5 CIR 223 (1981)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

NEBRASKA WESTERN COLLEGE EDUCATION | CASE NO. 412
ASSOCIATION, An Unincorporated |
Association, |
|
Petitioner, |
|
v. | OPINION AND ORDER
|
WESTERN TECHNICAL COMMUNITY COLLEGE |
AREA, A Political Subdivision of the |
State of Nebraska, |
|
Respondent. |

Appearances:

For the Petitioner: Theodore L. Kessner

For the Respondent: Francis L. Winner

Before: Judges Gradwohl, Orr, and Davis

GRADWOHL, J:

The Association is the certified exclusive bargaining agent of full-time teachers of the College for the following bargaining unit established in a stipulated election in 1977:

All teaching employees of the College in the positions of Instructor, Clinical Instructor, Librarian, Coordinator of Audio-Visual Services, Counselor, and Division Chairman.

The parties agree that the unit consists solely of full-time teachers and that the Association does not represent teachers of the College who are not full-time teachers.

The Association seeks an order directing the College to bargain in good faith on two items: (1) pay for extra contractual teaching assignments, and (2) pay for summer teaching assignments.

The parties have held good faith negotiations on all other items of wages, hours and conditions of employment, including compensation for independent learning courses which was initially an issue in this litigation.

The terms "full-time faculty" and "regular faculty" refer to academic year teachers performing a specified faculty load. The parties have negotiated agreements as to performance of extra-curricular activities and "overload pay" for full-time faculty during the academic year. The academic year consists of 175 working days within a nine month period.

The items contested in this proceeding involve pay for additional extra contractual teaching assignments during the academic year and pay for teaching summer school. Two types of courses are involved: credit courses and non-credit courses.

The College is under no obligation to offer extra contractual teaching assignments or summer school teaching to the full-time faculty. Ordinarily, however, full-time faculty is given an opportunity to teach credit courses during the academic year or in the summer in the areas of their expertise. They are not obligated to accept the extra contractual teaching assignments or summer school teaching. Most of the non-credit courses are taught by persons other than full-time faculty.

The College's manual sets out summer school pay for full-time faculty as follows:

Summer School Pay 425.2600.79

All individuals teaching summer school shall be paid at the rate of $200.00 per semester hour taught.

Extra contractual teaching during the academic year is also covered in the full-time faculty segment of the College's manual:

Extra Contractual Teaching 425.2800.79

If after the schedule of offerings has been established it becomes necessary to offer additional course work, staff members may be asked to provide instruction as necessary. If the faculty member agrees, he/she will be paid at the rate of $225.00 per semester hour for credit courses or $7.50 to $10.00 per contact hour for non-credit courses.

The current pay for teaching summer school and extra contractual teaching specified in the manual for full-time teachers has been established unilaterally by the College. The Association seeks to negotiate the amount of pay for full-time teachers who agree to perform these duties.

At the time of the certification order in 1977, there were 73 full-time faculty members. The Affidavit of the Vice-President of Finance for the College, received in evidence without objection, states:

During the current year, there are 67 regular faculty members. There are this summer 23 separate teaching contracts for summer school, 14 of whom happen to be regular faculty members.

During the fall and spring terms of the 1980-81 school year there were 153 adjunct contracts issued, 48 of these were issued to regular faculty members. In some cases more than one adjunct contract pertains to the same regular faculty member, so the regular faculty involved would number less than 48.

***

We have sometimes offered summer school assignments or adjunct assignments to regular faculty, who are not required to accept them, and often do not. We have not negotiated summer school pay or adjunct pay with the petitioner, believing the groups of employees separate; regular teachers, summer teachers, and adjunct teachers, the latter two groups of which were not certified in the original certification order, and different in function from regular faculty.

The Association has represented only full-time faculty of the College. The certification order, currently in effect, entitled it to represent full-time faculty of the College.

The Association has not represented, and does not now seek to represent, any teachers other than full-time faculty members. The regular academic year salaries for full-time teachers have been established by negotiations and agreement between the Association and the College. The regular academic year salaries for teachers who are not full-time teachers have not been a part of prior negotiations and agreements between the Association and College. The regular academic year salaries for teachers who are not full-time teachers are fixed in individual contracts between the part-time teacher and the College. The Association does not seek to change the establishment of regular academic year salaries in any manner and the parties are presently engaged in negotiations for next year's contract on these items for the full-time faculty.

Section 48-838(4) states that "A certified exclusive collective bargaining agent shall represent all employees in the appropriate unit with respect to wages, hours, and conditions of employment."

Section 48-816(5) provides that "Upon receipt by an employer of a request from a labor organization to bargain on behalf of employees, the duty to engage in good faith bargaining shall arise if the labor organization has been certified by the commission or recognized by the employer as the exclusive bargaining representative for the employees in that bargaining unit."

Section 48-816(1) defines the duty to bargain in good faith:

To bargain in good faith shall mean the performance of the mutual obligation of the employer and the labor organization to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require that making of a concession.

