South Sioux City Ed. v. Dakota Sch. Dist.

772 N.W.2d 564

278 Neb. 572

SOUTH SIOUX CITY EDUCATION ASSOCIATION, an unincorporated association, appellee, v. DAKOTA COUNTY SCHOOL DISTRICT NO. 22-0011, also known as South Sioux City Community Schools, a political subdivision of the State of Nebraska, appellant.

No. S-08-1307.

Supreme Court of Nebraska.

September 25, 2009.

Kelley Baker and Steve Williams, of Harding, Shultz & Downs, P.C., L.L.O., Lincoln, for appellant.

Scott J. Norby, of McGuire & Norby, Lincoln, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

WRIGHT, J.

NATURE OF CASE

Dakota County School District No. 22-0011, also known as South Sioux City Community Schools (District), appeals from a decision of the Commission of Industrial Relations (CIR). The CIR found that the District's board of education (Board) had committed a prohibited labor practice in its hiring of Bethany Manning as a long-term substitute teacher. The CIR ordered the District to pay Manning backpay in the amount of $6,321.37.

SCOPE OF REVIEW

Any order or decision of the CIR may be modified, reversed, or set aside by an appellate court on one or more of the following grounds and no other: (1) if the CIR acts without or in excess of its powers, (2) if the order was procured by fraud or is contrary to law, (3) if the facts found by the CIR do not support the order, and (4) if the order is not supported by a preponderance of the competent evidence on the record considered as a whole. Omaha Police Union Local 101 v. City of Omaha, 276 Neb. 983, 759 N.W.2d 82 (2009).

FACTS

The District employed a teacher for the deaf and hard of hearing from August 2003 until the end of the 2006-07 school year, when she resigned. The District advertised the position and received three applications. Two of the applicants did not have the required certification. Manning had been employed by the District for 4 years as a substitute sign language interpreter and substitute teacher. She had certifications in deaf education, elementary education, and English as a second language. Manning also had a master's degree from the University of Northern Colorado and had previously taught in Colorado, Wyoming, and New Mexico.

Three school administrators were involved in evaluating the applicants: the student services director, the assistant superintendent, and the principal. The student services director conducted the interview with Manning and was not convinced that Manning "would be good for the job, but she was the only certified person that was available." Because there were no other certificated candidates, the student services director and the assistant superintendent decided to offer Manning a position as a long-term substitute.

The student services director sent Manning a letter on June 29, 2007, stating that she would be paid $95 per day for the first 20 days of substitute teaching. On the 21st day, Manning's pay was adjusted on the District's salary schedule to reflect her degree and experience.

During the fall semester of 2007, the District again advertised and solicited applications for the deaf educator position. Manning applied but was not hired. Instead, a previous applicant who, after the initial interview, received her degree and certification was hired for the position as a full-time teacher, with a contract commencing at the beginning of the second semester.

The South Sioux City Education Association (Association) filed a grievance on December 10, 2007, alleging that the District should have issued Manning a probationary teacher's contract as required by law. On December 11, Manning was notified that her services were no longer needed as a long-term substitute, effective December 13. The District denied the grievance, and the Association appealed to the Board, which also denied the grievance. Manning was encouraged to remain on the active substitute list and was retained as a substitute teacher. However, following the initiation of these proceedings, her name was removed from the active substitute list.

The Association commenced an action in the CIR against the District, claiming that it committed a prohibited labor practice. The Association alleged that Manning was a member of the bargaining unit represented by the Association and that she was entitled to be paid a salary and fringe benefits under the collective bargaining agreement (Agreement) between the Board and the Association. It was not disputed that Manning replaced a permanent member of the District's certificated teaching staff who had severed her employment. Manning was not compensated as a member of the bargaining unit represented by the Association. She was compensated as a substitute teacher.

