3 CIR 289 (1977)


Petitioners, |
Respondents. |

September 26, 1977


For the Petitioners: Robert G. Simmons, Jr.

For the Respondents HEAN and CSEA: Theodore L. Kessner

For the Respondent Board of Trustees, Nebraska State

Colleges; George C. Rozmarin and William L. Howland

BEFORE: Wall, Kratz, DeBacker, Green and McGinley (EN BANC)


This action is one praying for a declaratory judgment that the contracts between the Board of Trustees of the Nebraska State Colleges and Higher Education Association of Nebraska and Chadron State College Education Association for the years 1976-77 and 1977-78 are void and unenforceable. We find that we have jurisdiction of the parties and of the subject matter.

The Board of Trustees of the Nebraska State Colleges is a body formed by the Legislature to carry out the responsibilities specified in art. VII, Section 13, Constitution of the State of Nebraska, as amended in 1968. The powers of the Board not enumerated in the Constitution are set out in §85-301, et seq., R.R.S. 1943. Generally, the Board has control of the state colleges at Chadron, Kearney, Peru and Wayne.

The Higher Education Association of Nebraska is recognized by the Board of Trustees of the Nebraska State Colleges as the exclusive bargaining agent for all teaching personnel at the four colleges under the Board's control.[1] When requesting recognition in 1970, HEAN, or the Committee as it was then known, represented that it had the approval of a majority of the members of the faculties voting at the four State Colleges to speak for them on labor matters.[2] The recognition agreement provided that all contracts would be subject to approval of the Legislature as required by §48-837, R.R.S. Nebr. 1943.3 At the rule 13 hearing on June 2, 1977, counsel for HEAN stated in response to a subpoena, that HEAN had no members who were employees of Chadron State College on January 1, 1976, or thereafter, and that there was no minutes and no notices to the members.[4] However an early Constitution of HEAN, submitted in answer to interrogatories, provides that members of HEAN are also members of the local association-in this case, Chadron State College Education Association and the Nebraska State Education Association.[5] A later constitution provides for both individual and institutional association membership.[6] As of the time of trial, it appears that joining CSCEA also made one a member of HEAN.

The Chadron State College Education Association is a labor organization composed of administrators and teaching faculty at Chadron State College.[7] The 1977 Constitution permits administrators to continue as members, but deprives them of voting rights and the right to hold office in the Association.[8] At least by early 1977, the CSCEA did not represent a majority of the faculty at Chadron State College. Testimony at trial indicated a faculty of 115 equaling about 90 full time teachers, while the CSCEA minutes of the meetings held February 23rd and February 25, 1977 show a voting membership in the association of only 34.9

Against this diverse and contradictory background, the 1976-77 HEAN, Board of Trustees and CSCEA-CSC contracts provided for evaluation of faculty and the use of the evaluation or determining merit increases.[10] The tying of evaluation to pay immediately divided the faculty against itself, and seems to have slowed the operation of CSCEA to a snail's pace. Meeting after meeting was held regarding evaluation, without resolving the issue.[11] Heavy participation by the administration in CSCEA meetings caused apprehension on the part of some faculty members, as well as several discussions of possible intimidation. Morale dropped, caused in the view of the administration members by tying pay and evaluation. Finally, as the Fall '76 semester neared an end, Dr. Nelson, President of CSC, felt the matter should be resolved. He went to the December meeting of CSCEA, as he testified, to work out whatever compromise was necessary. He did not verbalize his reason for being there, however, and his presence was almost universally regarded by those faculty testifying at the trial as intended to influence their vote.

The case presents three basic issues: the question of interference with or domination of the union by management; the question of the right of a union representing less than a majority to act exclusively on behalf of the bargaining unit; and, finally, the validity of the contracts herein involved, in view of the provisions of §48-837, R.R.S. 1943, requiring the submission of any contract with any agency of the State of Nebraska to the Legislature for approval.

We are met at the threshold by the contention of HEAN/CSCEA that we may not consider the claims of our petitioners because of the "contract bar" doctrine and our rules permitting decertification proceedings only during the period from 120 to 60 days before the end of the contract.12 The contract bar rule, except for the limitation imposed by §48-838, R.R.S. 1943, is a rule which we have established and which we are free to interpret, apply or waive as the facts of a given case may demand in the interest of stability and fairness in collective bargaining agreements. See Local 1545 v. Vincent , 286 F. 2d 127 (2nd Cir. 1960). Here, the allegation of employer interference, domination and recognition of a minority union are sufficient for us to postpone the determination of the application of the contract bar doctrine until we have examined the underlying contract to determine whether it is, in fact, a contract which warrants the application of the contract bar doctrine. As explained hereinafter, we find the contract not to be one entitled to protection.

