

(b) Written board policies

(d) Teacher evaluation

(e) Fair dismissal procedures

(f) Teacher welfare

(g) Teacher facilities

Your written decision on the foregoing request is requested within 30 days of the date hereof, mailed or delivered to: Mr. Richard Hawley, Mid-Plains Education Association, Route No. 2, North Platte, Nebraska.

We look forward to good faith negotiations with the Board of Governors on the items set forth within the framework of the law."

At the meeting of the Board of Governors two days later legal counsel advised the Board that neither the Teachers' Professional Negotiation Act nor the Court of Industrial Relations Act applied to the defendant's employees, none of whom were certificated under Chapter 79 R.R.S. Neb., "and for that reason we, the Board, determined that we could reach agreement and concord on policies between us (the Board and the teachers) by other more informal meetings" than those which seemed to be demanded by the letter of November 15th. On December 1st the Board of Governors took some time out from a special meeting originally called for the purpose of conferring with a building contractor to have an informal private session with the entire faculty "to find out what they had in their mind concerning policy of the school and areas in which they might be dissatisfied or might be improved." Some of the items of the November 15th letter were discussed but not all of them. At that meeting the entire faculty selected or elected a salary committee, which, however, was composed of Mr. Hawley, Mr. Suiter, and another teacher whose name the record does not disclose, all of whom were in fact officers of the newly formed Mid-Plains Education Association. At the regular meeting of the Board in the middle of December the faculty committee was permitted 15 minutes to present its proposed salary schedule, and then without discussion the subject was tabled. Members of the Board here testified that although they did not communicate their intention to the members of the faculty, they did intend to take up the question of faculty salaries at their January meeting. At the January meeting, however, it was reported that the plaintiff was planning to file this lawsuit in the Court of Industrial Relations, and legal counsel advised the Board that the plaintiff's contemplation of such lawsuit "estopped us (the Board) from continuing with negotiation, correspondence, or communication of any kind with the faculty." If the lawsuit hadn't been filed the Board of Governors would have carried on negotiations with the faculty committee with reference to salaries, and they were going to pursue communications with the faculty but not with Mid-Plains Education Association. By formal motion the Board expressly refused to recognize Mid-Plains Education Association.

The President of the college had no objection as head of the administration to dealing with or discussing with the whole faculty or committees or groups of the faculty because, he thinks, so long as certain individuals call themselves a faculty committee they will only advise and the administration is willing to cooperate with such groups and listen to advice, but when the same members of the faculty call themselves an education association then the President "would feel that this situation would allow them to take over the governing facility, the governing involvement of the Board." Furthermore there is no one in the administration or on the Board of Governors who has had any experience with the NSEA or collective bargaining or systematic adjustments of controversies.

Likewise to the Board of Governors the letter of November 15th from the plaintiff "came like a shot in the blue." To the Board it seemed apparent that the plaintiff was conforming with laws, forms, and practice with which the individual members of the Board were entirely unfamiliar. Having lived with the Nebraska Area Vocational Technical School Act since 1965, they had developed a concept or feeling for what the Board ought and ought not to do under that Act, but they did not know how to co-ordinate that concept or feeling so developed with the statutes, politics, language, and customs of a labor union. Coming from rural Nebraska they can talk with the persons whom they know as their teachers, regardless of whether such a person represents himself or a group of or all the faculty, but they are fearful of having to discuss with a professional labor union representative. They want to be sure that whomever they discuss with as a representative actually represents the true feelings and opinions of the teachers rather than ideas imposed by some state or national organization. Moreover, the Board members living many miles from the college imagined that if they recognized the Association, they might be burdened with coming frequently to North Platte or even Lincoln for negotiations.

The Board unilaterally promulgated written policies in January 1971 and obtained from the plaintiff by judicial discovery in this action the plaintiff's suggested drafts of grievance procedure and of changes in said written Board policies.

On the other hand the individuals who comprise the plaintiff have two reasons for wanting to work under the name and organization of the plaintiff rather than trying to do the same thing as a faculty committee:

a. They need the NSEA statistics and information as to what are comparable working conditions as well as wages, the group's interest in wages being only secondary, and

b. Since Mr. Aten had warned them many times in faculty meetings that no teacher might talk in any way, even informally over a cup of coffee if he happened to know him personally, with a Board member, the formation of a union and the making of formal demands seemed the only way that the faculty could get the Board's attention in any respect.

Despite the custom in previous years of delivering in late January or early February contracts for continuation of services during the succeeding school year, in 1971 this was not done, and no discussion nor intimation of the administration's or the Board's intention with respect to non-renewal of contracts was had. From the beginning of the school until May 5, 1971, only one teacher had ever been told his contract would not be renewed. It was well known to the Board and the administration that all the teachers to whom on May 5 it was announced that contracts for 71-72 were not being offered had previously taught in the public schools of Nebraska, and that March and April are the times for seeking employment in the public schools. John McBride, a member of the Association, indicated he would not return to the college the succeeding year, but the record is silent as to his motives.

On April 24, 1971, between the parties the only issues then pending in the Court concerned the defendant's alleged right to refuse to negotiate with the Association, and at the hearing on April 24th Mr. Aten, President of the college, testified:

that he couldn't give an exact description of Mr. Howes' duties, and that the Court would have to ask Mr. Howes (a union member whose contract later was not renewed) what they are; that the college programs are set up to be sequential and to continue from year to year as disclosed by the catalogue; that the Dean of Instruction, Mr. Doyle, is involved primarily with instruction and with co-ordination of teachers and only in minor respects with evaluation of teachers; that as department head the chief duty of Mr. Hawley (the union president whose elimination from the faculty was announced 10 days later on the purported ground of a change in the curriculum) was to revise and advise with reference to revisions of the curriculum and to co-ordinate the subjects taught in his department with the teaching of subjects in other departments; that, with respect to a plan for teacher evaluation, "we really haven't had time to put it in effect, it probably will be, in other words, we have been feeling that it would be better to start out a current year from the beginning this way than to do something in the middle," and that in the past years he had been so sure that things were going smoothly that no consideration or very little was given to formal evaluation; (in an unresponsive volunteered answer) "Our other people on here (referring to Exhibit 36 on which the full time teachers at the college were listed) about the 7th of June will not be presently teaching until next fall;" that the department heads "set the material that will be encompassed in the education of their students;"

