3 CIR 457 (1978). Affirmed. 203 Neb. 628, 279 N.W.2d 621 (1979).



v. |
Respondent. |

Filed June 21, 1978.


For the Petitioner: David J. Cullan

For the Respondent: L. Bruce Wright

For the Intervenor: William E. Pfeiffer

Before: Judges Wall, Kratz and McGinley


This case brings before us the question of the proper faculty bargaining unit at the University of Nebraska at Omaha. Respondent contends that department chairmen, librarians, those not on the tenure track, and counsellors should be excluded. Respondent litigated only the question of department chairmen and librarians. The parties excluded by stipulation intercollegiate coaches and trainers from the unit, effectively depriving us of the opportunity of commenting on the value of athletics in the educational experience.

Intervenor has appealed to this determination panel the dismissal by the Clerk of its Petition in Intervention under Rule 4 of the Rules of this Court. We take up the questions involved in the appeal first.

Since the intervenor filed a motion for recusal of the hearing judge among its other papers filed a new days before the date set for trial, and since the hearing judge continues to sit on the determination panel, we discuss that as the first issue raised by the intervenor. Attorney for the intervenor represents a client claiming an interest in continued occupancy of premises held by the hearing judge's client, and from which premises the hearing judge's client has served on intervenor's attorney's client a three and thirty-day notice to quit. There is no connection between intervenor's attorney's clients. There is no animosity on the part of the hearing judge toward either the attorney or any of his clients. Apparently, intervenor relies on some presumption of portable hostility between attorneys which spills over on clients. There is no such hostility in the everyday world of dispassionate representation of clients, there is no such hostility here, and there certainly is no such presumption. On the contrary, the cases indicate that a judge can impartially hear and dispose of cases tried before him by an attorney whom he dislikes, so long as the hostility does not run toward the client, rather than the lawyer. 48 C.J.C., Judges §82. Finding no hostility, or any other basis for recusal, the motion for recusal is denied.

Intervenor next attacks Rule 4B as indefinite and unconstitutional. It seems that vagueness, like beauty, must be in the eye of the beholder. We find the provisions of the rule to be explicit and direct. Intervenor feels it has a constitutional right to intervene, whereas actually the right is conditioned by statute, rule, and sound discretion of the trial court. The rule here under discussion is designed to assure that an intervenor will not be permitted in the case unless it can demonstrate more than a de minimis interest in the litigation. Here, Rule 4B requires a showing of 10% interest in the unit claimed appropriate by the petitioner as a minimum. We find this reasonable and appropriate, as well as a proper exercise of this tribunal's rule-making power. We have waived the rule in special circumstances. See AAUP v. Bd. of Regents, 3 CIR Adv. 71, 3 CIR 150-1 (1975), but see no such basis for waiver here. The objections are overruled.

Intervenor complains that the Clerk's dismissal deprived it of an opportunity to assert its motion for continuance. We note only that the motion for continuance was not supported by a proper showing of good cause, that intervenor waited until a few days before trial to file its petition in intervention, that the trial was already delayed beyond the 60-day limit provided by the Legislature, that respondent's answer asserts compliance with the Clerk's directive to post notice of the pendency of this action in all places usually used to communicate with the faculty, and that intervenor wholly fails to meet or contradict the inference that it knew of the action since its initial filing four months earlier. We find no merit in intervenor's complaint, and it is overruled.

Finally, we find no substantial likelihood of success by intervenor in asserting its position. Drawing on our expertise, we judicially notice that the first degree usually awarded by the College of Business Administration is not at the Doctoral level, but rather the Bachelor level, and we further notice that the College is not separately accredited by an outside body as are Colleges of Law, Medicine or Dentistry. The intervenor thus comes under none of the exceptions recognized by us or by the Supreme Court in AAUP v. Bd. of Regents, supra, aff'd., 198 Neb. 243, 253 N. W. 2d 1 (1977). In the exercise of a sound discretion and bearing in mind all of the factors noted above, we find that we would deny the petition to intervene at whatever state presented, and however supported. The intervenor's appeal will be dismised.

We then turn to the merits. As noted above, the parties asserted, but did not litigate, the question of inclusion of counsellors. Drawing on our accumulated expertise, and particularly that from Metro Tech Ed. Assn. v. Metro Tech, 3 CIR Adv. 141, 3 CIR 167-1 (1976), we find counsellors to be so intimately entwined in the multiple facets of advanced education that they share a community of interest with the rest of the faculty sufficient to include them in an appropriate unit.

Turning then to the question of inclusion of librarians. Respondent chose to litigate this question on the basis that librarians were not on a track which would permit them to acquire tenure. Respondent also introduced its own rules which require librarians to be tenured or be moving toward tenure. Naturally, we will not permit a violation of the respondent's own rules to be raised in defense. We find a sufficient community of interest on the part of librarians to permit them to be included in the unit.

