1 CIR 35 (1971)



Unincorporated Association, |
Plaintiff, |
Also Known as Central |
City Public Schools, A |
Political Subdivision, |
Defendant. |

Filed September 22, 1971


This matter came on for trial on August 23, 1971, on the Amended Petition of the Plaintiff and Answer of the Defendant, evidence was presented, oral arguments given, and briefs were submitted thereafter.


1. On December 8, 1970, the Association requested that the School District recognize it as the representative of certificated teachers and meet and confer with it concerning index salary schedule, grievance procedure, additional increments, health insurance, income protection, personal leave, commuting expense and nine-week grading system. On January 5, 1971, the School District (1) recognized the association as a bargaining representative, (2) agreed to negotiate index salary schedule, health insurance, and income protection, (3) agreed to "discuss" (as distinguished from "negotiate") grievance procedure and personal leave, and (4) refused to discuss additional increments, commuting expenses, and nine-week grading system.

2. During the pendency of negotiations on the agreed items, the Association filed this action. On March 12, 1971, the Court ruled that it lacked subject matter jurisdiction under section 48-810 so long as some issues are being negotiated in good faith under the Nebraska Teachers' Professional Negotiations Act. By March 29, 1971, the items of index salary schedule, health insurance, and income protection had been resolved and the parties signed a written Agreement on the items on May 26, 1971. The individual teacher's Contracts which have been signed carried a provision that "Any adjustments in the terms and conditions of employment arrived at during negotiations between the Board of Education and C.C.E.A. shall be incorporated herein."

3. The subject of grievance procedures was discussed at some length during the negotiating sessions on March 15th and March 29th. The Association and the School District each presented written proposals. The District had adopted grievance procedures in the fall of 1969 which had been included in the formal Board policies since 1970. No grievance has ever been filed under the procedures, however. By its response of January 5, 1971, the School District intended that it would talk about grievance procedures with the Association, but that these discussions might not amount to full-scale negotiations and would not be subject to the impasse procedures if agreement was not reached.

4. On May 10, 1971, the School District unilaterally adopted a grievance procedure. This procedure is identical to the proposal submitted by the Association during negotiations from the filing of the grievance through the decision of the Board of Education. The procedures adopted by the District end at the point where "The decision of the board of education shall be tendered, in writing, within five school days, and such decision shall be final." The phrase "and such decision shall be final" was not contained in the Association's proposal with respect to the Board's decision, but an additional level of impasse resolvment containing binding arbitration was included. In the Association's proposal, the decision of the arbitrator was made "final and binding."


A. The statutes reflect a legislative intention that grievance procedures should be subject to negotiation between the parties. Section 48-837 states:

Public employees shall have the right to be represented by employee organizations to negotiate collectively with their public employers in the determination of their terms and conditions of employment, and the administration of grievances arising thereunder....

Two paragraphs of section 48-816 state:

Public employers are hereby authorized to recognize employee organizations for the purpose of negotiating collectively in the determination of, and administration of grievances arising under the terms and conditions of employment of their public employees as provided in this act, and to negotiate and enter into written agreements with such employee organizations in determining such terms and conditions of employment.

Where an employee organization has been certified or recognized pursuant to the provisions of this act, the appropriate public employer shall be and is hereby authorized to negotiate collectively with such employee organization in the settlement of grievances arising under the terms and conditions of employment of the public employees as provided in this act, and to negotiate and enter into written agreements with such employee organizations in determining such terms and conditions of employment.

The definition of "labor organization" in section 48-801 (6) contains a reference to "grievances":

Labor organization shall mean any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work....

The statutory definition of "industrial dispute" in section 48-801(7), a term of considerable significance under the statutes, does not expressly refer to "grievances":

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 1967 Nebraska Legislature which supplied the statutory authority for the Court to order bargaining found lacking in International Brotherhood of Electrical Workers v. City of Hastings, 179 Neb. 455, 138 N.W.2d 822 (1965) apparently considered that the Court's jurisdiction and authority could involve grievance clauses. Section 48-810.01, enacted in 1967, provides:

Notwithstanding any other provision of law, the State of Nebraska and any political or governmental subdivision thereof cannot be compelled to enter into any contract or agreement, written or otherwise, with any labor organization concerning grievances, labor disputes, rates of pay, hours of employment or conditions of work.

The legislative history of the 1967 bills is contained in the Opinion in Support of Order Overruling Demurrer, pages 1 to 9, in Public Service Employees Council v. Metropolitan Utilities District, 1 CIR No. 21, January 17, 1968.

B. Grievance procedures fall within the scope of the phrase "terms and conditions of employment" under Chapter 48, Article 8, of the Nebraska statutes. As stated in City of Grand Island v. American Federation of State, County and Municipal Employees, 186 Neb. 711, 714, 185 N.W.2d 860, 863 (1971), decisions under the National Labor Relations Act are "helpful but not controlling upon the court." The Nebraska Supreme Court found the federal law "helpful" in resolving the appropriate unit and supervisor issues involved in that case. The decisions of the federal courts relating grievance procedures in labor contracts to the phrase "terms and conditions of employment" are equally useful in the present case, even though, as discussed below, the final element of binding arbitration ordinarily present in the procedures may not be as freely enforceable under Nebraska law as under the federal statutes and decisions.

Section 8(d) of the National Labor Relations Act defines "bargain collectively" as:

the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession....(29 U.S.C.A. ยง 158(d)).

