| CENTRAL NEBRASKA EDUCATION | | | CASE NO. 475 |
| ASSOCIATION, An Unincorporated | | | |
| Association, | | | |
| | | ||
| Petitioner, | | | |
| | | ||
| v. | | | ORDER |
| | | ||
| CENTRAL TECHNICAL COMMUNITY | | | |
| COLLEGE AREA, A Political | | | |
| Subdivision of the State of | | | |
| Nebraska. | | | |
| | | ||
| Respondent. | | |
Appearances:
For the Association: Theodore L. Kessner
Attorney
Crosby, Guenzel, Davis,
Kessner & Kuester
Lincoln, Nebraska
For the College: L. Bruce Wright
Attorney
Cline, Williams, Wright,
Johnson & Oldfather
Lincoln, Nebraska
Before: Judges Kratz, Gradwohl, and Berkheimer.
GRADWOHL, J:
This matter comes on for a determination on the portion of the College's Answer asking "that this matter be dismissed for the reason that the Commission lacks jurisdiction over the subject matter of this dispute" and the College's Motion For Summary Judgment filed August 16, 1982. The parties filed a Joint Stipulation and Motion on August 20, 1982. The Joint Stipulation is approved and received in evidence. The Joint Motion to treat the issue of subject matter jurisdiction as submitted on the basis of the stipulated facts is granted.
The Joint Stipulation states:
1. That the Central Nebraska Education Association is an unincorporated association formed by the full-time faculty employed by Central Technical Community College Area for the purpose of representation of said full-time faculty employees in all matters of employment relations;
2. That the Association is a labor organization as that term is defined by §48-801 R.R.S. and has the usual place of conducting its activity in Adams County, Nebraska;
3. That the College is an 'employer' as that term is defined by §48-801 R.R.S. and is a political subdivision of the State of Nebraska, for and pursuant to the provisions of §79-2636 et seq., R.R.S.;
4. That by the Order of the Commission of Industrial Relations dated June 2, 1975, the Association has been certified as the exclusive bargaining agent for those full-time faculty employees of the College who fall within the bargaining unit defined by the Commission in Case No. 132 Rep. Doc. No. 30;
5. That the bargaining unit represented by the Association pursuant to said certification Order includes teaching employees with the job title 'nurse'"
6. That as a result of negotiations undertaken by the respective parties, the Association and the College entered into a collective bargaining agreement setting forth the terms and conditions of employment agreed to in the course of negotiations for unit members employed by the College during the 1981-82 contract year. A true and correct copy of that agreement is attached hereto as Exhibit 'A' and incorporated herein by specific reference;
7. That the Association has now raised a question as to whether or not those members of the bargaining unit who hold the job title 'nurse,' are being paid for the 1981-82 contract year in accord with the terms of the collective bargaining agreement;
8. That prior to the filing of the instant case, a member of the bargaining unit and an employee of the College filed a grievance under Step Two of the contractual grievances procedure questioning whether or not salaries being paid to 'nurses' violated the negotiated agreement. A copy of that grievance is attached hereto as Exhibit 'B' and is incorporated herein by specific reference;
9. That said grievance was rejected by the campus president by letter dated March 26, 1982. A copy of said letter is attached hereto as Exhibit 'C' and incorporated herein by reference;
10. That subsequently on April 15, 1982, a Mr. David Fulton wrote Mr. Ron Krejci, Chairman of the Board of Governors, Central Community College, requesting a written clarification in regard to Mr. Tyson's response;
11. That the Association has not made a formal demand on the College to negotiate in regard to the issue of whether or not salaries paid to 'nurses' for the 1981-82 contract year are being paid in violation of the collective bargaining agreement by and between the parties.
The Association's claim is plead in its Petition as follows:
7. Notwithstanding the express contractual agreement between the Association and College concerning the salaries to be paid to all members of the bargaining unit which included the full time teaching employees with the job title 'nurse,' the College has independently and arbitrarily paid full-time teaching employees with the job title 'nurse' a sum of money for salary in excess of that stated in the collective bargaining agreement.
8. The Association has made repeated demands upon the College that it comply with the terms and provisions of the collective bargaining agreement for the 1981-82 contract year.
9. Section 48-819.01 R.R.S. provides that where a public employer interferes with, restrains or coerces its public employees in the exercise of rights granted to them by Article 8, Chapter 48, the Commission has the power to make findings and enter temporary and permanent orders as are necessary to provide adequate remedies to effectuate the public policy of the State of Nebraska and to resolve the dispute.
10. By its action of violating the terms and provisions of the 1981-82 collective bargaining agreement, the College has interfered with, restrained, and is coercing the members of the bargaining unit represented by the Association and the rights granted to them by applicable law, including those granted by Section 48-838 R.R.S. which permits the members of the bargaining unit to be represented by the Association in the collective negotiation with the College for the determination of terms and conditions of employment.
11. The public policy of this State is that public employers and representatives of their employees should enter into good faith negotiations concerning the resolution of terms and conditions of employment and that such negotiations, where successful, should result in a contract establishing terms and conditions of employment for the members of the bargaining unit. By its actions, the College is violating the policy of this State.
12. Unless the Commission enters appropriate orders, the College will continue to violate the terms and provisions of the 1981-82 collective bargaining agreement and thereby perform unfair and unlawful acts relating to the full-time teaching employees and the Association.
The Association's Brief argues:
We anticipate the College will rely on the Supreme Court's decision in Saltz v. School district of Norfolk , 208 Neb. 740, 305 N.W.2d 635 (1981), wherein the Court held that 'once an agreement is reached and a subsequent breach is alleged to have occurred, the parties are required to litigate their dispute in a competent court having jurisdiction of the matter.
