1 CIR 40 (1971) & (1973)



Unincorporated Association, |
Plaintiff, |
NEBRASKA, Also Known as |
Norfolk Public Schools, a |
Political Subdivision, |
Defendant. |

October 5, 1971


This case came on for hearing on July 13, 1971. Evidence was adduced, oral argument was waived in favor of the submittal of briefs, and a brief was submitted by Plaintiff.

On January 7, 1971, Plaintiff notified Defendant that it represented a majority of Defendant's certificated school employees and requested that Defendant recognize it and meet and confer regarding the development of a master contract, "including, but not limited to, negotiations procedures, minimum standards for certification personnel, teacher evaluation, teacher calendar and hours, association rights, salaries, fringe benefits, and grievance procedures." On January 15, 1971, the Defendant replied, stating it agreed "to negotiate base salary only."

Plaintiff repeated its request for negotiation of other items, and, when Defendant replied that it would only negotiate base salary, Plaintiff, on February 17, 1971, filed its original Petition with this court, alleging that Defendant had refused to negotiate in good faith and had violated the laws of the State of Nebraska. Plaintiff asked the court for an order directing negotiations on the rejected items under the provisions of Article VIII, Chapter 48, R.R.S.

Defendant filed a Special Appearance alleging lack of jurisdiction in this court because the provision of the Nebraska Teachers Professional Negotiations Act (Sec. 79-1287 through 79-1295, R.S. Supp., 1969), hereinafter called PN Act, had not been exhausted. The court sustained the Special Appearance on March 12, 1971.

On June 2, 1971, the Plaintiff filed an Amended Petition with this court, alleging that the parties had negotiated base salary (by resorting to fact finding and acceptance of the fact finder's report) and had now, therefore, exhausted the requirements of the PN Act. Plaintiff further alleged that Defendant had refused to negotiate on certain items. Those items, alleged by Plaintiff to be "matters concerning terms, tenure and conditions of employment," were the following:

(a) Grievance procedure.

(b) Personnel policy, including assignment of duties, method of teacher evaluation, and negotiation of policy changes.

(c) Index salary schedule and extra duty pay.

(d) Teacher calendar and hours including procedure for calendar approval and planning time.

(e) Fringe benefits including School District contribution to health and accident and income protection insurance, sick leave and personal leave.

Plaintiff asks this court to accept jurisdiction over this dispute and render an order directing immediate good faith bargaining concerning the aforesaid items.

This court has jurisdiction over "all industrial disputes involving governmental service." (48-810, R.S. Supp., 1969) The dispute herein involves governmental service and comes within the definition of industrial dispute in Section 48-801 (7), R.S. Supp., 1969. Thus, this court has jurisdiction.

In its Answer, Defendant reaffirms the allegations contained in its Special Appearance and claims the following: that Plaintiff was estopped from proceeding under the PN Act by refusing to meet and confer within twenty-one days after acceptance of the request to meet and confer; that the fact finder's report took into consideration all facts and circumstances concerning terms, tenure and conditions of employment, and there cannot, therefore, be further "inquiry" on these items; that Plaintiff does not represent the certificated school employees of Defendant; that no industrial dispute exists because the employees have entered into a valid and binding contract; that, by entering into contracts of employment, the employees have already disposed of the items alleged to be in dispute; that items lettered "(a)," "(b)," and "(d)," in Plaintiff's requested subjects for negotiation, are not mandatory negotiable items in that they are not concerned with terms and conditions of employment; and that Sections 48-801 to 48-836, R.R.S. 1943 are unconstitutional.

