9 CIR 307 (1987). Reversed and Remanded with Directions to Dismiss, 231 Neb. 23, 434 N.W.2d 684 (1989).


Petitioner, |
v. | ORDER
Respondent. |


For the Petitioner: Mark D. McGuire

Crosby, Guenzel, Davis,

Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska 68508

For the Respondent: Charles Lowe

Assistant Attorney General

2115 State Capitol

Lincoln, Nebraska 68509

Before: Judges Cope, Kratz, and Mullin


This matter came on for hearing before the Honorable Thom Cope upon the Petitioner's Application for Temporary Order filed November 23, 1987. A hearing was held on December 1, 1987. The Petitioner Association was represented by its attorney, Mark D. McGuire and the Respondent was represented by its attorney, Charles Lowe.

The Petitioner requests that the Commission direct the State to forthwith undertake good faith negotiations with the Petitioner with respect to terms and conditions of employment. The State in its Answer alleges that it has not refused to enter into collective bargaining but that pursuant to 81-1379 it is prohibited from entering into collective bargaining because: a) negotiations were not commenced prior to the second Wednesday of September, 1987; b) the Petitioner was not certified as the exclusive collective bargaining agent for the teacher unit prior to the second Wednesday of September 1987; and c) there were no unresolved representation proceedings with regard to the teacher bargaining unit as of the second Wednesday of September 1987 in that the Petitioner did not file its Petition for Certification with the Commission until September 30, 1987.

The issue before the CIR is whether or not the State is required to enter into negotiations with the certified exclusive bargaining agent for the teachers' bargaining unit as certified by the Commission's Order of October 23, 1987.

This issue is one of first impression and requires the Commission to interpret LB 661, the State Employees Collective Bargaining Act, as codified in Neb. Rev. Stat. 81-1369 to 81-1390. Specifically, the Commission must determine the meaning of §8l-l379.

As set out in §81-1370 the public policy behind and the purpose of the State Employees Collective Bargaining Act is to promote harmonious, peaceful and cooperative relationships between State government and its employees and to protect the public by assuring effective and orderly operations of government.

Section 8l-l379 sets out how and when negotiations are to commence and be completed. In relevant part, it provides that:

The Chief Negotiator and any other employer-representative and the exclusive collective-bargaining agent shall commence negotiations on or prior to the second Wednesday in September of the year preceding the beginning of the contract period, except that the first negotiations commenced by any bargaining unit after April 9, l987, may commence after such September date in order to accomodate any unresolved representation proceedings. All negotiations shall be completed on or before March l5 of the following year.

It is clear that if one of the horizontal units prescribed by the statute is certified prior to the second Wednesday in September there arises a duty to commence negotiations on or prior to that date. The question is then what, if any, duty to negotiate arises if the petition for certification is not filed and certification does not occur until after the second Wednesday in September. After a thorough examination of the entire statutory scheme, it is apparent that there are no guidelines or time frames as to when the initial filing of representation proceedings for any of the twelve statutorily designated units is to be initiated. Therefore, the statute contemplates that the filing of a representation proceeding may occur at any time and a consistent interpretation of §8l-l379 is that "any (emphasis supplied) unresolved representation proceeding" may delay the commencement of negotiations, regardless of when the certification process is initiated, until a certification order is entered by this Commission. This interpretation 'accommodates' such unresolved representation proceedings. There is no time frame tied to the transitional exception for the commencement of the very first negotiations with the newly formed units under the new statute other than that such negotiations commence after April 9, l987 and be completed by March l5 of the year in which the contract period begins.

To interpret this statute in any other manner is to allow the State to pursue a course of action in direct contradiction to the public policy and purpose of the State Employees Collective Bargaining Act. Negotiations could have commenced in the present instance at any time following the resolution of the representation proceedings - the date of certification of the bargaining unit. Because negotiations have not at the present time commenced, the Commission finds that the State should immediately commence negotiations with the State Code Agencies Teachers Association as the exclusive collective bargaining agent for the teachers' bargaining unit.

This result is in keeping with the purpose and public policy behind the act and is further mandated by the Commission's statutory charge, Neb. Rev. Stat. 48-802 and 48-803, to resolve industrial disputes.

The parties are cautioned, however, that nothing in this Order affects any of the other mandatory time frames set out in the State Employees Collective Bargaining Act to control the procedures established for impasse resolution.

IT IS THEREFORE ORDERED that the State immediately commence negotiations with the State Code Agencies Teacher Association.

The Commission intends to issue no further Order in this matter since the prayer for relief contained in the Petitioner's Petition is substantially the same as in Petitioner's Application for Temporary Order.

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

Entered December 4, l987.