6 CIR 358 (1982)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Appearances:

For the Plaintiff: Theodore L. Kessner

Crosby, Guenzel, Davis, Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska

For the Defendant: Charles W. Hastings

P. 0. Box 1044

Hastings, Nebraska

Before: Judges Kratz, Gradwohl and Davis

GRADWOHL, J:

The Association seeks to become the certified exclusive bargaining representative under the Provisions of Section 48-838 for teachers employed by the School District except administrative employees. The Clerk's Report To The Commission filed October 21, 1982, states that the Association has made the sufficient showing of interest required to entitle it to an election ordered by the Commission.

The School District adopted a resolution recognizing the Association as the organization representing certificated teachers employed by the School District for the purpose of negotiations pursuant to the Nebraska Teachers' Professional Negotiations Act for the 1982-1983 contract year. The School District and Association entered into an Agreement under which "The School District has recognized for a period of one (1) year from March 8, 1982, through March 7, 1983, the Association as the exclusive collective bargaining representative of the certificated teachers employed by the School District pursuant to the provisions of the Professionals Negotiations Act, Nebraska Statutes §79-1287, et. seq. (Reissue 1976)." Following a failure of the parties to arrive at an agreement on wages and conditions of employment for the 1982-1983 contract year pursuant to that Agreement, the Association filed a proceeding in the Commission to determine wages and conditions of employment pursuant to Section 48-818 for the 1982-1983 contract year and the Commission did so in an Order entered November 9, 1982 (Case No. 479).

The School District's Answer herein raises three affirmative

defenses: (1) that the filing of the petition on October 5, 1982, violates Rule 4E(2)(d) of the Commission's Rules in that it was filed 153 days prior to the expiration of an existing agreement between the parties; (2) that the Commission lacks subject matter jurisdiction under Section 48-810 at this time since the Association has not requested and been refused recognition under the Nebraska Teachers' Professional Negotiations Act; and (3) that an election and certification of the Association as exclusive bargaining representative would constitute an implied repeal of the Nebraska Teachers' Professional Negotiations Act and would be contrary to the provisions of the Nebraska Teachers' Professional Negotiations Act.

Several recent decisions of the Commission, two of which are

presently on appeal to the Supreme Court, have extensively considered the issues raised by the School District's affirmative defenses and have decided each of them adversely to the School District's position in this matter. Lincoln Education Association v. School District of Lincoln , 6 CIR 51 (1982) (appeal pending in Nebraska Supreme Court, No. 82-424); Millard Education Association v. School District of Millard , 5 CIR 447 (March 26, 1982) (appeal pending in Nebraska Supreme Court, No. 82-463); Sidney Educators' Association v. School District of Sidney , 5 CIR 408 (1982); Wynot Education Association v. School District of Wynot , 5 CIR 160 (1981); Alliance Education Association v. School District of Alliance , 4 CIR 154 (1980).

With respect to the subject matter jurisdiction issue, the Commission stated in its Millard decision (5 CIR at 450-451):

"The facts relied upon [by] the Respondent in asserting lack of jurisdiction because of absence of an industrial dispute and nonexhaustion of TPNA procedures are essentially the same and are not in dispute. The evidence is to the effect and the Commission finds that Petitioner has not requested recognition by the District for the 1982-1983 year; that for the past three years at least, Petitioner has requested recognition as a negotiation representative of the teachers and that the Respondent pursuant to resolutions of its Board has recognized Petitioner as a representative for past years. Respondent is a school district to which the TPNA is applicable.

"On the question of the existence of a dispute, the District argues that to create a dispute there must be a request for recognition and a denial of that request or evidence that, given the history of the relations between the parties, a request for recognition would be futile. In two recent cases the Commission, has ordered an election in instances where teachers organizations had neither requested nor had been refused recognition. In Alliance Education Association v. School District of Alliance , 4 CIR 154 (1980), the Commission ordered an election not based on any request for and refusal of recognition. The Commission said:

'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. 4 CIR at 157.'

"The Respondent would distinguish the Alliance case on the ground that evidence in that case indicated that a demand for recognition would have been futile and that such futility was discussed by a Petitioner's counsel and the hearing judge in a colloquy at the hearing. However, the three-judge panel in that case in its opinion and order made no finding regarding the futility of a request for recognition, and the opinion and order does not reflect any necessity for a request or refusal as a prerequisite to jurisdiction.

"In Sidney Education Association v. School District of Sidney , 5 CIR 408 (1982), the Commission entered an election order while a collective bargaining agreement was in effect, there having been no request for recognition for negotiation for the following contract year."

Similarly, in Lincoln Education Association v. School District of Lincoln, the Commission stated (6 CIR at 53-56):

"Pursuant to the collective bargaining agreement between the Petitioner and Respondent, the Respondent has and continues to voluntarily recognize Petitioner as the exclusive bargaining representative of the Respondent's certificated staff except for school administrators and substitute teachers. Under the terms of the collective bargaining agreement such voluntary recognition continues in effect from year to year unless changed pursuant to provisions of said collective bargaining agreement. For this reason the Respondent alleges there is no industrial dispute since the Respondent has voluntarily recognized the Petitioner as the exclusive bargaining agent.