Grievance procedures fall within the federal statutory phrase "wages, hours, and other terms and conditions of employment" in Section 8(d). These are mandatory subjects for collective bargaining under the National Labor Relations Act. United Electrical Radio and Machine Workers v. National Labor Relations Board, 409 F. 2d 150, 156 (D.C. Cir. 1969) ("A bargaining proposal is a mandatory subject of bargaining if it falls within the scope of 'wages, hours, and other conditions of employment' under section 8(d). Although these categories are far from self-defining, the case law shows that grievance arbitration and no-strike clauses are mandatory subjects for bargaining."); NLRB v. United Nuclear Corp., 381 F. 2d 972, 976-978 (10th Cir. 1967) (employer's unilateral change in grievance procedure without bargaining was an unfair labor practice); Industrial Union of Marine & Shipbuilding Workers v. NLRB, 320 F.2d 615, 620 (3d Cir.) cert. denied, 375 U.S. 984 (1963) ("We agree with the Board that both seniority rights and a grievance procedure are within 'wages, hours, and other terms and conditions of employment' and hence are mandatory bargaining subjects."); NLRB v. Celotex Corp., 364 F. 2d 552 (5th Cir.), cert. denied; 385 U.S. 987 (1966); Hughes Tool Co. v. NLRB, 147 F.2d 69, 73 (5th Cir. 1945). In fact, the United States Supreme Court has termed grievance procedures as "part and parcel of the collective bargaining process itself." United Steelworkers v. Warrior and Gulf Navigation Co., 363 U.S. 574, 578 (1960). This is because of the practical considerations in negotiating a general collective agreement for application in an industrial setting. Grievance procedures have come to serve as an important method of resolving disputed employment matters.

C. The Findings and Order filed March 26, 1971, in School District of Seward Education Association v. School District of Seward, No. 34, pages 12 to 14 set out the jurisdiction of the Court of Industrial Relations to order bargaining by virtue of the authority of sections 48-810, 48-816, and 48-823, and the nature of the Court's discretion as to when bargaining should be ordered. From the evidence, we find that an order compelling the parties in this case to bargain further with respect to grievance procedure would encourage a voluntary settlement of the present industrial dispute. Such bargaining will also serve to eliminate, define and simplify the pending controversies. As a general proposition, it is more desirable that the parties engage in extra judicial discussions or enter into a court encouraged voluntary settlement of negotiable items than that the Court determine the matters by order under Section 48-818. In the present case, the policies of Chapter 48, Article 8, will be best served by an order compelling the parties to undertake good faith negotiations with respect to a grievance procedure.

D. It is not necessary in entering this Order to determine the effect of the Nebraska rules limiting the enforceability of binding arbitration agreements upon either the Association's proposal or the School District's unilaterally adopted procedure. Whatever grievance procedures are agreed to by the parties or could be established by this Court must be subject to the Nebraska constitutional rules applied in Rentschler v. Missouri Pac. R. Co., 126 Neb. 493, 253 N.W.2d 694 (1943), and recently referred to in Poppert v. Brotherhood of RR Trainmen, 187 Neb. 297, 303-304 (September 3, 1971). That arbitration agreement are not given the same status under Nebraska law as under the federal law does not alter the underlying value of the policies as to grievance procedures, themselves. Nebraska law provides several important features not contained in the National Labor Relations Act. As a final backstop, the Nebraska statutes contain section 48-818 by which the Court may establish or alter wages, hours of labor, or conditions of employment. Section 48-810 directs that "All industrial disputes....shall be settled by invoking the jurisdiction of the Court of Industrial Relations." The National Labor Relations Act has no provisions comparable to Nebraska's sections 48-818 and 48-810. Additionally, where a no-strike clause is sometimes referred to as the "quid pro quo" for an arbitration clause in the federal decisions, the Nebraska statutes in sections 48-802 and 48-821 specifically deny the right to strike or otherwise interfere with governmental employment. We are confident that the Nebraska Constitution and statutes will provide a sufficient latitude for the design and implementation of valid and effective grievance procedures.

E. We agree with the statements in Defendant's brief:

"Clearly, this is not a case of overbearing or inconsiderate employer, unresponsive to the needs and ideas of its employees."

But we do think that the Defendant, because of its misinterpretation of the statutory phrase "terms and conditions of employment" the words "discuss" and "negotiate," failed to explore fully the possibilities of agreement with reference to grievance procedure. Since grievance procedure is a "term and condition of employment", the School District was obligated to negotiate with the Association on the issue, rather than act unilaterally, under the provisions of Chapter 48, Article 8. The attempted distinction between "discuss" and "negotiate" would be improper under these statutory sections. See IBEW v. City of Hastings, 179 Neb. 455, 460, 138 N.W.2d 822, 826 (1965) (use of the word "communications" for "bargaining" was mere semantics and did not affect the substance).

F. We have considered the several allegations of unconstitutionality contained in Defendant's Answer. Our reasons for rejecting these arguments have been set out in our Orders in prior cases.

G. The execution of individual teaching contracts under the mandate of section 79-1254, in the circumstances of this litigation, does not constitute an abandonment of the representative relationship provided under Chapter 48, Article 8, or the Teachers' Professional Negotiations Act, or the jurisdictin of this Court to settle industrial disputes. See Hastings Education Association v. School District of Hastings, Case No. 42, Order (overruling Motion For Summary Judgment) entered July 15,



1. The Plaintiff and Defendant are ordered forthwith to undertake good faith negotiations in regard to the determination of grievance procedures;

2. Should such negotiations result in mutual agreement, the matters so agreed upon shall be reported to this Court;

3. If the parties are unable to agree on any such matters, the parties, separately or jointly as they determine, shall so notify the Court;

4. This Order does not compel either party to enter into any contract or agreement, written or otherwise;

5. This order shall not preclude either party from making application to this Court for such additional Order or Orders as may be necessary to carry out this Order or appropriate to govern the situation pending such bargaining.

Entered this 22nd day of September, 1971. Judge H. Henatsch did not participate in the hearing of this matter or in the consideration or entry of the Findings and Order.