| MINDEN EDUCATION ASSOCIATION, | | | CASE NO. 528 |
| An Unincorporated Association, | | | REP. DOC. NO. 173 |
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| Petitioner, | | | |
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| v. | | | OPINION AND ORDER |
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| THE SCHOOL DISTRICT OF | | | |
| MINDEN, IN THE COUNTY OF | | | |
| KEARNEY, IN THE STATE OF | | | |
| NEBRASKA, A Political | | | |
| Subdivision, | | | |
| | | ||
| Respondent. | | |
Appearances :
For Petitioner: Theodore L. Kessner
400 Lincoln Benefit Bldg.
Lincoln, Nebraska
For Respondent: Gary L. Martin
P.O. Box 109
Minden, Nebraska
Before: Judges Davis, Gradwohl and Orr.
DAVIS, J :
This matter came on for hearing on the Petitioner's Petition and Respondent's Answer. At the hearing the Respondent made a Motion for Judgment on the Pleadings. The Motion was taken under advisement at the hearing and we now find that it should be overruled. A motion for judgment on the pleadings can be granted when it appears from the pleadings that only a question of law is presented. Wittler v. Baumgartner, 180 Neb. 446, 144 N.W.2d 62 (1966). However, the Commission finds the pleadings raise a question of fact as to "recognition" that requires a trial on the merits.
There is essentially one issue before the Commission. It is whether or not the Commission in this case has jurisdiction to make a unit determination, direct an election and certify a bargaining representative.
The Petitioner seeks an Order of the Commission determining a bargaining unit consisting of "all teachers employed by the School District except administrative employees," directing the holding of an election pursuant to the Commission's rules and certifying the Petitioner as exclusive bargaining agent for employees in the unit if a majority vote for the Petitioner.
Respondent's position is that Respondent has recognized Petitioner as the negotiating agent for the teachers under the terms of the Teachers Professional Negotiation Act and because the Petitioner has not been refused recognition under the TPNA it is premature for the Petitioner to seek a certification election since it has not exhausted the remedies under the TPNA.
The allegations and admissions establish that Petitioner is an unincorporated association formed by teachers employed by the Respondent for the purpose of representing said teachers in all employment relations matters. Petitioner is a labor organization with its usual place of business in Minden, Nebraska, and that the Respondent is a Class III School District, a political subdivision of the State of Nebraska and an employer as defined in Section 48-801.
The evidence before the Commission included a number of exhibits which the Commission will describe in a chronological order. No testimony was adduced at the hearing.
A letter (Exhibit 5) from Kathy Nordin, Minden Education Association Negotiator, to Mr. James Choquette, Board of Education President, dated April 4, 1983, requests the Board of Education to continue to recognize the Association as the bargaining representative for a "substantial majority" of teachers it represents that are employed by the District. Furthermore, the Association in the letter requests good faith negotiations on a number of employment matters for the 1983-84 contract year.
In the Minutes (Exhibit 1) of a Regular meeting of the Minden Board of Education held on April 11, 1983, the letter from the Minden Education Association is mentioned and a special meeting is scheduled for May 2, 1983, to discuss negotiations matter.
The Minutes (Exhibit 2) of the Special Meeting of the Minden Board of Education held on May 2, 1983, states in relevant part:
A motion was made by Nelson and seconded by Tomsen that the Board of Education officially recognized the MEA as the negotiating agent for teachers, that the Board requests a current list of members, and that the Board agrees to negotiate the following items: salary base, health and accident insurance, personal leave policy, sick leave bank policy, Paragraph 3C of the 1973 agreement as it pertains to extra curricular assignments. Roll Call: Choquetee, aye; Grossardt, aye; Larsen, aye; Nelson, aye; Schwenka, aye; and Tomsen, aye. Motion Carried.
A letter (Exhibit 6) from Richard Raecke, Superintendent of Minden Public Schools, to Kathy Nordin, MEA Negotiator, dated May 17, 1983, states:
On the day following the May 2 Minden Board of Education meeting, I met with you to inform you of the Board's action regarding negotiations for the 1983-84 school year. Additionally, at that time I gave you a copy of the news release and two copies of the proposed procedural agreement containing those items which the Board agreed to negotiate at that time.
