Nebraska Council of Educational Leaders v. Nebraska State Department of Education

205 N.W.2d 537, 189 Neb. 811, 1973 Neb. LEXIS 898, 83 L.R.R.M. (BNA) 2358

• Court: Nebraska Supreme Court
• Decided: March 23, 1973
• Docket: No. 38630
• Status: Published

Opinions

Spencer, J.

This is an appeal from an order of the Court of Industrial Relations finding that the plaintiff is entitled to serve as a bargaining representative for those employees of the defendant who authorize it to act for them, and directing defendant to undertake good faith negotiations in regard to the determination of terms and conditions of employment and the administration of grievances. The order of thé Court of Industrial Relations is against “the defendant” without further specificity. We reverse and dismiss.

Plaintiff’s petition alleges that it is an unincorporated association formed by the Lincoln-based. professional employees of the division of administrative services, division of vocational education, and division of instructional services of the State Department of Education of the State of Nebraska for the purpose of representation of said professional employees in all matters of employment relations. It alleges itself to be a labor organization as that term is defined in section 48-801, R. S. Supp., 1969.

Both the State Department of Education and the State Board of Education are governmental agencies of the State of Nebraska, set up by the Constitution of the State of Nebraska. Article VII, sections 14 and 15, Constitution of Nebraska. The State Department of Education has general supervision of administration of the school system of the state. The duties and powers of the State Board of Education are as prescribed by the Legislature.

Plaintiff’s petition lists the two agencies as defendants, but the allegations are specifically directed against the State Department of Education. Nowhere in the petition does thé plaintiff allege any facts which show a primary right of the plaintiff and a legal wrong done by the State Board of Education which involves that primary right. The order of the Court of Industrial Relations refers only to “the defendant” without specifying which defendant.

The defendants set out four specific assignments of error, one of which involves the legal capacity of the plaintiff to maintain this action. Inasmuch as we find plaintiff did not have sufficient legal capacity to maintain the action, we do not consider the other assignments.

Section 25-314, R. R. S. 1943, so far as material herein, provides as follows: “Provided, when such * * * unincorporated organization does not have a usual place of doing business or activity within the state, nor a clerk or general agent within the state, such * * * unincorporated association shall appoint an agent or agents in this state and before it is authorized to engage in any kind of business or activity in this state such * * * unincorporated organization shall file in the office of the Secretary of State a certified statement setting forth that such * * * unincorporated organization is doing business or conducting activities in the State of Nebraska stating the nature of the business or activity, and designating an agent or agents within the State of Nebraska, upon whom process, or other legal notice of the commencement of any legal proceeding, or in the prosecution thereof may be served; * *

It is undisputed that the plaintiff did not file any kind of a written statement with the Secretary of State of Nebraska. Nor did the plaintiff prove that it had a usual place of doing business, or a clerk or general agent within the state. The main activity for which the plaintiff is formed is to represent its members in the area embraced in these proceedings. This is the purpose of its very existence. We therefore do not agree with the Court of Industrial Relations that this unincorporated association may bring this action, and then subsequently qualify under section 25-314, R. R. S. 1943. The Court of Industrial Relations states plaintiff has not yet engaged in any business or activity. However, it directs the “defendant” to undertake good faith negotiations with the plaintiff on behalf of its employees. This is the sole business or activity for which plaintiff is organized.

Section 25-313, R. R. S. 1943, authorizes an unincorporated association to represent employees in collective bargaining with employers, as well as to sue and be sued in the name of the association. However, before it may bring an action in the courts of this state, it must comply with the provisions of section 25-314, R. R. S. 1943.

The plaintiff, having failed to comply with the provisions of section 25-314, R. R. S. 1943, was not authorized to bring this action. It has no legal capacity to sue. The demurrers should have been sustained. We reverse the judgment of the Court of Industrial Relations and dismiss the action.

Reversed and dismissed.

Clinton, J., concurs in result.