3 CIR 186 (1976).


Unincorporated Association, |
Plaintiff, |
Defendant. |

Appearances: For Plaintiff, Theodore L. Kessner

For Defendant, Norman Krivosha.

Before: Judges Wall, Green and DeBacker.


This case involves a dispute between the Teachers Association at Southeast Community College and the College Board regarding the ground rules for bargaining terms and conditions of employment for the academic year 1976-1977. The association is not a certified bargaining agent, since it has not received a court certificate pursuant to Section 48-838. Nevertheless, the College is authorized to bargain with an uncertified association pursuant to Section 48-816. The College had recognized the Association and bargained with it in the academic year 1975-1976. The arrangement between parties did not contemplate that the recognition would be continuing. The Association was required to seek recognition on an annual basis. It sought such recognition for the academic year 1976-1977. Recognition was granted by the College. The parties then proceeded to their first bargaining session.

It was at the first bargaining session that difficulties arose. In the prior years' negotiations the Association's bargaining team had consisted of four members, three of whom were employees of the College. The College had paid the negotiating team for the time spent negotiating and negotiations were conducted during regular business hours. At the first negotiating session for the current academic year, the Association's negotiating team consisted of eight members, seven of whom were employees of the College. At the initial meeting, and thereafter, the College took the position that it was not obligated to bargain with a committee of that size. The College did not absolutely refuse to bargain; it conditioned bargaining upon substantive issues upon preliminary bargaining, which would resolve the disagreement as to the size of the Association's negotiating team. The Association refused to bargain with regard to the size of its team, and the negotiations broke down. Then, the Association brought the case here seeking an order from us directing the college to bargain with it.

At the start, we are met by two procedural objections from the College. Firstly, pursuant to court order, this trial was scheduled and held in the doyle Moot court Room of the Creighton University School of Law. We had utilized that court room on several occasions. The College, however, objects to the location of the trial contending that if the Court sits at a place other than its office in Lincoln, that place must have been designated by the Governor as an appropriate court room. The only requirement that we can find as to the place of hearing is that contained in 48-816 dealing with "such preliminary proceedings as may be necessary to assure a prompt hearing and speedy adjudication of the industrial dispute." Clearly that statute has no application to the actual trial of a case. In the absence of some warrant in the statute for the College's argument that we are limited as to the location of the trial, we reject it.

The College next complains that only one of the three judges constituting the panel of the court assigned to hear this case was present in the court room. Section 48-809 grants the court the "power to adopt all reasonable and proper regulations to govern its proceedings..., and regulate the mods and manner of...hearings and trial." Pursuant to this statute we have adopted a rule, whereby the court sits in panels of three, with one of the three members charged with actual attendance at trial, while the other two members decide upon the basis of the trial record. Thus, the College's challenge is essentially a challenge to the validity of our rule.

A rule to be valid must be in conformity with constitutional and statutory limitations. We know of no requirement of law that the members of an administrative tribunal, who decide the case, must be physically present while the record is made up. All that is necessary is that the person who decides the case be familiar with the record upon which he decides. That is the burden of the Supreme Court decision in Morgan v. United States , 298 U.S. 468 (1936); Allied Compensation Insurance Co. v. Industrial Accident Commission , 367 P.2d 409, 411 (Cal. 1962); Davis, Administrative Law Test , sec. 11.02, pp. 227-228. The situation might vary if a case turned solely on issues of credibility. However, that situation is not involved in this case.

We turn to the substantive issue between the parties. The College claims that it has the right to condition recognition upon the Association accepting a particular composition of its bargaining committee. In a situation where recognition is voluntary, as opposed to a case of court certification, the employer may impose conditions on recognition. If the union finds the conditions too onerous, it may seek court certification pursuant to 48-838. Thus, we accept the College's position that it could have pre-conditioned its recognition on the Association being represented by a bargaining committee identical in size with that utilized in the prior academic year.

Our difficulty with the college's position is not a legal one. Rather, there is no evidence in the record that such pre-condition was imposed upon recognition. While the College assumed that the Association would be represented by a committee of like composition with that which had represented it in the prior year, this assumption was not made an explicit condition of recognition nor was the assumption brought home to the Association prior to the grant of recognition. If recognition is to be upon condition, the conditions must be made clear at the time when recognition is granted.

