SIDNEY EDUCATION ASSOCIATION, AN UNINCORPORATED ASSOCIATION, APPELLEE,
SCHOOL DISTRICT OF SIDNEY, IN THE COUNTY OF CHEYENNE, STATE OF NEBRASKA, ALSO
KNOWN AS SIDNEY PUBLIC SCHOOLS, A POLITICAL SUBDIVISION, APPELLANT.
189 Neb. 540, 203 N.W.2d 762
Filed January 26, 1973. No. 38457
When the Legislature subsequently enacts legislation making related
preexisting laws applicable thereto, it will be presumed that it does so with
full knowledge of the preexisting legislation and the judicial decisions of
this court construing and applying it.
Schools and School Districts: Court of Industrial Relations:
When a school district refuses to recognize an employees' association
authorized to act for it, it has exhausted all remedies under the Teachers'
Professional Negotiations Act, and the Court of Industrial Relations acquires
Employees covered by the Teachers' Professional Negotiations Act must
await exhaustion of that act before invoking the jurisdiction of the Court of
Industrial Relations, but this does not deny them the right to invoke that
from the Court of Industrial Relations. Remanded
for further proceedings.
Barlow & Watson, for appellant.
Pansing, Guenzel & Binning and Theodore L. Kessner, for appellee.
before WHITE, C.J., SPENCER, BOSLAUGH, SMITH, McCOWN, and
This appeal is from an order of the Court of Industrial Relations ordering School district of Sidney, hereinafter referred to as District, to recognize Sidney Education Association, hereinafter referred to as Association, as the representative of its members, and directing it to undertake good faith negotiations with Association on terms and conditions of employment in accordance with the Industrial Relations Act.
September 7, 1971, pursuant to the provisions of the Nebraska Teachers'
Professional Negotiations Act, hereinafter referred to as TPNA, the appellee
by letter requested recognition as the bargaining representative of the
certified employees of District. The
text of the letter read:
Sidney Education Association represents a majority of the certified school
employees of your District on matters of employment relations.
implement the provisions of the Nebraska Teacher's Professional Negotiations
Act, Section 79-1287 to 79-1295, you are requested to:
Recognize the Sidney Education Association as the representative of the
certificated employees of your District in their professional and employment
Meet and confer with the Negotiation Committee of the Sidney Education
Association regarding employment and professional relations with certificated
employees in the following areas:
One full hour of free planning time for elementary certified employees
Comparable compensation for extra-curricular-activity sponsors
Family plan Health, Accident, and Major
to law, your written decision on the following requests should be made within
30 days of the date hereof and mailed or delivered to:
Mr. Wilburt Higuchi, President of the Sidney Education Association,
acceptance of the requests to negotiate, we will cooperate with you in
scheduling the first negotiation meeting, which is to be held within 21 days
after your acceptance.
"We look forward to good faith negotiations with the Board of Education on each of the items set forth above within the framework of the Nebraska Teachers' Professional Negotiations Act."
special meeting of the board of education was held on September 22, 1971.
By a four to two vote, the board declined to recognize Association as
the representative of the certificated employees of District.
On October 1, 1971, District notified Association of its decision to
decline recognition, and set out section 79-1290, R.S. Supp., 1969, therein.
then sought relief in the Court of Industrial Relations, petitioning that
court to render orders necessary and appropriate to resolve its dispute with
District. District filed a special
appearance, challenging the jurisdiction of the Court of Industrial Relations,
which was overruled. District then
filed an answer, reserving the special appearance.
The Court of Industrial Relations found it had jurisdiction because the
TPNA had been exhausted without resolution of the dispute.
On January 28, 1972, that court ordered District to recognize
Association, and to undertake good faith negotiations in accordance with the
Industrial Relations Act. District
perfected this appeal.
argues section 79-1290, R.S. Supp., 1969, prevents the entry of any order
requiring it to bargain with District. It
contends further that the Court of Industrial Relations is without
jurisdiction because the remedies provided by TPNA have not been exhausted.
79-1290, R.S. Supp., 1969, provides as follows:
"Notwithstanding the provisions of sections 79-12987 to 79-1296,
no board of education or school board of any public school district in the
state shall be required to meet or confer with representatives of an
organization of certificated school employees unless a majority of the members
of such board determines to recognize such organization.
Any such recognition shall be and remain in effect for a period of one
48-810, R.S. Supp., 1969, provides as follows:
"All industrial disputes involving governmental service, service
of a public utility, or other disputes as the Legislature may provide shall be
settled by invoking the jurisdiction of the Court of Industrial Relations;
Provided, such court shall have no jurisdiction over any persons,
organizations, or school districts subject to the provisions of the Nebraska
Teachers' Professional Negotiations Act, sections 79-1287 to 79-1295, Revised
Statutes Supplement 1967, until all provisions of such act have been exhausted
without resolution of the dispute involved."
