|GRETNA EDUCATION|||||CASE NO. 461|
|ASSOCIATION, An Unincorporated||||
|v.|||||OPINION AND ORDER|
|THE SCHOOL DISTRICT||||
|OF GRETNA, IN THE||||
|COUNTY OF SARPY, IN||||
|THE STATE OF NEBRASKA,||||
|Also Known As GRETNA||||
|PUBLIC SCHOOLS, A||||
|Political Subdivision, and||||
|RONALD L. ANDERSON,||||
For the Petitioner: Theodore L. Kessner
Crosby, Guenzel, Davis,
Kessner & Kuester
400 Lincoln Benefit Building
For the Respondent: Edwin C. Perry
Perry, Perry, Witthoff,
Guthery, Haase & Gessford, P.C.
1806 First National Bank Building
Lincoln, Nebraska 68508
Before: Judges Berkheimer, Kratz and Orr.
BER KHEIMER, R.:
Hearing was held in this proceeding brought by Gretna Education Association alleging that the defendants interfered with, restrained and coerced the members of the bargaining unit represented by the Association in the rights granted to them by applicable law, including those granted by Section 48-837 R.R.S. 1943, which permits the members of the bargaining unit to be represented by the Association in the collective negotiation with the defendant School District for the determination of terms and conditions of employment for the 1981-83 contract year. The Association also alleged that acts of defendant Anderson constituted "bad faith" and that the District failed to fulfill its obligation to bargain in good faith.
With one exception this case presents the identical evidence considered by the Commission in Case No. 429, Gretna Education Association v. School District of Gretna , 5 CIR 327 (1981). In the opinion and order in that case which was introduced as an exhibit in this case, the Commission found the following facts which are adopted and found to be facts in this case.
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 exception to the identity of evidence in the two cases is additional undisputed evidence in this case that on February 3, 1982, the Association and the District entered into a collective bargaining agreement as to wages and terms and conditions of employment for the 1981-1982 school year and the Commission so finds.
In addition to denying interference, restraint and coercion, acts in bad faith, and failure to bargain in good faith, the defendants deny the existence of an industrial dispute and allege that this matter was fully determined in Case No. 429 involving the same parties and the same alleged actions; that the entire industrial dispute between the parties was resolved by the parties when wages and terms and conditions of employment were determined between the plaintiff and the School District under the auspices of the Nebraska Teachers' Professional Negotiations Act and that therefore this Court has no jurisdiction; and that the plaintiff's claims are now moot.
As to this matter having been fully determined in Case No. 429, it is clear from the opinion and order in that case that it was dismissed for a then lack of subject matter jurisdiction because of ongoing procedures under the Teachers' Professional Negotiations act (Section 79-1287 et seq. R.R.S. 1943) herein referred to as the TPNA, with no decision on the merits. Section 40-810 R.R.S. 1943 provides that the Commission has no jurisdiction over persons, organization or school districts subject to the TPNA "until all provisions of such act have been exhausted without resolution of the dispute involved." the parties have now gone as far as the TPNA can take them and therefore all provisions of the TPNA have been exhausted, but that is not the whole answer since the other jurisdictional prerequisite is that exhaustion must have been without resolution of the dispute involved. Our understanding of the defendants' position is that the dispute was resolved under the TPNA provisions and therefore Commission jurisdiction remains lacking.
In the Commission's opinion in Case No. 429, the Commission noted that the basic dispute was over terms and conditions of employment, that the Association was also complaining of the District's procedures in that dispute, and that the fact finding then in progress might result in "settlement of the dispute over terms and conditions of employment." Settlement of the dispute over terms and conditions of employment has occurred but, at least according to the plaintiff, no settlement of the dispute over the District's negotiation procedures has occurred, and the Commission finds no language in the collective bargaining agreement between the parties reflecting any such settlement.