This court denies Defendant's claims, except for certain parts of its allegation regarding mandatory negotiable items, in the following respects and for the following reasons: (1) Denies the allegations contained in the Special Appearance for reasons given heretofore (an industrial dispute exists and, therefore, the court has jurisdiction) and hereafter (the Court of Industrial Relations act is constitutional) and because, under the facts of this case, there is no further action which can be taken under the PN Act, and the procedures of that Act have, therefore, been exhausted. See Opinion as to Jurisdiction,issued on March 12, 1971, in Cases No. 35, 36 and 38. Defendant's allegation, contained in its Special Appearance, that this court is without jurisdiction because it has no adopted and filed rules under the requirements of Sections 84-901 to 84-916, R.R.S., Nebraska, is denied on the ground that this law applies only to administrative agencies, and Sec. 84-901(1) specifically excludes courts from the definition of "agency." Furthermore, rules and regulations would have no application in this case since the decision is based solely on an interpretation of state statutes. (2) Denies the claim of estoppel because to grant this claim would not, under the particular facts and circumstances of this case, effectuate the purposes of the Act. On January 7, 1971, Plaintiff wrote to Defendant, requesting recognition and negotiations on specified items. The letter stipulated that, upon defendant's acceptance of the request to negotiate, Plaintiff would cooperate in scheduling the first negotiation meeting within twenty-one days. On January 15, 1971, Defendant answered, stating it would negotiate base salary, but nothing else. On January 23, 1971, Plaintiff responded with a letter stating that it "believes that, in addition to base salary, other items should be included in the agenda for negotiations." Plaintiff listed the other items and again suggested that, upon acceptance of its request, it would schedule the first negotiation meeting within twenty-one days. The Defendant answered this letter on January 26, 1971, and reiterated that it intended to take no action on requested items for negotiation, except base salary. At this point, Plaintiff considered that it had exhausted the procedures of the PN Act, and it filed its original Petition in this court. This court, in granting Defendant's Special Appearance, ruled that the PN Act had not been exhausted (the first consideration and resolution of this issue came on this same date, March 12, 1971, with the issuance of an Opinion as to Jurisdiction in Cases No. 35, 36, and 38), and the parties went to the bargaining table and resolved the dispute on base salary. Plaintiff then returned to this court with an Amended Petition asking for an order to bargain on certain items which had been previously rejected by the Defendant. Thus, at the time that Plaintiff and Defendant were disputing which items should be considered for negotiations, the question as to what constitutes exhaustion of the PN Act had not been resolved. Plaintiff was willing to meet within twenty-one days, providing Defendant would meet and confer on all subjects listed in its request, and it considered at that time that it had a legal right to take this stand. The fact that it was wrong in this interpretation (since it was fairly and reasonably taken, and it concerned an issue which had never before been decided by this court), should not now foreclose it from discussing the rejected items. Moreover, if Plaintiff had agreed to a meeting within the twenty-one days (and the fact it did not is the basis for the estoppel argument), Defendant would have negotiated base salary only, and would not have negotiated the items it now claims Plaintiff is estopped from negotiating. Thus, the estoppel claim could reasonably apply only to base salary, and base salary has already been properly determined. (3) Denies the claim that the fact finder's decision disposed of all terms and conditions of the contract for the reason that the disputed items were not considered by the fact finder in making his determination. (4) Denies the claim that Plaintiff does not represent the certified school employees of Defendant for the reason that there is not evidence to support this claim, and, on the contrary, the evidence shows that Plaintiff does represent these employees. (5) Denies the claim that no industrial dispute exists, because the employees have entered into a valid binding contract, and denies the claim that the employees' executed contracts eliminate the disputed items from further consideration for the reasons set out specifically by this court in Case No. 42. Hastings Education Association vs. School District of Hastings (issued July 15, 1971), wherein we stated that, "The execution of these contracts under the provisions of Section 79-1254 does not constitute a waiver or abandonment of the representative relationship provided under the Nebraska Teacher's Professional Negotiations Act and Chapter 48, Article 8. To hold otherwise would reduce and limit the intended scope of collective negotiations under the Nebraska Teachers Professional Negotiations Act and Chapter 48, Article 8, and the jurisdiction of this Court to settle industrial disputes." See also: Case No. 34, School District of Seward Education Association v. School District of Seward (issued March 26, 1971). (6) Denies Defendant's claim regarding the constitutionality of the Act on the basis of our decision in Public Service Employees Council, et. al. vs. Metropolitan Utilities of Omaha, Case No. 21, opinion of May 13, 1968, entitled "Opinion as to General Constitutionality of the Court of Industrial Relations."

