CODE AGENCIES EDUCATION ASSOCIATION, APPELLEE
January 27, 1989, Nos. 87-1060, 88-069
Statutes. Where a new right is afforded by
statute, one who desires such a statutory right must bring himself within the
provision of the statute.
Appeal from the
Robert M. Spire, Attorney General, and Jill
Gradwohl Schroeder for appellant.
Mark D. McGuire, of Crosby, Guenzel, Davis, Kessner & Kuester, for appellee.
HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE,
SHANAHAN, GRANT, and FAHRNBRUCH, JJ.
appeals were consolidated for hearing in this court. Both are appeals from
orders of the Nebraska Commission of Industrial Relations (Commission) entered
under the provisions of the State Employees Collective Bargaining Act, Neb.
§§ 81-1369 to 81-1390 (Reissue 1987). This act was enacted as 1987 Neb. Laws,
L.B. 661, and became effective on April 9, 1987. The order appealed from in case
No. 87-1060 was signed by the Commission on December 4, 1987.
In case No.
87-1060, the appellee, State Code Agencies Education Association (Association),
filed a petition with the Commission, alleging that the State had refused to
enter into negotiations with the Association and seeking an order of the
Commission directing the appellant, State of Nebraska, to "commence good
faith negotiations with respect to terms and conditions of employment for
members of the Association . . . ."
filed its answer, in which it alleged that it had not refused to enter into
collective bargaining with the Association and alleged that the State, pursuant
to § 81-1379, was prohibited from entering into such bargaining because
negotiations were not begun before the second Wednesday of September 1987
(September 9), and because the Association had not been certified as the
exclusive bargaining agent for the teachers in question before September 9 and
had not filed its petition for certification until September 30.
with the filing of its petition, the Association filed an "Application For
a Temporary Order," in the same proceedings, seeking an order of the
Commission directing the State to "forthwith" commence negotiations. A
hearing was held on this application on December 1, 1987.
On December 4,
1987, the Commission issued its order directing that "the State immediately
commence negotiations with the State Code Agencies Teacher Association."
After so ordering, the Commission's order stated, "The Commission intends
to issue no further Order in this matter since the prayer for relief contained
in the Petitioner's Petition is substantially the same as in Petitioner's
Application for Temporary Order." The State timely appealed to this court.
In this court,
the State sets out four assignments of error, which generally present the
questions whether a bargaining unit which wishes to enter into contract
negotiations with an employer is required under the terms of § 81-1379 to
commence negotiations before the second Wednesday in September, or whether, at
the latest, the unit must initiate a representation proceeding to be filed on or
before the second Wednesday in September. We reverse the order of the
The record of
the hearing on December 1, 1987, shows the following. The Association is an
unincorporated association which was certified by the Commission on October 28,
1987, pursuant to a representation proceeding initiated by the Association on
September 30, 1987, as the exclusive collective bargaining agent for teachers
employed by three State of
also stipulated that on November 2, 1987, Jerry Kriha, the Association's chief
negotiator, sent a letter to Steven Torrence, the State's chief negotiator. In
this letter, Kriha referred to the fact that the Association had been certified
as the bargaining agent for the teachers above referred to. Attached to the
letter was a copy of the Commission order of October 28, 1987, certifying the
Association. Kriha requested that "bargaining begin immediately on the
On November 6,
1987, Torrence responded by letter to Kriha. In this letter, Torrence wrote that
the State was aware of the October 28 Commission certification, but that it was
the State's position that the Association was "time-barred by the language
of the new State Employee's [sic] Collective Bargaining Act from bargaining with
the State under it's [sic] new certification for a 1988-1989 contract."
letter went on to say that the specific language of the new act was § 11
(codified as § 81-1379). The relevant portions of § 81-1379, as set out in the
The Chief Negotiator [defined in § 81-1371 as "the Chief Negotiator of the
Division of Employee Relations in the Department of Personnel"--Torrence,
in this case] and any other employer-representative and the exclusive
collective-bargaining agent shall commence negotiations on or prior to the
second Wednesday in September of the year preceding the beginning of the
contract period, except that the first negotiations commenced by any bargaining
unit after April 9, 1987, may commence after such September date in order to
accommodate any unresolved representation proceedings. All negotiations shall be
completed on or before March 15 of the following year.
