9 CIR 211 (1987)


Petitioner, |
v. | ORDER
Respondent. |

Appearances :

For the Petitioner: Mark D. McGuire

Crosby, Guenzel, Davis,

Davis, Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska 68508

For the Respondent: Neal E. Stenberg

Nelson & Harding

500 The Atrium, 1200 N Street

P.O. Box 82028

Lincoln, NE 68501-2028

Before: Judges Cope, Kratz, and Mullin


This matter came on for hearing on June 17, 1987 before the Honorable Thom Cope, upon Respondent's Special Appearance and Motion to Dismiss. The Petitioner was represented by its attorney, Mark McGuire and the Respondent was represented by its attorney, Neal Stenberg. Arguments were heard on the Special Appearance and the Commission being duly advised finds that said Special Appearance filed by the Respondent should be sustained and the Motion to Dismiss granted.

Pursuant to Section 48-810 (Reissue 1984), the Commission of Industrial Relations does not have jurisdiction over a dispute until the provisions of the Nebraska Teachers' Professional Negotiation Act (TPNA) are fully exhausted. Section 48-810 reads in part as follows:

...such commission shall have no jurisdiction over any organizations, or school districts, subject to the provisions of the Nebraska Teachers' Professional Negotiations Act, Sections 79-1287 to 79-1295, until all provisions of such act have been exhausted without resolution of the dispute involved.

The Petition in this case was filed on May 22, 1987, the last day of the 1986-87 school year at Tekamah-Herman. The evidence presented at the hearing indicates that the parties submitted their dispute to a fact-finding board pursuant to 79-1293 on May 11, 1987. This fact-finding board has approximately thirty days to render its report which may, or may not, serve as a basis for the settlement of the dispute. Until both parties to this dispute have received, considered, and accepted or rejected the fact-finding board's recommendation, the provisions of the TPNA have not been exhausted and the Commission has no jurisdiction. At the time of the issuance of this Order, the fact-finding procedure has not been completed in this case.

By sustaining Respondent's Special Appearance and Motion to Dismiss we have precluded Petitioner from filing in a timely manner pursuant to our recent decision in Tekamah-Herman Education Association v. School District of Tekamah-Herman, Findings and Order issued January 21, 1987, (hereafter referred to as Tekamah-Herman I). In Tekamah-Herman I, Judge Orr set out the following filing deadline for teacher wage cases under 48-818:

...We hold that all Section 48-818 cases involving teachers must be filed before the end of the school year, which generally will be around June 1. This finding will encourage and facilitate the timely resolution of disputes either via negotiations or a Commission Order.

Id. at 5.

If the Petitioner refiles this case upon the exhaustion of the TPNA provisions, the Tekamah-Herman I deadline appears to preclude the Commission from setting terms and conditions of employment based on the untimeliness of the Petition. This deadline however, was adopted by the Commission in order to expedite settlement of industrial disputes for the benefit of both parties. It was not intended to deprive teacher associations of their statutory rights provided under 48-810.

The extenuating circumstances surrounding the collective bargaining process and subsequent litigation during the 1985-86 school year at Tekamah-Herman warrant an extension of the filing deadline in the present case. A brief explanation follows. The Petition in Tekamah-Herman I was filed in the Commission on July 31, 1986 and amended on August 5, 1986. The specific year in dispute was the 1985-86 school year, which had, for practical purposes, ended with the teachers' last day of school at Tekamah-Herman. A trial was held in the case on September 18, 1986 and the record was completed with receipt of the transcript on September 29, 1986. Technically, the Commission's Order in this case should have been entered within thirty days after the record was completed pursuant to 48-813(2). However, due to the novel legal issues addressed in the case, as well as a heavy docket, the Commission's Findings and Order was not issued until January 21, 1987. Petitioner filed a Motion for Postrial Conference on January 30, 1987 and a Final Order was not entered in the case until February 12, 1987.

The result of this somewhat lengthy process is our paramount concern in the present Tekamah-Herman case. Because of the delay in the issuance of Tekamah-Herman I, the evidence shows that the parties did not begin negotiations for the 1986-87 contract year until early March of 1987. In this case, due to the nature of the issues in question, it was not feasible for the parties to enter into negotiations for a new contract year without first resolving the industrial dispute pending in front of the Commission for the previous contract year. Impasse was reached in negotiations at the end of April and the dispute was submitted to the fact-finding board on May 11, 1987. It is clear from the evidence presented that once the parties did have the Commission's Final Order in hand, the collective bargaining process proceeded in an expedited manner. Furthermore, the fact-finding process has proceeded in a relatively timely manner, notwithstanding some unforseen scheduling problems. Because the parties have done everything within their power to invoke the jurisdiction of the Commission in a timely and expeditious manner, we will not deprive the Petitioner of its statutory remedy under 48-818 for the 1986-87 school year. There has been no evidence of dilatory tactics on the part of either party; therefore, neither should be penalized for the unavoidable delay in the filing of the Petition.

Although we have granted Respondent's Motion to Dismiss, Petitioner shall be allowed thirty days following completion of fact-finding to refile a Petition requesting the Commission to establish the terms and conditions of employment for the Tekamah-Herman teachers during the 1986-87 contract year.


1. That Respondent's Special Appearance is sustained.

2. That Respondent's Motion to Dismiss is granted.

3. That Petitioner shall have thirty days following the completion of fact-finding to refile a 48-818 Petition with the Commission pertaining to the terms and conditions of employment for the 1986-87 contract year.

All Judges assigned to the panel in this case join in the entry of this Order.

Entered July 10, 1987.