Absent court certification, an employer is free to grant or withhold recognition of a bargaining agent. However, once recognition is granted, the employer is required to bargain in good faith with the bargaining representative of its employees. While the Court of Industrial Relations Act contains provisions for imposing settlements upon parties unable to agree, the policy of the act favors the resolution of disputes by the parties to the dispute through collective bargaining. That policy would be totally thwarted if the bargaining process did not entail a reciprocal obligation on the parties bargain in good faith. Implicit in the act of recognition of a bargaining representative is the acceptance of the obligation to bargain in good faith.

A pre-condition to bargaining, which has been kept secret from the employees' representatives until bargaining commences, is the antithesis of good faith. While the employer may pre-condition recognition, his conditions must be expressed at the time recognition is granted. It they are not, the subsequent attempt to utilize the secret pre-condition as a grounds to escape from the obligation to bargain would constitute bad faith. Therefore, we hold that the employer had no absolute right to insist upon a bargaining committee of a particular size, where that condition had not been imposed at the time of recognition.

Our holding that the employer may not insist upon a committee of a particular size is supported by the cases under the National Labor Relations Act. For example in NLRB v. Rosco Skipper, Inc. , 213 F.2d 793, 794 (5th Cir. 1954), the court held that in the absence of extraordinary circumstances an employer does not "have a right of choice either affirmatively or negatively as to any of those who are to sit on the opposite side of the table from him..." Similarly, in General Electric Company v. NLRB , 412 F.2d 512, 516-517 (2nd Cir. 1969), the court held that:

"...This right of employees and the corresponding right of employers...to choose whom ever they wish to represent them in formal labor negotiations is fundamental to the statutory scheme. In general, either side can choose as it sees fit and neither can control the others selection, a proposition confirmed in a number of opinions, some of fairly ancient vintage...

There have been exceptions to the general rule that either side can choose its bargaining representative freely, but they have been rare and confined to situations so infected with ill will, usually personal, or conflict of interest as to make good faith bargaining impractical...Thus, the freedom to select representatives is not absolute, but that does not detract from its significance. Rather the narrowness and infrequency of approved exceptions to the general rule emphasizes its importance..."

The court in General Electric went on to emphasize that where the employer undertook to bring a particular case within the exception to the general rule, he had the burden of demonstrating that the composition of the employee's bargaining committee constituted "'clear and present' danger to the collective bargaining process." 412 F2d 517.

The general principal that the composition of the bargaining team representing employees is not subject to employer control is reinforced by Section 48-837. That section grants employees "the right to be represented by employee organizations to negotiate collectively with their public employers..." "This gives employees the right to choose their own bargaining representatives." NLRB v. Deena Artware , 198 F.2d 645, 651 (6th Cir. 1952). That right to choose would be rendered meaningless if it was subject to employer approval. NLRB v. Deena Artware , Supra; General Electric Company v. NLRB , Supra.

We have mentioned the exception to the general rule that bargaining may not be conditioned upon a particular composition of a bargaining committee, which arises when the composition constitutes a clear and present danger to bargaining process. We assume that agreement becomes more difficult to reach as the number of persons who have to agree increases. On that assumption a bargaining committee could become so large as to render agreement a remote possibility. When a bargaining committee became that large, it might constitute a clear and present danger to the bargaining process. However, a committee of eight members is not so large as to render agreement only a remote possibility. Therefore, this case does not come within the exception to the general rule.

Our holding that an employer may not insist upon a particular composition of the employee's bargaining committee as the price of collective negotiation, unless the case is one of voluntary recognition and the condition is imposed at the time of recognition, does not dispose of the case before us. The College did not pre-condition bargaining upon a particular composition of the association's committee. It requested an opportunity to bargain about the size of the committee and conditioned substantive negotiation upon the grant of that opportunity.

We do not believe that the mere request to bargain about the composition of the committee constituted bad faith. The College had a legitimate concern as to the number of teachers who would be absent from their duties during bargaining sessions. In addition, where agreement had been reached with a smaller committee, the College could legitimately believe that the increase in the size of the committee could interfere with the smooth workings of the bargaining process. However, the general principle that the bargaining representatives of the employees are not a legitimate concern of the employer impose limitations upon the employer's right to request bargaining about the composition of the employees' bargaining committee. Where the employees' representative refuses to bargain, we believe that the employer must take this refusal as final and cannot pre-condition substantive negotiation upon negotiation concerning the composition of the employees' bargaining committee.