Due to the MEA's refusal at this time to sign the procedural agreement to begin negotiations, I felt it important to reiterate those items which the Board has agreed to negotiate in good faith for the 1983-84 school year.
Those items are:
Salary Base
Health and Accident Insurance
Personal Leave Policy
Sick Leave Bank Policy
3c of the 1973 agreement as it pertains to
extra curricular assignments
Hopefully, both parties can resolve the matter of the procedural agreement and can proceed in another series of good faith negotiation sessions.
In a letter (Exhibit 7) from Gary L. Martin, Attorney for the School District, to Kathy Nordin, MEA Negotiator, dated June 21, 1983, states:
I am enclosing a copy of the Rules and Regulations for the Administration of Negotiations which were adopted by the Minden Board of Education at their last Board meeting. I believe they are self-explanatory and bear a resemblance to the agreement previously entered into by the Board and the MEA.
As you know, in the past, the Board and the MEA would sign a Recognition and Procedural Agreement which would in effect serve as a recognition of the MEA as the official negotiating agent for certificated employees and establish procedures for conducting negotiations. I do not know the origin of this arrangement, but the procedure worked and the Board continued to follow it.
This year the MEA currently brought to the Board's attention the fact that the MEA is not required to sign an agreement and in fact the MEA will not sign an agreement. This action made it necessary for the Board to review its past procedures to determine what action should be taken. Upon reviewing the Teachers Professional Negotiations Act, it was determined that the Board must establish a procedure for recognizing an organization to represent certificated employees as well as establishing rules and regulations for the administration of negotiations. Thus the enclosed document.
Because the Recognition and Procedural Agreement is not being used this year there has been no official recognition of the MEA as the organization representing certificated employees of the District. It is also my understanding that no evidence has been submitted to the Board that the MEA does in fact represent the certificated employees of the District. With this being the case, I would believe the appropriate action at this time would be for the MEA to request recognition under the provisions of Article I of the new Rules and Regulations. If recognition is granted, the MEA could then comply with Article II, Subparagraph A, by submitting a written request to meet and confer. These actions would then place into effect the remaining provisions of the Rules and Regulations.
If you have any questions concerning the document or if you wish to visit about procedures, please feel free to contact me.
Article I and Article II, Subparagraph A, of the Rules and Regulations (Exhibit 8) referred to in the above letter are as follows:
Upon receipt of satisfactory evidence submitted by an organization to the Board that the organization does in fact represent the majority of the certificated employees of the district, the Board will thereupon determine at the next regularly scheduled Board meeting whether to recognize the organization as the official negotiating agent for certificated employees of the district for the year. In the event the Board recognizes said organization, membership in the organization will not be a prerequisite for employment or continuation of employment of any employee nor will recognition of the organization deprive individual employees of the right to represent themselves individually in their employment relations.
In the event the Board recognizes an organization as the official negotiations agent for certificated employees the Board hereby adopts the following rules and regulations for the administration of negotiations:
A.
The recognized organization (hereinafter called organization) shall submit to the Board a written request to meet and confer regarding employment and relations with certified employees, said written request to specify the areas to be discussed.
In a Clerk's Report to the Commission of Industrial Relations (Exhibit 4) filed July 28, 1983, the Clerk in accordance with Section 48-804.01 and Rule 4(B)(4) determined that a sufficient showing of interest had been made by the Petitioner Association to entitle it to an election ordered by the Commission.
In another letter (Exhibit 9) from the School District's Attorney to the MEA Negotiator, dated August 11, 1983, states:
At a special meeting of the Minden Board of Education held on May 2, 1983, the Board officially recognized the MEA as the negotiating agent for teachers and requested a current list of members of the MEA. The recognition was to be formalized on May 16, 1983, by the execution of the 1983 Recognition and Procedural Agreement by the Minden Board of Education and the MEA. At that time it was expected that a current list of members was to be submitted. Because the MEA had not provided a current list of members to the Board, the Board had taken the position that the MEA has failed to submit satisfactory evidence that it represents any of the certificated employees of the district.
