1 CIR 35,36,38 (1971)

IN THE COURT OF INDUSTRIAL RELATIONS

OF THE STATE OF NEBRASKA

CENTRAL CITY EDUCATION |
ASSOCIATION, An Unincorporated |
Association, |
|
Plaintiff, |
|
v. | CASES NOS.
| 35, 36 AND 38
THE SCHOOL DISTRICT OF |
CENTRAL CITY, IN THE COUNTY |
OF MERRICK, IN THE STATE OF |
NEBRASKA, A Political Subdivision, |
also known as CENTRAL CITY |
PUBLIC SCHOOLS, |
|
Defendant. |
|
LYONS CLASSROOM TEACHERS | OPINION AS TO
| JURISDICTION
ASSOCIATION, An Unincorporated |
Association, |
|
Plaintiff, |
|
THE SCHOOL DISTRICT OF |
LYONS, IN THE COUNTY OF |
BURT, IN THE STATE OF |
NEBRASKA, A Political Subdivision, |
|
Defendant. |
|
ASHLAND-GREENWOOD |
EDUCATION ASSOCIATION, |
An Unincorporated Association, |
|
Plaintiff, |
|
v. |
|
SAUNDERS COUNTY SCHOOL |
DISTRICT NO. 1, STATE OF |
NEBRASKA, a/k/a Ashland- |
Greenwood Political Schools, |
A Political Subdivision. |
|
Defendant. |

March 12, 1971

JOHN M. GRADWOHL, JUDGE

The Special Appearance filed by each of the School Districts in these cases raises an issue whether this Court has subject matter jurisdiction at a time when some issues are being negotiated in good faith under the Teachers' Professional Negotiation Act. Each School District is a Class III district which has recognized the plaintiff employee association under the Teachers' Professional Negotiation Act. In each case, the School District accepted for discussion, some, but not all, of the "areas to be discussed" as such "areas" were "specified" by the employees' representative organization in accordance with section 79-1292. Negotiations are proceeding with respect to those "areas' or "matters" upon which the School District has agreed to negotiate. Each employee association seeks to invoke the jurisdiction of this Court to act with respect to the "areas" or "matters" upon which the School District expressly refused to negotiate.

Section 48-810, as amended in 1969, states:

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.

The Teacher's Professional Negotiation Act became law in 1967. LB 15 of 1969 greatly expanded the rights of public employees to deal collectively with their employers and the jurisdiction of the Court of Industrial Relations. It is the provisions of LB 15 which the plaintiffs ask the Court to apply to those items which the School Districts have refused to negotiate under the Teachers' Professional Negotiation Act.

From a study of the history of the enactment of LB 15 in 1969, it appears that the Legislature intended that the parties should first pursue the provisions of the Teachers' Professional Negotiation Act before invoking the jurisdiction of the Court of Industrial Relations.

When LB 15 was introduced and referred by the Committee on Labor to General File, it provided for a Public Employee Relations Board and contained no express reference to the Teachers' Professional Negotiation Act. Section 2(7)(c) included within the definition of "government or public employer" "a school district or any governmental entity operating a public school, college or university."

On February 5, 1969, a Senator Carpenter, the principal introducer of LB 15, secured a General File amendment which deleted Section 2(7)(c) and additionally stated:

The provisions of this act shall not apply to any persons, organizations, or school districts subject to the provisions of the Nebraska Teachers' Professional Negotiation 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.

1 Neb. Legis. Journal (1969) pp. 416-417. Senator Carpenter explained:

Senator Carpenter: I move the adoption of the amendment. Now, Mr. President what this does, under the existing law there is a method by which the teachers now can negotiate on an advisory method. It provides certain procedures by which they can continue to negotiate. Now what this amendment does and all it does, as I understand it, is to maintain that the law, as it now is, shall be pursued in its entirety in the event at that point that they cannot agree then they can take their dispute to this court which is set up in this bill. It does nothing to disturb the provisional law as it now exists relating to teachers and the teaching profession. That is what it means here. Until all provisions and such acts have been exhausted without resolution of the dispute involved. In other words, if they can't resolve the dispute,

(End Belt No. 5)

after that time then they can exercise this bill to the extent that either parties wants to.

Transcription of Floor Proceedings, Page 129-130 (1969 Nebraska Legislature)

The next day, during further General File consideration, the following exchange took place between Senator Carpenter and Senator Holmquist:

Senator Holmquist: Mr. President, members of the Legislature, Senator Carpenter, in your amendments, I find two amendments to Section 1 after Line 18 - one states insert a new paragraph to read as follows: "The provisions of this act shall not apply to any persons, organizations or school districts subject to the provisions of the Nebraska Teachers' Professional Negotiation Act." and referring to the statute "until all provisions of such act have been exhausted without resolution of dispute involved." The other amendment page 2, section 1, line 14 it says "by striking the second 'and' and then page 2 Section 1, line 18, 'by striking the period and replacing with the following: and 5, continuing laws now relating to political subdivisions owning, managing or operating a utility.'" There are two amendments to the same section, the same line.