We, thus, then turn to an examination of the alleged interference or domination of the union by the employer. The record has its full share of evidence of use of the employer's distribution facilities, conduct of union meetings during working hours, and similar matters of employer assistance which do not necessarily constitute domination or interference Duquesne University , 198 NLRB 891, 81 LRRM 1091 (1972). There is additional evidence that prior to the constitutional amendment of early 1977, administration members of CSCEA were very active in the union, voting and holding office. This is clearly a violation of §48-837, R.R.S. 1943, giving public employees the right to be represented by employee organizations. Mid Plains Education Assn. v. Mid-Plains Nebraska Technical College , 1 CIR 33-1, aff'd, 189 Neb. 37, 199 N.W. 2d 747 (1972). It is illegal and, therefore, an unfair labor practice. Local Union No. 647 v. City of Grand Island , 3 CIR (Adv.) 43, 3 CIR 142-1, aff'd, 196 Nebr. 693 (1976). By the Constitution, as amended in 1977, persons not in the bargaining unit were excluded from voting or holding office in CSCEA. We find no concomitant amendment for HEAN. The amendment of 1977 purges the CSCEA of the charge of domination or interference after the date of adoption of the amendment. The extent of interference in HEAN affairs is as unclear in the record as is the precise structure of HEAN and the relationships of the four Education Associations to it. In view of the discussion following, of the status of a minority union as an exclusive bargaining agent, we deem it necessary to plumb further the murky depths of an organization which has no members or minutes of meetings when subpoenaed, but which apparently generates them for bargaining purposes.

Section 48-837, R.R.S. 1943 guarantees to public employees the right to join or refrain from joining an employee organization of their own choosing. In Texas and N.O.R. Co. v. Brotherhood of Ry. & S.S. Clerks , 281 U.S. 548, 50 S.Ct. 427 (1930) a case in which the employer had recognized a minority union, in discussing the importance of the independence of the employees choosing their representative, Mr. Chief Justice Hughes said "...[I]t is of the essence of a voluntary scheme, if it is to accomplish its purpose, that this liberty should be safeguarded." It is axiomatic that if the employer recognizes as exclusive agent a union representing less than a majority, that the employees have been deprived of their right of freedom of choice. We have previously held that an election under the provisions of §48-837, R.R.S. 1943 is a prerequisite to certification as an exclusive bargaining agent. Building Service Employees v. Papillion School Dist. , 2 CIR 123-1 (1974).

Accordingly, we find the recognition as exclusive bargaining agent by the Board of Trustees of HEAN and CSCEA, when the Board knew, or should have known, that these organizations were minority unions, to be illegal and an unfair labor practice. We also find that the acceptance by the unions of exclusive bargaining agent status when they knew they were minority unions to be illegal and an unfair labor practice. We reiterate that the only manner in Nebraska of attaining certification as an exclusive bargaining agent is an election under the provisions of §48-838, R.R.S. 1943.

We have examined the various methods of remedying the effect of the unlawful practices found herein, and have determined that disestablishment pending further organizational activity is the appropriate remedy in the particular circumstances which we face herein.

We note, also, that the respondents agreed, in granting and receiving recognition, that the parties to the contract-the Board of Trustees on one side and HEAN and the local Education Association on the other-would submit any agreement to the Legislature for approval as required by §48-837, R.R.S. 1943.

The Board and the Association have not always been scrupulous in following §48-837, R.R.S. 1943. For example, the contract dated November 11, 1972 ran from July 1, 1972 thru June 30, 1975, one year beyond the biennial limitation period then contained is §48-837, R.R.S. 1943. The contracts have apparently never been submitted to the Legislature, but contracts since 1975 have, at least, been for the State's fiscal year, limited to the presently permissible one-year period, and negotiated after the appropriation bill has been passed.

The Board, established by the Constitution and statutes of the State of Nebraska, is certainly an agency of the State of Nebraska within the meaning of Sec. 48-837, R.R.S. 1943, and we so hold. The Board has no independent source of taxing power and must rely on the Legislature for its tax funding. The Legislature clearly intended to assure that state agencies did not bargain away more than they received from the Legislature in appropriations. In Board of Regents v. Exon , 199 Neb. 146 (1977), the Supreme Court held that the Legislature's authority over the Board of Regents was limited in several respects. In AAUP v. Board of Regents , 198 Neb. 243 (1977), affirming 3 CIR 150-1 (1975), the Supreme Court held that the Legislature was authorized to extend the CIRA to the Board of Regents. A reasonable reading of the two cases, to make them both effective, is that the Legislature under the Constitution may extend the dispute settlement machinery of the CIRA to the University of Nebraska system, the Constitution having given the Board of Regents no special status in the area of labor dispute resolution. The same reasoning would apply to the Board of Trustees, mutatis mutandis , the Constitutional sections establishing each Board being virtual word-for-word copies, one of the other. Not having an independent tax base, the Board of Trustees must be and is here declared to be a state agency, for the purposes of and within the meaning of Sec. 48-837, R.R.S. 1943. The contracts between the parties for the years 1976-77 and 1977-78 should have been submitted to the Legislature for approval. However, since they were negotiated after the appropriation bills were passed, we find no interest to have been harmed, the Legislative mandate vindicated, and submission now to be an unnecessary act. Further, our holding with regard to the recognition of a minority union compels the disestablishment of the defendants HEAN and CSCEA, regardless of the approval or disapproval of the contract.

The validity of the 1976-77 contract may be largely moot, except for such of the plaintiffs as may have been denied merit increases or promotion under the merit system/evaluation system finally applied under the contract. As a practical matter, therefore, we declare the invalidity only of the CSCEA contract for the '76-'77 year and both contracts for the current year.

IT IS, THEREFORE, ORDERED that the contracts between CSCEA and the Board of Trustees for the years 1976-77 and 1977-78 are declared to be unenforceable and void, and that the contract between HEAN and the Board of Trustees for the year 1977-78 is declared unenforceable and void.

NOTE: Footnotes deleted.