3 CIR 159 (1976). Affirmed in part, and in part reversed and remanded. 198 Neb. 697, 255 N.W.2d 258 (1977).


Petitioner, |
Respondent. |

Before: Judges DeBacker, Kratz and Green


The Petitioner, an association of House Officers at the University of Nebraska Medical center, seeks to represent, under the Nebraska Industrial Relations Act, its members in employee relationship matters.

The Respondent has refused recognition and in its Answer asserts a number of defenses.

The Respondent denies that the Petitioner is a labor organization. The record, however, is replete with evidence of the continuing existence of the House Officers Association, its continuing concern over matters of employment relations and a history of "dealing" between its officials and, principally, the Dean of the College of Medicine. On the basis of the record and the Act, we find that the Petitioner is a labor organization.

The Respondent, again in this case, raises constitutional issues, which if resolved in its favor, would deny this Court jurisdiction over any employee matters affecting the University. These arguments were rejected by the Court in A.A.U.P. v. Board of Regents , Case No. 150, 3 CIR 71. We adhere to our former holding.

The next defense asserted is that the Petitioner is without a usual place of doing business and has failed to comply with the filing requirements of Section 25-314, R.R.S., 1943. The record here is quite similar to those of several teacher association cases. We hold the Petitioner has a usual place of doing business; that it has communicated with the officials of the Respondent and they with it, and that no prejudice has been alleged or shown by reason of the Petitioner's failure to file a certificate with the Secretary of State. (See Malcolm Education Association v. School District , 3 CIR 14.)

The Respondent also seeks dismissal for failure of the Petitioner to furnish security for costs under Section 25-701, R.R.S. 1943. while this Court is made subject to the general rules of procedures of the District courts, the provision requiring a non-resident of the district seeking to invoke a District Court's jurisdiction to provide security for costs, seems immensely inapplicable to us. While the office of the Court is situated in the City of Lincoln and the County of Lancaster, the Court is authorized to sit, and does sit, at locations throughout the State. There is no provision in Article 8 of Chapter 48 concerning costs. We know of no instance in which costs have been taxed by this Court, except costs incurred before the Supreme Court, which we occasionally have taxed in compliance with a mandate from that Court. A party invoking the jurisdiction of this Court is not required to supply security for costs.

The issue presented by the pleadings and with which the great bulk of the evidence is concerned is whether the members of the association are employees or are students. As is indicated by the record, each House Officer entering the program at the University Medical Center is offered a contract. A salary is established, which generally increases from year to year during the course of the House Officer's service. This salary is subjected to withholding for Federal and State income tax and for Social Security purposes. The House Officers are offered participation in the University's group insurance program. There is no evidence that students generally are allowed to participate in that program. The Dean of the medical college testified that he has available to him by reason of his employment the same coverages as are available to the House Officers.

While formerly one who had obtained the degree of Doctor of Medicine was required, before being licensed to practice his profession in our State, to serve a one-year period called internship, this is no longer the case. Now a graduate medical doctor, upon passing the tests administered by the State licensing agency, acquires a license which authorizes him or her to practice the profession of medicine and surgery at any location in the State. Under the former practice, a first-year post-graduate medical doctor was called an "intern," and those post-graduate medical doctors engaged in various specialty programs after that internship were known as "residents." Now all post-graduate medical doctors are designated House Officers or H.O. Those initials then are followed by a Roman numeral indicating the years of service. Neither the state licensing authorities nor the medical college now distinguishes between interns and residents.

A House Officer spends the bulk of his or her time in patient-care work. The degree of supervision by faculty members varies considerably with the years of service of the house Officer and with the specialty field in which he or she is working. The services are performed not only at the University Hospital, situated on the Medical Center campus in Omaha, but also at other hospitals in Omaha and its surrounding area, at some hospitals in the outstate area and at some location outside of the State.

With the removal of the mandatory internship requirement, the remaining purpose of the House Officer service appears to be two-fold: first, the desire of the individual to acquire additional or more refined skills in order to engage in a limited area of practice demanding those skills, and secondly, the demand by national certification bodies in the medical profession that a program of this kind of completed as a condition precedent to eligibility to take that body's certification examination with a view toward becoming a recognized specialist in a limited field of medical practice.