On July 25,1983, the Board was served with a copy of a Petition for Certification Election to which was attached "a list of the teachers employed by the School District who are members of" the MEA. The Board hereby accepts the list attached to the Petition as complying with the previous request of the Board.
On May 2, 1983, the Board agreed to negotiate with the MEA the following items:
1.
Salary Base
2.
Health and Accident Insurance
3.
Personal leave policy
4.
Sick Leave Bank policy
5.
Paragraph 3C of 1973 agreement as it pertains to extracurricular assignments
With the submission by the MEA of the list of its members, it is the Board's position that the Board and MEA should immediately begin to negotiate under the provisions of the Teachers Professional Negotiations Act. The MEA's request for a negotiations meeting will be promptly considered.
The Board realizes the fact that, negotiations having been delayed, the teachers will return to the 1983-84 school year with uncertainty and confusion. The Board does not feel it is responsible for the delay, but is in a position to alleviate the uncertainties the teachers may have upon the return to school. For this reason, the Board has unilaterally established a new wage schedule for the 1983-84 school year to be effective until negotiations have been completed.
For the school year 1983-84 the base salary shall be $12,325.00 with the indexes and steps to remain unchanged. Insurance benefits for family coverage shall be $169.16 per month, or $2,029.92 per year, single coverage of $62.32 per month or $747.84 per year, and $118.00 per year for non-participants to be paid to a sheltered annuity. The base for the extracurricular schedule shall be one percent of the salary base.
The teachers will be advised of the new schedule at the time they receive their next checks and by a press release.
Section 48-810, R.S.Supp. 1982, 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 Negotiations [sic] Act, sections 79-1287 to 79-1295, until all provisions of such act have been exhausted without resolution of the dispute involved.
Recently in Lincoln Education Association v. School District of Lincoln, 214 Neb. 895, 336 N.W.2d 587 (1983), the Supreme Court found the TPNA is not exhausted when an education association seeks or attains certification as an exclusive collective bargaining agent under the provisions of the CIR Act. The Court cited to their earlier decision in Sidney Education Assn v. School Dist. of Sidney, 189 Neb. 540, 203 N.W. 762 (1973) in considering the interrelation of the Teachers' Professional Negotiation Act (TPNA) § 79-1287 to 79-12,100 and the Commission of Industrial Relations Act §§ 48-801 et seq . The Court stated:
Recently in Lincoln Education Association v. School District of Lincoln, 214 Neb. 895, 336 N.W.2d 587 (1983), the Supreme Court found the TPNA is not exhausted when an education association seeks or attains certification as an exclusive collective bargaining agent under the provisions of the CIR Act. The Court cited to their earlier decision in Sidney Education Assn v. School Dist. of Sidney, 189 Neb. 540, 203 N.W. 762 (1973) in considering the interrelation of the Teachers' Professional Negotiation Act (TPNA) §§79-1287 to 79-12,100 and the Commission of Industrial Relations Act §§48-801 et seq. The Court stated:
In Sidney Education Assn v. School Dist. of Sidney, [citation omitted] we said that the TPNA must be exhausted before action before the CIR can be taken, and that refusal to recognize the association as a bargaining agent is an exhaustion of rights under the TPNA. Absent a refusal to recognize the association, or an impasse, the TPNA has not been exhausted.
214 Neb. at 898.
We are faced with the question as to whether the remedies provided by the TPNA were exhausted before this action was filed with the Commission. The Commission has ruled previously in Holdrege Education Association v. School District of Holdrege, 1 CIR No. 39 (1971), that the TPNA is exhausted by a school district imposing impermissible conditions upon its recognition of an education association as bargaining representative. The Commission found in Holdrege , supra,that:
In response to a request to meet and confer given January 5, 1971, by the plaintiff to the defendant in accordance with Sec. 79-1292 R.R.S. Neb. 1943, the defendant conditioned any consideration of the request upon the plaintiffs signing a "Professional Negotiations Agreement" requiring among other things plaintiff's:
a. proving it represented a majority of teaching personnel (Article III of the Agreement);
b. accepting a described bargaining unit (Article III of the Agreement);
c. waiving right to request certain matters for discussion (Article VI paragraph 2 of the Agreement);
d. agreeing to negotiate additional but unspecified issues which might be injected by the Board; (Article VI, paragraph 2 of the Agreement);
e. agreeing not to reopen negotiations for an unspecified period (Article VI paragraph 7 of the Agreement);
In response to the plaintiff's contention here that the foregoing results in exhaustion of the Teachers Professional Negotiation Act, the defendant here contends that the conditions imposed by it are authorized by Sec. 79-1294 as follows:
"Each board of education or school board of a public school district which shall determine to meet and confer with representatives of an organization of certified employees, shall adopt rules and regulations for the administration of such negotiations under sections 79-1287 to 79-1296."
