|ALLIANCE EDUCATION ASSOCIATION, AN|||||CASE NO. 345|
|An Unincorporated Association,|||||REPRESENTATION CASE NO. 114|
|vs.|||||OPINION AND ORDER|
|THE SCHOOL DISTRICT OF ALLIANCE,||||
|IN THE COUNTY OF BOX BUTTE IN THE||||
|STATE OF NEBRASKA,||||
|A Political Subdivision,||||
For the Petitioner: Theodore L. Kessner
For the Respondent: Thomas A. Danehey
Before: Judges Wall, McGinley and Gradwohl.
This matter came on for hearing on March 21, 1979, on issues as to the subject matter jurisdiction of the Commission, the composition of an appropriate unit, and preliminary procedures to insure a speedy adjudication of the industrial dispute. The Petitioner was represented by its Attorney, Theodore L. Kessner. The Respondent was represented by its Attorney, Thomas A. Danehey. Evidence was introduced and oral arguments presented.
Paragraph 1 of Respondent's Answer alleges that the Commission lacks subject matter jurisdiction because the Petitioner has not exhausted the provisions of the Nebraska Teachers' Professional Negotiations Act, Sections 79-1287 to 79-1295, R. R. S. Neb.
Section 48-810, R. R. S. Neb. 1979 Supplement, provides:
"All industrial disputes involving governmental service, service of a public utility, or other disputes as the Legislature may provide shall be settled by invoking the jurisdiction of the Commission of Industrial Relations; Provided, such commission shall have no jurisdiction over any persons, organizations, or school districts subject to the provisions of the Nebraska Teachers' Professional Negotiations Act, sections 79-1287 to 79-1295, until all provisions of such act have been exhausted without resolution of the dispute involved. "
In addition, Section 48-816(1), as amended by LB 444 in 1979, states in part:
"The commission shall require good faith bargaining concerning the terms and conditions of employment of its employees by any employer, including school districts covered by the Nebraska Teachers' Professional Negotiations Act after all provisions of such act have been exhausted without resolution of the dispute involved."
There is no presumption in favor of the Commission's jurisdiction, but those facts necessary to confer jurisdiction on the Commission must appear in the record. See Everts v. School Dist. No. 16 , 175 Neb. 310, 121 N. W. 2d 487 (1963). The parties stipulated that the Respondent is a Class III school district. The District, therefore, and its employees and the labor organizations representing its employees are subject to the Teachers' Professional Negotiations Act. See Section 79-1287, R. R. S. Neb.
The statutory provisions on exhaustion of the Teachers' Professional Negotiations Act, and their legislative history, are discussed in Sidney Education Association v. School District of Sidney , 189 Neb. 540, 542-546, 203 N. W. 2d 762, 765-767 (1973). See also Opinion As To Jurisdiction, Central City 1 CIR No. 35 (1971), Lyons 1 CIR No. 36 (1971), and Ashland-Greenwood 1 CIR No. 38 (1971), March 12, 1971. The Supreme Court held in the Sidney decision that the provisions of the Teachers' Professional Negotiations Act were exhausted by the School District's refusal to recognize the Education Association as a bargaining agent for its members. In addition, the Commission has ruled that the provisions become exhausted by a School District's imposing impermissible conditions upon its recognition of an Association as bargaining representative or upon the conduct of the negotiations between the parties. See Holdrege Education Association v. The School District of Holdrege , 1 CIR No. 39, (1971); Norfolk City Education Association v. The School District of Norfolk , Case No. 353, Order Entered February 15, 1980. So long as some matters are proceeding in accordance with the provisions of the Nebraska Teachers' Professional Negotiations Act, however, the jurisdiction of the Commission of Industrial Relations is held in abeyance until the provisions of the Negotiations Act have been applied. See Opinion As to Jurisdiction, Central City 1 CIR No. 35 (1971), Lyons 1 CIR No. 36 (1971), and Ashland-Greenwood 1 CIR No. 39.
The key statutory phrase in this matter is "without resolution of the dispute involved." The Supreme Court opinion in the Sidney case was careful to consider precisely "What is the dispute?" 189 Neb. at 546, 203 N. W. 2d at 767.
The term "industrial dispute" is defined in Section 48-801(7), R. R. S. Neb. 1979 Supplement:
"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 Petition in this matter seeks solely a determination of the appropriate unit for bargaining under the Commission of Industrial Relations statutes and a certification of the Alliance Education Association as the exclusive bargaining representative under those statutes. There is no request for a bargaining order under the Commission of Industrial Relations statutes and no request for the entry of a wage order under those statutes.
The Nebraska Teachers' Professional Negotiations Act contains no provisions pertaining to unit determinations and certification elections. The Negotiations Act is a "meet and confer" system, in which recognition of Education Associations and acceptance of subjects for bargaining are voluntary on the part of the School Districts. Further, such negotiations are "members only" negotiations on behalf of the members of the Education Association rather than "exclusive" negotiations on behalf of all employees within the appropriate unit.
The Commission of Industrial Relations statutes provide for mandatory, exclusive representation of all employees in an appropriate bargaining unit. The full text of these statutes can be applied to Class III, IV and V public school districts in Nebraska after all provisions of the Nebraska Teachers' Professional Negotiations Act have been exhausted without resolution of the dispute involved.
The Commission of Industrial Relations has subject matter jurisdiction of the Petition in this matter at this time because there is nothing within the Nebraska Teachers' Professional Negotiations Act pertaining to this industrial dispute. The Petitioner is entitled to have a unit determined for the purposes of the mandatory, exclusive bargaining system of the Commission of Industrial Relations statutes. It is not necessary to determine at this time when the jurisdiction of the Commission might attach to a petition seeking a bargaining order or a wage order. Those are different industrial disputes and are not involved in this case. There are no matters proceeding, or which are capable of proceeding, under the Nebraska Professional Teachers' Negotiations Act insofar as a unit determination and certification election are concemed. Therefore, the Commission now has jurisdiction to resolve the dispute involved herein.
Paragraph 2 of Respondent's Answer objects to the inclusion of certain persons listed in Petitioner's Exhibit 1 within the bargaining unit. This issue was resolved by agreement of the parties at the hearing, and that agreement should be approved by the Commission.
Paragraph 3 of Respondent's Answer contains a general denial. The Respondent stated at the hearing that it has no further issues to assert in this matter and agreed that the Petitioner need not introduce additional evidence in the event the Commission determines, as it has done above, that the Commission has jurisdiction in the matter.
Accordingly, the Commission will proceed to conduct the certification election requested by the Petitioner.
It is therfore Ordered that:
1. The Commission of Industrial Relations has subject matter jurisdiction and jurisdiction over the parties in this matter and that all of the provisions of the Nebraska Teachers' Professional Negotiations Act have been exhausted without resolution of the dispute involved herein;
2. The appropriate bargaining unit shall be described in accordance with the agreement of the parties at the hearing;
3. The Commission shall hold a certification election herein pursuant to the rules of the Commission; and
4. Judge Gradwohl was designated to serve as Hearing Judge in this matter in place of Judge McGinley from the commencement of this hearing.
All Judges assigned to the Panel in this matter join in the entry of this Order.
Filed March 27, 1980.