"Section 48-801(7), R.R.Supp. 1979 defined industrial dispute as:

"In Alliance Education Ass'n v. School Dist. of Alliance , 4 CIR 154 (1980) and in Sidney Educ. Assn v. School Dist. of Sidney , 5 CIR 408 (1982) the Commission ordered an election where teacher organizations had neither requested nor had been refused recognition. There was no finding that before the Commission could obtain jurisdiction a request for or refusal of recognition of the Association as the exclusive bargaining agent must be shown.

"Section 48-838, R.R.S. 1943, independently requires the Commission to 'determine questions of representation for purposes of collective bargaining for and on behalf of employees. . .' and to 'certify exclusive bargaining agent for employees affected by Section 48-801 to 48-823 following an election by secret ballot, which election shall be conducted according to rules and regulations established by the Commission.' Subsection (2) of that Section requires the Commission to 'determine an appropriate bargaining unit for bargaining and for voting in the election. . .'The Association's petition raises a question of representation whereby it seeks the determination of an appropriate unit, an election and if successful, certification as exclusive bargaining representative. The question of representation raised can only be answered by the Commission and by the employees in an election conducted by the Commission. Certification not only confers status as exclusive representative but protects that status for one year following the certification election. Agreement between an employer and an employee organization cannot confer on the organization the protected status of a certified bargaining representative under Section 48-838. Thus the fact that the Respondent has voluntarily recognized the Petitioner as the exclusive bargaining representative does not preclude the Petitioner from seeking this protected status of a certified bargaining representative.

"Regarding the allegation by Respondent that the provisions of the TPNA are a barrier to a certification election in Alliance , supra , the Commission said:

'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 Negotiations 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.

"This reasoning was followed in Wynot Education Association v. School District of Wynot, 5 CIR 160 (1981). In that case an organization had been recognized as an employee representative under the TPNA. Preliminary negotiating steps were underway under the TPNA. Nevertheless, the commission ordered an election. These decisions have been recently followed and applied in Millard Education Association v. School District of Millard, 5 CIR 447 (1982).

"The answering of a representation question under Section 48-838 and certification under that section is outside the scope of the TPNA and does not affect the rights and obligations of the parties granted and imposed by the TPNA. The Commission finds it has jurisdiction."

The School District's reliance upon Sidney Education Association v. School District of Sidney , 189 Neb. 540, 203 N.W.2d. 762 (1973), is entirely misplaced. That decision did hold under the statutes then in effect that the Commission of Industrial Relations did not have authority to order a school district to negotiate with a teachers' association pursuant to the Commission of Industrial Relations Statutes. Under the statutes than in effect, the parties would hold meet and confer negotiations under the Nebraska Teachers' Professional Negotiations Act and, if an impasse was reached, proceed directly to a wage determination under Section 48-818 without negotiations under the Commission of Industrial Relations statutes. There was, therefore, no mandatory system of collective bargaining applicable to parties covered by the Nebraska Teachers' Professional Negotiations Act and no need for a unit determination and representation election under the Commission of Industrial Relations statutes. The School District's argument is that "Given the ruling in Sidney it does not appear that the need for an exclusive bargaining agent would ever come to light." Brief, page 4.

In 1979, however, this holding in the Sidney case was legislatively overruled by the Nebraska Legislature in L.B. 444. Section 48-816(1) was amended by L.B. 444 by adding a sentence 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." Laws of Nebraska (1979), page 1237. The introducers' Statement of Purpose on L.B. 444 said: "The Bill is intended to strengthen and encourage the process of collective bargaining, and to encourage the voluntary settlement of disputes by providing an affirmative duty to bargain in good faith, and by providing the Court of Industrial Relations specific authority to order parties to engage in good faith bargaining. . . ." Under the current statutes, therefore, parties covered by the Nebraska Teachers' Negotiations Act must first comply with the provisions of that Act. Alliance Education Association v. School District of Alliance , 6 CIR 209 (1982); Sidney Education Association v. School District of Sidney , 6 CIR 221 (1982). The Commission of Industrial Relations jurisdiction attaches "after all provisions of such act have been exhausted without resolution of the dispute involved." When the provisions of the Nebraska Teachers' Professional Negotiations Act have been exhausted, the Commission now has statutory authority under the language added to Section 48-816(1) by L.B. 444 in 1979 to require the parties to bargain in good faith.