We digress here to discuss the matters arising out of the rule violation by the respondent - the warning to respondent's first witness and discussion of that warning with the second witness, both of which items resulted in respondent's motions for mistrial and for recusal of the hearing judge. We note that the primary obligation for the protection of witnesses lies with the officer presiding at trial, whether he be a hearing examiner, an administrative law judge, or a hearing judge. See, e.g., ABA Standards Relating to The Functions of the Trial Judge, 1972, Standard 5.4, and comments and commentaries therein and thereon. We note further that the hearing judge is permitted (and required in some instances) to form opinions as the trial progresses. See 48 C.J.S., Judges §89. For a complete discussion of challenges to judges and hearing officers who have heard and decided the case before, or who, in the course of their duties have formed opinions on the merits, see Withrow v. Larkin, 421 U. S. 49 95 S. Ct. 1456 (1975). While it now appears that the warning should have been reserved for persons above the level of Dean, after a complete review we find no error, nor if there were error, any error which substantially prejudiced the essential rights of the respondent. The denials of the motions for mistrial and for recusal are affirmed by the panel.

Turning then to the question of faculty not on tenure track other than librarians, respondent argues that assistant instructors, visiting professors, and others holding an appointment for a defnite term or a special appointment, lack a community of interest with the rest of the faculty sufficient to include them in the unit. We disagree. We perceive no difference between an assistant instructor aspiring to an instructorship and an instructor aspiring to gain sufficient rank to gain tenure. Nor do we view the retired distinguished professor from afar who graces the UNO faculty on a Special or Specified Term appointment as having any less interest in his work, wages and working conditions than the faculty member who is tenured so that he cannot be discharged without great difficulty. We see both as essentially and heavily involved in the production of a quality product which alone can guarantee the future of all.

Finally, we turn to department chairmen. Respondent misconceives the proper use of the phrase "of the faculty and not over the faculty" used by this Court and the Supreme Court in AAUP v. Bd. of Regents, supra. Respondent interprets the phrase to describe a subjective view of each person involved. Having received the imprimatur of the Supreme Court, the phrase is now a term of art, applied objectively as a legal standard to balance the conflicting policy requirements of labor law when imposed on a democratically operated university department [1] in which serving as chairman often is viewed as a duty to be performed and certainly not as a method of advancing one's career. We find that department chairmen are properly included in the unit as delegates from the faculty to the administration, and not excludable as representatives of the administration to the faculty. Respondent had its Deans and higher administration officials testify that they felt themselves to be "of the faculty." This may very well be the subjective truth, but does not control our determination which is based on the full range of duties of the individual officer concerned, as well as his method of and extent of collegiate control in exercising them. We note further that none of the Deans testified to the second part of the key phrase, that is, that they also felt that they were not over the faculty. We reject the attempted subjectiveness of the test, and reassert the standard objective rule in determining whether a given person is included in management or not - it will depend on each instance on the duties and powers of the individual concerned, taking the circumstances as a whole. We find here, as we did in AAUP v. Bd. of Regents, supra, that department chairmen are not management personnel, and are properly includable in the unit.

Respondent invites us to reexamine our determination in AAUP v. Bd. of Regents, supra, that the UNL faculty and UNO faculty constitute separate appropriate units for bargaining. Respondent also impliedly suggests that we reexamine the Supreme Court's holdings in affirming that case. We decline the implied suggestion,but have reexamined our prior decision in the light of the testimony herein (which includes the transcript of testimony from the prior case) and as further illuminated by the explicit tests set down by the Supreme Court. We find the evidence to be clear that the respondent treats the two campuses as separate entities, with separate governing organizations, separate salary administration, separate grievance and academic freedom committees, separate faculty senates, and separate objectives. We also find the items which led us to conclude in the prior case that separate units were appropriate have not changed during the passage of time since our first consideration. We again find a separate unit to be appropriate.

We note, but do not discuss, respondent's allegations of unconstitutionality of the C.I.R. statute, as applied to the Regents. Our reasoning as expressed in Univ. Police v. Bd. of Regents, 3 CIR Adv. 335, 3 CIR 223/237 (1977) remains the same, and until the Supreme Court explains the error of our reasoning, can see no reason to pitch the University system into the abyss of trial by battle in the area of labor relations.

Accordingly, we find the appropriate unit herein to be as follows:

All full time A-line faculty employed by the University of Nebraska at Omaha, including counsellors, librarians, and assistant instructors, but excluding intercollegiate athletic coaches and trainers, all persons holding rank of Associate or Assistant Dean or higher, as well as those specific individuals excluded by stipulation as having management duties. [2]

IT IS, THEREFORE, ORDERED that intervenor's appeal is denied.

IT IS FURTHER ORDERED that a secret ballot election be conducted within a reasonable time from the date of this Opinion within the unit above described.

IT IS FURTHER ORDERED that the Court's representative in the conduct of such election shall be Judge Benjamin M. Wall, and that the election shall be held under the immediate supervision of the Clerk of the Court, Janet Stewart Arnold.

IT IS FURTHER ORDERED that Janet Stewart Arnold is appointed hearing examiner to determine initially all questions arising during the election process.

IT IS FURTHER ORDERED that counsel for the parties shall meet with the Clerk of the Court on June 30, 1978, at 10:00 o'clock A.M. in the office of the Court at Lincoln, Nebraska, to agree upon or have determined all matters not covered by Rule 9.

NOTE: Footnotes deleted