We do not agree with this contention of the defendant for each of the following reasons:
(1) Those conditions of said imposed agreement which we have summarized above are not within the statutory language, "for (or relevant to) the administration of negotiations;"
(2) The Board has not "determined(d) to meet and confer;"
(3) The Board by virtue of the statute may impose proper rules and regulations for administration of negotiations but it may not require the teachers to agree to them. The teachers must comply in good faith with such rules and regulations as the Board by this statute has authority to adopt, but they are not required to, though they may if they choose, agree to something which may be (and here clearly is) broader or different from what the statute requires. In Reinsch v. Pacific Mutual Insurance Co., 140 Neb. 225,299 NW 632 (1941) and Protective Fire and Casualty Company v. Cornelius, 176 Neb. 75, 125 NW 2d 179 (1963) in which the contractor contended that he had intended only the statutorily prescribed contract, the court held he was bound by the broader terms of the contract actually written.
(4) There is no requirement of the Teachers Professional Negotiations Act that an organization for the purpose of representation of teachers have a membership of a majority of the school board's employed teachers. cf. Article III of the proposed Agreement with section 79-1289 R.R.S. Neb. 1943.
(5) In Opinion as to Jurisdiction entered March 12, 1971, in
Cases No. 35, 36, and 38, and Opinion in Case No. 34 entered March 29, 1971, the Court held:
"In the context of the legislative history of LB 15, we conclude that so long as some proper matters properly are proceeding under and in accordance with the Nebraska Teacher's Professional Negotiation Act, the Legislature intended that all areas specified in the request constitute a single dispute Following "exhaustion" under that Act, there is subject matter jurisdiction in the Court of Industrial Relations. . . .As we view the legislative determination reflected in section 48-810, it was merely one of establishing a priority in the procedures. Taking Senator Carpenter's view, the Legislature intended to retain the special act relating to teachers which had been in effect for only two years, but after that act has been applied, the parties might invoke the jurisdiction of the Court of Industrial Relations. By this interpretation, it is only the time at which subject matter jurisdiction of the Court of Industrial Relations attaches which is held in abeyance."
The Statutory scheme explained in those opinions would be nullified by our sustaining the defendant's contention here. By the simple expedient of requiring an unacceptable condition to recognition and discussions under the Teachers Professional Negotiation Act, the employer of certified teachers could deprive the teachers of all recourse to either the Teachers Professional Negotiation Act or the Court of Industrial Relations Act.
(6) Furthermore in Case No. 34 we held:
"There is no doubt that the School District can 'accept or reject the request in whole or in part' under section 79-1292. That section does not authorize the School District to make a counter offer or to impose any substantial condition upon its acceptance or rejection."
It follows that the provisions of the Teachers Professional
Negotiation Act have been exhausted without resolution of the
industrial dispute involved.
1 CIR No. 39 at 1-4.
See also Norfolk Education Association v. School District of Norfolk, 1 CIR No. 40 (1971); Nebraska City Education Association v. School District of Nebraska City, 2 CIR No. 116 (1974); South Sioux City Education Association v. School District of South Sioux City, 3 CIR 90 (1976); Yutan Education Association v. School District of Yutan, 3 CIR 109 (1976); Omaha Education Association v. School District of Omaha, 3 CIR 217 (1977).