Section 48-801, R.S. Supp., 1969, provides in part as follows: "Industrial dispute shall 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;***."
48-837, R.S. Supp., 1969, provides as follows: "Public
employees shall have the right to form, join and participate in, or to refrain
from forming, joining, or participating in, any employee organization of their
own choosing. Public employees
shall have the right to be represented by employee organizations to negotiate
collectively with their public employers in the determination of their public
employers in the determination of their terms and conditions of employment,
and the administration of grievances arising thereunder; Provided, that any
such agreements with the State of Nebraska or any agency thereof shall cover a
biennial period coinciding with the biennial budgeting period of the state and
shall be subject to approval by the Legislature."
is apparent that there appears to be a conflict between some of the provisions
set out above. It arises because
the TPNA (section 79-1290, R.S. Supp., 1969) provides no school board shall be
required to meet or confer with representatives of an organization of
certificated teachers unless a majority of the board determines to recognize
such organization. Section 48-837,
R.R. Supp., 1969, however, provides public employees shall have the
right to organize and be represented by their organization.
It would appear that if the employees have the right to be represented
collectively then it must be assumed that if the employer refuses to deal with
the association their remedy must be in the Court of Industrial Relations.
cannot be maintained that teachers and their employers are not within the
purview of Chapter 48. Section
48-801 (5), R.S. Supp., 1969, defines employees as including any person
employed by any employer, as defined in sections 48-801 to 48-823.
Section 48-801 (4), R.S. Supp., 1969, states:
"Employers shall mean any political or governmental subdivision of
the State of Nebraska***." Section
48-810, R.S. Supp., 1969, expressly provides that following exhaustion of the
TPNA, teachers come within the protection of the Industrial Relations Act.
See School Dist. of Seward Education Assn. v. School Dist. of Seward
Legislature did not place any limitation or restriction upon the right to
negotiate terms and conditions of employment when it amended the Court of
Industrial Relations Act in 1969. It
simply placed a proviso requiring exhaustion of the TPNA before the exercise
of the right to invoke the jurisdiction of the Court of Industrial Relations.
The Legislature did not say Class III, IV, and V school districts were excluded from that legislation, nor did it hedge in any way the general rights granted to public employees to negotiate collectively or to deny that right to the certificated employees of those three classes to first seek their relief under TPNA. By so doing, the Legislature was retaining the special act relating to employees in these districts. It had been in operation for only 2 years and was operating satisfactorily in certain areas.
Legislature chose to let the machinery for permissive negotiation for Class
III, IV, and V school districts established by TPNA stand, but clearly, by
amending the Court of Industrial Relations Act without repealing TPNA, it did
not intend to deny the teachers employed by those school districts the rights
granted to all other public employees. "When
the Legislature subsequently enacts legislation making related preexisting
laws applicable thereto, it will be presumed that it did so with full
knowledge of the preexisting legislation and the judicial decisions of this
court construing and applying it." Airport
Authority of City of
the provisions of TPNA make collective negotiations under that legislative
enactment discretionary with District. Just
as clearly, collective negotiations are permissive under that act.
What the Legislature did was give the TPNA the first opportunity to
adjust any differences between certificated employees and Class III, IV, and V
school districts. When the
provisions of TPNA were exhausted without settlement, then the Industrial
Relations Act became operative as to those school districts.
are, therefore, faced with the question as to whether the remedies provided by
TPNA were exhausted before the action herein was filed with the Court of
Industrial Relations. We determine
there had been exhaustion sufficient to give that court jurisdiction.
By declining to recognize Association, District exhausted the
provisions of TPNA without resolution of the dispute.
What is the dispute? Section 48-801, R.S. Supp., 1969, defines an industrial dispute to "include any controversy concerning*** 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;***." (Italics supplied.) Here, it is the right of the teachers to join and be represented by Association in negotiations of the terms and conditions of their employment as set out in the letter to District. District argues the dispute was the right of Association to represent certificated employees, which under the TPNA it had a right to refuse. It exercised that right. However, the dispute still exists. Section 48-837, R.S. Supp., 1969, enacted in 1969, unequivocally grants teachers the right to negotiate collectively through their association. District, by its action prevents that representation and prevents negotiation on terms and conditions of employment. To construe the statutes to deny employees of the classes involved remedies afforded to all other public employees would raise a question as to the constitutionality of the act.
pertinent question is whether the Industrial Relations Act, as amended in
1969, grants the Court of Industrial Relations authority to require a school
district to deal with an employee's organization.
The following extracts from School Dist. of Seward Education Assn. v.
