2 CIR 59 (1972).


Plaintiff, |
v. | ORDER
Defendants. |


Concurring opinion by Kratz.

This case came on for trial on January 12, 1972, on the Petition and Answer of the parties, evidence was presented, and oral arguments given.

During negotiations for a new collective bargaining agreement, the Association presented approximately 12 requests for changes in wording of clauses in the previous Agreement and 6 or 7 new proposals. Five of these items had been resolved in meetings of the negotiating teams. One of the Association's proposals was for a new clause relating to "Contract Work"--work normally performed by District employees which might be let out to a private contractor. This proposal was extensively discussed at a negotiating session on October 29, 1971. Following that meeting, the District bargaining team consulted with other management officials about the clause. The item was a proper subject for negotiations between the parties. See Fiberboard Paper Products Corp. v. NLRB , 379 U.S. 203, 85 Sup. Ct. 398, 13 L. Ed. 2d 233 (1964). At the commencement of the next meeting of the negotiating teams on November 4, 1971, the District representatives stated that the District would not agree to the proposed "Contract Work" clause, but would continue to discuss all other unresolved items presented by the Association. The Association representatives explained the importance it attached to the "Contract Work" clause and the history of the negotiations as to issues upon which the Association had previously modified its requests. The Association representatives then asked for a caucus, separately discussed the "Contract Work" clause, returned to the meeting, and announced that the Association would be unwilling to negotiate on the other unresolved items until a "Contract Work" provision was agreed to by the District. The matter of "Contract Work" was subsequently presented informally by the Association representatives to the District's Board of Directors, the Chairman of which referred the subject back to the District's bargaining team. The Association position continued to be that it would not negotiate further with the District until a "Contract Work" provision was agreed upon. Thereupon, the Association commenced this action. There have been no further negotiations between the parties.

The relief requested by the Association was that the Court should, in the alternative, (a) order the District to notify the Association prior to advertising for bids for subcontracting work which has normally been done by employees of the District and to discuss the proposed subcontracting in advance with the Association; or (b) direct the District to negotiate further with the Association at this time with respect to the proposed "Contract Work" clause.

Section 48-818 contains the requirements by which this Court "may establish or alter the scale of wages, hours of labor, or conditions of employment, or any one or more of the same." The record does not contain sufficient evidence from which the statutory determinations could be made. See American Federation of State, County and Municipal Employees v. City of Omaha, Case No. 41, Findings of Fact, Conclusions of Law, and Order, filed July 15, 1971. Furthermore, it would be inappropriate for the Court either to enter an order under Section 48-818 or to intervene in these pending negotiations by an order compelling further bargaining on one proposed item. The District is willing to have more negotiations with the Association. The negotiations have not run a full course due to the Association's determination not to proceed to the other unresolved items until a "Contract Work" clause is agreed to by the District. The negotiations last year and this until the meeting of November 4 proceeded under the applicable statutes. From the evidence in the record, it would not be appropriate for the Court to become involved in the middle of these pending negotiations between the parties.

Since judgment is being entered in favor of the District for the reasons set out above, it is unnecessary for the Court to rule on the other matters raised in the District's Answer or by the District at the trial.

NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that judgment be, and it hereby is, entered for the Defendants.

Entered and filed this 4th day of January, 1972. Judge Henatsch did not participate in the consideration or entry of this



I concur in the Court's judgment but wish to comment further because of what I consider a serious misinterpretation of the concept of good faith bargaining.

This court has said many times that an order to undertake good faith bargaining does not compel either party to reach agreement. Central City Education Association vs. School District of Central City , Case No. 35; School District of Seward Education Association vs. School District of Seward , Case No. 34; and Norfolk Education Association vs. School District of Norfolk , Case No. 40. The Association herein, however, argues that (1) since it has made a specific number of bargaining demands (18 or 19), the District must grant some of them, or it is not bargaining in good faith, and (2) inasmuch as the District, during early negotiation sessions, seemed sympathetic to the "contract work" demand, it cannot subsequently refuse it.

Good faith bargaining does not require any concession from either party, no matter how numerous the demands; nor does it preclude a change in position, short of final agreement, on any bargainable subject. The Association's action of refusing to meet further until the contract work clause was granted and going directly to the Board of Directors on this issue, was not the proper legal response to the District's position and perhaps constituted a refusal to bargain in good faith on its part. The Association should have continued to negotiate on the other unresolved negotiable items, keeping in mind that, notwithstanding the contention of its counsel, the statutory prohibition against striking does not leave it without a remedy for a bargaining impasse.

By Dean G. Kratz, Judge