We find, as we did in Holdrege, that the school district has imposed impermissible condition upon its recognition of the education Association as bargaining representative, thereby exhausting the NA. Based on the record there was no recognition by the Respondent District of the Petitioner Association as the organization representing the certificated employees of the Respondent because Petitioner did not submit satisfactory evidence that it represents employees. [Exhibits 6-9] Only after the Respondent received a copy of the Petition filed in the Commission by the Petitioner that had ached to it a list of all teachers employed by the District except administrative employees, who make up the alleged appropriate bargaining unit, did it take the position that it should begin to negotiate with Petitioner Association [Exhibit 9]
Section 79-1291 of the TPNA describes the submission of a membership list of an organization of certificated school employees, as follows:
If more than one organization of certificated school employees requests recognition as the representatives of the certificated employees, the board of education or school board may recognize as the representative the organization which has for the last two preceding years enrolled a majority of the certificated school employees as certified by a membership list submitted by the organization to the superintendent of schools before the first day of January of each year.
In the matter at hand the District admits in its Answer that it "has not recognized any other organization of certified teachers nor have they been requested to do so by any other organization." Since there is no other organization competing with the Petitioner for recognition by Respondent, the Respondent cannot claim its failure to recognize Petitioner is based on no membership list being submitted by the organization to its superintendent.
Section 79-1292 sets forth the process for a representative organization to gain recognition by the school board, as follows:
A representative organization shall give to the board of education or school board a written request to meet and confer with such board regarding employment and relations with certificated employees. The request to meet and confer shall specify the areas to be discussed by the parties. The board shall have thirty days in which to accept or reject the request in whole or in part, and shall give written notice of its decision. If the board accepts the request, the first meeting shall be held within twenty-one days after such acceptance.
The Association did provide the District's Board of Education a written request as set out in Section 79-1292. The Board according to the Minutes of a Special Meeting, held within 30 days of the Association's request, did accept it in part. However, no meeting was held within twenty-one days after such acceptance, because of the Association's refusal to sign a procedural agreement (which the Board's Attorney in a letter [Exhibit 7] to the Association admitted should not have been required) and failure to comply with Article I of the Board's new Rules and Regulations for the administration of negotiations. Article I provided that the Association submit satisfactory evidence that it represents a majority of the certificated employees of the District. Section 79-1294 does give the Board the following authority to adopt rules:
Each board of education or school board of a public school district which shall determine to meet and confer with representatives of an organization of certificated employees, shall adopt rules and regulations for the administration of such negotiations under sections 79-1287 to 79-1296.
This section, however, does not allow the Board to set conditions for recognition of an Association in the rules and regulations it adopts. The rules and regulations are to provide for the "administration" of such negotiations. We find that the Minden School Board's new Rules and Regulations went beyond the administration of negotiations to also include conditions for the recognition of an association.
In the recent case involving Lincoln Educ. Assn v. School Dist. of Lincoln supra, the Association was still recognized as the bargaining agent for the following year provided a filing was made prior to January 1 of each year of a membership list certifying a majority of the teachers are members of the association. This condition for recognition was agreed to by the parties in their contract for the previous year. In this case no such agreement is present.
We, therefore, find that the TPNA has been exhausted without resolution of the industrial dispute involved granting the Commission jurisdiction to make a unit determination, direct an election and to certify the Petitioner as exclusive bargaining agent for employees in the appropriate unit if a majority vote for the Petitioner.
The unit alleged to be appropriate by the Petitioner and admitted by Respondent is all teachers employed by the School District of Minden except administrative employees. The Commission finds the above described unit appropriate.
IT IS THEREFORE ORDERED:
1. That the Commission determines the following unit to be appropriate for voting in the election hereinafter ordered and for bargaining between the parties if Petitioner is certified as exclusive bargaining agent:
All teachers employed by the School District of Minden except administrative employees.
2. That an election within the bargaining unit above described be held as soon as practicable pursuant to Commission Rule 9; that Harvey D. Davis is appointed as the Commission's representative for such election; that Jerry L. Pigsley is appointed hearing examiner to determine initially questions arising during the course of the election; and that the election shall be held under the immediate supervision of the Clerk of the Commission.
All Judges assigned to the panel in this case join in the entry of this Opinion and Order.
Filed October 21, 1983
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