5 CIR 327 (1981)


Unincorporated Association, |
Plaintiff, |
Political Subdivision, and RONALD L. |
Defendants. |


For the Plaintiff:Theodore L. Kessner

Crosby, Guenzel, Davis, Kessner & Kuester

400 Lincoln Benefit Bldg.

Lincoln, Nebraska

For the Defendant: Edwin C. Perry

Perry, Perry, Witthoff, Guthery, Haase & Gessford, P.C.

1806 First National Bank Bldg.

Lincoln, Nebraska

Before: Judges Berkheimer, Gradwohl and Davis


This matter came on for trial on the Association's Petition and the District's Answer.

The material facts are as follows:

By letter to the District dated January 29, 1981, the Association stated in part: "The Gretna Education Association continues to represent a substantial majority of the teachers employed by the School District. The Association requests that the School District continue its recognition of the Association as the negotiations representative of the teachers." The letter requested good faith negotiations for the 1981-1982 contract year as to certain listed subjects. The District responded to the Association's letter of January 29, 1981 by letter dated February 26, 1981 stating in part: "The Gretna Board of Education recognizes your association as the exclusive negotiating agent to negotiate for salaries and fringe benefits for the school district certified teaching employees except for the position of Superintendent, Assistant Superintendent, Principals, Assistant Principals, Vocational Coordinator and Athletic Director as has been the practice in the past. This was enacted by the Board of Education meeting February 16, 1981."

Thereafter the representatives of the Association and School District met on one or more occasions and negotiated with reference to terms and conditions of employment. The Association's negotiating team consisted of 6 individuals and the District's team consisted of 3 individuals. The District Superintendent of Schools Ronald Anderson who is the Chief Administrative Officer

of the District and of its Board of Education attended all negotiating sessions, not as a member of the negotiating team but in an advisory capacity and to assist in clarification of issues.

On or about June 15, 1981, the parties reached an impasse in their negotiations. Under the Teachers' Professional Negotiations Act each party then proceeded to select a fact finder and a third party fact finder was selected. The Association alleged in its Petition as originally filed that the District had failed to timely comply with the fact finding provisions of the Teacher's Professional Negotiations Act but deleted this allegation by amendment immediately prior to trial. The evidence is clear that the fact finding provisions of the TPNA were initiated but there is no evidence of termination of the fact finding process. The Commission therefore finds that fact finding pursuant to the provisions of the TPNA was in progress at the time of the trial.

Following the initiation of fact finding there were no further meetings between the negotiating teams.

During the negotiating sessions the highest base salary offered by the District was either $11,300 or $11,400. A new proposal of an $11,500 base salary was discussed by the District's Board on August 3, 1981. It was the consensus of the Board that such an offer should be made, and the Board's negotiating team directed the Superintendent to make such an offer.

August 19 was the day on which the teachers were scheduled to return for the 1980-1981 year. The District Superintendent arranged a meeting on August 18, 1981 with Linda Skow, the President of the Association and member of the Association's negotiating team. At that meeting the Superintendent informed Ms. Skow of an offer the Board of Education wanted the Association to consider. Essentially this was a base salary offer of $11,500 with increases in various types of leave days. The last offer with respect to leave days prior to impasse does not appear in the record. The Superintendent asked that Ms. Skow discuss this offer with other members of the negotiating team. On August 21, 1981 the Superintendent again met with Ms. Skow. At that meeting Ms. Skow informed the Superintendent that the Association's negotiating team had rejected the offer. The Superintendent asked Ms. Skow to find out what the problems were with the offer and that they meet again on Monday, August 24. Two meetings were held on August 24. The first was attended by the Superintendent and Ms. Skow and the second by the Superintendent, Ms. Skow and Mr. Les Tebbenkamp, President-elect of the Association and chief spokesman for the Association's negotiating team. What occurred at the first meeting is unclear, but at the second meeting the Superintendent showed Ms. Skow and Mr. Tebbenkamp a memorandum dated August 24, 1981 addressed to "All Certified Staff" from the "Superintendent's Office." The contents of this memorandum are set forth in Appendix A. The memorandum was discussed and Mr. Tebbenkamp informed the Superintendent that the negotiating team declined to take the proposal to the members of the certified teaching staff. Also on August 24 the memorandum was shown to the District's Board and the Board was made aware that such memorandum would be given to the teachers on August 25. On the morning of August 25 a copy of the August 24 memorandum was placed in the mail box of each teacher and was received by each of the teachers.

The initial issue which must be considered is the jurisdiction of the Commission. There is no dispute that the Association is a "labor organization" and that the District is an "employer" as defined in Section 48-801 R.R.S. 1943, and that the District is a Class Ill school district. The Commission so finds.

The District contends that the Commission lacks jurisdiction because the provisions of the Teacher's Professional Negotiations Act, 79-1287 et seq. R.R.S. 1943, have not been exhausted.

The Association alleges that by recognition of the Association and agreement to negotiate some terms and conditions of employment the District has undertaken a statutory duty to bargain in good faith with the Association and has failed to fulfill that duty, and that the District has interfered with, restrained and is coercing the members of the bargaining unit represented by the Association in rights granted them by law including those granted by Section 48-837, Neb. R.R.S. 1943, to be represented by the Association in collective negotiations with the District for the determination of terms and conditions of employment. The Association alleges that an industrial dispute exists as defined in Section 48-801 since there is a controversy concerning terms, tenure and conditions of employment, concerning negotiations seeking to arrange terms and conditions of employment and a refusal to discuss terms and conditions of employment in good faith.

