6 CIR 352 (1982)


Plaintiff, |
v. | ORDER
Unincorporated Association, |
Defendant. |


For the Plaintiff: Edwin C. Perry

1806 First National Bank

Lincoln, Nebraska

For the Defendant: Theodore L. Kessner

Mark McGuire

Crosby, Guenzel, Davis, Kessner & Kuester 400 Lincoln Benefit Building

Lincoln, Nebraska

Before: Judges Gradwohl, Berkheimer and Orr


This matter came on for hearing on November 10, 1982, on the portion of the Association's Answer filed October 28, 1982, requesting that the Commission order further bargaining and the related portion of the School District's Reply filed November 1, 1982. The School District was represented by its attorney, Edwin C. Perry. The Association was represented by its attorneys, Theodore L. Kessner and Mark D. McGuire.

The controlling statutory provision is Section 48-816(1) which states:

"After a petition has been filed under the provisions of section 48-811, the clerk shall immediately notify the members of the Commission of Industrial Relations, which shall promptly take such preliminary proceedings as may be necessary to insure a prompt hearing and speedy adjudication of the industrial dispute. The commission shall have power and authority upon its own initiative or upon request of a party to the dispute to make such temporary findings and orders as may be necessary to preserve and protect the status of the parties, property and public interest involved, pending final determination of the issues. In the event of an industrial dispute between an employer and employee or a labor organization when such employer and employee or labor organization have failed or refused to bargain in good faith concerning the matters in dispute, the commission may order such bargaining to be begun or resumed, as the case may be, and may make any such order or orders as may be appropriate to govern the situation pending such bargaining. 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. The commission may require the parties to an industrial dispute to submit to mediation or fact-finding, and may appoint mediators or fact-finders for this purpose. Such orders for bargaining, mediation, or fact-finding may be issued at any time during the pendency of an action to resolve an industrial dispute. To bargain in good faith shall mean the performance of the mutual obligation of the employer and the labor organization to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession."

Section 48-810 provides that "All industrial disputes ... shall be settled by invoking the jurisdiction of the Commission of Industrial Relations .. . ." Section 48-813 adds that "When a petition is filed to resolve an industrial dispute, a hearing shall be held within sixty days from the date of filing thereof, and an order made and entered thereon within thirty days after such hearing."

The Petition alleges and the Answer admits that the parties commenced negotiations on or about February 16, 1982; that the parties met and negotiated on a number of occasions; and that the provisions of the Nebraska Teachers' Professional Negotiations Act (Section 79-1287 to 79-1295) were exhausted without resolution of the dispute on August 27, 1982, when the Association declined to appoint a fact finder and to proceed with fact-finding under the Nebraska Teachers' Professional Negotiations Act.

The Petition was filed September 24, 1982, seeking the establishment of wages and other terms and conditions of employment for certificated teachers for the 1982-1983 contract year. On the same day, an Order was entered by the Commission assigning a Panel and Hearing Judge and an Order entered by the Hearing Judge for a Conference with Counsel for both parties to be held on September 30, 1982. A Report of Conference filed September 30, 1982, states that "It was determined that no preliminary or temporary Order needs to be issued by the Commission at this time."

Paragraphs 2, 3 and 4 of the Association's Answer allege:

"2. The items concerning which negotiations and mediation have been conducted between the parties have been limited by the unilateral action of the School District to those items which it desired to negotiate.

"3. In addition to the items in dispute as set forth in the School District's Petition, the Association continues to seek good faith negotiations of the following subjects, all of which the School District refuses to negotiate:

"(A)Compensation for unused sick leave.

"(B)Rateable payment of extra standard pay.

"(C)Transfer rights.

"(D)Procedure for receipt and response to teacher appraisal.

"(E) Grievance procedure.

"(F) Overload pay-compensation for extra teaching


"(G) Duty free planning time.

"(H) Compensation for parent conferences and workshops after normal work day.

"(I) School calendar

"Each of the foregoing items concerning which the Association seeks negotiation is a mandatory subject of bargaining.

"4. The industrial dispute between the Association and School District includes the additional mandatory subjects of bargaining since there is a controversy concerning negotiations seeking to arrange terms and conditions of employment and a refusal to discuss terms and conditions of employment."

