3 CIR 607 (1978). Reversed and Remanded. 205 Neb. 107, 286 N.W.2d 433 (1979).


Plaintiff, |
Defendant. |
******** |
Petitioner, |
v. |
Respondent. |

Filed August 11, 1978.


For Petitioner in No. 241: Theodore L. Kessner

For Intervenor in No. 241

and Petitioner in No. 242: Robert G. Simmons

For Respondent in No. 241

& No. 242:George C. Rozmarin

and Robert K. Andersen

Before: Judges Kratz, McGinley, Green.


Case Number 241 originated with a Petition filed by the State Colleges Education Association (SCEA) requesting this court to determine an appropriate bargaining unit, hold an election, and, if a majority vote is received, certify SCEA as the exclusive bargaining agent for the employees in the appropriate unit. The unit requested by SCEA in that original petition is as follows:

"All ranked instructional personnel employed full-time by the Board of Trustees of the Nebraska State Colleges, who perform teaching duties at the four state colleges, located at Chadron, Kearney, Peru, and Wayne, Nebraska, excluding librarians, employees on terminal contracts, full-time department and division chairmen, and all other administrative personnel."

In its answer, the Board of Trustees of the Nebraska State Colleges (Board) admitted a sufficient showing of interest,[1] but challenged the inclusion of librarians and non-teaching faculty in the bargaining unit. Subsequently, by virtue of a Joint Report, the issue became whether to include in the unit librarians and teachers with terminal contracts.

While this issue was pending, and prior to hearing, the Chadron State College Teaching Faculty Bargaining Unit (Intervenor) filed a Petition to Intervene, and also filed a separate action against the Board (Case #242). Intervenor objected to the bargaining unit, which included all of the four colleges governed by the Board, and asked for a separate bargaining unit at Chadron State Teachers College (Chadron). Cases #241 and #242 were consolidated and tried on March 20, 1978.

Immediately prior to the hearing, the issues regarding librarians and teachers under temporary contract were eliminated by agreement of all parties, and the unit requested by SCEA was therefore reduced to the following:

"All ranked instructional personnel employed full-time by the Board of Trustees of the Nebraska State Colleges, who perform teaching duties at the four state colleges, located at Chadron, Kearney, Peru, and Wayne, Nebraska, excluding librarians, employees on terminal contracts, full-time department and division chairmen, and all other administrative personnel."

The sole issue before the court, therefore, is whether there should be a single unit for all teaching faculty of the four colleges governed by the Board, or a separate campus unit for the faculty at Chadron.[2]

This Court, and the Nebraska Supreme Court, first applied the Nebraska Court of Industrial Relations Act (CIRA) to the determination of an appropriate bargaining unit in City of Grand Island v. AFSCME, 186 Neb. 711 (1971). The criteria used in that case were the same as those applied under the federal law by the National Labor Relations Board: mutuality of interest in wages, hours, and working conditions; duties and skills of the employees; extent of union organization; and desires of the employees. Subsequent to the Grand Island case, the Nebraska Legislature enacted LB 1228 (Section 48- 838), which provides that this court, in determining the appropriate unit for bargaining, "shall consider established bargaining units and established policies of the employer." These two criteria, thus, are added to those used in the Grand Island case, and yet another standard is established by LB 1228 where it provides "that units of employees of less than departmental size shall not be appropriate." This language was inserted in the law in order to avoid fragmented bargaining units.[3]

In AAUP v. Board of Regents , 198 Neb. 243, 253 N.W. 2d 1, the Nebraska Supreme Court applied the following "relevant considerations" to the determination of the appropriate bargaining unit for organizations in the educational context: prior bargaining history; centralization of management and labor policy; extent of faculty interchange between campuses; degree of interdependence of economy of the campuses; differences or similarities in skills or functions of the employees; geographical location of the campuses in relation to each other; uniformity of wages, benefits, and conditions of employment; current means of governing the university; established policies of the employer; community of interest of employees; and possibility of over-fragmentation of bargaining units.

We are guided primarily by this case. It is the latest indication from the Supreme Court on the appropriate bargaining unit issue, and it also involves a question similar to ours. The issue in Board of Regents was whether the unit should include only personnel on the Lincoln campus of the University of Nebraska, or should also include employees at the Omaha campus of the University of Nebraska, employees at the law school, and employees at the dental college. This court determined that the appropriate unit should be limited to employees at the University of Nebraska at Lincoln, and the Ne braska Supreme Court affirmed.