The Saltz decision followed Transport Workers v. Transport Authority , 205 Neb. 26, 286 N.W.2d 102 (1979).
The Saltz and Transport Workers decisions stand for a single proposition - the CIR lacks jurisdiction to interpret and apply terms and conditions of a collective bargaining agreement - an action for a breach of contract must be brought in a court of general jurisdiction.
By its petition in this matter, the Association does not seek any contract relief. It is a given fact that the CIR cannot interpret the collectively bargained agreement between the Association and College and declare a remedy if the contract was in fact breached. The Association seeks a finding that the College is guilty of an unlawful act by reason of its failure to pay the nurses according to the agreement.
Section 48-819.01 requires the CIR to enter an appropriate order if it finds that the College has violated the provisions of Article 8, Chapter 48, or interfered with the rights of the employees who are a member of the bargaining unit. It is our position that if the College has not paid the nurses according to the collectively bargained agreement, it has violated the provisions of Section 48-837 which permit the employees to be represented by the Association, their certified collective bargaining agent. The CIR is the only agency of state government charged with carrying out the public policy concerning harmony in public sector labor relations. Only the CIR can make a declaration of an unfair or unlawful practice by a public employer. It must exercise its jurisdiction.
The Association does not expect the CIR to order a change in the rates of pay for nurses. It does expect the CIR to tell the College that it has engaged in an unlawful practice.
The College's response set out in its Brief is:
Although the Petitioner in the instant case has gone to some length to characterize its cause of action as an unfair labor practice, the undeniable fact is that the essential cause of action here is identical to that raised in Transport Workers of America v. Transport Authority of the City of Omaha , 205 Neb. 26, 286 N.W.2d 102 (1979), where the Supreme Court in holding that the Commission lacked jurisdiction over breach of contract cases found that:
'Simply stated, the dispute involved in this case was a question of whether MAT had breached its contract with Union, and if so, what damages were due and owing to the alleged injured parties by reason of the breach. Id. at p. 29.'
Simply stated, the dispute involved in Petitioner's cause of action is the question of whether or not the Association breached an existing collective bargaining agreement by paying teaching employees with the job title of 'nurse' salaries in excess of those required by the contract and, if so, what may be necessary or appropriate to remedy the alleged breach. This is clearly an action for breach of contract and is expressly alleged to be such by the Petitioner in Paragraph 12 of the Petition, which states:
'12. Unless the Commission enters appropriate Orders, the College will continue to violate the terms and provisions of the 1981-82 collective bargaining agreement....'
Under the circumstance, the precedent established in the Transport Workers of America case, supra , and subsequently followed in State College Education Association v. Board of Trustees of the Nebraska State Colleges , 205 Neb. 107, 286 N.W.2d 433 (1979), Saltz v. School District of Norfolk , 208 Neb. 740, 305 N.W.2d 635, is controlling. The Commission does not have subject matter jurisdiction of the instant case.
It should be noted that the subsequent adoption of §48-819.01 R.R.S. has done nothing to expand the subject matter jurisdiction of the Commission in a way which would allow it to assume jurisdiction over this case. In Transport Workers of America, supra , it was the nature of the cause of action and not the remedy sought or its effect on employee rights which was determinative.
We are persuaded that the position of the College is the proper interpretation of the Transport Workers, State College Education Association , and Saltz decision of the Nebraska Supreme Court. The crux of the Association's claim is breach of contract. While the Association alleges a violation of Section 48-819.01, the violation claimed is that by breaching the collective bargaining agreement, the College has thereby violated Section 48-819.01. We agree with the College that the enactment of Section 48-819.01 did not enlarge the subject matter jurisdiction of the Commission of Industrial Relations but merely added to the power exercisable by the Commission within the area of its subject matter jurisdiction.
The Transport Workers decision held:
It appears to us that the Act has not in any manner attempted to grant the CIR powers [in the sense of subject matter jurisdiction] to resolve breach of contract cases even if the breach concerns itself with terms, tenure, or conditions of employment. Once an agreement is reached and a subsequent breach is alleged to have occurred, the parties are required to litigate their dispute in a competent court having jurisdiction of the matter. 205 Neb. at 33-34.
We are required in this situation to decide nothing more than that a breach of a collective bargaining agreement is not, by itself, a prohibited practice under the Nebraska Commission of Industrial Relations statutes. This is not a situation in which the claim presents both an alleged breach of a collective bargaining agreement and the existence of an industrial dispute separately within the subject jurisdiction of the Commission. Similarly, this is not a situation in which it is necessary for the Commission to interpret the terms of a collective bargaining agreement in order to settle an industrial dispute otherwise within the subject matter jurisdiction of the Commission. It is also not necessary in this proceeding to consider the issue raised by the College concerning whether the Legislature could in any circumstances statutorily vest the Commission with grievance or breach of contract jurisdiction (such as within the Nebraska Constitutional authority of Article XV, Section 9, operating outside of the provisions of Article II, the Distribution of Powers Article, and the portions of the Constitution to which Article II is applicable). It is clear that the statutory provisions of Chapter 48, Article 8, as definitely interpreted in the Transport Workers, State College Education Association , and Saltz decisions require the parties to litigate their disputes concerning alleged breaches of collective bargaining agreements in those Nebraska courts having general contract jurisdiction.
It is, therefore, Ordered that the Petition of the Central Nebraska Education Association herein be dismissed.
All Judges assigned to the panel in this matter join in the entry of this Order.
Filed September 1, 1982.
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