| KEARNEY STATE COLLEGE | | | CASE NO. 87 |
| EMPLOYEES UNION, | | | REP. DOC. NO. 11 |
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| Petitioner, | | | |
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| v. | | | PRETRIAL ORDER |
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| STATE OF NEBRASKA, BOARD | | | |
| OF TRUSTEES OF THE | | | |
| NEBRASKA STATE COLLEGES, | | | |
| AND KEARNEY STATE COLLEGE, | | | |
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| Defendants. | | |
Before: Judges Baylor, Grant, and Nielsen
BAYLOR, J:
At the session of this Court held May 31, 1973, pursuant to Order entered May 19, 1973, and filed May 21, 1973, before Judges Baylor, Grant, and Nielsen:
Gary L. Giese on behalf of the petitioner and William A. Harding on behalf of the defendants Board of Trustees and Kearney State College appeared.
At the hearing so attended, the following determinations were made, which the Court concludes under the general principles announced in Pressey v. State , 173 Neb. 652, 114 N.W.2d 518 (1962) and IBEW v. City of Lincoln , Case No. 19, Order entered September 7, 1966, shall control the future course of this action unless any of such determinations be modified at the trial to prevent manifest injustice.
A. The desirability of amending the pleadings for the purpose of clarification, amplification, or limitation. On or before June 8, 1973, the petitioner shall file its amended petition, which shall include a compliance with Rule 4 (B) of this Court in material part as follows:
A petition concerning...request for election...shall contain the following: A description of the unit..claimed to be appropriate...Such description shall indicate generally the geographic locations and the classifications of employees sought to be included and those sought to be excluded...
The Court determines that the description of the unit in paragraphs numbered 4 of the petition filed April 18, 1973, is wholly inadequate for failure to list the job classifications of employees, but that the remedy is not dismissal of the petition. In view of the defendants' general denial and their allegation designated "Fourth Defense" and "Fifth Defense," the amended petition shall include a typewritten list of the names of the persons who have signed the request in writing for an election, and such list shall be carefully verified for accuracy of spelling and completeness of form of name, for validity and effectiveness of original signature, and for validity of claim of employment on the date which the petitioner claims to be the effective date for the purpose of complying with Rule 4 (B) (4) of this Court. furthermore, the petitioner shall indicate which signators and signatures, if any, no longer are claimed to be effective for said purpose.
Furthermore, the amended petition shall allege the facts with reference to the petitioner's filing in the office of the Secretary of State a designation of agent for service of process.
As soon as possible, but no later than June 15, 1973, the defendant shall furnish to counsel of the petitioner and to each Judge of the Court lists of the names of all employees of Kearney State College in the Housing Department, the Physical Plant Maintenance Department, the Campus Security Department, and the Secretarial and Clerical Department, excluding from such lists, however, student help, part-time employees, teaching faculty, administrative personnel, auxiliary personnel, and salaried supervisors; after each such name shall appear the employee's department and job classification; of such employees so listed, those whose employment has terminated since April 18, 1973, shall be indicated; employees in said departments and not within such exclusions whose employment commenced since April 18, 1973, shall be similarly but separately listed.
On or before June 15, 1973, the defendants shall file their amended answer to the amended petition, which answer shall specify from said typewritten list to be furnished by the plaintiff and from examination of attachments numbered 1,2,3, and 4 to the petition, those names which the defendants challenge as inappropriate for compliance with the requirements of Rule 4 (B)(4) and indicate briefly after each name the ground of such challenge.
Each party, including the State of Nebraska, is directed to consider, in formulating the issues in this case, this Court's Findings and Order entered August 17, 1971, in IBEW v. Central Nebraska Public Power & Irrigation District , Case No. 30, particularly:
These cases indicate to us that this Court...may leave the determination of indispensable party initially to the plaintiff with delay and retrial the price of an improper exclusion...However...to some extent the defendant shares with the plaintiff the responsibility of bringing necessary parties into the litigation.
and the cases of State of New York, Employer, and Council 50 of AFSCME and CSFA, NYPERB dec §1-399.85 (Nov. 17, 1968) after remand in CSEA v Helsby , 21 NY2d 541 (March 7, 1968); Board of Higher Education of City of New York , 1 PERB 407 (1968); Employers of Temple University of the Commonwealth System of Higher Education , Penn LRB FERA-R-1123-E and PERA-R-1137-E, especially Findings and Order 8-11-72; Fordham University , 193 NLRB23, 78 LRRM 117 (1971); and The Catholic University of America, Employer and Law Faculty Bargaining Committee , 201 NLRB 145.