The petition alleged that the District's failure and refusal to compensate Manning as provided by the terms of the Agreement constituted a unilateral deviation in the terms of the Agreement, which deviation violated the integrity of the collective bargaining process and, as such, was a prohibited practice under Neb.Rev.Stat. § 48-824(2)(a) and (f) (Reissue 2004). The Association asked the CIR to (1) find that the District and the Board committed prohibited labor practices, (2) enter a cease and desist order, (3) award Manning backpay, and (4) award the Association costs and attorney fees.

The District's answer alleged that the CIR lacked jurisdiction, that the petition was time barred, and that the petition failed to state a claim upon which relief could be granted.

The parties stipulated to the following facts: (1) The Association is the recognized collective bargaining agent for all nonadministrative certificated employees of the District; (2) the Association is a labor organization as defined by Neb.Rev.Stat. § 48-801(6) (Cum.Supp.2008); (3) the District is a political subdivision of the State of Nebraska and is an employer as the term is defined in § 48-801(4); (4) the parties entered into the Agreement for the 2007-08 school year; (5) Manning commenced her employment with the District on August 8, 2007, which was the first service day for certificated teaching staff for the 2007-08 school year; and (6) the District made no contribution or withholding for Manning's benefit to the Nebraska School Employees Retirement System.

On November 14, 2008, the CIR directed the District to cease and desist from implementing unilateral deviations from the provisions of the Agreement, including its compensation provisions. The CIR also ordered the District to reimburse Manning backpay in the amount of $6,321.37, which was equal to the difference between the amount she received for her bargaining unit duties and the amount to which she would have been entitled under the Agreement. It declined to award attorney fees, finding that the District's actions were not willful or flagrant. The District appeals.

ASSIGNMENTS OF ERROR

The District assigns, summarized and restated, the following errors: The CIR erred in finding that (1) it had subject matter jurisdiction; (2) the factual allegations of the petition stated a claim of a prohibited practice upon which relief could be granted; (3) the claim was not time barred; and (4) Manning was a certificated employee and, therefore, a member of the bargaining unit.

ANALYSIS

In an appeal from a CIR order regarding prohibited practices, an appellate court will affirm a factual finding of the CIR if, considering the whole record, a trier of fact could reasonably conclude that the finding is supported by a preponderance of the competent evidence. See Omaha Police Union Local 101 v. City of Omaha, 274 Neb. 70, 736 N.W.2d 375 (2007). The issues before the CIR were (1) whether the CIR had jurisdiction, (2) whether the District committed a prohibited labor practice in violation of § 48-824 by failing to compensate an employee in accordance with the 2007-08 negotiated Agreement, (3) whether the petition was time barred, and (4) whether Manning was a certificated employee and member of the bargaining unit represented by the Association.

SUBJECT MATTER JURISDICTION

The District first argues that the CIR lacked jurisdiction over the subject matter of the petition and that the CIR lacked the authority to provide the relief requested by the Association. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. Kilgore v. Nebraska Dept. of Health & Human Servs., 277 Neb. 456, 763 N.W.2d 77 (2009). The District asserts that the issues raised by the Association should have been addressed in an action for breach of contract. The District argues that two cases control the issue of jurisdiction: Transport Workers of America v. Transit Auth. of City of Omaha, 205 Neb. 26, 286 N.W.2d 102 (1979), and Central Nebraska Education Association v. Central Technical Community College Area, 6 C.I.R. 237 (1982).

In Transport Workers of America, supra, the union filed a petition against the employer, claiming that the employer had refused to pay for a short-term disability benefit for employees as agreed to in a collective bargaining agreement. The parties stipulated that the only issue was whether employees who were receiving workers' compensation benefits were also entitled to receive short-term disability benefits as provided in the collective bargaining agreement.

The CIR found that the employer had breached its agreement with the union. On appeal, this court addressed whether the CIR had jurisdiction to declare the rights, duties, and obligations of the parties under an existing agreement. We determined that the CIR, as an administrative body performing a legislative function, had "no power or authority other than that specifically conferred by statute or by a construction necessary to accomplish the plain purpose" of the statutes. Id. at 30, 286 N.W.2d at 105.

We found no authority in the state Constitution or statutes which allowed the CIR to hear cases...