9 CIR 31 (1986). Appeal Dismissed April 29, 1987.


| REP. DOC. NO. 211
Petitioner, |
Respondent. |


For the Petitioner: William A. Harding

Nelson and Harding

P.O. Box 82028

500 The Atrium

1200 "N" Street

Lincoln, Nebraska 68501

Charles E. Lowe

Assistant Attorney General

2115 State Capitol

Lincoln, Nebraska 68509-4906

Steven Shaw, Counsel

Nebraska State Patrol

P.O. Box 94607

Lincoln, Nebraska 68509-4907

For the Respondent: J. Murry Shaeffer

633 S. 9th Street, Suite 302

Lincoln, Nebraska 68508-2877

Before: Judges Cullan, Orr, and Kratz


The Nebraska State Patrol, Petitioner, (State) filed it's Petition for Amendment of Certified Bargaining Unit on July 8, 1986. The State seeks a determination that Sergeants and Sergeant-Investigators are supervisors who may not be included in a bargaining unit composed of other non-supervisory employees.

On August 21, 1986 the State Troopers Association of Nebraska, Respondent (Union) filed it's Motion to Dismiss. A hearing was held on the motion on September 6, 1986. The Unions Motion to Dismiss is based on Sections 22.1 and 22.3 of the collective bargaining agreement. Section 22.3 is a so-called "zipper" clause which provides in pertinent part that the "agreement contains the full and complete agreement on all subjects which the parties did or could have bargained." Section 22.1 provides in pertinent part that the contract between the parties "shall automatically be extended until such time as a new or modified agreement is approved..."

We need not determine whether the "zipper" clause would have been an effective waiver of Petitioner's right to seek a modification of the collective bargaining unit during the term of the agreement reached on May 9, 1985. We recognize that we have determined under Nebraska law effective on that date that:

The CIR lacks jurisdiction to alter the wages, hours or other terms and conditions of employment for that contract year. To do so would be to change the terms of an existing agreement. This, as the Supreme Court has stated in Transport Workers, supra, the CIR cannot do:

The mandate language of section 48-818 does not lend itself to any suggestion that the CIR could alter or modify the terms of an existing agreement during the life of the agreement, any more than either party could unilaterally do so.

State Troopers Association of Nebraska v. Nebraska State Patrol, 8 CIR 323 (1986).

However, Nebraska law concerning bargaining unit composition has been amended since the parties agreed to the collective bargaining agreement. Effective September 6, 1985 Sections 48-801 and 48-816 were amended to provide in pertinent part as follows:

48-801(A): Supervisor shall mean any employee having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not a merely routine or clerical nature, but requires the use of independent judgment.

48-816(3)(a): Except as provided in subdivision (b) of this subsection, a supervisor shall not be included in a single bargaining unit with any other employee who is not a supervisor.

Section 48-816(3)(b) relates to firefighters and police officers employed by any municipal corporation and is not directly applicable to the parties herein.

The "zipper" clause contained in the collective bargaining agreement dated May 9, 1985 does not preclude consideration by the CIR of the issue of whether the composition of a collective bargaining unit conflicts with Nebraska law by inclusion of a supervisor as now defined and a non-supervisor in a single bargaining unit.


1. Respondent's Motion to Dismiss is hereby overruled.

2. Respondent shall file an answer and interrogatories on or before October 1, 1986.

3. A Pretrial Conference shall be conducted in accordance with Rule 22 and the parties shall fully comply with the provisions set forth therein. In addition, the parties shall present to the Commission at the Pretrial Conference at least two copies of the exhibits to be introduced at trial.

5. A Trial shall be held in this case on October 17, 1986 at 9:00 a.m. in the Commission's hearing room. Latimer and Andersen is appointed official Commission reporter for said hearing.

Entered September 26, 1986.