| DISTRICT 15 EDUCATION ASSOCIATION, | | | CASE NO. 417 |
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| Plaintiff, | | | |
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| v. | | | OPINION AND ORDER |
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| SCHOOL DISTRICT NUMBER 15, OF ADAMS | | | |
| COUNTY, NEBRASKA, | | | |
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| Defendant. | | |
Before Judges Berkheimer, Davis and Orr.
BERKHEIMER, J:
An initial hearing herein was held on September 4, 1981, on the plaintiff's petition and the defendant's response for the purpose of determining whether on not an industrial dispute exists and the jurisdiction and authority of the Commission to proceed further in the case toward establishing rates of pay and conditions of employment pursuant to Section 48-818, R.R.S. 1943.
The plaintiff was represented by Mr. Theodore L. Kessner and the defendant was represented by Mr. John F. Recknor.
Following are the allegations of the plaintiff and
denials and allegations of the defendant material to the controversy together with the Commission's factual findings with respect thereto.
Plaintiff alleges that it "is an unincorporated association formed by the certified teaching employees of School District Number 15, of Adams County, Nebraska, (herein "the School District"), for the purpose of representation of said certified teaching employees in all matters of employment relations" and that the plaintiff is a labor organization as defined in Section 48-801, R.R.S. 1943, with a usual place of business in Adams County, Nebraska. The defendant specifically "Denies that the District 15 Education Association is formed by the certified teaching employees of School District Number 15 for the purpose of representation of said certified teaching employees", and by general denial denies that the plaintiff is a labor organization defined in Section 48-801, R.R.S. 1943, with a usual place of business in Adams County, Nebraska.
The Commission finds that the plaintiff is an unincorporated association formed by certified teaching employees of the plaintiff for the purpose of representing certified teachers in matters of employment relations with the defendant and that the plaintiff is a "labor organization" as defined in Section 48-801, R.R.S. 1943, with the usual place of business in Adams County, Nebraska.
The plaintiff alleges and the defendant denies that the plaintiff has recognized the plaintiff as a collective bargaining representative of its members. The Commission finds that such recognition was sought by the plaintiff but that the plaintiff was not so recognized by the defendant.
The plaintiff alleges that "the parties have during the past several months negotiated items concerning the terms, tenure and conditions of employment of the members of the Association for the 1981-1982 contract year. Such negotiations failed to conclude in an agreement between the parties." The defendant "admits that the parties hereto negotiated the item, of salary for the members of the teaching faculty at School District Number 15 and allege that such negotiations resulted in an agreement between the parties." This admission appears inconsistent with the denial of recognition, and at the hearing defendant sought to amend its response to reflect negotiations by the defendant with its teachers and that such negotiation resulted in agreements between the defendant and its teachers. The plaintiff offered evidence tending to show that the defendant's board dealt with all of its teachers as a group on at least one occasion with relation to increases in compensation for all teachers for the 1981-1982 school year, and that the board made concessions to one teacher in order to gain acceptance by all teachers of the increases proposed by the board, and that oral acceptances were obtained from all teachers. The evidence is not clear as to all of these facts. The Commission finds that there were negotiations by the defendant's board with all teachers as a group, that acceptances were solicited from each teacher individually, and that an acceptance was obtained from each teacher. For the purpose of this decision the Commission assumes without deciding that the board made concessions to one teacher to obtain acceptances from all teachers. The amendment sought by the defendant is allowed in substance but is considered to be an affirmative allegation rather than an admission, in that the plaintiff alleged negotiations between the parties and a lack of agreement between the parties. Upon consideration of the plaintiff's allegation that the "parties have during the past several months negotiated items concerning the terms, tenure and conditions of employment of the members of the Association for the 1981-82 contract year..." and the defendant's general denial, the Commission finds that the evidence does not support such allegation.