The differences in the structuring of the University of Nebraska Educational System and the Nebraska State College System are not sufficiently significant, so far as the issue of appropriate bargaining unit is concerned, to distinguish that case from this one; therefore, as a guide to the determination of this case, we use the criteria established by that case, and the application of those criteria to the facts of that case, to the extent that the facts of that case are similar to the facts of this one, with the following result:

Prior bargaining history: this factor constitutes the primary difference between the Board of Regents case and this one. There was no history of bargaining in that case, but there is in this one. The significance of this factor, however, is somewhat diminished by the decision of this court in Vathauer, et al., v. HEAN (Higher Education Association of Nebraska) and Board of Trustees, Nebraska State Colleges, 3 CIR 215-1 (1977), where this court determined that the agreement between HEAN and the Board for the year 1977-1978 was unenforceable and void, and by the fact that the agreement between the Board and HEAN apparently did not contain all the applicable terms and conditions, inasmuch as the wages were left to be determined separately by each of the four individual institutions.

Centralization of management and labor policy: while the Board appears to have the final say with regard to most of the management and labor policy decisions, their actions in this regard appear to be perfunctory in most instance," and the evidence indicates that the four colleges, like the chancellors of the major administrative units in the University of Nebraska system, separately "govern their units on a day to day basis, and play an important role in labor management."

Extent of faculty interchange between campuses:[5] there has been no faculty interchange between the four state colleges.[6]

Degree of interdependence of autonomy of the campuses: the four colleges clearly function independently of each other. The faculties do not meet together, do not associate together for educational purposes, do not have close educational contacts, and apparently are acquainted with each other mostly through their common association with HEAN.

Differences or similarities in skills or functions of the employees: the faculties of the four colleges obviously perform similar functions and have similar skills.

Geographical location of the campuses in relation to each other: the campuses stretch as far apart as 490 miles from one to the other, and the closest to Chadron is 315 miles away (Kearney).[7] In Board of Regents, where the campuses were only 60 miles apart, the Nebraska Supreme Court said:

"Although this fact is not in and of itself determinative of the issue, the location of the campuses does effect the sense of collegiality and sense of community the faculty on each campus have with each other."

Uniformity of wages, benefits, and conditions of employment: because of the past experience in collective bargaining, many of the conditions of employment at the four state colleges are alike. The wages, however, differ and are generally determined at the individual college level, based on the legislative appropriation. Since there are differences in facilities and academic programs at the four colleges, the following from Board of Regents would seem applicable:

"Conditions of employment include, however, facilities in which employees work, and academic programs which exist or are available on each campus. These are clearly different at UN-0 and UN-L. This factor is relevant in that the petitioner is concerned not only with wages, but also with academic planning, funding for programs, and the facilities available to the faculty."

Current means of governing the university: with regard to this factor, the Board functions much in the same manner as the University of Nebraska Board of Regents, in that it has the final authority regarding tenure, hiring, firing, promotion, and academic programs, but the "court must examine how decisions are made in fact, as well as how they appear to be made under the bylaws." In Board of Regents, the Nebraska Supreme Court was influenced by the facts that the "day to day decisions effecting employment issues are made at the campus level", and we find in this case, also, that the day-to-day decisions affecting employment issues are generally made at each individual school.[8]

Established policies of the employer: it is the Board's position that it should negotiate one contract for all of the colleges under its administration. Dr. Bringelson explained the difficulties that would be presented if this couldn't be accomplished, and we agree it would be easier for the Board to have one agreement. Dr. Bringelson, however, was unable to convince the court that it would significantly impede " the continuous operational efficiency of governmental services" to have a maximum of four agreements, rather than just one.

Community of interest of employees: while all teachers have a community of interest with each other, we find from the evidence in this case that the teachers in these four colleges have only slightly more community of interest with each other than they have with the teachers from any other small college in the midwestern area.

Possibility of over fragmentation of bargaining units: the fragmentation that resulted from the Board of Regents decision was a separate unit for UN-0, UN-L, the College of Law, and the College of Dentistry. Commenting on this, the Supreme Court said the danger of over fragmentation "does not appear to be serious, as there is a limitation to the likelihood of over-fragmentation." The danger in the instant case is also not serious, inasmuch as a decision in favor of the Intervenor would likely only provide for the possibility of four different units.

The legislature's inclusion in LB 1228 of the language which recommends against fragmented units, was directed at situations different from what would result from a separation of the Chadron faculty from the bargaining unit requested by the Petitioner. At the hearing on LB 1228, Mr. Douglas Marti, representing a labor organization (NAPE), said that as the law now stands, "any little group of employees can have their own agent, their own bargaining agent; and this could mean that in the case of a city or municipality, 50 of their employees in one department could be represented by one group, 200 could be represented by another group, and 200 could be represented by another group", and Senator Carpenter, in discussing this bill on the floor of the legislature, said:

"If you read the bill you will notice that there are substantial safeguards to avoid a situation which would occur in Douglas County which we are concerned about. Whereby the public employer could be dealing with 15 or 20 different bargaining units in one division of the Omaha city government, not one but 15 or 20 different bargaining agents."

