9 CIR 91 (1987)


Petitioner, |
Respondent. |


For the Petitioner: Mark D. McGuire

Crosby, Guenzel, Davis,

Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska 68508

For the Respondent: James D. Livingston

Cunningham, Blackburn, VonSeggern,

Livingston & Francis

220 North Cedar St.

Box 2280

Grand Island, Nebraska 68802

Before: Judges Orr, Cullan, and Cope


This matter came on for a determination of wages and other conditions of employment for School District No. 1 (Merrick County) teachers for the 1986-87 contract year pursuant to Section 48-818. School District No. 1, hereinafter referred to as the District, is a Class I school district employing 3 teachers and has a student enrollment of 57 for 1986-87 school year.

In its Answer filed with the Commission on August 6, 1986 the District alleges as an affirmative defense that an election has not been held and that the District has not recognized the Lockwood Teachers Association as the exclusive collective bargaining representative of the teachers employed by School District No. 1. Therefore, the District alleges that the Commission of Industrial Relations lacks jurisdiction over the present case.

The issues for resolution by the Commission, as identified at the Pretrial Conference are as follows:

1. Recognition of the Lockwood Teachers' Association

2. Individual contract bar

3. Index salary schedule

4. Sick leave

5. Personal leave

6. Professional leave

7. Health and accident insurance

8. Base salary

At the Pretrial Conference the parties agreed to have the District proceed first on its affirmative defense. At the conclusion of the testimony relating to the existence of the bargaining representative, the District moved for an order dismissing the petition on the grounds that the Lockwood Teacher Association has not been recognized as a formal entity for collective bargaining purposes and, therefore, the individual contracts signed by the teachers are binding. Under these circumstances there would not exist an industrial dispute as defined by Section 48-801(7) and the Commission would not have jurisdiction to hear the Section 48-818 issues. The Commission took the District's Motion under advisement and the parties proceeded to present evidence and testimony relevant to the Section 48-818 issues listed in the petition.


The evidence and testimony presented at trial indicates that the parties are in basic agreement as to the series of events leading up to the filing of the petition by the teachers. The Commission is called upon to make a fact determination. A brief summary of the facts is helpful for a full understanding of the present circumstances.

Early in 1985 a Nebraska State Education Association (NSEA) representative, Linda Myers, contacted the District's teachers in reference to some employment problems. Ms. Myers testified that she met several times with the teachers and explained to them the requisite steps to take prior to negotiations with the School District's Board of Education. At one of these meetings the teachers were informed that prior to negotiations with the Board the group had to be recognized as an association or an affiliate of the NSEA with exclusive bargaining rights. (T51: 7-14).

By letter dated February 24, 1986 the teachers sought such recognition from the Board of Education and requested contract negotiations for the 1986-87 school year. The Board did not respond to the request. On April 17, 1986 all three teachers signed authorization cards pursuant to Rule 10 of the Nebraska Commission of Industrial Relations Rules. (In order for the Commission to hold an election and certify a labor organization as an exclusive bargaining representative there must first be a 30% showing of interest among employees in the unit claimed to be appropriate). See , Section 48-838.

The teacher's attorney wrote the Board attorney on April 23, 1986 and requested collective negotiations with the Board. The Board's attorney notified the Association's attorney on May 5, 1986 that the Board was willing to informally meet with the teachers in a group to discuss employment contracts for the ensuing school year. In this letter the Board's attorney clearly set out that the Board was not recognizing the Lockwood Teachers' Association. The proposed meeting between the teachers and the Board was held on June 3, 1986. Teachers Pauline Grossart, Irma Aycock and Harriet Johnson were present at the meeting, as well as NSEA representative Tom Martin, Board members Susan Schutt and Chris Stelk and Board attorney.

What transpired at the June 3 meeting is pivotal to the Commission's decision in this case. Prior to the time of this meeting the evidence fully substantiates the Board's claim that they did not recognize the group calling itself the Lockwood Teachers' Association. Ms. Grossart was the primary spokesman for the teachers and presented the Board with a proposed salary schedule and fringe benefit package. According to the testimony of Ms. Schutt, the Board reiterated its position of meeting with the teachers individually. (T13: 1-6). Mr. Martin affirmed this testimony. He testified that the Board indicated it would talk individually to each teacher concerning salary and notify each teacher with a specific salary proposal. (T75: 14-21). The Board did not indicate that it would adopt a group policy on any of the issues in dispute, and, in fact, contacted each individual teacher with a proposal not long after the June 3 meeting. (T76: 1-14).

On June 9 the Board's attorney sent individual salary proposals to the three teachers. The teachers were each instructed to contact him if the proposals were satisfactory. Ms. Johnson accepted her salary offer by letter dated June 23, 1986. Both Ms. Aycock and Ms. Grossart notified the Board's attorney on July 10 that their salary offers were not acceptable. On July 29, Ms. Aycock and Ms. Grossart were sent teacher's contracts from the Board with the originally proposed salaries listed for the 1985-86 school year. The Petition was filed with the Commission on July 31, 1986, by the teachers. The teachers had until August 10 to accept the Board's offer and sign and return the contracts; both returned the signed contracts on or about August 4 with an attached waiver. The waiver read, "I am returning my signed contract with the understanding that it will not prejudice the pending litigation in the Nebraska Commission of Industrial Relations."