Before reaching the question of the effect of the bargaining agreement, a preliminary issue to be addressed is whether the Commission has jurisdiction to find, and if found to remedy pursuant to Section 48-819.01 R.S. Cum. Supp. 1980, violations of Chapter 48 and interference, restraint and coercion by acts which occurred during the TPNA process. Section 48-819.01 provides as follows:
Whenever it is alleged that a party to an industrial dispute has engaged in an act which is in violation of any of the provisions of sections 48-801 to 48-838, or which interferes with, restrains, or coerces employees in the exercise of the rights provided in sections 48-801 to 48-838, the commission shall have the power and authority to make such findings and to enter such temporary or permanent orders as the commission may find necessary to provide adequate remedies to the injured party or parties, to effectuate the public policy enunciated in section 48-802, and to resolve the dispute.
In Sidney Education Association v. School District , 189 Neb. 540, 203 N.W.2d 762 (1973), the Supreme Court stated:
The Legislature chose to let the machinery for permissive negotiation for Class III, IV, and V school districts established by TPNA stand, but clearly, by amending the Court of Industrial Relations Act without repealing TPNA, it did not intend to deny the teachers employed by those school districts the rights granted to all other public employees....
189 Neb. at 545.
...Section 48-837, R.S. Supp., 1969, enacted in 1969, unequivocally grants teachers the right to negotiate collectively through their association. District, by its action prevents that representation and prevents negotiation on terms and conditions of employment. To construe the statutes to deny employees of the classes involved remedies afforded to all other public employees would raise a question as to the constitutionality of the act.
189 Neb. at 546.
... Those employees covered by the TPNA must await exhaustion of that act before invoking the court's jurisdiction, but this does not deny them the right. Rather, the right remains to be exercised if satisfaction has not been obtained by the exhaustion of TPNA.
189 Neb. at 549.
The Commission concludes that teachers subject to the TPNA have the rights granted to all other public employees by Sections 48-801 to 48-838 and that disputes concerning violations of those sections and interference, restraint or coercion remediable under Section 48-819.01 which occurred during TPNA procedures may survive exhaustion of the TPNA provisions giving the Commission jurisdiction to settle such disputes.
It should be pointed out, however, that the statutory provisions governing TPNA negotiations are quite different than Chapter 48 provisions. Conduct expressly or by implication permitted as a part of TPNA negotiations may be prohibited by Chapter 48 provisions. The purpose of postponement of Commission jurisdiction is to give the TPNA the first opportunity to adjust differences. See Sidney, supra at 189 Neb. at p. 545. This purpose would be frustrated if an employer knows that despite its scrupulous adherence to prescribed TPNA procedures it may sometime be subject to a Commission order under 48-819.01 because of that adherence to TPNA procedures. Of course, if the employer persists in such conduct after exhaustion of the TPNA provisions or such conduct itself exhausts TPNA, the Commission has jurisdiction to order remedies. In order to accommodate both TPNA and Chapter 48 the Commission concludes that the following rules should apply.
Whenever the provisions of the TPNA have been exhausted, the Commission has subject matter jurisdiction to settle an unresolved dispute regarding alleged violations of Sections 48-801 to 48-838 or interference, restraint or coercion remediable under Section 48-819.01. A dispute regarding conduct occurring during the TPNA process which would otherwise constitute a Chapter 48 violation or interference, restraint or coercion remediable under Section 48-819.01 but which is expressly or implicitly permitted by the provisions of the TPNA will be the basis of an order under Section 48-819.01 only if such conduct persists or is repeated after exhaustion of TPNA provisions.
The next question is whether the entry into a collective bargaining agreement concerning wages and terms and conditions of employment through the TPNA process, in and of itself (a) resolves disputes over acts occurring during the TPNA process, (b) operates as a waiver by employees of the right to seek remedies pursuant to Section 48-819.01 for such acts, or (c) renders such disputes moot. The Commission concludes that mere entry into such an agreement does not necessarily have any of these effects. Strong economic forces motivate early settlements of disputes regarding wages and terms and conditions of employment. Public policy as expressed in Section 48-802 R.R.S. 1943 with respect to "continuous, uninterrupted and proper functioning of government service," and the public policy of TPNA (Section 79-1287) "to promote the improvement of personnel management and relations with certified employees within the public school districts of the state" would not support a rule requiring pressing economic issues to remain unresolved under the TPNA in order to preserve remedies for violations of Chapter 48 provisions or for interference, restraint or coercion of employees in the exercise of their Chapter 48 rights.