Sidney Educators' Association v. School District of Sidney , 5 CIR 408 (1982), considered the "Contract bar rule" and the application of Commission Rule 4(E)(2)(d) to the situation where a currently recognized group is petitioning for certification. Commission Rule 4(E) pertains to "Proceedings To Determine If A Labor Organization Shall Cease To Be The Representative". Commission Rule 4(B) deals with "Representation Proceedings" generally. The Sidney decision held that the requirement that a decertification proceeding under Rule 4(E) can only be filed between the 120th and 60th days preceding the termination of an existing agreement does not apply to the situation where a recognized group is petitioning for certification. In so holding, the Sidney decision states (5 CIR at 411, 414-416):

"The Respondent alleges that Petitioner's Petition is barred by virtue of an existing collective bargaining agreement between the Petitioner and Respondent. The Petitioner and Respondent stipulated that they are parties to a collective bargaining agreement covering the 1981-82 academic year, which agreement was executed on July 7, 1981. In addition thereto, it is stipulated that the academic Year was established to be August 7, 1981, through May 26, 1982.

***

"Section 48-838 is the only statutory reference to contract bar and ... applies only to 'other parties' seeking representation. In the instant case it is the informally recognized party seeking formal recognition.

"This Commission has held many times that National Labor Relations Board, hereafter referred to as NLRB, decisions are helpful, and may be looked to for guidance, but are not controlling. City of Grand Island v. AFSCME , 186 Neb. 711, 185 N.W.2nd 860 (1971); Service Employees International Union Local No. 226 v. School District No. 66 of Douglas County , 3 CIR 514 (1978); North Platte Police Officers and E. Clyde Paul v. City of North Platte , 4 CIR 132 (1979).

"In General Box Co . 82 NLRB 678, 1948-49 CCH NLRB Par. 8815, 23 BNA LRRM 1589, the Board held that an election would normally be granted at the request of an uncertified but currently recognized union, because such union is entitled to the benefits of a certification notwithstanding the employer's recognition of the union's majority status.

"This general doctrine of allowing recognized but not certified parties to seek certification has continuously been followed by the NLRB. In Jack L. Williams , 219 NLRB 1045, 1974-1975 CCH NLRB Par. 16126, 90 BNA LRRM 1188, the Board stated:

'Employer contends there is a Contract bar to the election requested by Petitioner by virtue of a collective bargaining agreement in effect between Employer and Petitioner. The contract bar doctrine applies to a union seeking certification as collective-bargaining representative while a contract is in force with another union. A labor organization which is party to a contract with the Employer is not precluded thereby from seeking certification as the representative of employees. Accordingly, we find Petitioner's contract with the Employer is no obstacle to the election it seeks.

See also California Inland Broadcasting Co ., 106 NLRB 1259 (1953),32 BNA LRRM 1670; Heating, Piping & Air Conditioning Contractors , 110 NLRB 261 (1954), 34 BNA LRRM 1634; Jefferson City Cabinet Co ., 120 NLRB 327 (1958),41 BNA LRRM 1503; Pacific States Steel Corp ., 121 NLRB 641 (1958), 42 BNA LRRM 1408; Central Coat, Apron & Linen Service , 126 NLRB (No. 120), 1960 CCH NLRB Par. 8638; Montgomery Ward & Co ., 137 NLRB (No. 26) 1962 CCH NLRB Par. 11,199; Community Publications, Inc ., 162 NLRB (No. 74),1967 CCH NLRB Par. 21,030.

***

"Section 48-838 and Rule 4(B)(l)-(6) do contemplate a recognized group petitioning for certification. Statutorily there is not a contract bar under the facts and circumstances of the instant case. Rule 4(E)(2)(d) does not apply to the situation where a recognized group is petitioning for certification.

"This is a question of first impression in Nebraska and as such, we may look to the NLRB for guidance. As shown above, the strong weight of authority in the private sector is that the petitioner would not be barred from seeking certification because of an existing contract. The reasoning used by the NLRB in both General Box Co . and Jack L. Williams , supra, would apply in the instant case.

"We find that the contract now existing between the Petitioner and Respondent does not operate as a bar to the Petitioner seeking a certification election."

The Commission finds that the unit requested by the Association ("all teachers employed by the School District except administrative employees") is appropriate, that the Association has made a sufficient showing of interest to entitle it to an election, as stated in the Clerk's Report To The Commission filed October 21, 1982, and that an election should be conducted as soon as possible.

It is, therefore, Ordered that an election within the appropriate unit determined herein shall be held as soon as possible. Judge John M. Gradwohl is appointed as the Commission's Representative for such election. Jerry L. Pigsley is appointed hearing examiner to determine initially all questions arising during the course of the election. The election shall be held under the immediate supervision of the Clerk of the Commission. The parties will be contacted by the Clerk to agree upon or have determined all questions concerning the election not provided for in Rule 9.

Filed December 1, 1982.

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HASTINGS EDUCATION ASSOCIATION,	\|	CASE NO. 490
An Unincorporated Association,	\|	REP DOC. NO. 160
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Plaintiff,	\|
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v.	\|	OPINION AND ORDER
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THE SCHOOL DISTRICT OF HASTINGS,	\|
IN THE COUNTY OF ADAMS, IN THE STATE OF	\|
NEBRASKA, A Political Subdivision,	\|
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Defendant.	\|