8 CIR 293 (1986)


Petitioner, |
v. | ORDER
Respondent. |


The Petition in this case requests a unit determination and a representation election among the clinical faculty in the Department of Anesthesiology for the College of Medicine at the University of Nebraska. Respondent claims the requested unit, a single department with 7 doctors out of a total of 20 departments and 162 doctors, is not appropriate. A hearing on the unit issue is scheduled for July 8, 1986.

In conformance with the requirements of their current employment agreements, Respondent has given notice to the members of this proposed unit that it intends to terminate their contracts, effective June 30, 1986. Because of this, the Petitioner has filed a motion which requests "a temporary order pursuant to 48-816(1) and 48-811, R.R.S. as amended, directing the Respondent that the employment status of all employees sought to be represented by the Petitioner shall not be altered in any way pending the disposition of the Petition filed before the Commission of Industrial Relations."

This dispute originated on February 25, 1986, when the seven members of the claimed bargaining unit were notified their Terms of Employment Agreement (TEA) would be terminated on June 30, 1986, and a new agreement would be negotiated "to provide total compensation commensurate with your responsibilities, competence and productive efforts, and which is competitive with total compensation obtained elsewhere by your peers in academic medicine" (Petitioner's Exhibit #4). At the same time, the seven doctors were also notified that their practice unit, Anesthesiology Consultants, a Partnership,1 would not be recognized under the University of Nebraska Medical Service Plan after June 30, 1986. The doctors then consulted with various attorneys and decided to file a petition with this Commission rather than submit their dispute to the arbitration provisions (Section XI)2 of the University of Nebraska Medical Service Plan (Petitioner's Exhibit #2). The Petition for recognition was filed on March 12, 1986, and this was the first notice to the Respondent that the doctors in the Department of Anesthesiology intended to dispute the proposed new employment arrangement.3

Consequently, it is clear that the Respondent's decision to change the employment arrangement in the Department of Anesthesiology was made without consideration of the possibilities of the formation of a union and was not in retaliation for the doctors' organizational activity. At the hearing on this motion (June 19, 1986), no claim was made that the Respondent was attempting to punish the doctors for their union organizational activity, nor was there any evidence to indicate this was the motive for the proposed change in the terms and conditions of employment of the members of the Department of Anesthesiology. The Respondent's actions, of course, occurred prior to the filing of the Petition. Section 48-811, R.R.S. Supp., 1969, one of the statutes submitted by Petitioner as a basis for its requested temporary order, has been interpreted by the Nebraska Supreme Court to have application only where the adverse action is motivated by anti-union considerations. In Mid-Plains Education Association v. Mid-Plains Nebraska Tech College , 189 Neb. 37, 199 N.W.2d 747 (1972), the Nebraska Supreme Court said as follows:

Section 48-811, R.R.S. Supp., 1969 provides: no adverse action by threat of harassment shall be taken against any employee because of any petition filing by any employee.. These constitutional and statutory provisions do not interfere with an employer's ordinary powers over his employees except to this extent: if the employee can demonstrate that adverse action against him was motivated by a desire to discourage or retaliate for union membership or activity, the action is unlawful...a failure to rehire is a denial of employment and an adverse action against an employee, just as an outright firing would be, and if it is prompted by anti-union motives, it comes within the prohibitions of the constitution and the statutes.

The University of Nebraska Medical Service Plan, which sets the rules for compensating faculty members for clinical work, requires "clinicians"4 to enter into a TEA. If the TEA provides that the doctors be paid a percentage of the fees they generate, that percentage cannot be less than 60% nor more than 75%. The TEA provides for termination upon 30 days notice by either party. In this case, the notice of termination was timely and properly tendered by the Respondent on February 25, 1986. Medical practice units must have the permission of the department head and the Dean of the Medical College. This permission is granted or rejected on a contract year basis and when the Respondent notified the Anesthesiologists of its intent to terminate their individual TEA's, it also advised them it would no longer permit their existing practice unit (Anesthesiology Consultants, a Partnership). A proposed new partnership agreement for the members of the Department of Anesthesiology was mailed to the seven anesthesiologists at this time (Petitioner's Exhibit #5).

Subsequent to the termination notice and the submittal of the proposed new partnership arrangement, each of the seven doctors was presented with a proposed TEA, which reduced the percentage of their professional fee income to the minimum amount of 60% (Petitioner's Exhibit #7). The doctors were not pleased with this proposal. An alternate proposal, which provided a straight salary arrangement, rather than a percentage, was then presented (Petitioner's Exhibit #6). For the senior member of the Anesthesiology Department, this straight salary proposal would provide him with $160,000 for the 1986-87 year, where under his 1985-86 percentage agreement (74%), his total income was $175,000.5 This alternate contract arrangement was also considered unsatisfactory by the Anesthesiologists.