The Association's main Point is that it has been denied a right to bargain in good faith with the School District concerning mandatory subjects of bargaining under the Nebraska Commission of Industrial Relations statutes. It recognized that the School District may have had a right to exclude unilaterally certain subjects from negotiations under the Nebraska Teacher's Professional Negotiations Act and contends that the School District did, in fact, refuse to bargain in good faith concerning some mandatory subjects. The Association claims that the School District's position was that it would bargain only on economic issues and that, for practical purposes, it treated the noneconomic issues as non-negotiable. It stressed that the best procedure under a public employment bargaining law is for the parties to settle their differences through negotiations at the bargaining table and urged the Commission to order and supervise (directly or indirectly) meaningful negotiations between the parties on all mandatory subjects of bargaining before making a determination under Section 48-818 in this matter.

Paragraph 3 of the School District's Reply:

"Alleges that the School District representatives at the negotiation table discussed and considered all of the items set forth in paragraph 3 (A), (C), (D), (E), (F), (G), (H), and (I) of defendant's Answer. Further alleges that payment of extra standard pay was discussed and considered at the bargaining table. Plaintiff is not certain as to what is meant by the phrase 'Rateable payment of extra standard pay' but does allege that plaintiff discussed all matters concerning extra standard pay that were raised at any stage during the negotiations by defendant. Further, plaintiff alleges that defendant and its representatives were specifically advised at several times through the negotiation process that the Board of Education would bargain with regard to all terms and conditions of employment which do not involve predominantly matters of educational policy, statutory duty or management prerogatives and that to the extent requested by defendant, plaintiff's representatives at the bargaining table did discuss and consider all such items."

Paragraph 4 of the Reply alleges:

"That to the extent that items which are the proper subject of mandatory negotiation were not resolved at the negotiation table, the same should be and are the proper subject for a determination by the Commission under Section 48-818, R.R.S. Nebraska."

The School District's position is that some of the items on which the Association requested negotiations were not mandatory subjects (for example, binding arbitration under the grievance procedures; transfer rights; school calendar); that the School District was willing to discuss each item presented by the Association as a bargaining proposal; that discussions were held on each item presented by the Association; that a negative response to a bargaining proposal is not, by itself, a refusal to bargain in good faith, as the Commission stated in City of Omaha v. Omaha Police Union , 5 CIR 103, 106 (1981); that even in some situations where the School District initially took a negative position, its response was later modified and a tentative agreement reached on the issue; and that, in the final analysis, this matter is not a "refusal to bargain case" but, rather, a "refusal to agree case".

The Order entered November 2, 1982, setting the bargaining order dispute for hearing also set the wage determination dispute for trial on November 23, 1982. In an Order entered September 17, 1982, in Board of Regents v. American Association of University Professors (Case No. 474), the Commission stated "The Commission is directed under Nebraska Revised Statutes Section 48-813 to resolve the industrial dispute in an expedient manner. In addition to the statutory directive, public policy dictates that the industrial dispute be resolved as quickly as possible, establishing wages and conditions of employment." Recognizing, as the Association argues, that there is also a public policy for encouraging good faith negotiations and attempts to arrive at a voluntary settlement of industrial disputes at the bargaining table, we determine, nevertheless, from the evidence as to the history of the negotiations prior to filing the Petition in the Commission of Industrial Relations, the nature and extent of the issues remaining unsettled, the course of the proceedings in the Commission of Industrial Relations, and the applicable statutes (particularly those calling for an expeditious settlement of the industrial dispute by the Commission) that further bargaining should not be ordered in this matter.

Accordingly, it is hereby Ordered that the Association's request for an order for further bargaining be denied.

It is also ordered that a Pretrial Conference for the purpose of preparing the case for trial shall be held on Wednesday, November 17, 1982, at 3:00 p.m. in the Commission Office, 5th Floor, Nebraska State Office Building, 301 Centennial Mall South, Lincoln, Nebraska. The Pretrial Conference shall be conducted in accordance with Rule 15A, as amended, a copy of which is appended hereto, and the parties shall fully comply with the provisions set forth therein.

The trial of the wage determination dispute pursuant to the provisions of Section 48-818 will be held as previously scheduled.

All of the Judges assigned to the Panel in this matter join in the entry of this Order.

Filed November 12, 1982