went on to say that it was the position of the State that the only exception to
§ 81-1379, as to the beginning of negotiations by September 9, 1987, was for
"unresolved representation proceedings initiated prior to the second
Wednesday in September . . . ." (Emphasis in original.) In the case of
unresolved representation proceedings, § 81-1379 provides that negotiations
could commence after the September date "in order to accommodate any
unresolved representation proceedings." Torrence's letter pointed out to
Kriha that no representation proceedings were pending as of September 9, 1987.
The Association's petition was filed November 23, 1987.
Torrence at the hearing showed that he knew that Kriha was the director of
collective bargaining for the Association "prior to the passage of LB 661 [§§
81-1369 et seq.] but not until it became certified were they the bargaining
agent for the new unit as outlined in LB 661." Torrence amplified his
answer when he further testified: "[T]he State Code Agencies Education
Association was still the collective bargaining agent for the vertical units
that were prescribed prior to LB 661 but not for the new horizontal unit as
defined in . . . Section 5 [§ 81-1373] . . . ." Torrence further testified
that he and Kriha first discussed collective bargaining between the Association
and the State on September 10, 1987, but that Kriha and Torrence had discussions
in "early to mid-August when he [Kriha] wanted to talk about ground rules
and the bargaining process."
further testified that during the "early to mid-August" discussions,
he told Kriha that "before we would sit down and formally discuss with him
the collective bargaining process, [the Association] needed to become the
exclusive certified agent for that unit of employees."
testified that Kriha "acknowledged that they needed to become certified,
and he said he would get in contact with his attorneys to file the necessary
explained that the new act had created a different situation, in that before the
new act took effect on April 9, 1987, there were three separate contracts for
the teachers in the three separate units represented by the Association and that
before the new act the contracts were "on a vertical basis." Torrence
had explained that "81-1374 prescribed the transition from the vertical to
the horizontal . . . ." This explanation coincided with the introducer's
statement of intent in connection with L.B. 661. That statement set out, in
part, that "[t]he bill would: (1) establish occupational horizontal
bargaining units for state employees; (2) provide for historic representation
rights for collective bargaining agents in the transition from vertical to
horizontal units . . . ." Introducer's Statement of Intent, Committee on
Business and Labor, 90th Leg., 1st Sess. (Mar. 2, 1987).
is reflected in the provision of § 81-1373 which "created twelve
bargaining units for all state agencies except the University of Nebraska, the
Nebraska state colleges, and other constitutional officers." Section
81-1373(1)(k) defined 1 of the 12 newly created units as "Teachers, which
unit is composed of employees required to be licensed or certified as a teacher
. . . ." Thus, the Association's members, constituting teachers in the
Department of Correctional Services, the Department of Social Services, and the
Department of Public Institutions constituted a new horizontal unit, which would
have one contract with the State, rather than the situation existing before the
act when each of the three units had a separate contract with the State (a
A new concept
is established by the new act, and we can see no unfair burden on collective
bargaining agents to comply fully with the new law. As set out above, § 81-1379
required that the exclusive bargaining agent "shall commence negotiations
on or prior to [September 9, 1987]." The Association chose to so conduct
itself that it was not established as the "exclusive bargaining agent"
before September 9, 1987, nor did it bring itself within the exception to the
critical date, which permitted negotiations to commence after September 9
"in order to accommodate any unresolved representation proceedings."
Neb. Rev. Stat.
§ 49-802 (Reissue 1988) provides:
Unless such construction would be inconsistent with the manifest intent of the
Legislature, rules for construction of the statutes of
(1) When the word may appears, permissive or discretionary action is presumed.
When the word shall appears, mandatory or ministerial action is presumed.
In Moyer v.