Thus Mr. Aten had every opportunity to intimate contemplation of any change in the curriculum or in teacher evaluation which might result in detriment to some teachers' continuation on the faculty, but the record is barren of any such intimation. It was apparent at the close of the April 24th hearing that one of the major issues to which the parties were directing evidence and written briefs was the appropriate unit for bargaining purposes; that ten of the plaintiff's eleven members (one being concededly administrative) constituted a majority of the unit (total 18) if the plaintiff's contention would be sustained that part-time instructors and the nursing department were excluded and department heads were included. Obviously any elimination of Association members upon whom the plaintiff was relying for its majority would strengthen the defendant's contention respecting the appropriate-unit and duty-to-bargain issues. The hearing on Saturday, April 24th ended after 5:00 p.m.

Tuesday morning, April 27th, Mr. Aten telephoned the State Department of Vocational Education and asked for a letter immediately giving the Department's approval to vary the method of teaching of "related subjects." "Related subjects" are mathematics, physics, rudimentary business management, electricity, drafting, and business English which are related to the "major area subjects" of diesel mechanics, auto mechanics, electronics, refrigeration and air conditioning, welding, building construction, and design. The man to whom Mr. Aten telephoned personally thinks that the new method of teaching related subjects is more effective than the method in use at Mid-Plains. Nevertheless in the Department-of-Vocational-Education files, except for the file copies of the letters requested by Mr. Aten, there is not one writing formal or informal to or from anyone on the subject. The trade literature on the subject is evenly divided pro and con as to how such subjects should be taught. They have been taught both ways at Milford, and now there a combination of both methods is being used. The State Department of Education does not recommend one way or the other but will approve either method or a combination of methods.

The letter of approval exactly as requested by Mr. Aten was written and posted the same day. Eight days later on Wednesday, May 5th, the faculty, without explanation, were invited to come to a Board meeting; at the Board meeting a list was read of names of instructors to whom the Board by virtue of such reading was offering renewal contracts; not on the list were the following:

Richard Hawley, teacher of related Physics, Electricity, Chemistry, and Mathematics, President of the Association

Arnold Beyersdorf, teacher of Related Mathematics and Science, member of the Association

Iona Hawley, teacher of Related Business, Communications, and English, member of the Association and wife of Richard Hawley

Jean Didriksen, teacher of Dental Assistance and of Related Business, Secretary of the Association

Charles Suiter, teacher of Building Construction, Vice-President and President-elect of the Association

William J. Howes, Counselor, Placement Officer, and Administrative Office Assistant, member of the Association.

All non-members of the Association were retained on the faculty; only four of the eleven members of the Association were retained; all the Association's officers and organizers were eliminated. The two Hawleys and Beyersdorf were told that they were not being offered contracts because, although they were excellent teachers, their jobs were being eliminated because of the proposed change in the method of teaching related subjects. Didriksen and Suiter were told that they were not being offered renewal contracts because of poor evaluation.

Neither before May 5th nor to the time of the next hearing had any of the teachers of related subjects been consulted or notified in any way about preparing the transition from the former method of teaching related subjects to the new method nor had anyone done any work whatsoever on devising, formulating, or characterizing the new method of teaching related subjects.

During the meeting on May 5th the Board offered each of the teachers an opportunity to resign. The related teachers requested and the Board promised letters from the Board explaining the change of curriculum, so that such letters could be used by the related teachers in seeking new employment, but to the date of the hearing of June 10th letters had not been received, one of the Board members testifying that he hadn't realized there was any time limit on the Board's compliance with the request.

Since the Board should have known that the delay in notifying teachers of their continuing statuses already would have worked great hardships on the eliminated teachers' opportunity to obtain employment elsewhere, we conclude that the Board's real reason for not supplying the promised letters was the Board's and the administration's inability to understand, explain, or justify the change in teaching in terms other than the desire to eliminate from the faculty the three union members who had been teaching such subjects.

Mr. Aten and Mr. Doyle stated to the Board that they could work with Miss Didriksen, and that the failure to renew came as a complete surprise to them.

On May 10th all members including Mr. Aten of the administration told Mr. Suiter that they could work with him, and that the Board's failure to renew Mr. Suiter's and Mr. Howes' contracts came as a complete surprise to the administration. Beginning November 30, 1970, Mr. Aten had informed Miss Didriksen that there would be a change of personnel and teaching in the Dental Assistance Department (it is not necessary to detail that change in these findings except to point out that clearly it was not similar to or connected in any way with the later proposed changes for the teaching of "related subjects"), and continuously up to within a week of May 5th members of the Administration were holding frequent conferences with her as to implementation of this change in the Dental Assistance Department and of her own work under such change for the 1971-72 school year; until the Board's announcement of May 5th the Administration's plan communicated to Miss Didriksen was for her to be head of the Dental Assistance Department. Certainly the testimony with respect to what Mr. Doyle, Mr. Aten, and Mr. Yont said to Miss Didriksen and Mr. Suiter as to the reasons for their poor evaluation and the testimony of Mr. Doyle, Mr. Yont, and one of the Board members in this court on June 10th as to the reasons for the poor evaluation was highly equivocal. To a large extent such reasons seem to have been grounded on conduct during the 1969-70 year. Mr. Aten although in the courtroom during all of June 10th was not called to testify or to rebut the foregoing.

