6 CIR 51 (1982). Reversed. 214 Neb. 895, 336 N.W.2d 587 (1983).


An Unincorporated Association, | REPRESENTATION DOC. NO. 148
Petitioner, |
NEBRASKA, A Political Subdivision, |
Respondent. |


For the Petitioner: Theodore L. Kessner

For the Respondent: Edwin C. Perry

Before: Judges Orr, Kratz, and Gradwohl


This matter came on for hearing on Petitioner's petition for a certification election. Respondent filed a responsive pleading. The Petitioner seeks a determination of an appropriate bargaining unit and election pursuant to Section 48-838, R.R.S. 1943, and, if successful in such election, certification as exclusive bargaining representative of employees in the bargaining unit found appropriate. The unit claimed appropriate by the Petitioner is "all certificated staff employed by the School District except administrative employees and substitute teachers."

The allegations and admissions establish that Petitioner is an unincorporated association of certified staff employed by the Respondent; that petitioner has a purpose of representation of said employees in all matters of employment relations and is a "labor organization" as that term is defined by Section 48-801, R.S.Supp. 1980; and that Respondent is an "employer" as that term is defined in Section 48-801, R.S.Supp. 1980. The Commission so finds.

The Respondent challenges the jurisdiction of the Commission on two grounds, one being that there is no "industrial dispute" between the parties as that term is used in Section 48-810, R.S.Supp. 1980, and the second being that the provisions of the Teacher's Professional Negotiations Act (TPNA), Sections 79-1281 to79-1295, R.R.S. 1943 control; so, therefore the Respondent alleges that the Commission has no jurisdiction. The Respondent further alleges that maintenance of this action by Petitioner is contrary to and in violation of the existing collective bargaining agreement between the parties.

1. Jurisdiction

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:

Industrial dispute shall include any controversy concerning terms, tenure or conditions of employment, or concerning the association of 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.

In Alliance Education Ass'n v. School Dist. of Alliance , 4 CIR 154 (1980) and in Sidney Educ. Ass'n 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 protect 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.

2. Contract Violation.

Respondent alleges that where the contract provides for an exclusive remedy, a party to the contract can not seek an inconsistent judicial remedy. However, the contract provision that Respondent alleges controls in this fact situation is not applicable. The contract provision referred to by the Respondent is Article I, Section 1-3.

Should a competing organization filed with the superintendent and Association between December 20 and December 31 of any year, a notarized membership list which indicates a majority of the bargaining unit are members of that organization, the Board and Association agree a representation election will be conducted to determine the bargaining agent. The Board and Association agree the election will be conducted using the following rules:

a.The American Arbitration Association shall conduct the election under its rules and procedures and serve as arbitrator on any disputes. All costs of the election shall be paid by the challenging organization. (Emphasis supplied)

The Petitioner is not a competing organization. It is the same organization the contract was entered into with. Therefore, the provision of Article I, Section 1-3 does not apply and thus there are no conflicting provisions between the statute granting the Commission authority to conduct this election and the contract between the Petitioner and Respondent. We do not otherwise pass on the validity or effect of the contractual provisions.

The Commission finds:

1. That the parties are in agreement as to the composition and appropriateness of the bargaining unit herein; all certificated staff employed by the school district except administrative employees and substitute teachers.

2. That the Petitioner has made sufficient showing of interest to entitle it to an election, as stated in the Clerk's Report To The Commission filed November 4, 1981.

3. That the agreed upon unit is appropriate and that an election should be conducted as soon as possible.

IT IS THEREFORE ORDERED, that an election within the unit determined herein shall be held as soon as possible. Judge Jeffrey L. Orr 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 April 6, 1982.