With respect to exhaustion of the provisions of the Teachers' Professional Negotiations Act Sections 79-1287 et seq. R.R.S. 1943 (hereinafter sometimes referred to as the "TPNA"), the Association alleges: "Unless the Commission enters appropriate orders, the school district will continue its course of bad faith actions. There are no provisions in the Nebraska Teachers' Professional Negotiations Act which are applicable to the conduct of the school district and its chief administrator, therefore the provisions of that Act have been exhausted with reference to good faith bargaining."

The statutory provisions raising the TPNA as a barrier to Commission jurisdiction are in Section 48-810 R.R.S. 1943, and Section 48-816(1) R.S.Supp. 1980. Section 48-810 provides:

48-810. Commission of Industrial Relations;

jurisdiction. 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) in pertinent part provides

... 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.

Both parties point to language in Sidney Education Association v. School District of Sidney , 189 Neb. 540, 203 N.W.2d 762 (1973) to support their respective positions. In Sidney an association requested recognition and negotiations with respect to terms and conditions of employment. The school district declined to recognize the association as bargaining representative. The Commission found that the TPNA was thereby exhausted without resolution of the dispute involved and ordered the school district to undertake good faith negotiations under Article 8 Chapter 48. The Supreme Court agreed that the provisions of the TPNA had been exhausted without resolution of the dispute involved and that the Commission had acquired jurisdiction. However, because the school district was included in the TPNA and under the TPNA school districts could not be required to meet and confer with employee associations, there was no statutory authority for the Commission to enter a bargaining order. The Court said: "School districts included in TPNA cannot be required to meet or confer with employee associations. Those employees covered by the TPNA must await exhaustion of that act before invoking the [CIR] jurisdiction, but this does not deny them the right. Rather, the right remains to be exercised if satisfaction is not obtained by the exhaustion of TPNA." 189 Neb. at 549.

The above-quoted portion of Section 48-816(1) was thereafter enacted giving the Commission authority to require bargaining by school districts covered by the TPNA but the Commission's authority to enter a bargaining order was specifically conditioned upon exhaustion of the provisions of the TPNA without resolution of the dispute involved. It appears that the District's recognizing the Association as exclusive representative imposed a bargaining duty under Section 48-816(5) which provides as follows:

48-816(5) Upon receipt by an employer of a request from a labor organization to bargain on behalf of employees, the duty to engage in good faith bargaining shall arise if the labor organization has been certified by the commission or recognized by the employer as the exclusive bargaining representative for the employees in that bargaining unit.

However, the Commission's jurisdiction to enforce that bargaining duty under 48-816(1) must await exhaustion of the TPNA without resolution of the dispute involved.

In an opinion dealing with three cases Central City Education Association , Lyons Classroom Teachers Association and Ashland-Greenwood Education Association versus their respective school districts, 1 NCIR Nos. 35, 36, and 38 (Mar. 12, 1971), the associations and the districts were voluntarily negotiating on certain subjects but the school districts had declined to negotiate with respect to others. Thus, some matters included in the dispute were proceeding under the TPNA and others were not. In finding a lack of jurisdiction the Commission said: "It is also possible that the potential recourse to the Court of Industrial Relations will have a salutory effect upon the conduct of negotiations under the Negotiations Act, and that contrarywise the presence of simultaneous [Commission] orders would have a disturbing effect upon negotiations under the Negotiations Act. In any event, the policy determinations necessary to decide the present case have been clearly made by the Legislature." (6th page of Opinion last above cited.)

Here, a basic dispute exists over terms and conditions of employment, and the Association complains of the District's procedure in that dispute. The TPNA provides procedures for settling disputes over terms and conditions of employment consisting of voluntary negotiations and fact finding. Article 8 Chapter 48 provides different procedures for settlement of such disputes including the Commission's authority to require good faith bargaining under Section 48-816(1) and to deal with interference, restraint and coercion with respect to employees' rights to good faith bargaining pursuant to Section 48-819.01. The parties have negotiated voluntarily under the TPNA and are now in the TPNA fact finding process which may result in settlement of the dispute over terms and conditions of employment. As stated in Sidney: "What the legislature did was to give the TPNA the first opportunity to adjust differences between certificated employees

and Class III, IV and V school districts." 189 Neb. at 545.

The Commission concludes that the legislative mandate requires that all TPNA settlement procedures must be exhausted without resolution of the dispute involved before the Commission can acquire jurisdiction to apply settlement procedures applicable to that dispute under Article 8 Chapter 48. Here, TPNA settlement procedures remain in progress with respect to the basic dispute. The Commission therefore concludes that it lacks jurisdiction in this case.

In view of the Commission's lack of jurisdiction it expresses no opinion as to whether or not the District has failed in its bargaining duty or has coerced teachers or restrained or interfered with their rights under Article 8 Chapter 48.

IT IS THEREFORE ORDERED that this case be and it hereby is dismissed.

All judges assigned to the panel in this case join in the foregoing Opinion and Order.

Entered December 4, 1981.




Gretna, Nebraska 68028

August 24, 1981

TO: All Certified Staff

SUBJECT: Salary Status

Dear Staff:

Your 1981-82 salary will be the same as the 1980-81 until there is a final determination by the negotiations process, fact finding or the C.I.R.

As you know, we are presently involved in fact finding. For your information, the Board's last informal offer was:

Base - $11,500 - Salary schedule as proposed is attached. ($1,000 increase on base)

Other changes:

2 additional sick leave days

7 days to 9 days accumulative to 30

2 personal leave days -separated from sick leave, but defined as in the 1980-81 agreement

2 bereavement leave days-for immediate family. This is new; the 1980-81 agreement had no provisions for bereavement leave persay.

L.T.D. - 45 days instead of 30 - this correlates with the 30 days accumulated sick leave.

Association leave-clarified and agreed on.

Grievance procedure-rewritten and agreed on.

FROM: Superintendent's Office