No discussion of other employment for the three satisfactorily evaluated teachers was had or offered. Mrs. Hawley promptly made formal application to the college for other employment but has received not even an oral acknowledgement in passing. The State Department of Vocational Education author of the letter of April 27th testified and the College Catalogues in evidence indicate that changing the method of teaching related subjects does not require elimination of the former teachers thereof, who for instance could teach in adult education. A member of the Board of Governors since January 1971 testified June 10:

that prior to May 5, 1971, the possibility of a change in the method of teaching related subjects might not have been brought up at a Board meeting at all, but just over coffee somewhere in town; that no reference to any such change is found in the minutes of any meeting; that in each discussion the names of the related instructors to be eliminated were laid out before the members of the Board of Governors; that the fact of the related instructors' membership in the union was not mentioned, however, in the meeting; that nevertheless the witness cannot recall whether during the informal discussions over coffee concerning generally the change in the way of teaching related subjects the fact that the related teachers were active in the union was mentioned; "It was always, any discussion on this was based on individuals and based on curriculum change." (sic)

The two teachers who were dismissed for poor evaluation had each been rehired in previous years with commendation, and none had ever been told of his faults or given an opportunity to correct them.

Nebraska public employees have both a statutory and a constitutional right to form, join, and participate in labor organizations. §§48-811 and 48-837 R.R.S. Neb; American Federation of State, County, and Municipal Employees vs. Woodward, 406 F.2d 137 (8th Cir. 1969). The plaintiffs contend that the constitutional rights of the individual teachers were violated by their nonreappointment by the defendant. Whether non-tenured teachers at a state institution have either substantive or procedural constitutional rights with respect to their reappointment involves issues which the United States Supreme Court may resolve next term. See Sinderman vs. Perry, 430 F.2d 939 (5th Cir. 1970), petition for certiorari granted, 91 S.Ct. 2226 (June 14, 1971); cf: Pred vs. Board of Public Instruction, 415 F. 2d 851 (CA 5, 1969) with Jones v. Hopper, 410 F.2d 1323 (CA 10, 1969). In the present case, it is not necessary to consider these constitutional issues. The Nebraska statutes as amended in 1969, provide a sufficient basis for our decision in this case.

The provisions of the Nebraska statutes are as follows:

"§48-811-....No adverse action by threat or harassment shall be taken against any employee because of any petition filed by such employee, and the employment status of such employee shall not be altered in any way pending disposition of the petition by the Court."

"§48-837-Public employees shall have the right to form, join and participate in,...any employee organization of their own choosing. Public employees shall have the right to be represented by employee organizations to negotiate collectively with their public employers in the determination of their terms and conditions of employment and the administration of grievances arising thereunder;..."

Whatever arguments may be made for limiting the application or reach of the statutes in various situations, it seems clear to us that they set forth the public policy of the State of Nebraska and require under the evidence here the finding that such statute has been violated. We see no ground whatsoever for drawing, as the defendant would have us do, a distinction in the application of the statutes to a written contract for a year and to an oral contract of hire from day to day or week to week. Nor do we declare a right to expect continued employment as the plaintiffs would have us do. We simply hold that an employer's action or non-action which results in cessation of an employee's employment is unlawful if the employer's motive in so doing is to discourage union membership or activity, or in reprisal or retaliation for the latter activities; and that the evidence here warrants the finding that here the failures to renew contracts were so motivated. Annotation: Federal and State Labor Relations Acts: Discharge of Employee as Reprisal or Retaliation for Organizational Activities, 83 ALR 2d 532. With the statement of the Supreme Court of the United States in NLRB vs. Jones and Laughlin Steel Corporation, 301 U.S. 1, 81 L. Ed. 893, 57 S.Ct.615, 108 ALR 1352, we agree:

"The Act does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them. The employer may not, under cover of that right, intimidate or coerce its employees with respect to their 'self-organization and representation,' and, on the other hand,...(this court) is not entitled to make its authority a pretext for interference with the right of discharge when that right is exercised for other reasons than such intimidation and coercion. The true purpose is the subject of investigation with full opportunity to show the facts. It would seem that when employers freely recognize the right of their employees to their own organizations and their unrestricted right of representation there will be much less occasion for controversy in respect to the free and appropriate exercise of the right of selection and discharge." (emphasis supplied)

NOW THEREFORE IT IS ORDERED, ADJUDGED, AND DECREED:

A. That the amended petition and responsive pleadings thereto be and they hereby are severed from the application filed May 14, 1971, and final judgment on the said amended petition be and it hereby is reserved.

B. That the defendant must offer within two weeks of the date of this order to each of the individual plaintiffs Richard W. Hawley, Iona Hawley, Arnold Beyersdorf, Lois J. Didriksen, and Charles Suiter employment which must be consistent with §§48-811 and 48-837 R.R.S. Neb. and which is the same or similar to the employment of each under his or her contract for the 1970-71 school year, but, if possible without detracting from the immediately preceding requirement, then such employment may be also consistent with whatever plans the defendant may have developed since June 10th for the teaching of related subjects, for the Building Construction Department, and for the Dental Assistance Department.

C. That the prayer of said Application filed May 14, 1971 is granted to the extent set forth in the immediately preceding paragraph.

D. That the defendant's oral motions made June 10, 1971, to dismiss be and they hereby are overruled.

ORDER OVERRULING MOTION FOR NEW TRIAL

August 24, 1971

JOHN R. BAYLOR, Judge

Pursuant to Order entered August 17, 1971, this case, on August 24, 1971, at 1:00 p.m. came on for hearing of the defendant's Motion for New Trial.

In addition to the authorities cited in the court's findings and order of August 9, 1971, the court relies on Article XV, Sections 13 and 15 as follows:

"No person shall be denied employment because of membership in or affiliation with...a labor organization...

"This article is self executing and shall supersede all provisions in conflict therewith; legislation may be enacted to facilitate its operation but no law shall limit or restrict the provisions hereof."

