| WYNOT EDUCATION ASSOCIATION, An | | | CASE NO. 403 |
| Unincorporated Association, | | | |
| | | ||
| Petitioner, | | | |
| | | ||
| v. | | | OPINION AND ORDER |
| | | ||
| THE SCHOOL DISTRICT OF WYNOT, IN THE | | | |
| COUNTY OF CEDAR, IN THE STATE OF | | | |
| NEBRASKA, A Political Subdivision of | | | |
| the State of Nebraska, a/k/a WYNOT | | | |
| PUBLIC SCHOOLS, | | | |
| | | ||
| Respondent. | | | |
| | | ||
| and | | | |
| | | ||
| WYNOT ASSOCIATION OF RESPONSIBLE | | | |
| TEACHERS, a/k/a WART, | | | |
| | | ||
| Intervenor. | | |
Appearances:
For the Petitioner: Theodore L. Kessner.
For the Respondent: Kelley Baker.
Before: Judges Berkheimer, Kratz, Orr.
BERKHEIMER, J.:
This matter came on for hearing on the Petitioner's Petition, Respondent's Answer and Intervenor's Petition in Intervention, the Court having by separate Order denied and overruled Petitioner's Motion to Strike the Petition in Intervention. The Petitioner was represented by its attorney, Theodore L. Kessner. Respondent was represented by its attorney, Kelley Baker. Ms. Linda Brockman, an officer of Intervenor, was permitted to appear individually.
There are essentially two basic disputed issues. One is whether or not the Commission in this case has jurisdiction to make a unit determination, direct an election and certify a bargaining representative. The other is whether or not Intervenor may appear on the ballot if an election is ordered.
The Petitioner seeks an Order of the Commission determining a bargaining unit consisting of "all certified teachers employed by the School District except administrative employees," directing the holding of an election pursuant to the Commission's rules and certifying Petitioner as exclusive bargaining agent for employees in the unit if a majority vote for a Petitioner.
Respondent's position is that Respondent has recognized Intervenor as a representative for negotiations under the Nebraska Teachers' Professional Negotiations Act, Sections 79-1287 to 79-1296, R. R. S. 1943; that Respondent has undertaken good faith negotiations with Intervenor pursuant to the Teachers' Professional Negotiations Act and that therefore the Commission lacks subject matter jurisdiction because the provisions of the Teachers' Professional Negotiations Act have not been exhausted.
Intervenor seeks to continue its negotiations with Respondent.
Petitioner asserts that Respondent's recognition of Intervenor was not in compliance with the Teachers' Act, but Respondent also insists upon its right to a unit determination, to an election, and if therein successful to certification by the Commission irrespective of Teachers' Act compliance and activity thereunder.
The Commission finds that the Respondent is a Class III school district to which the Teachers' Professional Negotiations Act applies, that Respondent has recognized Intervenor as a bargaining representative and that preliminary steps in negotiations pursuant to that recognition have been taken by Respondent and Intervenor. The Commission expressly does not make any finding bearing upon the question of whether or not the provisions of the Teachers' Professional Negotiations Act with respect to such recognition have been complied with. For the purposes of this case such compliance is assumed but not decided.
Section 48-810, R. S. Supp., 1980, 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.
Section 48-816(1), R. S. Supp. 1980, also refers to the Teachers' Act:
... the commission shall require good faith bargaining concerning the terms and conditions of an 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 ....
The rationale of the Commission's decision in Alliance Educational Association v. The School District of Alliance , 4 CIR 154 (1980) is dispositive of the jurisdictional issues in this case. That case also was a representation case in which non-exhaustion of the Teachers' Professional Negotiations Act was asserted as a bar to jurisdiction. In that case the Commission noted that the key phrase in Section 48-810 and also in Section 48-816(1) is "without resolution of the dispute involved," and then referred to the definition of "industrial dispute" in Section 48-801(7) Neb. R. R. S. 1943, which specifies several types of controversies which are included within the term "industrial dispute." In pertinent part that section provides:
Industrial dispute shall include any controversy concerning ... the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment ...
In this case as in the Alliance case, Petitioner seeks no more than a determination of the appropriate unit for bargaining under the Commission of Industrial Relations statutes and a certification of Petitioner as exclusive bargaining representative under those statutes.