There may be disputes which by their very nature are obviously merged into and resolved by a collective bargaining agreement. In other instances the effect of misconduct of a party may, because of the agreement, fade into insignificance. On the other hand, misconduct may continue to affect the relationship of an organization with its employees to its and their detriment or the ability of an organization to effectively represent employees thereby calling for Section 48-819.01 remedies.
The Commission here finds that the dispute survives the agreement and that the Commission has jurisdiction to consider its merits.
In the August 24, 1981 memorandum (Appendix A) Superintendent Anderson described the terms summarized in the memorandum as being "the Board's last informal offer." The Association's allegations are:
The School District and Ronald L. Anderson knew at the time that the memorandum was sent to all of the individual teachers that no such offer had been made by the School District to the Association. The act of the school District and Ronald L.Anderson constitutes bad faith.
By its action of contacting the members of the bargaining unit and misinforming them concerning the School District's last offer at the bargaining table, the School District has interfered with, restrained and coerced the members of the bargaining unit represented by the Association and the rights granted to them by applicable law, including those granted by Section 48-837 R.R.S., which permits the members of the bargaining unit to be represented by the Association in the collective negotiation with the School District for the determination of terms and conditions of employment for the 1981-82 contract year.
Additionally, the Association alleges a failure by the District to fulfill its obligation to bargain in good faith.
The evidence shows and the Commission finds that Superintendent Anderson was authorized by the District Board to do what he did. It is true that no one on behalf of the District directly communicated the proposal to all members of the Association's negotiating team. It is likewise true that the District's proposal was not made "at the bargaining table." However, Ms. Skow, the Association's President and a negotiating team member, having on August 18 been informed of the substance of the proposal, responded on August 21 that the Association's negotiating team had rejected the proposal. On August 24 Mr. Tebbenkamp, President elect of the Association and its negotiating team's chief spokesman, confirmed that this was the team's position. The Commission finds that Superintendent Anderson was entitled to assume that the proposal had reached and had been considered by the Association's team. In neither this case nor in the prior case is there evidence contradicting the truth of Ms. Skow's and Mr. Tebbenkamp's statements to Mr. Anderson with respect to the Association's negotiating team having received the proposal and acted upon it. The Commission finds that Ms. Skow and Mr. Tebbenkamp by virtue of their positions were speaking on behalf of the Association in their statements to Mr. Anderson, and on the basis of Mr. Anderson's testimony as to those statements, the Commission finds that the Association's negotiating team received and acted upon the District's proposal as if made at the bargaining table. There is no evidence that any member of the bargaining unit was in fact misled by the memorandum or of any actual adverse effect on the plaintiff or unit members or on their relationship.
The Commission finds that Superintendent Anderson's August 24, 1981 memo did not misinform the teachers and that Superintendent Anderson did not act in bad faith. The Commission further finds and concludes that nothing in the August 24, 1981 memorandum restrained or coerced bargaining unit employees in the exercise of their rights provided in Sections 48-801 to 48-838, and that the August 24 memorandum having been delivered during an impasse in negotiations between the District and the Association, did not interfere with organizational, representational or other Chapter 48 rights of the unit employees. The District in delivering the August 24 memorandum to the teachers did not breach or fail to fulfill any bargaining obligations. These findings and conclusions are in accordance with decisions interpreting the National Labor Relations Act which the Commission finds helpful but not controlling. See NLRB v. Movie Star Inc. , 361 F.2d 346 (1966) and Semperit Pacific, Inc. , 237 NLRB No. 76 (1978).
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 entry of this opinion and order.
Filed July 8, 1982.
August 24, 1981
TO: All Certified Staff
SUBJECT: Salary Status
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)
2 additional sick leaves 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.