This leaves, then, the question of whether items "(a)," "(b)," and "(d)," in Plaintiff's list of matters for discussion, are negotiable items.

The Nebraska Court of Industrial Relations Act (Section 48-801 to 48-837, R.S. Supp., 1969) refers to what may constitute negotiable subjects in several different sections: Section 48-801(6), where the definition of a labor organization includes organizations that "exist 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;" Subsection (7) of this same statutory section, where industrial dispute is defined to "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 for conditions of employment, or refusal to discuss conditions of employment;" Section 48-837, which states that "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 administrator of grievances arising thereunder," Section 48-816, which provides authority for public employers 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 agreement with those employee organizations in determining such terms and conditions of employment;" and, in this same section, where the law provides that when certified, an employer organization is 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 provided in this Act, and to negotiate and enter into written agreement with such employee organizations in determining such terms and conditions of employment."

All of the above would seem to fall under the condensation of wages, terms and conditions of employment (see Holdrege Education Association v. School District, Case No. 39, where this court ordered the parties to undertake good faith negotiations regarding "other terms and conditions of employment") and our state statutes, therefore, resemble the National Labor Relations Act (29 U.S.C., Sections 151 through 168) on the issue of negotiable subjects.

Section 8 (a)(5) of the National Labor Relations Act (29 U.S.C., 158(a)(5)) requires unions "to bargain collectively" under certain circumstances and Section 8(b)(3) (29 U.S.C., 158 (b)(3) makes the same requirement of employers. Section 8(d)(29 U.S. C., 158 (d)) defines "bargain collectively" and provides, inter alia, that the representatives of employer and employees shall "meet at a reasonable time and confer in good faith with respect to wages, hours, and other terms and conditions of employment..." The National Labor Relations Act, however, does not further define "wages, hours, and other terms and conditions of employment," and, thus, the scope and application of this language has been developed by National Labor Relations Board and Court decisions.

Since it seems apparent that the Nebraska legislature had the same purpose in mind as the federal Congress in determining what should be considered mandatory subjects for collective bargaining, the Court and Board interpretations of "wages" and "conditions of employment" under the National Labor Relations Act can serve as a guide for our interpretation of what constitute negotiable subjects under the Nebraska law. In City of Grand Island v. American Federation of State, County and Municipal Employees, 186 Neb. 711, 185 N.W.2d 860 (1971), the Nebraska Supreme Court gave "consideration to...decisions under the federal law" in resolving an appropriate bargaining unit issue.

The courts have provided a broad construction for the terms "wages" and "conditions of employment." In W.W. Cross & Co. vs. NLRB, 174 F.2d 375, "wages" was interpreted to extend to all direct and immediate economic benefits flowing from the employment relationship, and "conditions of employment" has been interpreted to be more inclusive than the term "working conditions" as used in the Railway Labor Act, Inland Field Co. vs. NLRB, 170 F.2d 347.

In Order of Railroad Telegraphers vs. Railway Express Agency, Inc., 321 U.S. 342, 8 LC 51, 174, the United States Supreme Court stated that the statutory collective bargaining duty includes bargaining "about the exceptional as well as routine" matters affecting wages, hours and other conditions of employment. Plant rules are mandatory subjects of bargaining. Miller Brewing Co., 166 NLRB No. 90, 1967 CCH NLRB 21, 660. Duration of the agreement is a matter for compulsory negotiation. U.S. Pipe & Foundry Co., vs. NLRB, 98 F.2d 373, 44 LC 17, 412. Company rules relating to safety and work practices, are mandatory subjects for collective bargaining. NLRB vs. Gulf Power Co., 384 F.2d 822, 56 LC 12,258. An employee working schedule is a mandatory subject for collective bargaining. Timken Roller Bearing Co., 70 NLRB 500.