By an again styled admission, the defendant states "that the certified teaching employees employed by the District and each of them signed contracts offered to them on or about April 7, 1981, said signatures by said teachers on said contracts appearing to have been affixed on or about April 14, 1981, for the respective amounts stated on the respective contracts hereinabove referred to, said amounts reflecting an 8 percent increase from the previous year's salaries for each of the respective teachers hereinabove referred to." Treated as an affirmative allegation, the Commission finds such allegation to be true excepting the accuracy of a reflection of an 8 percent increase in one contract, but also finds that attached to the four signed contracts returned to the defendant's board by members of the Association were reservations to the effect that negotiations were continuing. These reservations are not in evidence but witnesses for both parties testified that such reservations were attached and the uncontradicted testimony of the plaintiff's witness was that they were attached to those of Association members.
The Commission further finds that the plaintiff in this proceeding represents four of the five certified teachers employed by the defendant by virtue of their membership in the plaintiff organization, and that plaintiff has given proper notice in the matter provided by Section 48-813, R.R.S. 1943. It is not disputed that the Defendant is a Class I school district and the Commission so finds.
The Commission concludes that it has jurisdiction over the parties and the employees represented by the plaintiff herein by the virtue of Section 48-813, R.R.S. 1943, which provides in part: "The giving of such notice in such manner shall subject the employers, the labor organizations and the persons therein to the jurisdiction of the Commission of Industrial Relations."
The defendant's principal argument appears to be that because the defendant dealt with all of its teachers in the manner above described and that each of the teachers signified acceptance of the defendant's provision orally and later by signing written contracts under the continuing contract law (Section 79-1254, R.R.S. 1943), no industrial dispute exists and that the Commission is precluded from establishing rates of pay and conditions of employment.
The Commission has consistently held that the signing of individual teacher's contracts does not constitute a waiver of the representative relationship provided by Chapter 48, Article 8. Hastings Educational Association v. School District No. 1 , 1 C.I.R. No. 42 (1972); Orleans Education Association v. School District of Orleans , 2 C.I.R. No. 83 (1974), affirmed 193 Neb. 675, 229 N.W. 2d 172 (1975); Malcolm Education Association v. School District No. 148 , 3 C.I.R. 14 (1975); Yutan Educational Association V. the School District of Yutan , 3 C.I.R. 109 (1976).
This case differs from the foregoing cases only in that individual acceptances by the teachers of specified rates
of pay and conditions of employment resulted from negotiations with all the teachers as a group.
Section 48-837, R.R.S. 1943, provides in part as follows:
Public employees shall have the right to form, join and participate in, or to refrain from forming, joining or participating in, any employer organization of their own choosing. Public employees shall have the right to be represented by employee organizations to negotiate collectively with their public employers in the determination of their terms and conditions of employment ....
In Local No. 2088 v. Douglas County , 208 Neb. 511, 525-527, 304 N.W. 2d 368, 367-377, Supplemental Opinion 209 Neb. 597-598, 309 N.W. 2d 65 (1981), the Supreme Court condemned actions by public employers which dissuade employees from joining employer organizations and from exercising their rights to collective representation.
In this case the teachers represented by the plaintiff here did exercise their rights to form, join and participate in an organization of their own choosing and did endeavor through the plaintiff to exercise their rights to be represented by such employee organization to negotiate collectively with the defendant in determination of their terms and conditions of employment. They were unsuccessful in this regard because the School District refused to recognize the Association. There is no showing that the District's refusal stemmed from any good faith doubt that the members of the Association had chosen it to represent them in negotiations with the District board. A public employer's negotiations with its employees as a group with respect to terms and conditions of employment and the solicitations of individual acceptances where the employer refuses to recognize the employer organization chosen by those employees to represent them in such negotiation is not commensurate to the exercise of the statutory right to representation by an employee organization.
The Commission therefore concludes that the individual agreements with the teachers in this case did not preclude the Association from seeking an agreement with the District on behalf of teachers choosing it as their representative and that the Association's failure to obtain an agreement because of a refusal of recognition results in an industrial dispute. To settle such dispute the Commission may proceed to establish rates of pay and conditions of employment pursuant to Section 48-818, R.R.S. 1943, for the teachers represented by the Association.
IT IS THEREFORE ORDERED that a hearing be held herein at such time and place as shall be ordered by the Commission for the purpose of establishing rates of pay and conditions of employment pursuant to Section 48-818, R.R.S. 1943, for the certified teachers represented by the plaintiff herein.
All Judges assigned to the panel in this case concur in the Opinion and Order.
Entered October 1, 1981
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