Douglas & Lomason Co., 212 Neb. 680, 685, 325 N.W.2d 648, 651 (1982), we
stated, "As a general rule, in the construction of statutes, the word
'shall' is considered mandatory and inconsistent with the idea of
language of § 81-1379 provides that negotiations shall commence on or before
September 9, 1987. The Commission determined that " 'any (emphasis
supplied) unresolved representation proceeding' may delay the commencement of
negotiations, regardless of when the certification process is initiated, until a
certification order is entered by this Commission." We hold that such
interpretation is incorrect. We hold that the negotiations contemplated by §
81-1379 must be commenced by "the second Wednesday in September of the year
preceding the beginning of the contract period," and that starting time is
extended only to accommodate any unresolved representation proceedings which are
pending as of the "second Wednesday" date. Such a construction is
demanded by the later specific dates set out in the act, such as: "All
negotiations shall be completed on or before March 15 of the following
year" (§ 81-1379); "At the initiation of negotiations but no later
than December 15" (§ 81-1380); "If the parties in labor contract
negotiations do not reach a voluntary agreement by January 1" (§ 81-1381);
"No later than January 10" (§ 81-1382); "No party shall file an
appeal after March 15" (§ 81-1383); etc. The Legislature itself had clear
budgetary reasons for wanting certain timeframes. Senator Jerome Warner, one of
the sponsors of the bill, testified before the legislative committee considering
L.B. 661 that the Legislature needed to have a budget figure during the course
of a session, that would be realistic and one that we could address with . . .
or could be comfortable with that was going to be fairly firm, and under this
proposal why a budget would be a submitted by the, at least an outside numbers
would be known by the Legislature and by . . . the Governor for that matter by
the . . . fifteenth of . . . March and I think that that becomes exceedingly
important in the long run in particular.
Committee on Business and Labor Hearing, 90th
Leg., 1st Sess. 78-79 (Mar. 2, 1987). The Legislature has established precise,
detailed timeframes for actions under the act in question. With full knowledge
of the overall timing requirements, the Association has chosen not to initiate
the specific action necessary to start the whole proceeding. That is its right,
but it may not have it both ways. Either the Association, for whatever reason,
can live with the situation it finds itself in on the second Wednesday of
September or the Association can claim the rights it has under the act by timely
starting the procedures of the act. In this case, the Association chose not to
construction is clearly consistent with other decisions of this court. In NC+
Hybrids v. Growers Seed Assn., 219 Neb. 296, 299-300, 363 N.W.2d 362, 365
(1985), with reference to garnishment statutes, we stated:
Garnishment is a legal, not equitable, remedy unknown at common law and is a
purely statutory remedy. See, Christiansen v. Moore, 184 Neb. 818, 172
N.W.2d 620 (1969); Beggs v. Fite et al., 130
In this case,
the Legislature has enacted statutes giving rights unknown at common law and has
provided procedures which allow employees of the sovereign to negotiate with the
sovereign. Where a new right is afforded by statute, one who desires such a
statutory right must bring himself within the provisions of the statute. See Johnson
v. Toth, 516 N.E.2d 85 (
With regard to
case No. 88-069, the Association filed a petition with the Commission requesting
a list of special masters and a motion seeking an order of the Commission
"waiving mediation under §81-1381, but in the alternative if mediation
under §81-1381 is mandatory and jurisdictional, request is hereby made for
appointment of a mediator pursuant to such statutory provision." The
proceedings in case No. 88-069 present the problems confronting the Commission
if orderly statutory procedures are not followed. Section 81-1381 provides for
procedures if the parties "do not reach a voluntary agreement by January 1
. . . ." The Association's motion was filed on January 4, 1988. The
Commission ordered that "[m]andatory mediation under Section 81-1381 be
commenced immediately," at a time when, by statute, the voluntary,
unmediated negotiations must have been completed.
Such order is
an extension of the order of the Commission in case No. 87-1060. Since the
Commission had no authority to enter the order it did in case No. 87-1060, the
Commission order in case No. 88-069 is also without effect.
The orders of
the Commission in cases Nos. 87-1060 and 88-069 are reversed. The two causes are
remanded to the Commission with directions to dismiss the petition in each case.
REVERSED AND REMANDED WITH DIRECTIONS TO