Our resolution of this issue is analogous to the treatment given to non-mandatory or permissive subjects of bargaining under the National Labor Relations Act. As to such non-mandatory subjects, the rule is that the parties, if they agree, may bargain about such a subject, but neither party has a legal duty to bargain at all about such a subject. If one party refuses to bargain about such a subject, the other party may not insist upon bargaining concerning that subject. See, NLRB v. Wooster Division of Borg-Warner Corporation , 356 U.S. 342 (1958). We adopt this approach because we believe that it represents a reasonable accommodation of the employees' right to choose their own representative with the employer's interest in assuring that the circumstances of bargaining are conducive to agreement.

In this case, the Association refused to bargain concerning the composition of its committee. The College did not take that refusal as final. We hold that the College was obligated to take the refusal as final and to commence substantive bargaining.

There are two other collateral issues involved with the central question as to the size of the committee. The College had operated on the assumption that the ground rules would stay the same. Thus, it planned to pay the union negotiators. Clearly, if there was an obligation to pay, it was only an obligation to pay a committee of identical size. The College was relieved from the obligation to pay, when the size of the committee was changed. There was also some question as to whether the College could insist upon bargaining during ordinary business hours and refused to bargain outside those hours. While the College had the obligation to meet with its employee's representatives, it had no obligation to negotiate outside regular working hours.

Having resolved the underlying legal questions in this case, we are brought to the issue of remedy. Both parties have preceded on the assumption that a finding of bad faith is required before a bargaining order can be entered. Ordinarily a finding of bad faith requires a finding that a party entered into negotiation with a pre-conceived intention not to reach agreement. See, NLRB v. Reed and Prince Manufacturing Co. , 205 F.2d 131, 134, 139-140 (1st Cir. 1953); NLRB v. Columbia Tribune Publishing Company , 495 F.2d 1384, 1391 (8th Cir. 1974). However, where a party insists upon negotiation on a non-mandatory subject no finding as to state of mind is required. As the Supreme Court noted in Borg-Warner , Supra, 356 U.S. 349,:

"The company's good faith has met the requirement of the statute as to the subjects of mandatory bargaining. But that good faith does not license the employer to refuse to enter into agreements on the grounds that they do not include some proposal which is not a mandatory subject of bargaining. We agree with the board that such conduct is, in substance, a refusal to bargain about the subjects that are within the scope of mandatory bargaining."

Therefore, if a finding of bad faith is required for a bargaining order under 48-816, technical bad faith is present here.

However, we do not believe that our right to grant a bargaining order is conditioned upon the presence of bad faith. An industrial dispute can arise from a "refusal to discuss terms or conditions of employment," but it can also arise out of "any controversy concerning...representation of persons in negotiating,..." 48-801 (7). A bargaining order might well be an appropriate resolution of a dispute over representation even where no bad faith was involved. Moreover, as this case demonstrates, an industrial dispute can arise out of a dispute over the ground rules for negotiation. such a dispute could arise between the parties despite a good faith desire on both sides to reach agreement. In such a case, we believe that our function is to set the ground rules for the parties and then remit them to the bargaining table, and we do not believe that remedy is pre-conditioned upon our being able to place blame upon one or the other parties or upon a finding that one or the other of the parties did not intend to agree.

In this case, we find that there was a dispute as to the scope of permissible bargaining between the parties. We find that the employer insisted upon bargaining upon an issue concerning which the employees' representation had no obligation to bargain. The appropriate remedy, therefore, is to remit the parties to the bargaining table for discussion of the substantive issues.

The power of this Court are equitable and should be exercised in accordance with the discretion granted to a court of equity. In this case, while the employer's position was not a permissible one, the ground rules had not been clarified at the time when the employer acted. Had the employer known that it had to impose its conditions upon recognition at the time recognition was granted, it might well have done so. We cannot restore the status quo. Recognition has been granted. We can, however, recognize the equities that arise in the employers favor. If the College does not believe that resolution of underlying substantive issues is possible, while the Association has a bargaining committee of eight members, it may refuse to bargain with the Association. If the College refuses to bargain, it must give the Association notice of such refusal within 15 days after the date of this order. In the event of such refusal, we not grant the Association leave to amend its petition in this docket to bring the substantive dispute between the Association and the College for the academic year 1976-1977 before this Court for resolution pursuant to Section 48-818. In the event that the employer does not exercise the option to decline negotiation, then the parties are directed to meet together at reasonable times to negotiate in good faith in order to determine terms and conditions of employment for the academic year 1976-1977.

Entered December 6, 1976.