The law is clear; if the District did not recognize, either formally or informally, the Lockwood Teachers' Education Association, then the individual contracts entered into between the School Board and the teachers at District No. 1 are, in fact, controlling and binding on the parties. In the alternative, if the School Board did recognize the Lockwood Teachers' Association as the exclusive bargaining representative for the teachers, we have repeatedly held that such individual contracts executed by members of a teacher association do not preclude action by the Commission under Section 48-818. See , District No. 15 Education Association v. School District No. 15 , 5 CIR 242 (1981); Yutan Education Association v. School District of Yutan , 3 CIR 109 (1976); South Sioux City Education Association v. School District of South Sioux City , 3 CIR 90 (1976).

Based upon the evidence presented, we find no merit in the teachers' claim that they have been recognized as the Lockwood Teacher Association by the Merrick County School Board. The evidence indicates the contrary. Neither the actions nor the printed communications between the Board and the teachers supports a finding that the Board recognized the group.

The petitioning teachers cite School District No. 15 as controlling precedent in this case. We find that the factual circumstances set out in School District No. 15 are quite distinguishable from the events at School District No. 1. Because the facts are different, from the present case, the holding in School District No. 15 is not relevant here.

In School District No. 15 the evidence demonstrated that the Board had actually bargained collectively with the teachers in regard to salaries. Although the Board verbally indicated that it would not recognize the District 15 Education Association, the actions of the Board indicated otherwise. At the initial meeting with the Board the teachers proposed a group increase of 15% and the Board counteroffered with an 8% increase for all but one teacher. This teacher was offered half-time employment with an 8% increase in salary or full-time employment with a 2% increase. At a subsequent meeting between the teachers and the Board, the teachers voiced displeasure with the Board's counteroffer. The teachers wanted full-time employment for all five teachers employed by the District. The teachers indicated to the Board that if all the teachers received an 8% salary increases and full-time employment, the counteroffer of the Board would be acceptable.

The negotiations that took place between the teachers and the School Board of School District No. 15 were obviously collective in nature. The teachers held out signing their contracts until the group, as a whole, received an 8% across-the-board salary increase. Group increases were the subject of at least two of the negotiation sessions between the parties. Such is not the case at School District No. 1.

The Board in the present case did not negotiate with the teachers as a group. During the June 3 meeting in question, the parties did, on at least one occasion, break up and confer with their respective groups. However, there is no evidence of any group consensus or policy being formulated as a result of this caucus.

Beyond the salary schedule proposal by the teachers there was no discussion of salaries or across-the-board increases at the June 3 meeting. The teachers were told that sick leave and professional leave were issues that would be addressed in each teacher's individual contract. Ms. Stelk testified that it was up to each teacher to reach an agreement with the board on such issues. Those teachers who wanted leave policies in their contracts could request them; it was an individual decision. (T37: 12-25, T38:1).

Based on the evidence in the record we find that the School Board of Merrick County did not, either through word or deed, recognize the Lockwood Teachers' Education Association as the exclusive bargaining representative for the three teachers employed at School District No. 1.

The fact that the Board refused to voluntarily recognize the Lockwood Teachers' Education Association did not preclude the teachers from exercising their statutory rights provided for under 48-837 (R.S. Supp., 1986). That Statute reads, in part, as follows:

Public employees; employee organization; bargaining; approval by Legislature. Public employees shall have the right to form, join, and participate in or to refrain from forming, joining, or participating in any employee organization of their own choosing. Public employees shall have the right to be represented by employee organizations to negotiate collectively with their public employers in the determination of their terms and conditions of employment and the administration of grievances arising thereunder.

Id .

If the teacher's of School District No. 1 wished formal representation by a collective bargaining agent, statutory procedure exists to achieve this goal. (Section 48-838 (R.S. Supp., 1986) sets out the rules and procedure for determining exclusive bargaining agents for public employees.) The teachers did not pursue this avenue of recourse once they were denied voluntary recognition. Whether intentional or not, the teachers have attempted to circumvent the statutory procedure which determines exclusive bargaining status either through voluntary recognition by the employer or certification by the Commission. Assuming that the teachers' interest in seeking a bargaining agent remains the same, they will have little difficulty in invoking the jurisdiction of the Commission in the future.


We have recently held in Bushnell et. al., v. Eastern Nebraska Community Office of Retardation , 8 CIR 28 (1985), that individual contracts are binding as to wages and conditions of employment for the current contract year in the absence of a collective bargaining representative for the employees. In the present case, the teachers employed at School District No. 1 have signed individual contracts for the 1986-87 school year and have no collective bargaining representative. We are now without the authority to affect the terms and conditions of the existing agreements between the teachers and the school district. See , Transport Workers of America v. Transit Authority of the City of Omaha , 205 Neb. 26, 286 N.W.2d 102 (1979). Consequently, the Commission finds that there does not exist an industrial dispute as defined in Section 48-801(7), therefore the Commission is without jurisdiction to make any determination under Section 48-818.

IT IS THEREFORE ORDERED that the Petition is dismissed.

All judges assigned to the panel in this matter join in the entry of this Findings and Order.

Entered January 29, 1987.