6 CIR 209 (1982)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

ALLIANCE EDUCATION ASSOCIATION, | CASE NO. 470
An Unincorporated Association, |
|
Petitioner, |
|
v. | OPINION AND ORDER
|
THE SCHOOL DISTRICT |
OF ALLIANCE, IN THE |
STATE OF NEBRASKA, |
A Political Subdivision, |
|
Respondent. |

Appearances:

For the Petitioner: Theodore L. Kessner

Crosby, Guenzel, Davis

Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska

For the Respondent: Thomas A. Danehey

Reddish, Curtiss,

Moravek & Danehey

416 Niobrara

Alliance, Nebraska

Before: Judges Davis, Gradwohl, and Orr

DAVIS, H:

This matter came on for hearing on the Petition of Alliance Education Association (hereinafter referred to as the "Association") and the Answer of the School District of Alliance (hereinafter referred to as the "School District").

The Association requests an Order of the Commission of Industrial Relations (hereinafter referred to as "Commission" or "NCIR") directing the School District to undertake good faith negotiations with the Association on all terms and conditions of employment for the certified teachers employed by the School District for the 1982-83 contract year which are mandatory subjects of collective. The School District contends that the Commission lacks jurisdiction for the reason that the provisions of the Nebraska Teachers' Professional Negotiations Act (hereinafter referred to as "TPNA") have not been exhausted.

The Association takes the position that by virtue of the Certification Order of the Commission entered April 23, 1980, certifying the Association as the exclusive bargaining agent for the certified teachers employed by the School District, the provisions of the TPNA are not applicable to negotiations between the School District and the Association. The School District contends that not-withstanding the Certification Order of April 23, 1980, the Commission lacks jurisdiction in this matter until such time as all of the provisions of the TPNA have been exhausted without resolution of the dispute involved.

The following uncontroverted facts were offered and received at the hearing:

1. Alliance Education Association ("the Association") is a labor organization formed by the teachers employed by the School District of Alliance ("the School District") for the purpose of representing the members of a bargaining unit in negotiating and maintaining terms and conditions of employment.

2. The School District is a political subdivision of the State of Nebraska, organized as a Class III school district.

3. On April 23, 1980, the Nebraska Commission of Industrial Relations ("NCIR") entered an order certifying the Association as the exclusive collective bargaining agent of all of the certificated teachers employed by the School District, whether or not members of the Association. The order followed a representation election conducted by the NCIR pursuant to the petition of the Association seeking certification as the exclusive collective bargaining agent for the members of the bargaining unit.

4. On March 16, 1982, the Association requested that collective bargaining for terms and conditions of employment for the 1982-83 contract year commence.

5. On April 16, 1982, the School District informed the Association that it "is willing to negotiate under conditions of the Nebraska Teachers' Professional Negotiations Act those terms and conditions which are within the scope of mandatory negotiations."

6. The Association has declined to permit the School District to accept or reject matters to be negotiated as permitted by the Nebraska Teachers' Professional Negotiations Act.

7. On May 3, 1982, the School District submitted to the Association as a precondition to bargaining, an agreement that any negotiations between the parties would be conducted under the Nebraska Teachers' Professional Negotiation Act. The Association has declined to execute the submitted agreement.

8. On May 27, 1982, the Association filed its petition in the NCIR seeking an order directing the School District to enter into good faith negotiations on all mandatory subjects of collective bargaining.

9. On June 16, 1982, the School District filed its answer, claiming that the Nebraska Teachers' Professional Negotiations Act applies to negotiations between the Association and the School District notwithstanding the certification order and challenges the jurisdiction of the NCIR to hear and determine the issues raised by the Association based on the claim that the Nebraska Teacher's Professional Negotiations Act has not been exhausted.

The issue to be determined is whether the Certification Order entered by the Commission on April 23, 1980, certifying the Association as the exclusive bargaining agent for the certificated teachers employed by the School District, renders inapplicable the provisions of the TPNA with reference to the bargaining process between the Association and the School District.

The TPNA (Sections 79-1287 through 79-1295) was enacted in 1967. Its principal purpose was to empower covered school districts (Classes III, IV and V) to bargain with representatives of their certificated employees since the Supreme Court's opinion in IBEW v. City of Hastings , 179 Neb. 455, 138 N.W.2d 822 (1965) held that a public agency or governmental employer has no legal authority to bargain with a labor union in the absence of express statutory authority.

There are two limitations on the application of the provisions of the Commission of Industrial Relations Act to persons, organizations or school districts subject to the provisions of the TPNA. The first limitation is found in Section 48-810 which was amended in 1969 by LB 15. In its current form, Section 48-810 provides as follows:

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 Act, Sections 79-1287 to 79-1295, until all provisions of such act have been exhausted without resolution of the dispute involved.

In a 1971 opinion dealing with three cases: Central City Education Association v. School District of Central City, Lyons Classroom Teachers Association v. school District of Lyons, and Ashland Greenwood Education Association v. Saunders County School District No. 1 , 1 CIR Nos. 35/36/38 (March 12, 1971), the Commission reviewed the policy determinations of the Legislature with reference to the Commission's jurisdiction. In its opinion, the Commission found that "from a study of the history of the enactment of LB 15 in 1969, it appears that the Legislature intended that the parties should first pursue the provisions of the TPNA before invoking the jurisdiction of the Court of Industrial Relations." The Commission further stated that the effects of the proviso in Section 48-810 is to deny the Commission of Industrial Relations subject matter jurisdiction until the provisions of the TPNA have been exhausted without resolution of the dispute involved.