NOW, THEREFORE IT IS ORDERED that the defendant's motion for new trial be and it hereby is overruled.

FINDINGS AND ORDER RE ISSUES RAISED BY AMENDED PETITION

AND PLEADINGS RESPONSIVE THERETO

1.

This portion of the findings and opinion of the Court is written by Judge Baylor joined by Judge Kratz and Judge Nielsen and is concurred in as to result by Judge Gradwohl.

The issues raised by the Application filed by the plaintiff May 14, 1971, and joined in by five individuals were decided by our order entered August 9, 1971, which reserved judgment on the issues raised by the amended petition and responsive pleadings thereto. The findings and orders hereinafter are a final adjudication of those issues heretofore reserved, and do not effect in any way said findings and order of August 9, 1971.

Issues first raised by the defendant's special appearance have been preserved in subsequent pleadings, but we find that there is no evidence after trials on April 24, 1971, and June 10, 1971, justifying the alteration of the application of the principles with respect to said issues as said principles were first announced by the Court in its order entered in this case March 12, 1971.

The key issues now to which the evidence, arguments, and briefs have been directed are:

1. If one of the parties has failed or refused to enter into any discussions or negotiations of terms or conditions of employment, is the court's only recourse an adjudication under §48-818 R.R.S. Neb.?

2. Must, or may, an employer refuse to negotiate or enter into discussions of any kind with an association on the grounds that the latter represents less than a majority of an appropriate unit?

3. What unit of the defendant's employees is appropriate for such discussions?

1. If one of the parties fails or refuses to enter into any discussions or negotiations of terms or conditions of employment, is the court's only recourse an adjudication under section 48-818 R.R.S. Neb.?

Section 48-816 R.S. Neb. provides in part:

"...In the event of an industrial dispute between employer and employee of...any public corporation...where such employer and employees have failed or refused to bargain in good faith concerning the matters in dispute, the court may order such bargaining to be begun..."

Section 79-401 R.S. Neb. provides in part:

"Every duly organized school district shall be a body corporate and possess all the usual powers of a corporation for public purposes,..."

and Section 48-837 R.S. Neb. in part:

"...Public employees shall have the right to be represented by employee organizations to negotiate collectively with their public employers in the determination of their terms and conditions of employment..."

We have discussed the legislative history of §48-816 in Public Service Employees Council, et al., and United Association of Journeymen vs. Metropolitan Utilities District, Cases No. 21 and 22, "Findings and Orders with Respect to Ordering Bargaining" filed May 18, 1968. It was held there that "(1) Sec. 48-816 does not mandatorily require the court to order bargaining, and (2) The evidence does not warrant an exercise of the court's discretion." The evidence referred to was that the sole activity of each of the plaintiffs had been the maintenance of the actions, and that neither plaintiff would be chartered or otherwise organized or operative unless it was successful in obtaining voluntarily from the defendant or by order of the Court of Industrial Relations the right to bargain with the defendant on behalf of the defendant's employees; the court concluded that the only dispute shown by that record was between the unions, so that bargaining with the employer could not relieve it. (A further hearing was ordered to ascertain the nature and extent of other industrial disputes alleged, but the cases then were dismissed by the plaintiffs.)

In School District of Seward Education Association vs. school District of Seward, Case No. 34, Findings and Order entered March 26, 1971, it was held:

"9. Discretion As To Order and Bargaining.

In the 'Findings and Orders with Respect to Ordering Bargaining', filed May 13, 1968, in Cases No. 21 and 22, Page 5, the Court interpreted its discretionary authority to order bargaining under Section 48-816 as follows:

'What this reasoning clearly demonstrates is that the Court of Industrial Relations can order bargaining to effectuate the purposes of the statutes by implementing a settlement of an industrial dispute. Bargaining can implement settlement of an industrial dispute in two types of situations contemplated in Judge McCown's Opinion [IBEW v. Hastings, 179 Neb. 455, 138 N.W. 2d 455, (1965)]:

(1) To eliminate, define and simplify controversies; or

(2) to encourage a voluntary settlement of an industrial dispute.

Perhaps there are additional circumstances in which ordering bargaining might effectuate the purposes of the statutes, but, if so, they have not been presented by counsel and would not appear to be involved in the two pending cases.'

LB 15 of 1969 also embodies a legislative policy determination that it is desirable for an employer and employee association to enter into voluntary collective agreements. From Section 48-810.01, the Court of Industrial Relations cannot compel the parties to enter into any contract or agreement. The Court can, however, under Section 48-818 establish by order or orders the scale of wages, hours of labor, or conditions of employment. As a general proposition, it is more desirable that the parties engage in extrajudicial discussions or enter into a court encouraged voluntary settlement than that the Court determine these matters by order under Section 48-818. We find that in the present case the policies of Chapter 48, Article 8 will be best served by an order compelling the parties to meet and confer in an effort to arrive at a voluntary settlement."

In Holdrege Education Association vs. The School District of Holdrege, Case No. 39, Findings and Order entered March 30, 1971, in applying the principles quoted above from the Seward case, it was held:

"The evidence shows that in past years through at least December of 1970 relations and discussions between the parties have been amicable and effective; and that the present litigation arose only because the Board misconstrued Section 79-1294 re Rules and Regulations for the Administration of Negotiations. The tone of the parties' communications indicates that such misconstruction and the commencement of this action were in good faith because of the absence at that time of judicial interpretation and application of the proviso to 48-810 and of the Teachers' Professional Negotiation Act....The deadlines imposed by Section 79-1254 on both the teachers and the board now give rise to the compelling public interest and needs specified by 48-816 and 48-823. Therefore not under the Teachers' Professional Negotiations Act but by virtue of the order of this Court under the Court of Industrial Relations Act, the parties should meet and confer, discuss, bargain, and negotiate forthwith to eliminate, define, and simplify controversies or aspects of them and to arrive at, if possible, a voluntary settlement of the industrial dispute."