The specific applicable language of LB 1228 (Sec. 48-838) says "units of employees of less than departmental size shall not be appropriate", and it would be difficult to conclude that the college at Chadron was less than "departmental size".

Considering and balancing all of the afore-described factors, we find that there should be a separate bargaining unit at Chadron State College. The legislature indicates this court should not make any determinations which create the possibility of "whipsaw" bargaining. This judge ( IBEW v. State of Nebraska, 3 CIR 133/134-1 (1975)), perhaps more than some of the others (see concurring opinion in IBEW v. State of Nebraska, supra), considers the prospect of "whipsaw" bargaining as a serious constraint to the "continuous operational efficiency of governmental services." We see no danger, however, of "whipsaw" bargaining where the colleges are located far apart; have little contact with each other; and already separately determine their wages, based to a large extent on their individual legislative appropriations; and we find no significant community of interest between the teachers and employees of these four different colleges, despite the fact that they are ultimately governed by the same board. The four colleges operate independently on the functional level and the day to day decisions are left almost entirely to each individual college. In Sheldon Station Employees Association v. Nebraska Public Power District, 3 CIR 228-1 (1978), this court determined a smaller unit on the basis, inter alia that "the plants (were) clearly interdependent on the functional level", and the "day to day decisions on personnel matters (were) left largely to the local managers."

While certain statutory considerations have developed since this court's adoption of the National Labor Relations Board rule in the Grand Island case, we are still concerned primarily, like the NLRB in its interpretation of the federal law, with community of interest among the employees within the bargaining unit.

Gorman on Labor Law says (p. 69-70):

"... It is indeed possible that on the basis of community of interest, the Board may conclude that there are several units any one of which may be, in the language of the statute, "a unit appropriate" for collective bargaining."

And the CCH Labor Law Reporter , at p. 2605, says as follows:

"Mutuality or similarity of interest among employees is of prime importance in making unit determinations, because the objective in grouping employees for purposes of collective bargaining is that the unit designated shall operate for the mutual benefit of all the employees involved." (emphasis supplied)

We are not inclined to force a large group of employees, who have a distinct and separate identification, make the day to day operational decisions, and operate independently on a functional level, into a bargaining unit that a majority of them have rejected.[9]


[1]The Clerk's Report to the Court also determined that the Petitioner had made a sufficient showing of interest.

[2] The Petition to Intervene in Case #241 requested a separate election at each of the state colleges, but we deny that request. intervenor's Petition in Case #242 asked only for a separate unit at Chadron.

[3]See IBEI v. State of Nebraska , 3 CIR 133/134-1 (1975).

[4]Dr. Bringelson, Executive Director of the Board, testified that since he has been with the Board the faculty are replaced by a process which involves only each individual college, subject to an almost automatic approval by the Board, and the Board has never refused the recommendation of a new faculty employee by the President of a college, nor rejected any President's recommendation for promotion or termination. He furthermore testified the Board has no knowledge how each college operates with regard to selection of Department or Division Chairmen, and the faculty evaluation procedures are different.

[5]"... Lack of interchange may also be important, especially where identifiable groups of employees request separate representation." CCH, Labor Law Reporter, pp. 25.481 (emphasis supplied).

[6]Dr. Bringelson testified: "I do not have knowledge at this time of any specific individual faculty members who have transferred temporarily or full time or permanently from one college to another."

[7]Where the employer had an "eastern" and "western" division, which were widely separated geographically, autonomous in daily operations, and between whose employees there was little, if any, interchange, the National Labor Relations Board determined divisional units, rather than an employer wide bargaining unit. Inter Mountain Dairymen, Inc., 1963 CCH NLRB pp. 12,484, 143 NLRB 782.

(Emphasis supplied)

[8]Dr. Bringelson testified that "the general administration in fact is delegated to the President ... of the college."

[9]This court has frequently rejected larger employer wide bargaining units in favor of smaller units. In AFSCME v. Department of Welfare, 3 CIR 184/188-1 (1977), the CIR rejected a single statewide county level unit as inappropriate, and instead, determined that four county-level units were appropriate. In House Officers Association v. University of Nebraska Medical Center, 3 CIR 152-1 (1976), we held, and the Supreme Court affirmed, that the House Officers were interns and residents of the University of Nebraska Medical Center and were a separate bargaining unit from the other employees at the U. of N. Medical Center and also separate from the faculty of the administrative unit of the University of Nebraska at Omaha. And in Sheldon Station Employees Association v. Nebraska Public Power District, supra, this court rejected a request for a district wide bargaining unit, and instead determined that the appropriate unit included only the employees at the Sheldon Power Station in Hallam, Nebraska.

IBEW v. State of Nebraska, supra, is not applicable in that it involves two small groups of employees located at the same site.