School Dist. of Seward (1972), 188 Neb. 772, 199 N.W.2d 752, are appropriate
herein: "L.B. 15 amended
sections 48-801, 48-804, 48-810, 48-811, 48-816, and 48-818, and repealed
sections 48-810.02, 48-820, and 48-824 to 48-836, R.R.S. 1943.
It did not repeal or amend section 48-810.01, R.R.S. 1943, which came
into the law in 1967. The question
for our consideration, therefore, is whether or not there is a conflict
between section 48-810.01, R.R.S. 1943, and section 48-818, R.S. Supp., 1969.
Section 48-810.02, R.R.S. 1943, provided that in cities having a
population of more than 5,000, or in cities under civil service, the court had
jurisdiction to order discussion on the application of either party.
Section 48-820, R.R.S. 1943, provided that any industrial dispute not
within the jurisdiction of the court could by mutual consent be referred to
the court for arbitration. Sections
48-824 to 48-836, R.R.S. 1943, covered arbitration for cities of more than
5,000, or a city under civil service, but any decision or report would be
advisory only. It is obvious that
by eliminating these sections, the Legislature intended to eliminate advisory
arbitration reports, and by L.B. 15 attempted to give the court authority to
48-810, R.S. Supp., 1969, provides that all industrial disputes involving
governmental service shall be settled by invoking the jurisdiction of
the Court of Industrial Relations, but limits the jurisdiction of the court
where sections 79-1287 to 79-1295, R.S. Supp., 1967, are involved, until
those provisions have been exhausted without a settlement of the dispute.
It may be argued that section 48-810.01, R.R.S. 1943, was inadvertently
left in the law. We do not accept
this premise, but assume the Legislature acted with full knowledge that it was
leaving this section in the statute. Consequently,
the section must be given some meaning in relation to the other sections,
because all statutes in pari materia must be considered together and construed
as if they were one law, and, if possible, effect given to each provision.
position is indicated by the following from its brief:
'Whatever jurisdiction the Court of Industrial Relations may have, this
much is certain that notwithstanding any other provision of law the School
District cannot be compelled to enter into any contract or agreement with any
labor organization concerning rates of pay.
The Court's judgment is in direct violation of this statute.'
This, of course, is premised on its interpretation of section
48-810.01, R.R.S. 1943. We have
indicated our interpretation.
have been many dire predictions relative to the possible ramifications of L.B.
15 if we do not find section 48-810.01, R.R.S. 1943, specifically prevents the
court from entering a binding order on wages and conditions of employment.
As we interpret the Constitution, the Legislature has complete control
of the actions of school boards. Whether
or not the Legislature has acted wisely in the premises is not a matter for
judicial determination. The courts
are not arbiters of legislative wisdom, but function as a check upon
unauthorized and unconstitutional assumptions of power.
If the situation is as critical as defendant and the amici curiae
believe, we can only observe, as we did in State v. Workman (1971), 186 Neb.
467, 183 N.W.2d 911: '*** defendant is making his contentions in the wrong
forum. They might appropriately be
addressed to the Nebraska Legislature, but it is the duty of this court to
interpret and enforce laws passed by the Legislature if constitutionally
In the Seward case, the School District had recognized the Seward Education Association as the representatives of the certificated employees. Here District refused to do so. Under section 48-810.01, R.R.S. 1943, and section 79-1290, R.S. Supp., 1969, it cannot be compelled to do so. By this action it has exhausted all remedies under TPNA, and the Court of Industrial Relations has acquired jurisdiction. Negotiation with District is now at an end, and Association may present all problems on terms and conditions of employment to the Court of Industrial Relations. Unless we so hold, we are faced with the question as to whether section 48-810.01, R.R.S. 1943, and section 79-1290, R.S. Supp., 1969, were repealed by implication.
Stoller v. State (1960), 171 Neb. 93, 105 N.W.2d 852, we said: "In
accordance with the principle that the last expression of the legislative will
is the law, in case of conflicting provisions of the same statute, or in
different statutes, the last in point of time or order of arrangement
prevails." Where, however, it
is possible to harmonize apparently conflicting statutes, that must be done if
possible. The construction we have
placed on these statutes does just that. Every
public employee is given the right to form and be represented by an
association in collective negotiation of the terms and conditions of his
employment. The Court of
Industrial Relations has been authorized to protect that right.
School districts included in TPNA cannot be required to meet or confer
with employee associations. Those
employees covered by the TPNA must await exhaustion of that act before
invoking the court's jurisdiction, but this does not deny them the right.
Rather, the right remains to be exercised if satisfaction has not been
obtained by the exhaustion of TPNA.
District refuses to recognize or negotiate with Association under the present
law, it cannot be compelled to do so. The
situation is then the same as if an impasse had been reached in negotiation
and the problems are for solution by the Court of Industrial Relations.
judgment is remanded to the Court of Industrial Relations for further
proceedings in accordance with this opinion.