These people work exceptionally long hours. Holidays are largely ignored. Many of them engage in general or specialized medical treatment, "moonlighting" in hospitals not affiliated with the University, where their work is completely unsupervised in any academic sense.

Those activities of the House Officers which are educational in a classroom sense occupy a very small portion of their time. When it becomes necessary to choose between attending a seminar and providing care to a patient who needs it, patient care invariably comes first.

While it would denigrate the professional status of the House Officers, it is not unreasonable to liken their situation to that of apprentices in various trades. We know of no instance in which it has been contended or authoritatively determined that an industrial apprentice is a student and not an employee.

The Supreme Court of Pennsylvania in Philadelphia Association of Interns and Residents v. Albert Einstein Medical Center, et al., ___A 2d ___ (July 6, 1976) determined that interns and residents are primarily students and not employees. The National Labor Relations Board in Cedars-Sinai Medical Center and Cedars-Sinai House Staff Association , 223 N.L.R.B. 57 made a similar determination.

Arrayed against those decisions, in addition to the vigorous and well-reasoned dissents in both the Supreme Court of Pennsylvania and the N.L.R.B., are the following authorities: Regents v. Michigan Employment Relations Commission 389 Michigan 96, 204 N.W. 2nd 218; Long Island College Hospital 33 S.L.R.B. 32 (New York, 1970); and Brooklyn Eye and Ear Hospital , 32 S.L.R.B. 21 (New York, 1968). We are more persuaded by the reasoning of these authorities than by the majority of the Pennsylvania Court and the majority of the N.L.R.B. As is outlined in the discussion of the record above, the House Officers spend the vast majority of their time rendering direct patient care, admit and discharge patients, write prescriptions, perform both minor and major surgical procedures, and all of this is done, particularly after the first year, with a minimum of supervision, often without immediate supervision of any kind. Nor do we regard the terms "student" and "employee" mutually exclusive. We agree with Member Fanning, dissenting in Cedar-Sinai, supra , that under a proper fact situation, one can be both student and employee.

The clearly enunciated legislative purpose of Chapter 48, Article 8, R.R.S., 1943, is to assure the continuous functioning of governmental service which is essential to the welfare, health and safety of the people of Nebraska, (48-802, R.R.S., 1943). In that context the Legislature has defined employer to be the State of Nebraska or any political or governmental subdivision thereof and has defined employee to be any person employed by any such employer, (48-801, R.R.S., 1943). Quite clearly, the University Medical Center is a part of a governmental subdivision which furnishes service to the people of our State essential to their health. In no small measure that service is delivered by the members of the House Officers Association.

The Respondent also claims that the unit sought here is not appropriate and contends for a unit consisting of "all 'A' and 'B' line personnel." That group would include a vast number of professors, lower level administrators, professional staff, managerial staff, extension agents, graduate assistants, etc. Such an all-encompassing unit was rejected by us in A.A.U.P. v. Board of Regents , 3 CIR 71. In that case we held appropriate a unit consisting of all "A line" employees at UNL, except the faculties of the colleges of dentistry and law. Each of those latter faculties was held to be an appropriate unit. In the present case, the record even more strongly supports a finding of a complete lack of a community of interest between the House Officers and other University employees. The closest to them would be graduate students who are serving as teaching assistants, research assistants, teaching assistants, etc. The record indicates that there is a little, if any, contact between the House Officers and those graduate students. Furthermore, the Chancellor testified that, with a single exception of the post-doctoral fellows (those who have already attained the highest academic degree in their fields), The House Officers are the only group who upon completion of their program will not receive an academically conferred advanced degree.

This memorandum is to support the previous Order of this Court directing an election within the unit and the Order of Certification issued herein as a result of that election.

Notice of Appeal having been filed, the Clerk is instructed to incorporation this Memorandum in the transcript.

Entered August 27, 1976.