11 CIR 264 (1991)


An Unincorporated Association, |
Petitioner, |
DISTRICT NO. 160, a/k/a Norris |
School District, A Political |
Subdivision of the State of |
Nebraska, |
Respondent. |


For the Petitioner: Scott J. Norby and Mark D. McGuire

Crosby, Guenzel, Davis, Kessner

& Kuester

400 Lincoln Benefit Building

Lincoln, NE 68508

For the Respondent: Rex R. Schultze

1400 FirsTier Bank Building

Lincoln, NE 68508

Before: Judges Kratz, V. Moore, and Flowers


This matter comes before the Commission on a motion to strike paragraph 3 of Respondent's responsive pleading and dismiss paragraphs 4(d), (e), and (f), including subparts 1 through 14 thereof. The motion was heard on November 22, 1991, at 8:30 A.M. at the Commission hearing room in Lincoln, Nebraska. Scott J. Norby and Mark McGuire represented the Petitioner and the Respondent was represented by Rex Schultze. Testimony was adduced and exhibits were introduced. Petitioner's motion to strike paragraph 3 of Respondent's answer is hereby granted and its motion to dismiss paragraph 4(d), (e), and (f) is denied.

The facts adduced at the hearing include the following:

(1) The parties participated in four meetings held for the attempted purpose of negotiating a new collective bargaining agreement. (2) At the third meeting, held on July 15, 1991, the lead negotiator for each party reviewed the various contract proposals of the parties and dated and initialed those items which they considered to be agreed upon (Exhibit 4). (3) There was one more negotiation meeting subsequent to the July 15 meeting and the initialed items were not discussed at this meeting. (4) No further negotiation meetings were scheduled, but Respondent's negotiating team scheduled a meeting with its Board for the purpose of determining what direction to take, including the possibility of further negotiation meetings. (5) Before this meeting could be held, the Petitioner filed a Petition with the Commission of Industrial Relations (CIR) asking for a determination on base salary and the school district's contribution to health insurance premiums and/or tax sheltered annuity and/or cash. The responsive pleading added several other issues. Respondent's proposal regarding base salary and contribution to health insurance premiums and/or tax sheltered annuity and/or cash had been specifically rejected by a vote of Petitioner's membership. The other contract items (the initialed proposals), were apparently not submitted to a vote, but the membership was told by the negotiating committee that those items had been agreed upon. (6) Several contract items were not included on the initialed sheet (items 13 through 17), but Petitioner considered that these items were also agreed upon. (7) Respondent's negotiating committee had no authority to enter into a binding agreement with the Petitioner and made it clear at the negotiations that any proposal by the Petitioner would have to be ratified by the School Board. (8) None of the initialed items had been submitted to the Respondent's Board for ratification.

From the aforedescribed evidence, it seems clear that no final and binding agreement had been reached by the parties on the initialed items. Consequently, Respondent is free to include any of its proposed wages and conditions in a request for a wage and condition determination by the CIR.

Respondent objected to any testimony or exhibits which attempted to explain what transpired during the negotiation meetings on the grounds that this evidence was immaterial and irrelevant. We reserved ruling on this evidence at the time of its submittal, but now sustain the objection. Because the ruling on this objection goes somewhat further than our ruling that binding agreement had not been reached on the initialed items, we offer the following explanation.

This Commission has regularly held that the positions taken by the parties during negotiations are not relevant to a determination of the wages and other terms and conditions of employment. Milford Education Association v. School District of Milford , 1 CIR 43 (1971); Centennial Education Association v. School District No. 67-R of Seward County , 1 CIR 44 (1971); Fremont Education Association v. School District of Fremont , 1 CIR 50 (1972); International Brotherhood of Electrical Workers v. Metropolitan Utilities District , 6 CIR 246, 267 (1982). In Douglas County Health Department Employees Association v. County of Douglas , 8 CIR 208, (1986), aff'd on other grounds , 229 Neb. 301, 427 N.W.2d 28 (1988) we said that "any evidence as to actual negotiations is immaterial at the time of trial." This is a sensible rule, based on the conviction that the parties should not be constrained or prejudiced in any subsequent submittal to the CIR by what transpires during these negotiation sessions. Mr. Hagler, lead negotiator for the Petitioner, testified that an agreement on individual items could be secured by something less than the initials of the parties. It was his position that if an individual item was discussed, and the parties indicated agreement, that item was then no longer available for resolution by the CIR. In our opinion this kind of rule could seriously impede constructive collective bargaining. If the parties are to be hamstrung during the negotiations by comments which can constitute agreement on individual items in the contract proposal, the negotiation process can suffer and chances of reaching agreement may diminish.

All judges assigned to this panel join in the entry of this Decision and Order.

Entered December 6, 1991.