| AMERICAN ASSOCIATION OF | | | CASE NO. 150 |
| UNIVERSITY PROFESSORS, | | | REP. CASE NO. 41 |
| UNIVERSITY OF NEBRASKA | | | |
| CHAPTER, | | | |
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| Petitioner, | | | |
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| v. | | | OPINION |
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| BOARD OF REGENTS OF THE | | | |
| UNIVERSITY OF NEBRASKA, | | | |
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| Respondent. | | |
Appearances:
Patrick W. Healey, for plaintiff
L. Bruce Wright, for defendant
James A. Lake, Sr., for intervenor Law Faculty
Ralph P. Bassett, Jr., for intervenor, Dental Faculty
Before: Wall, P.J., DeBacker and Green, J.J.
WALL, P.J.:
This industrial dispute brings before us the question of the proper size of the bargaining unit in a multi-campus university structure, and also the questions of the propriety of the exclusion of two professional groups from the major unit as finally determined, as well as the establishment of such professional groups as separate bargaining units.
We find that we have jurisdiction of the parties and of the subject matter. The Clerk's report shows petitioner to be entitled to an election under 48-804.01, R.S. Supp. 1974 and no one has challenged that report under §48-817, R.R.S. 1943.
The petitioner, American Association of University Professors, hereinafter AAUP, seeks a secret ballot election so that it may be certified as the bargaining agent for all "A" line-Academic and Administrative personnel-on the Lincoln campus of the University of Nebraska, who are below the rank of Dean or Assistant Dean. The respondent, the Regents of the University of Nebraska, first sets out certain boilerplate allegations as to the constitutionality of the legislation establishing this Court. They were not seriously pursued at trial, the Supreme Court has several times ruled on them, and is about to do so again. We do not propose to discuss them here. As to respondent's allegations that it is an autonomous unit of government, independent of the rest of the State of Nebraska-rather like a medieval kingdom onto itself-we find the rationale of Regents of the Univ. of Michigan v. Employment Relations Comm. , 389 Mich. 96, 204 N.W. 2d 218 (1973) to be persuasive, where the Court pointed out that the Regents there, while independent, were still a branch of the state government and that outside the narrow sphere of their specific expertise, education, they must follow the directives of the Legislature and the Constitution like any other governmental body. We hold the Regents to be subject to the Legislature and the Constitution like any other governmental body. We hold the Regents to be subject to the Legislature and the Constitution of the State of Nebraska, and as the Legislature and Constitution have directed, subject to this Court in employment matters. We further hold that the fact that the Regents are established as Constitutional rather than statutory officers is irrelevant to the determination of any matter now before this court.
Finally, respondent claims that the proper unit would be all "A" line employees on all three campuses: University of Nebraska at Lincoln, University of Nebraska at Omaha, and the University of Nebraska Medical Center, plus the Extension or County agents and Home agents throughout the state.
The intervenor, Faculty of the College of Dentistry, seeks to be a separate bargaining unit, and also asks an election to be certified as the bargaining agents for that unit.
The intervenor, Faculty of the College of Law, asks to be a separate bargaining unit and, further, strangely asks that no election be held to determine a bargaining agent.
Neither of the parties in intervention meet the requirements of our rules with regard to intervention in representation cases, though each does show 100% or near 100% participation of those employees in the unit proposed by the respective intervenor (as contrasted to the unit proposed by the petitioner). The petitioner wisely seems to want no part of either of the intervenors. In view of this virtual consent, the rule will stand as written, but we here waive it. We note also that it is the near unanimous opinions of the tribunals who have passed on the question that professionals in the healing arts and in art of advocacy are entitled to be treated specially.
Respondent also claims that the provisions of §48-838, R.R.S. 1943 as to units are mandatory, that the statute speaks only of "the" bargaining unit, limiting our discretion to create only one unit, and that the employer's policy is determinative where none of the other factors mentioned in the statute (e.g., prior bargaining history) is present. Needless to say, we read §48-838 as a guide, not a limitation, on the factors we may consider in determining the appropriate unit. See IBEW v. State of Nebr., et al. , 3 CIR 133/134-1 (1975). We note further that the Regents' policy on trying to set up University-wide units was adopted in 1972, relying on some early decisions of this Court and the Supreme Court; and that the reasoning behind the policy may well have vanished as the Nebraska law of labor relations has grown and developed.
Some evidence was offered as to whether Department Chairmen were supervisors and should or should not be included in any unit established. The evidence clearly establishes them as of the faculty, not over the faculty. We find that no conflict would arise by including them in the unit and, therefore, will do so and find no need to determine whether they are supervisors or not. See I.A.F.F. Local Union 647 v. City of Grand Island , 3 CIR 142-1 (1975).
