V.
THE
SCHOOL DISTRICT OF THE CITY OF LINCOLN, COUNTY OF LANCASTER, STATE OF NEBRASKA,
A POLITICAL SUBDIVISION, ALSO KNOWN AS LINCOLN PUBLIC SCHOOLS, APPELLANT
MILLARD
EDUCATION ASSOCIATION, AN UNINCORPORATED ASSOCIATION, APPELLEE
V.
THE
SCHOOL DISTRICT OF MILLARD, COUNTY OF DOUGLAS, STATE OF NEBRASKA, A POLITICAL
SUBDIVISION, APPELLANT
214
Filed
July 22, 1983, Nos. 82-424, 82-463
1. Schools and
2. ______: ______. The provisions of the
Teachers' Professional Negotiation Act must be exhausted by covered teachers
before action can be taken before the Commission of Industrial Relations.
3. ______: ______. Absent exhaustion, the
Commission of Industrial Relations has no jurisdiction over disputes between
school boards and covered teachers.
Appeal from the
Edwin C. Perry of Perry, Perry, Witthoff,
Guthery, Haase & Gessford, P.C., for appellant
Rjean K. Knowles and Frank M. Schepers of Young & White, for appellant
Theodore L. Kessner of Crosby, Guenzel, Davis, Kessner & Kuester, for
appellees.
BOSLAUGH, MCCOWN, WHITE, HASTINGS, CAPORALE,
and SHANAHAN, JJ.
WHITE, J.
In these
consolidated actions we are again called on to consider the interrelation of the
Teachers' Professional Negotiation Act, Neb. Rev. Stat. §§ 79-1287 to
79-12,100 (Reissue 1981), and the Commission of Industrial Relations, Neb. Rev. Stat.
§§ 48-801 et seq. (Reissue 1978).
No dispute
exists as to the facts in each case and only a common question of law is
presented.
Pursuant to a
petition filed by each association, the Commission of Industrial Relations (CIR)
ordered certification elections, at which elections the associations were chosen
as the bargaining agent for their respective groups. The appellant school
districts objected to the jurisdiction of the CIR, contending that no industrial
dispute existed and that the provisions of the TPNA had not been exhausted. §
48-810. The CIR overruled the challenge to jurisdiction.
The parties
agree that appellee Millard Education Association did not seek approval of the
Millard School District as a bargaining representative and that the Lincoln
Education Association for 13 years had been recognized as the bargaining agent
and, by the terms of a contract for the previous year, it 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 that a majority of the
teachers are members of the association.
The issue, as
succinctly stated by the appellees, is: " 'Is the TPNA
"exhausted" when an education association seeks or attains
certification as an exclusive collective bargaining agent under the provisions
of the CIR Act?' "
The provisions
of the TPNA involved in this matter provide: "Organizations of certificated
public school employees shall have the right to represent their members in
matters of employee relations with their public school district employers."
§ 79-1289.
"Notwithstanding the provisions of sections 79-1287 to 79-1296, no board of
education or school board of any public school district in the state shall be
required to meet or confer with representatives of an organization of
certificated school employees unless a majority of the members of such board
determines to recognize such organization. Any such recognition shall be and
remain in effect for a period of one year." § 79-1290.
The provisions
of the CIR statutory scheme involved here provide: "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 Court of Industrial Relations; Provided, such court 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." § 48-810.
As can be
readily seen, while the TPNA grants teachers the right to organize, it does not
require the district to recognize or negotiate with their association. It is
that matter that is the crux of this dispute. The associations maintain that
under the CIR laws they have an absolute right to petition for an election to
determine an exclusive bargaining unit for all employees in the unit if the
requirements of § 48-838 are complied with.
The parties
concede that the district is without power to certify an association as
representing nonconsenting employees or to recognize such an association for a
term in excess of 1 year. § 79-1290.
It is the
perceived lack of bargaining ability resulting from the power of a school
district board to refuse to recognize a bargaining agent and to refuse to
bargain on all or part of a contract proposal, § 79-1292, that prompted the
associations to request a CIR-supervised election, with which the districts
would be obliged to recognize and collectively bargain, and if they are unable
to agree, to have the matter settled by the CIR.
In Sidney
Education Assn. v. School Dist. of Sidney, 189 Neb. 540, 203 N.W.2d 762 (1973), we said that the TPNA must be exhausted
before action before the CIR can be taken, and that the 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.
We held in
However
imaginatively the proposition is stated, whether in terms of relative bargaining
power of the parties or in terms of the limitation of the power of the districts
as compared by the CIR, the effect of the method proposed by the appellee
associations is to render useless the TPNA. No authority is cited as to how or
by what rationale we are to ignore the plain words of § 48-810, nor how we may
ignore the requirements of the TPNA. The actions of the CIR were clearly without
jurisdictional basis and the decisions are reversed.
REVERSED.
KRIVOSHA, C.J.,
participating on briefs.