The restrictions on negotiable subjects have generally been limited to those subjects generally considered to be prerogatives of management. In Fibreboard Paper Products Corp. vs. NLRB, 379 U.S. 203, 50 LC 19,384, the Supreme Court held that contracting out of plant maintenance work was a negotiable subject but cautioned that, "Nothing the court holds today should be understood as imposing a duty to bargain collectively regarding such management decisions which lie at the core of entrepreneurial control...."

The editors of the Commerce Clearing House Labor Law Reporter, at page 7612, have delineated the scope of compulsory bargaining as follows:

"Certain subjects, normally thought of as prerogatives of management, are not ordinarily considered compulsory subjects of bargaining. Among them are the corporate or other structures of the business, the composition of the official and supervisory force, general business practices, the products to be manufactured, the location of plants, the schedules of production, and the methods, processes, and means of manufacturing.

The evidence, regarding the three disputed items, includes the following:

Grievance Procedure

The Plaintiff wishes to negotiate a new grievance clause because the present clause, established unilaterally by the school board, is "weighted to the one side." While this clause is not used now, it would be, according to the witness for Plaintiff, if it were changed so as to place the final decision in the hands of a neutral. The Plaintiff desires that the arbitration clause include all areas of teacher employment, not just those items that arise under the negotiated contract. Faculty dress code, for example, would be included, but student/teacher ratios would not.

Method of Teacher Evaluation

The Plaintiff desires to negotiate a standardized procedure for teacher evaluation. The teachers request a voice as to "when it's done, how it's done, the frequency of the visit." They ask for "recourse" if a teacher is "unhappy" with the evaluation and for "an opportunity for a teacher to reply in a more direct manner."

Assignment of Duties

The Plaintiff wants teaching assignments specifically listed in the teachers' contracts. For example, if the teacher is hired to teach five sections of mathematics, he wants this specifically stated in the contract, so that it cannot later be changed to provide for four sections of mathematics and one of algebra or chemistry.

Policy Changes

Plaintiff's request for a voice in policy changes arises because of a paragraph in the "Teacher's Contract" (Exhibit no. 3), paragraph number 2:

"2. Teacher hereby agrees to be governed by the rules, regulations, policies, and administrative rules of the district together with all amendments and revisions thereof during school year, which are incorporated herein by reference and the duties to be performed by teacher under this contract shall be subject to assignment by the superintendent of schools of the district."

This clause, according to the Plaintiff, allows the administration "to make any changes or amendments or revisions during the school year and simply pass them out to the staff." If the school board is going to make a policy change, the teachers (Plaintiff association) would like "to discuss it." They would like to eliminate paragraph 2 from the contract and provide that there shall be no policy changes without discussion first with the plaintiff.

School snow policy and "what can or cannot be staged upon the school stage" are examples of policy changes about which the Plaintiff desires to negotiate. The school snow policy provides certain rules with regard to when the teachers must be at the school during a snowstorm and when they can leave. The Plaintiff objects to the present policy which requires the faculty to remain until 4:00 P.M., though the students are dismissed at 1:00 P.M. Obscene language, smoking, and any recitation which might encourage the use of alcohol are not allowed on the school stage.

Teacher Calendar

Teacher calendar is the period the teacher will be "employed by the school district in the actual teaching process." The teacher calendar is now determined unilaterally by the school board, with the teachers invited to consult and comment. The Plaintiff is interested in negotiating the "placement of the days and how these days will be arranged as to in-service and the vacation periods, things of this nature." They might want a day's break between semesters or a different number of days at the beginning of school (in-service days).

Teacher Hours

The Plaintiff wants a "standard policy" on hours of employment. The teachers want to negotiate "when we should be on duty and when we should be able to leave and the amount of time given for lunch hour."

Planning Time

Planning time is the time the teacher "may use....to work on lesson plans or grade papers or prepare for tomorrow's assignment." It is a part of his "work programming." The amount of time allotted in this regard would have a "direct economic influence upon the board of education and the budget."