We find that the "A" line employees at the University of Nebraska at Lincoln, below the rank of Dean and Assistant Dean, together with the county Agents and Home Agents throughout the state, less the Law College and less the Dental College, constitute an appropriate unit.
We are motivated toward this finding by the following factors:
1. There has never been any substantial continuing effort at organization at either of the other two campuses. [1]
2. There is no bargaining history at any campus. Respondent permits AFSCME and NAPE dues checkoff rights on its "B" line and "C" line employees, but denies this right to petitioner.[2]
3. Within guidelines and subject to central approval, hiring, firing, tenure and employment conditions decisions are made not just at the local campus level, but at the Department or College level, rather than at the system-wide level.
4. There is little interchange of faculty members between campuses.
5. There is little integration of operations between campuses.
6. While the University as a whole has a unified mission, the campuses each have a substantially different part in carrying out that mission.
7. The University of Nebraska at Lincoln campus is predominately the Doctorate and post-Doctorate locale. The University of Nebraska at Omaha campus has little doctoral emphasis, and is highly oriented toward urban problems. The University of Nebraska Medical Center is wholly directed toward producing professionals in the health and healing sciences.
8. The College of Law, the College of Dentistry, and the University of Nebraska Medical Center are all separately accredited by professional bodies outside the academic atmosphere. All three have substantially more contact and interchange with the real world off campus than do the rest of the faculty.
9. Each campus and the College of Law and Dentistry perceive themselves as separate and distinct entities. The faculty at the University of Nebraska at Lincoln still tends to regard the University of Nebraska at Omaha as a step-child.
We are further supported in these conclusions by Regents v. Mich. Emp. Rel. Comm., supra; Determination of Appropriate Unit for Faculty at Southern Oregon College , Oregon PERB No. C-112, (1973); Oregon State Employees Assn. v. Oregon College of Education, etc. Oregon PERB Cases No. C-277, C-319, C-326, C-375 and C-230 (1974); Unit Determination for Faculty at Kansas State College of Pittsburg , Kansas PERB No. UE2-1974; In the Matter of the Employees of Temple University , Pennsylvania LRB Cases PERA-R-1123-E and PERA-R-1137-E (1972); and Fordham University , 193 NLRB 23, 78 LRRM 117 (1971).
We, therefore, establish three bargaining units, as follows:
1.All full-time members of the University of Nebraska at Lincoln faculty other than members of the Faculty of Law and Dentistry, who are employees of the University of Nebraska at Lincoln and who hold faculty rank conferred on the recommendation of an academic department or academic school of the University of Nebraska at Lincoln, and who do not hold administrative positions higher than that of a chairman of a department or of director of a school or their equivalent. A faculty member holding an administrative position who reports directly to a Vice Chancellor holds a position higher than that of chairman of a department or of director of a school. County and Home Agents shall be included in this unit.
2.All full-time "A" line employees of the College of Dentistry not above Department Chairman or equivalent.
3.All full-time "A" line employees of the College of Law not above Department Chairman or equivalent.
An election will be held in each unit within a reasonable time from the filing of this Opinion unless within five days from the receipt of this Opinion the Faculty of the College of Law advises in writing that it desires to adhere to its previous mysterious position that it desires a bargaining unit, but not a bargaining agent.
Judge Benjamin M. Wall is designated as the Court's representative for the election, which will be carried out under the immediate supervision of Janet Stewart Arnold, Clerk of the Court.
The attorneys for the parties will meet with the Court's representative at 9:30 a.m. on the 3rd day of December, 1975, at the Court's Offices, 109 Terminal Building, 10th & "O" Streets, Lincoln, Nebraska 68508, to agree upon or have determined all procedural questions concerning the election.
Pat Caporale is appointed as reporter for the meeting.
Entered November 25, 1975.
[1].A petition by the American Federation of Teachers for the UNO campus was abandoned by the plaintiff in 1973. A petition for only the house officers of the UN Medical Center Hospital is now pending in this Court. Two petitions for fragments of the State ETV network have been dismissed. IBEW v. State of Nebraska, et al., 3 CIR 133/134-1 (1975).
[2].This is probably illegal, Mid-Plains Education Assn. v. Mid-Plains Nebraska Tech. College, 189 Neb. 37, 199 N.W. 2d 747, or an unfair labor practice as defined in IAFF Local 647 v. City of Grand Island , 3 CIR 142-1 (1975), for those who prefer handles to classify various areas of illegality.
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