The College is correct that extra duty assignments and summer school teaching are ordinarily a matter of separate contract under Nebraska law. See Neal v. School District of York , 205 Neb. 558, 288 N.W. 2d 725 (1980). Under Sections 48-838(4) and 48-816(5), quoted above, the Association is entitled to negotiate for the wages of full-time teachers of the College, at least insofar as teaching duties are concerned, whether the wages are earned under a single teaching contract or under a number of teaching contracts. With respect to Nebraska public schools, the labor organization represents teachers in determining both standard duty pay schedules and extra duty pay schedules, although separate contracts result and separate calculations may be required under Section 48-818 for the Nebraska Commission of Industrial Relations to enter a wage order. See, e.g., Wheatland Education Association and Wheatland School System , 5 CIR 64 (1980).

The Association does not question the College's management prerogatives to select persons for extra contractual teaching assignments and summer teaching assignments. It seeks solely to negotiate the amount of pay for the bargaining unit full-time teachers of the College who perform such teaching duties. Metro. Tech. Comm. Col. Ed. Assn. v. Metro. Tech. Comm. Col. Area , 203 Neb. 832, 281 N.W. 2d 201 (1979), held that matters which are predominately matters of educational policy and management prerogative are not subject to mandatory negotiation, but that the impact of whatever decision the management makes on the economic welfare of bargaining unit employees is a mandatory subject of bargaining. The Opinion in Metro. Tech. states (203 Neb. at 842-843):

A matter which is of fundamental, basic, or essential concern to an employee's financial and personal concern may be considered as involving working conditions and is mandatorily bargainable even though there may be some minor influence on educational policy or management prerogative. However, those matters which involve foundational value judgements, which strike at the very heart of the educational philosophy of the particular institution, are management prerogatives and are not a proper subject for negotiation even though such decisions may have some impact on working conditions. However, the impact of whatever decision management may make in this or any other case on the economic welfare of employees is a proper subject of mandatory bargaining.

Applying the foregoing statutes and decisions, we hold that a certified exclusive collective bargaining representative for full-time College teachers represents the full-time teachers in the establishment of pay for extra contractual teaching assignments and pay for summer teaching assignments for those full-time College teachers who enter into separate contracts to perform such teaching duties.

Four statutes empower the Commission to enter an Order requiring the College to bargain with the Association in this matter:

(1) Section 48-810 provides that "All industrial disputes involving governmental service ... shall be settled by invoking the jurisdiction of the Commission of Industrial Relations Governmental service" is defined in Section 48-801(2) to "mean all services performed under employment by...any political or governmental subdivision (of the State of Nebraska)Industrial Dispute" is defined in Section 48-801(7) to "include any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, or refusal to discuss terms or conditions of employment."

(2) Section 48-816(1) states in part:

In the event of an industrial dispute between an employer and an employee or a labor organization when such employer and employee or labor organization have failed or refused to bargain in good faith concerning the matters in dispute, the commission may order such bargaining to be begun or resumed, as the case may be, and may make any such order or orders as may be appropriate to govern the situation pending such bargaining. The commission shall require good faith bargaining concerning the terms and conditions of employment of its employees by any employer... Such orders for bargaining ... may be issued at any time during the pendency of an action to resolve an industrial dispute.

(3) Section 48-819.01, enacted in 1979, states:

Whenever it is alleged that a party to an industrial dispute has engaged in an act which is in violation of any of the provisions of sections 48-801 to 48-838, or which interferes with, restrains, or coerces employees in the exercise of the rights provided in sections 48-801 to 48-838, the commission shall have the power and authority to make such findings and to enter such temporary or permanent orders as the commission may find necessary to provide adequate remedies to the injured party or parties, to effectuate the public policy enunciated in section 48-802, and resolve the dispute.

The provisions within sections 48-801 to 48-838 which have been violated by the College in this instance are Sections 48-816(1), 48-816(5) and 48-838(4). The provision within Sections 48-801 to 48-838 with respect to which the College in this instance has interfered with employees in the exercise of their statutory rights is Section 48-837 which states that "Public employees shall have the right to be represented by employee organizations to negotiate collectively with their public employers in the determination of their terms and conditions of employment..."

(4) Section 48-823 mandates a liberal construction of the grants of power, authority and jurisdiction of the Commission of Industrial Relations and gives the Commission all incidental powers" to carry out the statutes. Section 48-823 states:

The provisions of sections 48-801 to 48-823 and all grants of power, authority and jurisdiction herein made to the Court of Industrial Relations shall be liberally construed to effectuate the public policy enunciated in section 48-802. All incidental powers necessary to carry into effect the provisions of sections 48-801 to 48-823 are hereby granted to and conferred upon the court herein created.

The provisions within Sections 48-801 to 48-823 to which Section 48-823 is applicable in this matter are Sections 48-801(2), 48-801(7), 48-801, 48-816(1), 48-816(5) and 48-819.01.

It is, therefore, Ordered that the parties shall forthwith commence and continue to bargain in good faith concerning pay for extra contractual teaching assignments and pay for summer teaching assignments for those full-time teachers who enter into separate contracts to perform such teaching duties.

All Judges assigned to the Panel in this matter join in this Opinion and Order.

Entered July 22, 1981.

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