B. Trial . On Wednesday, June 27, 1973, at 9:30 a.m. in Courtroom No. 2 of the Supreme Court in the State Capitol Building at Lincoln, Nebraska, will commence a trial of this action. Richard C. Thoene or Lettie Bartusek of Lincoln, Nebraska is appointed the reporter of said trial.
BAYLOR, J:
The judicial powers of this Court are invoked for a declaration of the appropriate unit for collective bargaining and of the existence of statutory conditions precedent to an order of election. The foregoing issues are raised by petition and the answer of defendants Board of Trustees Nebraska State Colleges and Kearney State College. The State of Nebraska also is named as a defendant, although from neither the pleadings nor the arguments of counsel on hearing pursuant to Order entered May 19, 1973, are we able to perceive with precision why. Nevertheless, the Attorney General on behalf of the State of Nebraska has filed a pleading which he entitles "Special Appearance" in which he alleges:
There is no viable statute...which would lawfully authorize the issuance and service of summons herein on either the defendant State of nebraska, or on J.J. Exon, Governor of the State of Nebraska, or on Clarence A. H. Meyer, attorney General of the State of Nebraska and consequently any claim in the petition herein against either...is barred by §22 of Art. V, Constitution of Nebraska.
Of the Rules of this Court, Rule 6 provides:
The only pleading responsive to a petition...that is permitted shall be an answer in which the responding pleader shall assert every defense, objection, and claim in law and in fact available to it at the time of filing such pleading...
Section 48-813 R.R.S. Neb. provides:
Whenever the jurisdiction of the Court of Industrial Relations is invoked...naming the State of Nebraska...as a party defendant, summons shall issue upon the filing of such petition to the sheriff of Lancaster County, Nebraska, who shall serve the summons upon the State by serving the same upon the Governor and attorney General;...
Article V, Sec. 22 of the State Constitution provides:
The state may sue and be sued, and the Legislature shall provide by law in what manner and in what court suits shall be brought.
Article VII, Sec. 13 of the Constitution and Chapter 85, art. 3 R.R.S. Neb. provide for the general government of Kearney State College under the direction of the Legislature by the Board of Trustees of the Nebraska State Colleges. Accordingly, while the reasons assigned on behalf of the State of Nebraska for the latter's dismissal from the law suit seem to be wholly without merit, nevertheless none of the other parties to the law suit has shown us any reason why the State of Nebraska has any present interest or possible future interest in the action and thus is either a proper or necessary party thereto.
The Attorney General is requested to consider this Court's Findings and Order entered August 17, 1971, in IBEW v. Central Nebraska Public Power & Irrigation District , Case No. 30, and the cases of State of New York, Employer, and Council 50 of AFSCME and CSFA, NYPERB dec §1-399.85 (Nov. 17, 1968) after remand in CSEA v. Helby , 21 NY2d 541 (March 7, 1968); Board of Higher Education of City of New York , 1 PERB 407 (1968); Employers of Temple University of the Commonwealth System of Higher Education , Penn LRB FERA-R-1123-E and PERA-R-1137-E, especially Findings and Order 8-11-72; Fordham University , 193 NLRB23, 78 LRRM 117 (1971); and The Catholic University of America, Employer and Law Faculty Bargaining Committee , 201 NLRB 145.
NOW THEREFORE IT IS ORDERED:
1. That the Attorney General be and he hereby is directed to file on behalf of the State of Nebraska on or before June 13, 1973, either:
a. A disclaimer of any interest of the State of Nebraska in the above-captioned action; or
b. An answer in accordance with Rule 6 of the Rules of this Court; and that in the event of the filing of such disclaimer, the action shall stand dismissed with respect to the State of Nebraska, however, without prejudice.
BAYLOR, J.:
The Court having convened March 25, 1974, now from the record finds:
1. That by stipulation filed June 14, 1973, the parties agreed:
By no later than August 15, 1973, counsel for petitioner shall notify the Court and counsel for the defendants as to whether or not the petitioner wishes to proceed with the processing of this matter. If the petitioner does not desire to proceed with the processing of this matter at that point, the petition shall be dismissed with prejudice.
2. That the Court has received no notice or indication of any kind of the petitioner's desire to proceed with the processing of this matter.
NOW THEREFORE it is ordered that this action be and it hereby is dismissed.
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