The contract grievance procedure has been regularly and consistently held a condition of employment by the Courts and the National Labor Relations Board, Cities Service Oil Co., (1940) 25NLRB 36, 4 LC 60,611, 122 F.2d 149, Orkin Exterminating Co. of Florida, Inc. v. Teamsters Local 512, 1965 CCH NLRB 9281, 152 NLRB 83, 56 LC 12,052, U.S. Automatic Corp. (1944) 57 NLRB 124, Arundel Corp., (1944) 59 NLRB 505, and this court has recently concluded that grievance procedure is a bargainable subject under the Nebraska Industrial Relations Act, Case No. 35, Central City Education Association v. The School District of Central City, issued September 22, 1971.

While we conclude that grievance procedure is, therefore, a negotiable subject, Plaintiff cannot insist on inclusion under the grievance procedure of non-negotiable items, subjects which are not wages, terms and conditions of employment. The fact that Plaintiff desires to include faculty dress code and exclude teacher/pupil ratios indicates that it has thus far properly interpreted the potential scope of the grievance clause.

To the extent that method of teacher evaluation includes the opportunity for a teacher to respond to an evaluation of his teaching procedure or negotiate on a standardized or consistent "method" of teacher evaluation, we conclude that it is a negotiable subject. Defendant, however, has a right to evaluate its teachers, and the authority to negotiate on method of teacher evaluation does not include the authority to negotiate the elimination or control of this process. The matter of when the teachers are evaluated and how the evaluations are graded and used, are matters for the School Board and not a condition of employment.

The request for a specific listing of teaching assignment in the contract is a condition of employment and, therefore, a negotiable subject. This request, however, has to be carefully and sensibly negotiated as there can doubtless be circumstances where it cannot be practicably applied.

The establishment of "policy" is ordinarily a management prerogative, and policy changes would generally not be considered conditions of employment. With regard to the facts of this case, however, some of examples of "policy changes" are negotiable, and some are not, and our conclusions in this regard are confined to the specific examples illustrated by the evidence. We conclude, from the evidence in this case, that the policy regarding use of the school stage is not a condition of employment and not a negotiable subject. On the other hand, we find that the policy regarding faculty employment hours during a snowstorm is a condition of employment and a negotiable subject. Regarding paragraph 2 of the "Teachers Contract," the Plaintiff can request that the clause be drawn in such a manner as to eliminate unilateral changes in the teachers conditions of employment during the term of the contract. Plaintiff cannot, however, insist on discussions regarding a unilateral policy change if the policy change is a management prerogative and therefore not a condition of employment.

If school calendar is a negotiable item (as determined by this court in School District of Seward Education Association vs. School District of Seward, Case No. 34), then teacher calendar is also a negotiable item, and we so hold.

Teacher hours includes the time the teachers report to work, the time they leave, and the amount of time given for their lunch hour. Planning time involves a regular allotment of time to the teachers for class preparation. Both of these items are conditions of employment and therefore negotiable subjects.


October 5, 1971



1. The Plaintiff and Defendant are ordered forthwith to undertake good faith negotiations in regard to grievance procedure, method of teacher evaluation, assignment of duties, teacher calendar, teacher hours, planning time, and snowstorm employment policies, to the extent required by the Conclusions set out in this case.

2. Should such negotiations result in mutual agreement, the matter 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 reach agreement on the matters ordered for negotiation; nor does it compel them 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 5th day of October 1971. Judge Baylor did not participate in the hearing of this matter or in the consideration or entry of the findings and order.


July 13, 1973


It having been shown that a typographical error exists in the first paragraph on page 5 of the Findings & Order issued in this case on October 5, 1971,

IT IS HEREBY ORDERED that the last five lines of the first paragraph on page 5 of said Findings and Order be changed to read as follows: "and, in this same section, where the law provides that when an employee organization is certified, the appropriate public employer is 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 provided in this Act, and to negotiate and enter into written agreement with such employee organizations in determining such terms and conditions of employment.'"