With respect to the evidence in this case to the time of trial April 24, 1971, our findings set forth on pages numbered 2 through 5 inclusive of our order of August 9, 1971, are material to the issues now before us, and they are re-adopted hereby.

In short the Holdrege case held that the court would order bargaining where the evidence showed (a) the probability of the existence of basic good will between employees and governing body and (b) the disturbance of such good will by only misunderstandings arising from uncertainties over how the state statutes pertaining to recognition and bargaining should be interpreted. And the Seward, Central City, Minden, and Norfolk opinions [cases numbered 32, 35, 51, and 40 in this court] in effect were pronouncements that, since bargaining is in the long run a more effective means of promoting the statutorily declared public policy than is adjudication, such bargaining will be ordered where the evidence shows that the parties "haven't really tried" (we have not yet attempted to formulate or apply formal tests of good-faith) to get together on settlement of controversies. Here in this Mid-Plains case clearly there was basic good will disturbed by the defendant's misinterpretation or fear of the consequences of the plaintiff's request to meet and confer and by the defendant's counsel's legal advice with which we respectfully disagreed in our opinion of March 12, 1971. Moreover, the parties never have bargained or discussed in any sense of those words.

Under the standards set forth in the Metropolitan Utilities District, Seward, and Holdrege opinions, we hold that the evidence in this case does not disclose that §48-818 adjudication is the only possible means available to the court for a §48-810 settlement, but does require the defendant to bargain with the plaintiff. See our opinion in Norfolk, Case No. 40, October 5, 1971, for bargainable subjects.

2. Upon the employer's or the court's deciding that discussions or negotiations between the defendant and the plaintiff are appropriate, nevertheless may the defendant refuse to negotiate or enter into such discussions on the ground that the plaintiff represents less than a majority of an appropriate unit?

It is to this issue that most of the defendant's evidence, its briefs, and oral argument are directed. Actually the defendant assumes as axiomatic that a government employer must bargain with an association which represents a majority of the employees in an appropriate unit as the exclusive representative of all the employees of such unit, but may not bargain at all with a representative of less than a majority, and accordingly the defendant directs its evidence and argument to the conclusion that the appropriate unit is such that the plaintiff's members are not a majority thereof. Nevertheless, before going to the defendant's evidence and argument respecting the appropriate unit, we examine the basic assumption.

a. Can a governmental employer and a labor organization voluntarily agree that the labor organization which represents a majority of the appropriate unit will represent all persons in such unit including but not limited to those whom the organization represents?

We have concluded that the answer to this question is yes, and our reasoning is set forth in our Findings and Order entered in IBEW vs. City of Lincoln, Case No. 48, filed October 13, 1971, of which the reasoning and conclusions of law are adopted and incorporated herein.

b. From the fact (regardless of how such fact becomes established) of a labor organization's representation of a majority of the employees in an appropriate unit, does it follow as a matter of law regardless of other circumstances that a governmental employer must recognize such labor organization as the representative of all the employees in such unit, both members and nonmembers of the organization?

We hold that the answer is, "No".

For the reasons and legal conclusions set forth in IBEW vs. Lincoln, and in the absence here of compelling circumstances, we do not substitute our final judgment for the judgment of the defendant's elected Board in respect to exclusivity of representation.

c. In the absence of a previously established exclusive bargaining relationship, must a governmental employer recognize a labor organization for the purpose of bargaining for those who authorize it and belong to the appropriate unit, regardless of whether such organization represents more or less than a majority of the employees in the appropriate unit?

We hold that the answer to this question is, "Yes," (with the exception found in Metropolitan Utilities # 21 and 22 when another organization represents the same employees; there is no such evidence in this case).

We rest our decision primarily upon the second sentence of §48-837 R.R.S> Neb.:

"Public employees shall have the right to be represented by employee organizations to negotiate collectively with their public employers in determination of their terms and conditions of employment...."

However, it may be helpful (see Grand Island vs. ASC & ME, 186 Neb. 711, 185 N.W.2d 860 (1971) to compare that state statute with federal law. The "gist" of §48-837 is very similar to that of Section 7 of the National Labor Relations Act (29 USCA 157). However, unlike that act, which expressly limits the right of representation to those groups having a majority of the employees in the bargaining unit (29 USCA 159 [a]), the Nebraska statute has no such express limitation. The reasonable inference is that the Legislature had no intent to impose, as a matter of law regardless of other circumstances, a "majority" requirement upon employee organizations representing their members in negotiations with their public employers.

Had the intent been to limit the existence of the employee's rights under §48-837, the Legislature would have utilized words to express said intent clearly. Reading into §48-837 any majority requirement would do violence to the language in the statute, as well as to the right of the employees, which is plainly expressed. As stated by the Nebraska Supreme Court in Schmeckpeper vs. Panhandle Co-op Association:

"A statute is not to be read as if open to construction as a matter of course. Where the words of a statute are plain, direct and unambiguous, no interpretation is needed to ascertain the meaning. It is not within the province of a Court to read a meaning into a statute that is not warranted by the legislative language." 180 Neb. 352, 359, 143 N.W. 2d 113 (1966).

3. What unit of the defendant's employees is appropriate for the discussions hereby ordered?

a. Is it appropriate under the evidence here that those teachers who are also department heads be included in the same bargaining unit with those other teachers who are not department heads?

II.

This portion of the findings and opinion of the Court is written by Judge Kratz and joined by Judge gradwohl and Judge Nielsen, with Judge Baylor dissenting.

The question of whether or not the department heads at Mid-Plains should be included in the employee bargaining unit is controlled by the decision of the Nebraska Supreme Court in In Re City of Grand Island vs. American Federation of State, County and Municipal Employees , 186 Neb. 711, where the court reached the following conclusion:

"The federal law excludes supervisors from employee units, and it is generally held that supervisors should not be included in a collective bargaining unit. See 48 Am. Jr. 2d Labor and Labor Relations, §454, p. 331. Supervisors are defined in the federal law as any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Title 29 U.S.C.A., §152 (11), p. 233; 48 Am. Jur. 2d, Labor and Labor Relations, §422, p. 306.