The following language from the Alliance opinion is applicable here:
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 subject for bargaining are voluntary on the part of the School Districts. Further, such negotiations are "member 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 concerned. Therefore, the Commission now has jurisdiction to resolve the dispute involved herein.
It is true that in the Alliance case it does not appear, there had been the recognition of a representative or any ongoing activity pursuant to the Teachers' Act which we have assumed here. However, the essential conclusion of the Commission in the Alliance case was that since bargaining unit determination and certification by election are entirely outside the scope of the Teachers' Act, the provisions of Section 48-810 do not bar Commission jurisdiction to determine bargaining units, to order elections and to certify a unit representative. In this case also the Commission finds that the provisions of the Teachers' Professional Negotiations Act have been exhausted with respect to the particular dispute involved here. The effect of such recognition and ongoing activity under the Teachers' Act upon Commission jurisdiction to settle another type of industrial dispute is not in this case.
The Commission therefore finds and determines that it has jurisdiction to resolve the dispute herein, that the bargaining unit described in Petitioner's Petition is appropriate, and that Petitioner is entitled to an election.
Ballot Issue
The remaining question is whether or not Intervenor shall appear on the ballot. The Commission finds that Intervenor sufficiently indicated a desire to appear on the ballot if an election were ordered. Petitioner resists such appearance asserting that (a) Intervenor is not an organization, (b) that the Petition in Intervention is defective, (c) that Intervenor has not complied with Section 48-438, R. R. S. 1943 with respect to a showing of sufficient interest in Intervenor.
The name of Intervenor appears differently in various pleadings and exhibits. The Commission finds that regardless of such variations in name, the same organization is referred to in each instance and that Intervenor's present name is Wynot Association of Responsible Teachers sometimes acronymized as WART.
On the question of Intervenor's existence as an organization the evidence discloses that Intervenor's organization has been and is somewhat informal but that it has members, has held meetings and has elected officers. In Intervenor's request for recognition by Respondent's Board, nine teachers signing the request described themselves as a "negotiating body." Intervenor is found to be an organization.
The Petitioner in Intervention was obviously not drafted by an attorney and it is defective in certain respects. Nevertheless, the Commission finds that the Petition in Intervention adequately discloses Intervenor's interest in the proceeding and in representing teachers employed by Respondent, and that any errors and defects in Intervenor's pleading and procedure have not affected substantial rights of Petitioner. Section 25-853, R. R. S. 1943 provides:
The court in every stage of an action must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.
As a rule of civil procedure the foregoing applies to proceedings before the Commission pursuant to Section 48-812, R. S. Supp. 1980. The Petition in Intervention is therefore found to be adequate and defects therein are disregarded.
With respect to compliance with Section 48-838, R. R. S. 1943, it appears from the context of Petitioner's argument that the part of such section referred to by Petitioner is subsection (3) which provides:
(3) The court shall not order an election until it has determined that at least thirty per cent of the employees in an appropriate unit have requested in writing that the court hold such an election. Such request in writing by an employee may be in any form in which an employee specifically either requests an election or authorizes the employee organization to represent him in bargaining, or otherwise evidences a desire that an election be conducted. Such request of an employee shall not become a matter of public record. No election shall be ordered in one unit more than once a year.
It is at once apparent that the concern of the subsection is a thirty per cent showing of interest in an election and not necessarily in a particular organization. Where an election is permissible under this section, as it is here by Petitioner's own showing, the subsection does not establish any requirements which must be met for a rival organization to appear on the ballot.
The Commission finds that a substantial number of employees in the appropriate bargaining unit have expressed an interest in being represented by Intervenor, and the Commission therefore finds and determines that Intervenor should appear on the ballot.
IT IS THEREFORE ORDERED that:
1. The Commission of Industrial Relations has subject matter jurisdiction and jurisdiction over the parties in this matter.
2. The appropriate bargaining unit shall be all certified teachers employed by the School District of Wynot except administrative employees;
3. The Commission shall hold a certification election herein pursuant to the rules of the Commission; and
4. Wynot Education Association and Wynot Association of Responsible Teachers shall appear on the ballot.
All Judges assigned to the Panel in this case join in the entry of this Opinion and Order.
Entered April 8, 1981.
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