In 1973, the Nebraska Supreme Court examined the proviso found in Section 48-810 and rendered its opinion on the limitation on the Commission of Industrial Relations to hear and determine disputes involving school districts covered by the TPNA. In Sidney Education Association v. School District of Sidney , 189 Neb. 540, 203 N.W.2d 762 (1973), 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:

...Every public employee is given the right to form and be represented by an association in collective negotiation of the terms and conditions of his employment. The Court of Industrial Relations has been authorized to protect that right. 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 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.

In reaching this result and after settling out Section 79-1290 of the TPNA and Section 48-837 the Nebraska Supreme Court stated the following in reference to the limitation on the Commission to hear and determine disputes involving school districts covered by the TPNA:

It is apparent that there appears to be a conflict between some of the provisions set out above. It arises because the TPNA (section 79-1290, R.S.Supp., 1969) provides no school board shall be required to meet or confer with representatives of an organization of certificated teachers unless a majority of the board determines to recognize such organization. Section 48-837, R.S. Supp., 1969, however, provides public employees shall have the right to organize and be represented by their organization. It would appear that if the employees have the right to be represented collectively then it must be assumed that if the employer refuses to deal with the association their remedy must be in the Court of Industrial Relations.

......

The Legislature did not place any limitation or restriction upon the right to negotiate terms and conditions of employment when it amended the Court of Industrial Relations Act in 1969. It simply placed a proviso requiring exhaustion of the TPNA before the exercise of the right to invoke the jurisdiction of the Court of Industrial Relations.

189 Neb. at 544.

...What the Legislature did was give the TPNA the first opportunity to adjust any differences between certificated employees and Class III, IV, and V school districts. When the provisions of TPNA were exhausted without settlement, then the Industrial Relations Act became operative as to those school districts.

189 Neb. at 545.

Section 48-816(1), enacted in 1979, now gives the Commission authority to require good faith bargaining by school districts covered by the TPNA, but this authority is specifically conditioned upon an exhaustion of the TPNA. Section 48-816(1) provides in part that 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."

This limitation on the Commission's jurisdiction contained in Section 48-816(1) was enacted by the Nebraska Legislature in 1979 in LB 444. Using one of the principal rules of statutory construction, that the last expression of the Legislature is the clearest indication of its will, it would seem that the Nebraska Legislature, as late as 1979, is telling the Commission and all school districts covered by the Nebraska Teachers' Professional Negotiations Act that all provisions of the TPNA have to be exhausted without resolution of the dispute involved, before the Commission has jurisdiction.

So long as a dispute remains subject to resolution within the proper scope of the Nebraska Teachers' Professional Negotiations act, the Commission is without statutory jurisdiction. The Commission acquires jurisdiction if an employer refuses to recognize a teachers' association under the Nebraska Teachers' Professional Negotiations Act. Sidney Education Association v. School District of Sidney , 189 Neb. 540, 203 N.W.2d 762 (1973). The Commission also acquires jurisdiction if an employer attempts to impose impermissible conditions in proceeding under the Nebraska Teachers' Professional Negotiations act. Holdrege Education Association v. School District of Holdrege , 1 CIR No. 39 (1971). Further, if an industrial dispute is of a type not covered by the Nebraska Teachers' Professional Negotiations Act and, therefore; not capable of being settled by the application of the provisions of that act, the Commission has statutory jurisdiction to settle that industrial dispute. Alliance Education Association v. school District of Alliance , 4 CIR 154 (1980); Wynot Education Association v. School District of Wynot , 5 CIR 160 (1981); Millard Education Association v. School District of Millard , 5 CIR 447 (1982).

In the Alliance decision, finding jurisdiction to hold a secret ballot election to determine a bargaining representative under the Commission of Industrial Relations statutes, the Commission explained:

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 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.

4 CIR at 157-158.

In Gretna Education Association v. School District of Gretna , 5 CIR 327 (1981), the Commission concluded "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."

The Commission concludes that the legislative mandate expressed in Sections 48-810 and 48-816(1) together with the Commission's past decisions, dictate a dismissal of the Association's Petition. Section 48-810 R.R.S. 1943 states that the exercise of jurisdiction by the Nebraska Commission of Industrial Relations to require good faith bargaining under Section 48-816(1) R.S. Cum. Supp. 1980 and to protect employees' statutory rights pursuant to Section 48-819.01 R.S. Cum. Supp. 1980 must await exhaustion of all provisions of the Teachers' Professional Negotiations Act (Section 79-1287, et. seq. R.R.S. 1943) without resolution of the dispute involved as to disputes proceeding under the Teachers' Professional Negotiations Act.

In the case presently before the Commission, all of the provisions of the TPNA have not been exhausted. The Association requested that collective bargaining for terms and conditions of employment for the 1982-83 contract year commence. The School District informed the Association that it "is willing to negotiate under conditions of the Nebraska Teachers' Professional Negotiations Act those terms and conditions which are within the scope of mandatory negotiations." The Association declined to permit the School District to accept or reject matters to be negotiated as permitted by Section 79-1292 of the TPNA. On a later date, the School District submitted to the Association as a precondition to bargaining, an agreement that any negotiations between the parties would not be conducted under the TPNA. The Association has declined to execute the submitted agreement. The Association at this point filed its Petition with the Commission and has refused to proceed with negotiations under the provisions of the TPNA. By virtue of the TPNA not being exhausted, the Commission 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 hereby is dismissed.

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

Entered August 25, 1982.

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