"The fire division consists of the chief, 3 assistant chiefs, 6 captains, 3 lieutenants, and 27 unranked personnel classified as firefighters. An assistant chief is in direct control of each shift while it is on duty. There are two fire stations, and a captain is in charge of the station to which he is assigned while he is on duty. The lieutenants are in charge of a ladder company which is based at Station No. 1. The job specifications for the captains and lieutenants appear to be the same although the education and experience requirements are somewhat different. The record shows that the captains and lieutenants appear to be the same although the education and experience requirements are somewhat different. The record shows that the captains have general charge of the personnel assigned to their station, and in the event of an alarm are in command until relieved by a superior officer. The lieutenants have similar authority but are not usually in charge of a station. In this respect it may be said that the captains and lieutenants have authority to "responsibly direct" the other firefighters. Although the captains and lieutenants have no authority, generally, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline the other firefighters, it is not essential that they possess such authority to be classified as supervisors.

"As we view the record the captains and lieutenants should be classified as supervisory personnel and excluded from the employee bargaining unit of the fire division. The order of the Court of Industrial Relations should be modified accordingly. The order as modified is affirmed."

Thus, according to the Nebraska Supreme Court, the determination of an employee's supervisory status under the Nebraska Industrial Relations Act is dependent on the National Labor Relations Act definition of "supervisor."

The evidence shows that the department heads at Mid-Plains Voc-tech College have the following duties and responsibilities: they have administrative duties "pertaining to student supplies, equipment, textbooks...curriculum"; they supervise the other teachers within their department; they revise the curriculum and advise regarding the "ordering of supplies, equipment, textbooks, teaching materials"; they establish the curriculum for part-time employees; they "evaluate the people in their various departments"; they are "responsible for departmental planning"; and they are "considered on additional personnel in their department as far as the selection of this personnel and how well they are doing and the continuance of this personnel". The department heads are paid an additional two hundred dollars for serving as the head of a department and when the department head is too busy to teach any of the night classes, he supervises and evaluates the night class teachers. The President of the College answered affirmatively an inquiry as to whether the department heads "make recommendations...to the board as to the selection of personnel and the hiring of personnel, and discharging personnel and rewarding personnel."

In summary, then, the department heads are paid additionally for serving as the head of the department and their duties include the evaluation of other teachers in their department, the supervision of other teachers in their department, the arrangement and organization of the department curriculum, the ordering of supplies equipment, textbooks, and teaching materials, and the responsibility for departmental planning. These duties and responsibilities are applied in varying degrees by the Mid-Plains department heads. For instance, Vanderstrasse has five part-time teachers under his supervision. Because of this, he is too busy to teach, and, therefore, spends most of his time setting up classes, seeing that the classes are properly operated, and evaluating the teachers. Hawley has two full-time teachers and one part-time teacher under his supervision, and Tuxhorn has one full-time and one part-time instructor. Mrs. Maryfield spends only 25% of her time in teaching. The other department heads have less supervisory responsibility, and some of them have no teachers presently in their department, other than themselves.

Thus, at the present time some of the department heads have substantial supervisory responsibilities and others have little. It is the hope and expectation, however, that the school will grow and prosper and this, of course, will provide additional supervisory responsibility for the Mid-Plains department heads.

The National Labor Relations Board has concluded that an employee does not lose his status as a supervisor even though he spends 95% of his time performing production work, Ideal Roller & Manufacturing Co ., 104 NLRB 931, Morrison v. Shopman's Local 682 , 114 F. Supp. 54, 24 LC 67, 811; that employees who are being trained to become supervisors should be treated as supervisors unless their chances of becoming a supervisor are too remote, Cherokee Textile Mills , 117 NLRB 350; that employees who have supervisory authority, even though they have never used such authority, shall be classed as supervisors, Yamada Transfer , 115 NLRB 1330; that certain employees are supervisors, even though they have nobody to supervise, where it is anticipated that there will eventually be an expanded work force, Peter Kiewit Sons Co ., 106 NLRB 1330; that certain employees are supervisors, even though they have nobody to supervise, where it is anticipated that there will eventually be an expanded work force, Peter Kiewit Sons Co , 106 NLRB 194; that an employee who has authority over one person is a supervisor, even though he has no subordinate employee at the present time because a new employee has not yet been hired, Ramsey Motor Co , 99 NLRB 408; that where the employee is responsible for the performance ratings of subordinates, and said ratings are the basis for transfers and promotions, the employee is a supervisor under the Federal law definition, General Telephone Co. of California , 106 NLRB 413; and that the fact that an employee has the authority to hire or fire, even though he has never exercised this authority, is the controlling factor in determining whether or not he is a supervisory employee under the federal law definition, Great Atlantic and Pacific Tea Co. , 102 NLRB 1564. The 6th Circuit Court of Appeals has ruled that under the federal law definition of supervisor, the status of the employee depends upon the existence of a specified supervisory authority, and not upon the frequency of its exercise. Ohio Power Co. v. NLRB , 176 Fed. 2d 385, 16 LC 65, 265.

Decisions of the National Labor Relations Board with respect to university department chairmen are not helpful in this instance. The Board has only recently asserted its jurisdiction over private colleges. Cornell University , 183 NLRB No. 41 (1970). Its decisions to date have involved universities greatly different from Mid-Plains. In C.W. Post Center of Long Island University , 189 NLRB No. 110 (April 20, 1971), the Board held that department chairmen were supervisors. In Fordham University , 193 NLRB No. 23 (September 19, 1971), (2-1 decision), and University of Detroit , 193 NLRB No. 95 (October 6, 1971), panels of the Board held that department chairmen at those institutions were not supervisors.

