2 CIR 56 (1972). Reversed and dismissed. 189 Neb. 811, 205 N.W.2d 537 (1973).



Plaintiff, |
a Governmental Subdivision, | Supreme Court.
Defendants. |


Filed June 1, 1972

The plaintiff's membership is limited to those employees of the Nebraska State Department of Education who have offices in Lincoln and who are employed in the Division of Administrative Services, the Division of Vocational Education, and the Division of Instructional Services, and who are professionals. The membership does not include the Department's employees who office outside the City of Lincoln, primarily at the Nebraska School for the Deaf in Otoe County, nor does the membership include the employees of the Department's fourth division, namely the Division of Rehabilitational Services. Presumably the membership does not include clerks and stenographers, but there is no evidence and accordingly apparently no controversy concerning the distinction between professional and non-professional employees of the Department. There is no contention that the unit proposed by the plaintiff is not appropriate. By oral conversations with the Commissioner of Education early in August 1971 and by formal written demand dated August 18, 1971, addressed to the President of the defendant, the plaintiff requested the commencement of collective negotiations for the determination of and administration of grievances arising under the terms and conditions of employment with a view to consummating a formal written contract. "Request of Nebraska Council of Educational Leaders for recognition by State Board for negotiating purposes" was on the formal written agenda of the meeting of the Board on September 3, 1971, and the officers of the plaintiff then appeared. Although the Board did not act by formal resolution recorded in the minutes, various members of the Board and the Commissioner of Education expressed the desirability of an election, and various procedures for holding the election were discussed and no objections were made to the suggestions by the representatives of the plaintiff. Certainly members of the Board, at least acting as individuals and leading the plaintiff to believe that they were acting as a Board, raised the question as to whether the plaintiff did in fact represent a majority of the employees in the above-described unit. Parenthetically it should be noted that this was prior to this court's decisions in IBEW v. City of Lincoln, Case No. 48 filed October 13, 1971 and in Mid-Plains Educational Association v. Mid-Plains Nebraska Technical College, Case No. 33 filed March 8, 1972. Election procedures were agreed upon mutually as a result of meetings between Commissioner Stanley and representatives of the plaintiff, and likewise the identity of the eligible voters was agreed upon. The election was held in accordance with such agreement and of the 89 eligible to vote, 74 did so, of whom 66 voted for representation by the plaintiff for the purposes of negotiating collectively and 8 voted against. On September 29, 1971, the plaintiff delivered a notice to the defendant as follows:

"September 29, 1972

Mr. Frank E. Landis, President

Nebraska State Board of Education

233 South 10th Street

Lincoln, Nebraska 68508

Dear Sir:

Following our letter of August 18, 1971 in which we requested that the State Board of Education recognize the Nebraska Council of Educational Leaders for purposes of bargaining collectively, the board through the Commissioner of Education requested that a representative of the group appear before the board at its regularly scheduled meeting on September 3, 1971.

At that time, in consideration of our request for recognition, a question with respect to representation was raised by the board. Subsequent thereto pursuant to 48-816 R.S. Supp. 1969, secret ballot procedures were mutually agreed upon between the representatives of Nebraska Council of Educational Leaders and the Commissioner of Education and as a result thereof, a secret ballot election was conducted in accordance with the notice of election and sample ballot attached. The official voting roster was agreed upon and a copy of that roster is attached.

The result of the election was that of 74 valid ballots cast, 66 were marked yes in favor on the Nebraska Council of Educational Leaders representing them for the purposes of negotiating collectively and 8 voted no. Certification of Election signed by the Commissioner of Education and the executive Committee of the Nebraska Council of Educational Leaders is attached.

We now therefore request that a meeting date prior to October 15 by mutually agreed upon, at which time the Nebraska Council of Educational Leaders will meet with your representatives to commence collective bargaining as provided for by the statute."

The defendant has failed to make any response thereto. On October 8, 1971,the plaintiff filed this action praying for certification of the plaintiff as a proper bargaining agent and for an order to the defendant to negotiate collectively with the plaintiff concerning administration of grievances arising under the terms and conditions of employment of the persons represented by the plaintiff.