Senator Carpenter: Then, what's your question?

Senator Holmquist: Well, either you have too many amendments or it's done incorrectly.

Senator Carpenter: No, I don't think so.

(End of belt No. 1)

Because the first amendment applies to, basically, schools and the amendment was offered by them which I accepted and I don't mean to say all the schools are in agreement with the bill as amended or not as amended. But this amendment only said that they shall pursue the laws as they now exist which were brought under reform in the last session of the Legislature. I can't recall the number, but it's 4 or 5 hundred something. They want to proceed under that law until they have exercised and done everything they could under that law and even when they have, if that doesn't settle the matter, the L.B. 15 comes into effect to prevent them from striking, appoints the Court of Arbitration and lets it go to the Supreme Court for ruling at a-something to stop them from striking with a penalty if they do.

Transcript of Floor Proceedings, Page 142-143 (1969 Nebraska Legislature)

On February 17, 1969, when the bill was on Select File, Senator Pedersen offered a substitute bill which amended the Court of Industrial Relations statutes instead of creating a new Public Employee Relations Board. 1 Neb. Legis. Journal (1969) p. 607. Section 48-810 was amended by the Pedersen substitute by deleting the limitation to government service in a proprietary capacity, but there was no reference to the Nebraska Teachers' Professional Negotiation Act. 1 Neb. Legis. Journal (1969) p. 609. Two days later, the Pedersen substitute bill was adopted by unanimous consent and the bill advanced.

On March 5, 1969, after the bill had been engrossed for Final Reading, Senator Harsh successfully moved to have the bill returned to Select File for the following specific amendment:

In new section 3, line 7, after "Relations" insert "; Provided, such court shall have no jurisdiction over any persons, organizations, or school districts subject to the provisions of the Nebraska Teachers' Professional Negotiation 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."

1 Neb. Legis. Journal (1969) p. 831.

The effect of the proviso in section 48-810 is to deny the Court of Industrial Relations subject matter jurisdiction until the provisions of the Nebraska Teacher's Professional Negotiation Act have been exhausted without resolution of the dispute involved. It is the position of the plaintiffs that as to any requested agenda items concerning which the School districts have refused to agree to negotiate, the provisions of the Negotiation Act have been exhausted. Section 48-801 (7) provides:

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.

The plaintiffs contend that the rejected items constitute a separate dispute from the agreed agenda items. In the context of the legislative history of LB 15, we conclude that so long as some proper matters properly are proceeding under and in accordance with the Nebraska Teacher's Professional Negotiation Act, the Legislature intended that all areas specified in the request constitute a single dispute. This seems especially clear as the phrase "resolution of the dispute involved" was injected into the original Public Employee Relations Board version of LB 15.

The records in the three cases present solely the issue of the jurisdiction of this Court where the evidence or the stipulation of the parties discloses that the procedures of the Nebraska Teachers' Professional Negotiation Act are being carried out by the parties. We do not decide in this Opinion any other issue as to what events or circumstances constitute an "exhaustion" of the provisions of the Negotiation Act "without resolution of the dispute involved". Following "exhaustion" under that Act, there is subject matter jurisdiction in the Court of Industrial Relations.

The plaintiffs also contend that they have valuable rights under section 48-837 and other provisions of Chapter 48, Article 8, for which they are entitled to a remedy in this Court. As we view the legislative determination reflected in section 48-810, it was merely one of establishing a priority in the procedures. Taking Senator Carpenter's view, the Legislature intended to retain the special act relating to teachers which has been in effect for only two years, but after that act has been applied, the parties might invoke the jurisdiction of the Court of Industrial Relations. By this interpretation, it is only the time at which subject matter jurisdiction of the Court of Industrial Relations attaches which is held in abeyance.

While there may be substantial "policy" arguments in favor of the plaintiffs' position to bring about a faster resolution of all issues between the parties, the essential policy determination has been made by the Legislature. There might be even greater difficulties presented by attempting to proceed under two relatively new pieces of legislation at the same time. Analytically, the binding orders of this Court should follow the non-binding impasse procedures of the Nebraska Teachers' Professional Negotiation Act. And section 48-818 requires the Court to examine overall compensation in some cases, which might best be done after completion of any negotiations under the Negotiation Act. It is also possible that the potential recourse to the Court of Industrial Relations will have a salutory effect upon the conduct of negotiations under the Negotiations Act, and that, contrariwise, the presence of simultaneous Court orders would have a disturbing effect upon negotiations under the Negotiations Act. In any event, the policy determinations necessary to decide the present cases have been clearly made by the Legislature.

For these reasons, we sustain the Special Appearances of the School Districts.

_______________________________