FOR FURTHER PROCEEDINGS
The opinion submitted by Spencer, J., holds, in substance, that sections 48-810.01 and 79-1290, R.S. Supp., 1969, do not conflict with other provisions of Chapter 48, article 8, R.S. Supp., 1969. It is stated that the Court of Industrial Relations has the power to settle any controversy over wages or working conditions and, in so doing, is not compelling the school district to enter into any contract but is simply settling a dispute. This is an obvious fallacy. Section 48-819, R.R.S. 1943, makes the orders of the court binding upon all parties and failure to comply is punishable by contempt proceedings. When the court sets wages or working conditions in any case, it is thereby compelling the school district to comply by entering into contracts with the members of the labor organization involved on the terms fixed. When contracts are thus extended to all members of the organization, it requires a very fine splitting of hairs to hold that no contract has been entered into with such labor organization. In truth and in fact, such organization has obtained its contract by court order and sections 48-810.01 and 79-1290, R.S. Supp., 1969, are rendered meaningless. These statutes cannot be reconciled with other sections of Chapter 48, article 8, R.S. Supp., 1969. They are diametrically opposed and unless given their clear meaning must be considered to have been repealed by implication.
must be borne in mind that the act defining the powers of the Court of
Industrial Relations, and the interpretation placed thereon, affects and
applies to all political subdivisions, including not only school districts,
but also counties, townships, cities and villages, and the State.
All of these organizations have, by statute, been granted authority to
employ necessary employees, enter into contracts with them, and fix wages and
conditions of employment. Some
instances pertaining to schools are found in sections 79-328, 79-441, 79-486,
79-519, 79-908, 79-1004, 79-1035, 79-1104, 79-1249, 79-1258, 79-1282, 79-1290,
79-1429, and 79-2619 (3), R.R.S. 1943. Others,
pertaining to counties are found in sections 23-104 (6), 23-109, 23-135,
23-223, 23-224 (8), 23-260, 23-343.04, 23-904, 23-916, 23-1111, 23-1114,
23-1204, and 23-1209, R.R.S. 1943, and R.S. Supp., 1969.
Has Chapter 48, article 8, R.S. Supp., 1969, amended all these
statutes, and similar sections pertaining to other political subdivisions, by
implication? If so, the amendment
or repeal is of wholesale proportions and section 48-810, R.S. Supp., 1969, is
in violation of Article III, section 14, Constitution, State of Nebraska,
which provides in part: "And
no law shall be amended unless the new act contain the section or sections as
amended and the section or sections so amended shall be repealed."
though an act of the legislature professes to be an independent act, and does
not formally purport to amend any prior act or acts, yet if, in fact, the
legislative intent is to, and it clearly appears that the act does, make
changes in an existing act or acts by adding new provisions or changing
existing ones therein and mingling the new and the changed with the old on the
same subject so as to make of the old, the changed, and the new a connected
piece of legislation covering the same subject, the later act must be
considered an amendment of the former act or acts and within the
constitutional prohibition." State
ex rel. Beal v. Bauman, 126
constitutional provision is applicable to an act which is not complete in
itself, but relates to other existing statutes by changing them in part so
that the changes and the existing provisions result in a connected piece of
legislation covering the same subject matter."
State v. Greenburg, 187
to the passage of Laws 1969, chapter 407, section 3, page 1407, section 48-810,
R.R.S. 1943, did not apply to governmental functions of political subdivisions
but was limited to governmental service in a proprietary capacity.
In making the section applicable to all forms of governmental service,
the 1969 act necessarily limited and circumscribed the authority previously
accorded to governmental units to determine and fix the wages and working
conditions of employees. This is the
principal subject of the act. It
authorized the Court of Industrial Relations to step in and dictate settlements
when disagreements arose. It is
apparent that the 1969 act was not an independent act but related to other
existing statutes granting sole authority to governmental units to finally
determine and fix wages and terms of employment.
It was the evident design that the changes in the 1969 act and the
existing provisions result in a connected piece of legislation covering the same
subject matter. It clearly appears
that the 1969 act does make changes in existing statutes by limiting authority
previously accorded governmental units, making their decisions subject to review
and nullification, and permitting the Court of Industrial Relations to make
these decisions for them. It
represents an attempt to make of the old, the changed, and the new a connected
piece of legislation covering the same subject and must be considered an
amendment of the former acts and within the constitutional prohibition.
BOSLAUGH, J., dissenting in part.
agree generally with the opinion of the majority of the court in this case.
However, I believe section 48-837. R.S. Supp., 1972, enacted in 1969,
established the right of the members of the plaintiff to be represented by it in
collective negotiation with the defendant. I
would affirm the order of the Court of Industrial Relations which directed the
parties to undertake good faith negotiations.