In our Findings and Order in Mid-Plains Education Association v. Mid-Plains Nebraska Technical College, Case No. 33, entered March 8, 1972, we reviewed exhaustively our previous opinions and the statutory law which will have been in effect from 1969 until July 6, 1972, when LB-1228 will become effective. There we held:

1. That in preference to a §48-818 adjudication, we would order bargaining where there had been uncertainties over how the State statutes pertaining to recognition and bargaining should be interpreted and the parties never had bargained or discussed in any sense of those words;

2. That (under the law which will have been in existence to July 6, 1972) a governmental employer and a labor organization voluntarily can agree that a labor organization which represents a majority of the appropriate unit will represent all persons in such unit;

3. That (again under the law which will be in effect until July 6, 1972) a labor organization must be permitted to represent and bargain for the employees who authorize it and belong to the appropriate unit.

This holding was based in part upon Sidney, Case No. 58, Findings and Order entered January 23, 1972; both Case No. 33 and Case No. 58 now are on appeal to the Supreme Court, but until we will have received further guidance from the Supreme Court, we shall adhere to the holding set forth above.

The defendant contends that this court has no jurisdiction or authority because Article VII of the Constitution places exclusive management and authority in the defendant; and that an order for bargaining is the equivalent of a compelled contract prohibited by §48-810.01. These defenses were discussed and their invalidity determined by this Court in Fremont, Case No. 50, Findings and Order entered March 15, 1972, in Mid-Plains, Case No. 33, Findings and Order March 12, 1971, in Centennial, Case No. 44, Findings and Order entered August 18, 1971, and in Seward, Case No. 34, Findings and Order, August 9, 1971.

The Attorney General representing the defendant in this case as he did the Department of Roads in Case No. 57, raises the same defenses in each case as to validity of service of process and constitutionality of the Court of Industrial Relations Act. Our disagreement with the Attorney General in these respects is set forth in detail in our Findings and Order in Case No. 57 entered May 31, 1972. Since the files of this Court are in the office of the Clerk of the Supreme Court, we trust that if this Case No. 56 is appealed, both counsel and the appellate court will refer to our Findings numbered 1 through 7 in Case No. 57 as fully as they would if such Findings were set forth verbatim herein.

The defendant educed evidence that the plaintiff has not filed in the office of Secretary of State a certified statement, and from that evidence contends that the plaintiff may not maintain this action. Section 24-314 R.S. Neb. providing primarily for service of process on labor unions and other unincorporated associations does include the following language:

"......and before it is authorized to engage in any kind of business or activity in this state such...... unincorporated organization shall file in the office of the Secretary of State a certified statement setting forth that such....unincorporated organization is doing business or conducting activities in the State of Nebraska stating the nature of the business or activity, and designating an agent or agents within the State of Nebraska, upon whom process, or other legal notice of the commencement of any legal proceeding, or in the prosecution thereof may be served;......"

We hold that §25-314 is not concerned with the power to maintain this action; that the plaintiff has not yet engaged in any kind of business or activity (see Hurley v Brotherhood of Railroad Trainmen, 147 Neb. 781, 25 N.W.2d 29); and that the plaintiff may file the required statement before commencing the negotiations hereby ordered.


1.That the plaintiff is entitled to represent those employees of the defendant who authorize it to act for them within the meaning of §48-837 R.R.S. Supp.

2.That the plaintiff and the defendant, in accordance with Chapter 48-Article 8, R.R.S. Supp., forthwith shall undertake good faith negotiations in regard to the determination of terms and conditions of employment and the administration of grievances arising thereunder for those employees who authorize the plaintiff to represent them.

3.That, should such negotiations result in mutual agreement, the matter so agreed upon shall be reported to this court.

4.That, if the parties are unable to agree on any such matters, the parties separately or jointly, as they determine, shall notify the court.

5.That this Order does not compel either party to enter into any contract or agreement, written or otherwise.

6.That 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.

Judge Henatsch did not participate in the trial of this case in the consideration or entry of the Findings and Order; Judge Gradwohl did not participate in the entry of the Findings and Order.