From the evidence in the record in this case, we find that the department heads at Mid-Plains are supervisors and should, therefore, be excluded from the requested employee bargaining unit. These department heads, in varying degrees, have authority to recommend the assignment, reward, and promotion of other employees; they have some authority to recommend the hire, discharge, and discipline within their departments; and many of them have other employees whom they responsibly direct. Though some of the department heads have seldom exercised any supervisory authority, that authority does exist. Furthermore, it is expected that there will be additional opportunities to exercise supervisory authority when the college realizes its anticipated growth.

The order to bargain herein means therefore that plaintiff can bargain only for those employees who authorize it to bargain in their behalf, and the department heads, having been determined to be supervisors, cannot be a part of that unit.

Plaintiff's amended petition does not request a unit of supervisory employees. It asks only that the court order "immediate good faith bargaining between the parties concerning the matters in dispute." Plaintiff's brief argues only that there should be one bargaining unit and the department heads should be included in it. Plaintiff makes no alternate supervisory unit suggestion, and neither its evidence, nor the evidence of the defendant, is directed in any way towards that possibility.

Under these circumstances, we feel that this court should merely determine the bargaining unit and conclude that the department heads are not a part of it. If the department heads then want to petition this court for recognition as a separate supervisory unit, they can do so, and both parties can have the opportunity to present evidence and arguments which are directly applicable to that issue.

NOW THEREFORE IT IS ORDERED, ADJUDGED, AND DECREED:

1. The plaintiff Association is entitled to represent those teachers, other than department heads, employed by the defendant College who authorize it to act for them within the meaning of section 48-837, R.R.S. Supp.

2. The plaintiff and defendant, in accordance with Chapter 48, Article 8, R.R.S. Supp. forthwith shall undertake good faith negotiations in regard to the determination of terms and conditions of employment and the administration of grievances arising thereunder for those teachers, other than department heads, who authorize the plaintiff to represent them.

3. Should such negotiations result in mutual agreement, the matter so agreed upon shall be reported to this Court.

4. If the parties are unable to agree on any such matters, the parties separately or jointly, as they determine, shall so notify the Court.

5. This Order does not compel either party to enter into any contract or agreement, written or otherwise.

6. This Order shall not preclude either party from making application to this Court for such additional order or orders as may be necessary to carry out this order or appropriate to govern the situation pending such bargaining.

Judge Henatsch did not participate in the trial of this case or in the consideration or entry of the Findings and Order.

DISSENTING OPINION OF JUDGE BAYLOR

RE DEPARTMENT HEADS

a. It is appropriate under the evidence here that those teachers who are also department heads be included in the same bargaining unit with those other teachers who are not department heads?

I agree with the majority that our decision must be controlled by the Supreme Court's words in City of Grand Island v. American Federation of State, County & Municipal Employees, 186 Neb. 711, 715, 185 N.W.2d 860 (1971):

"The federal law excludes supervisors from employee units, and it is generally held that supervisors should not be included in a collective bargaining unit. See 48 Am. Jur. 2d, Labor and Labor Relations, § 454, p. 331. Supervisors are defined in the federal law as any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Title 29 U.S.C.A., § 152 (11) p. 233; 48 Am. Jur. 2d, Labor and Labor Relations, § 422, p. 306."

First the defendant contends that the department heads' authority to evaluate the work performance of their fellow teachers is such that it is inappropriate for them to be in the same bargaining unit with such fellow teachers. Nevertheless with respect to similar evaluation system, forms (completion and submission of specifying numerical grading of teachers and supporting comments) and limits of authority (no independent action below administrative level), the Supreme Court said in the Grand Island case, "The captains and lieutenants have no authority, generally, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline the other firefighters." A fortiori do the department heads here have no such authority, for evidence here discloses that the evaluation system has not been uniformly and objectively used heretofore but will be in the President of the college and his assistants, such recommendations being based as much on conversations with non-department heads as on conversations or completed written forms from department heads. The evidence here does not disclose sufficient authority in the department heads "to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline employees or to adjust grievances" to constitute such department heads "supervisors."

With respect, however, to the test of authority to responsibly direct, the Supreme Court in the Grand Island case on trial de novo made the finding:

"The record shows that the captains have general charge of the personnel assigned to their station, and in the event of an alarm are in command until relieved by a superior officer. The lieutenants have similar authority but are not usually in charge of a station. In this respect it may be said that the captains and lieutenants have authority to 'responsibly direct' the other firefighters."

In support of this test and its application the Supreme Court cited 48 Am. Jr. 2d Labor and Labor Relations, § 422, p. 306. Of the rules set forth in the latter section, the one most nearly applicable to this case, and clearly inapplicable to the militarily organized fire department is, "One is not a supervisor merely because he exercises a control which a skilled craftsman has over his less skilled helpers." Here the only specific evidence of how a department head controls or advises other teachers in the same department is that when a full-time department head does not teach night classes himself, he gives some direction to the part-time teacher who is called in to tach such classes, such direction being with respect to the timing during the semester of covering a specific subject and with respect to limitations, of which he in turn has been informed by the President of the College, as to the supplies and equipment which the college can afford to buy for instruction. As a trier of fact, I do not agree with the defendant's contention that such limited discretion with respect to timing and to equipment and supplies is of sufficient degree or significance that it in turn results as a practical matter in direction or supervision of non-department-head instructors.

I find helpful the opinion in NLRB v. Security Guard Service Inc., 384 F 2d 143 (CA5, 1967) and especially the following:

"....Security magnifies a passing suggestion, a transmitted complaint, a recommended discharge, and a few minor decisions into summit altitudes of genuine supervision. There was no showing, however, that Ashmore's duties gave him the feeling of control, power, or superiority that one finds in a supervisor. His title, badges, and minor decision-making power do not complete the picture of a petty panjandrum.

