4 CIR 160 (1980). 205 Neb. 107, 286 N.W.2d 433 (1979). Reversed and Remanded.


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


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 and No. 242: George C. Rozmarin and Robert K. Andersen.

Before: Judges Kratz, Wall, McGinley.


On August 11, 1978, the Court of Industrial Relations[1] determined that there should be a separate collective bargaining unit for the teaching faculty at Chadron State College, rather than a system wide unit.[2] The Nebraska Supreme Court, on December 18, 1979, reversed this decision and remanded it to the Commission of Industrial Relations (CIR) for rehearing. The Supreme Court Mandate to the CIR was issued on February 20, 1980. Pursuant to the Mandate, the CIR convened and assigned the rehearing of the matter to the following panel of judges: Honorable Dean G. Kratz, Hearing Judge, Honorable Benjamin M. Wall, and Honorable Donald F. McGinley.

The Supreme Court reversal was based on the fact the "Commission discounted to some degree the prior bargaining history between the Board and its employees because the commission had, in an earlier case, declared void certain labor contracts between the Board and its employees", which was an error of law. State Colleges Education Association v. Board of Trustees , 205 Neb. 107, 110, 286 N. W. 2d 433, 435 (1979). On all other issues of both law and evidence, the CIR decision was sustained by the Supreme Court.[3]

We must first determine the scope of the remand for rehearing. In the case of Kuhns v. Livestock National Bank , 138 Neb. 797, 799, 295 N. W. 818, 819 (1941), the Nebraska Supreme Court held:

"When a judgment is reversed for error in the proceedings of the court below, and remanded to be proceeded in according to

law and not inconsistent with the opinion of this court, it is always understood that the proceedings in the court below, prior to the fault or error which is ascertained by this court to exist, are in no wise reversed or vacated by the adjudication of the appellate court; but the fault or error adjudicated is the point from which the cause is to progress anew." See also Colby v. Foxworthy , 78 Neb. 288, 110 N. W. 857; and Missouri, Kansas & Texas Trust Company v. Clark , 60 Neb. 406, 83 N. W. 202.

Thus, the sole issue for determination by the CIR in this rehearing is whether a full and complete consideration of the prior bargaining history between the Nebraska State College faculty bargaining representative and the Board would have resulted in a different conclusion with regard to the appropriate bargaining unit.[4]

A review of the prior bargaining history shows the following: bargaining between the Board and the faculty of the four state colleges commenced in 1970 and continued until 1977, when the CIR determined that the 1977-78 contract between the Board and the Higher Education Association of Nebraska (HEAN) was void. Vathauer v. HEAN , 3 CIR 289 (1977). The three collective bargaining agreements that resulted from those negotiations contained conditions applicable to the faculty of all four colleges, such as a union recognition clause, a management rights clause, a nondiscrimination clause, a no-strike clause, and a grievance clause. Wage rates were not included, but the agreements provided that: "within ten (10) days after the dates of final approval of the State College budget by the Legislature and the Governor, salary negotiations on each campus between the campus HEAN and administrative representatives shall begin based upon money appropriated for salaries by the Legislature..."

Thus, in addition to the agreement between HEAN and the Board, there were also separate and different collective bargaining agreements for each of the four state colleges (Exhibits E20, E21, E22, E23). These individual contracts were negotiated separately by the faculty of each college and they contained wages and other conditions.

The CIR "diminished" the significance of the prior bargaining history, not only because it had previously voided the 1977-78 collective bargaining agreement between HEAN and the Board, which the Supreme Court said was an improper consideration[5], but also because "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", which the Supreme Court said was a proper consideration.[6]

Union recognition, then, was on a systemwide basis, though there was both system wide and individual bargaining. Therefore, when we give "full weight" to the factor of prior bargaining history, as required by the Supreme Court, we find that it somewhat favors the larger unit, consisting of the faculty of all four colleges.

Next we must determine whether our "finding would have been different" if we had given full consideration to the bargaining history.