All of the actions taken by the Respondent in connection with this proposed new contract arrangement were in accordance with the terms of the contract, were timely, were authorized by the University of Nebraska Medical Service Plan, and were not precipitated in any way by the organizational activities of the members of the Department of Anesthesiology at the University of Nebraska Medical Center. Respondent says its actions regarding the proposed change in its contract arrangements with the faculty members of the Department of Anesthesiology were taken in the normal course of its right and obligation to manage the institution (Respondent's original brief, page 9) and were solely an exercise of its legitimate management prerogative (Respondent's Exhibit #1, affidavit of Dr. Waldman, page 13). We agree. To say the University cannot act in this normal and authorized manner, simply because a representation petition has been filed, would be to impose unfair restrictions on the University's right to manage its medical school. This we cannot do, unless those actions are motivated by anti-union considerations, or the effect thereof would discourage or foreclose organizational activity. Respondent is simply exercising its "ordinary powers over his employees" and the Supreme Court has said 48-811 is not intended to interfere with this function (Mid-Plains). If this requested order is denied, no damage is done. The business of the University goes on as usual. If the termination of the TEA's puts pressure on the Anesthesiology faculty to pick one contract or another by a certain date, that is exactly what was going to happen anyhow, union or no union, and neither option is all that severe.

The other statute submitted by Petitioner as a basis for this temporary order is 48-816(1), R.R.S. 1943. The Supreme Court has said the authority granted under this section "is limited in nature." We must exercise our authority under this statute "in as narrow a manner as may be necessary." Transport Workers v. Transit Authority of Omaha , 216 Neb. 455, 344 N.W.2d 459 (1984). 48-816(1), interpreted narrowly, does not authorize the stay order requested by Petitioner. If the Petitioner has formed an appropriate bargaining unit and represents a majority of the employees therein, it will have the opportunity to negotiate something other than the two contracts presently proferred to the members of the unit. In the meantime, it is not suffering irreparable damage.

While Petitioner admits that it "does not allege any anti-union animus" (page 7 of brief), it nevertheless claims that although the notice of termination was issued prior to the date the recognition petition was filed, the notification that the doctors would not be allowed to continue their clinical assignments beyond the contract expiration date was submitted after the petition was filed.6 If the post-petition notice altered anything contained in the pre-petition notice, Petitioner would have a legitimate argument. The evidence, however, does not show that it did. The Medical Service Plan (Section IIIB) says "... employment agreements shall commence on July 1 of each year and shall be effective for a period of one year. They may be renewed annually..." The agreements (TEA's) say "this agreement shall remain in effect for a period July 1, 1985, to June 30, 1986, and shall continue in effect thereafter on a year to year basis unless modified by mutual agreement or terminated by either party..." (emphasis supplied). The February 25 letter of termination says "this letter will serve as notice to you that the University will terminate your terms of employment agreement on June 30, 1986, which is the end of the current contract." Therefore, another letter, interpreting this one, should not have been necessary in order for the doctors to know their clinical assignments could very well end on June 30, 1986.

The post-petition letter was only telling the doctors what they already had been told in the pre-petition letter. The evidence indicates that it was the University's intention to terminate the doctors' clinical work on June 30, 1986, unless a new agreement was entered into. This intention can be easily inferred from the February 25 letter, which was not influenced by the subsequent March 12 petition for recognition. Therefore, Petitioner's claim that Respondent's termination of the doctors' clinical duties was in retaliation for their organizational activity, and was an attempt to coerce them into accepting a less favorable TEA, is without merit and is rejected.

Petitioner's claims that the termination of the doctors' clinical privileges would be violative of the bylaws of the hospital and clinic, and that Respondent's "course of action negates the ability of the Petitioner to represent the employees in the department and bargain on their behalf," are also rejected. We find no sections of the bylaws that have been violated and none are cited, and, as we have said, if the Petitioner meets the statutory requirements for certification as the bargaining representative for the seven anesthesiologists, it may "bargain on their behalf." The right has not been removed or negated by the action we take on this motion. We furthermore rejected Petitioner's claim that the public interest requires a continuation of the existing agreements past the expiration date. So long as we find that the Respondent's actions herein have been legitimately undertaken and without union bias, as we have, the public interest has not been harmed.

The motion is denied.

Entered June 30, 1986.

1. Those faculty members who also practice medicine are allowed to form "legal medical practice entities", a partnership or corporation which administers and manages the activities of the unit and serves in much the same manner as other associations of doctors.

2. This section would apply only to the dispute regarding "membership in medical practice units", and would not apply to "disputes related to terms of employment such as. . . percent of net plan related income which a member is permitted to retain." There is no evidence to indicate there is any appeal procedure with regard to the percentage of fees to be paid to a plan member.

3. By affidavit (Respondent's Exhibit #1), Robert Waldman, acting Dean of the College of Medicine of the University of Nebraska Medical Center, stated that at the time the respondent made its decision to change the wages and conditions of the doctors in the Anesthesiology Department, "the administration had not been advised nor did it have any concept or expectation that the faculty of the Department could, would or had even considered the prospect of filing for a unit determination with the Commission of Industrial Relations."

4. Faculty members who practice medicine in conjunction with their teaching and research assignment and collect a fee for this service.

5. Each clinician has two agreements and this is the total from both of them. One contract covers his teaching responsibilities, which includes the designation as professor, assistant professor or associate professor, and the other, the TEA, covers his clinical work. This case does not involve the teaching contracts, which continue on even though a new TEA is never agreed upon.

6. By letter from counsel for Respondent to counsel for Petitioner, dated April 28, 1986.