"We do have a rule de minimis here. If any authority over someone else, no matter how insignificant or infrequent, made an employee a supervisor, our industrial composite would be predominately supervisory. Every order-giver is not a supervisor. Even the traffic director tells the president of a company where to park his car."

Having seen the witnesses and observed their demeanor, I am particularly impressed by the fact that a conclusion that department heads are "supervisors' has to be founded in most part upon the college President's conclusionary answers to leading questions by the defendant's counsel, and by the further impression that throughout the oral testimony all the witnesses, particularly Mr. Aten the college President and Mr. Peters the President of the Board of Governors, used the word "administration" clearly from the context not including department heads, and on the other hand used the word "faculty" clearly from the context including department heads. Having held in City of Omaha v. The Omaha Police Union and The Omaha Association of Firefighters, Case No. 32:

"If we were to include the battalion chiefs in the employee bargaining unit, the ratio of excluded employees from (sic; to?) the total number would be 4 to 456 (1 to 114), and if we excluded the battalion chiefs, the ratio would be 19 to 456 (1 to 24). In the Police Department, the ratio would be 5 to 524 (approximately 1 to 105) with the captains in the unit and 15 to 524 (approximately 1 to 35) with them out. The matter of determining an employee bargaining unit cannot be accomplished by merely applying a preconceived ratio, but these statistics are significant on the issue of balancing the interests of the respective parties and providing that both the municipal employer and its employees are adequately represented in collective bargaining."

I find it significant here that with department heads classified as supervisors the ratio of supervisors, including the college President and his assistants, to teachers would be almost one to one, whereas classifying the "department heads" with all the full-time teachers would result in the ratio of one administrator to eight employees. All the department heads, with the exception of Miss Merryfield who heads the licensed practical nursing department, spend as much time teaching as do the full-time instructors who are not classified as "department heads". The department heads received $200 annually or approximately two percent of their remuneration for their administrative duties. The college has a President, a Dean of Students, an Assistant Dean of Students, and a Dean of Instruction. It seems to me, after hearing how the President in testifying uses the words "administration" and "faculty" as noted above, that as a practical matter the supervision of all 18 full-time instructors(with the possible exception of the Nursing Department) effectively is vested exclusively in said President and Deans. All the full-time instructors are on the salary index schedule which has been designated by the administration as "salary schedule for instructors".

I would find that it is appropriate that the unit for which the plaintiff bargains in accordance with Section 2C of this Court's findings shall include those full-time instructors designating the plaintiff as their representative regardless of whether any such full-time instructors may also bear the title "department head."

I do agree with the majority that the decisions of the National Labor Relations Board in C.W. Post Center of Long Island University, 189, NLRB 109 (April 20, 1971), Brooklyn Center of Long Island University, 189 NLRB 110 (April 20, 1971), Fordham University, 193 NLRB 23 (September 19, 1971, and University of Detroit, 193 NLRB 95 (October 6, 1971) are not authority for or even helpful in reaching a decision with respect to the evidence pertaining to the authority of the department heads at Mid-Plains. Likewise by deciding that none of those decisions is authoritative here, the majority implies that similarity of title or of job description among several cases does not require similarity of result among the determination in such cases of the question of appropriateness of inclusion of such employees in a general employee unit. I agree with that.

With considerable misgiving I finally am persuaded to concur in the decision that, having decided-wrongly I believe-that department heads are supervisors, the court pragmatically may postpone to another case, pleadings, evidence, and argument the decisions respecting supervisors' rights and liabilities other than exclusion from bargaining unit of non-supervisors. My misgivings arise from a feeling that the courts should not make a decision respecting a man's status in law without some concept of the legal consequences-rights and absence of rights-of that status. But I now am persuaded that decisions from which such concept can be formulated are so important to the government and their employees that they should not be made without a thorough record and argument specifically developed respecting the many questions involved. Accordingly I dissent only to the finding of inappropriateness of these department heads' inclusion in the unit containing other full-time teachers. I consider the majority holding with respect to these department heads, and likewise the holding of the Supreme Court with respect to the Grand Island lieutenants, to be limited to that question of appropriate unit and to be concerned in no wise with other rights of supervisors under Chapter 8, Article 8 R.R.S. Neb.

March 8, 1972.

(s)John R. Baylor

Presiding Judge

IN THE COURT OF INDUSTRIAL RELATIONS

OF THE STATE OF NEBRASKA

August 9, 1971

JOHN M. GRADWOHL, JUDGE

I concur in the entry of the "Findings and Order With Respect To The Application Filed May 14, 1971." The evidence, considered in its entirety, is clear and convincing that the Board's actions on May 5, 1971, with respect to the five teachers, were taken with a primary purpose and effect of threatening and harassing those teachers who are members of the plaintiff association. This is especially true when the whole course of the Board's actions following presentation of the teachers' requests under Chapter 48, Article 8, in November 1970 is carefully examined. In addition, the Board's actions, following so soon after the hearing in this Court on April 24, 1971, and in the light of the testimony of the school on April 24, 1971, was an interference with the jurisdiction of this Court in a pending matter.

While I concur in the Court's reliance on the entire last sentence of section 48-911, I would have preferred to have used merely the portion which states, "No adverse action by threat or harassment shall be taken against any employee because of any petition filing by such employee...." That is precisely the situation involved in this case. Sections 48-810 and 48-823 authorize the order that the five teachers be offered reinstatement by the Board. This does not compel the Board to enter into a contract or agreement, written or otherwise, with the plaintiff labor organization. See section 48-810.01. If the Board does not offer reinstatement to the five individuals, then the Court, by further hearing and order, should, itself, establish terms and conditions of employment for them.

_______________________________

MID-PLAINS EDUCATION	\|	CASE NO. 33
ASSOCIATION, etc.,	\|
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Plaintiff,	\|
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v.	\|	FINDINGS AND ORDER
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MID-PLAINS VOC-TECH	\|
COLLEGE, etc.,	\|
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Defendant.	\|