While the Nebraska statutes refer specifically to prior bargaining history as a criteria for determining the appropriate bargaining unit (48-838(2), R. S. Supp., 1979), the Nebraska Supreme Court has said "The considerations set forth in Section 48-838(2), R.S. Supp., 1974, in regard to collective bargaining units of employees, are not exclusive; and the Court of Industrial Relations may consider additional relevant factors in determining what bargaining unit of employees is appropriate." American Assn. of University Professors v. Board of Regents , 198 Neb. 243, 253 N. W. 2d 1 (1977), (syllabus 1 of the Court). The additional relevant factors are those specifically outlined in the Board of Regents case, supra, and used in the original opinion in this case.[7] Neither the Supreme Court, nor the CIR, has indicated that any of these factors are more relevant or significant than any of the others. Ordinarily, therefore, they are given equal weight and consideration in determining whether there is sufficient community of interest among employees to include them within the same collective bargaining unit.

A re-evaluation of the unit determining factors, without the diminishment previously accorded to prior bargaining history, does not change our original conclusion. The employees in the Chadron group still have "a distinct and separate identification, make the day to day operational decisions, and operate independently on a functional level." See 3 CIR at 618.

We are guided, of course, by the case of AAUP v. Board of Regents , supra , where the Nebraska Supreme Court included the employees of the University of Nebraska at Lincoln in an appropriate bargaining unit, and excluded the employees at the law school, dental school, and the University of Nebraska at Omaha. We cannot find that there is a greater community of interest between employees at Chadron and employees at the other three state colleges than there is between employees at the Lincoln campus of the University of Nebraska and employees at the Omaha campus of the University of Nebraska, despite the fact there has been some prior history of bargaining at one and not at the other. Thus, by applying all of the relevant considerations for determining an appropriate collective bargaining unit in the educational context, including a full consideration of prior bargaining history, we conclude that a separate unit should be established for the faculty at Chadron State College, and it is so ordered.

Subsequent to the Supreme Court remand of this case, the Chadron State College teaching faculty bargaining unit filed a Motion to Abate. This motion asks the CIR to "enter an order that the proceedings in this matter shall stand at rest and abated until there has been a decision in the District Court for Dawes County, Nebraska . . ." The Dawes County District Court action asks the court to declare that the "previous contracts between the Board of Trustees and any faculty members of Chadron State College which purported to be a bargaining unit or established bargaining units were void and ultra vires and of no force and effect whatsoever." Inasmuch as a determination as to the validity of those contracts will have no effect on our conclusion in this case, the motion to abate is denied.

All of the Judges assigned to the panel in this matter join in the entry of this Opinion and Order.

Filed May 12, 1980.

[1] Now Commission, by virtue of LB 444, Laws 1979.

[2]The system wide unit would include the teaching faculty of all four colleges operating under the general direction of the Board of Trustees of the Nebraska State Colleges (Board)

[3] "We have examined the record in this case. We will not summarize the evidence. The Commission's findings on all the points it considered is supported by substantial evidence: However, the error of law requires reversal." 205 Neb. at 114, 286 N. W. 2d at 437.

[4]The Supreme Court said: "It is apparent from the commission's opinion that it, to some extent, discounted or disregarded that bargaining history. This it was not free to do. Had it fully considered prior bargaining history, it may be that its finding would have been different." 205 Neb. at 114; 286 N.W. 2d at 437.

[5]For the reason that the Supreme Court determined in a decision released the previous week that the CIR has no jurisdiction to adjudicate claims founded on contracts. Transport Workers v. Transit Authority, 205 Neb. 26, 286 N. W. 2d 102 (1979).

[6]Commenting on the CIR's reference to the separate wage negotiations, the Supreme Court said: "that observation by the Commission was, of course, a pertinent portion of the prior bargaining history and was a consideration which the Commission could properly take into account and apparently did." 205 Neb. at 114, 286 N. W. 2d at 437.

[7]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.