| SCHOOL DISTRICT OF | | | CASE NO. 34 |
| SEWARD EDUCATION | | | |
| ASSOCIATION, An | | | |
| Unincorporated Association, | | | |
| | | ||
| Plaintiff, | | | |
| | | ||
| v. | | | FINDINGS AND ORDER |
| | | ||
| THE SEWARD DISTRICT | | | |
| OF SEWARD IN THE | | | |
| COUNTY OF SEWARD, | | | |
| STATE OF NEBRASKA, | | | |
| also known as SCHOOL | | | |
| DISTRICT OF SEWARD, | | | |
| | | ||
| Defendant. | | |
GRADWOHL, J.:
This case came on for trial on March 12, 1971, on the Petition and Answer of the respective parties, evidence was adduced, and oral arguments were made by both parties thereafter. The Defendant preserved its Special Appearance filed previously, both by Answer and at the trial.
From the pleadings, evidence, and arguments of counsel, the Court makes the following findings of fact and reaches the following Conclusions of Law:
1. Agreed facts. A substantial portion of the facts necessary to this decision were agreed to between the parties, either in the pleadings or the evidence. The plaintiff Association represents employees of the Seward School District, a Class III School district. The Association has been recognized by the School District as the representative of members of the Association in matters covered by the Nebraska Teachers' Professional Negotiations act, sections 79-1287 to 79-1295. The Association is a "labor organization" and the School District is an "employer" as defined in section 48-801.
The Association and School District conducted negotiations under the Nebraska Teachers' Professional Negotiations act with respect to the 1970-1971 school year and for the two years prior to that. Before the Negotiations Act, the parties had held "informal negotiations".
The negotiations for 1970-1971 reached an impasse under the Negotiations Act. In the early spring of 1970, the Association and School District held extensive negotiations over a period of several weeks. Agreement was reached without apparent difficulty on all issues except salary and insurance benefits. The Association requested a salary schedule containing a set minimum for a qualified teacher, with annual increments on a vertical scale for tenure and experience and on a horizontal scale for each block of nine hours of additional college credit through a Master's Degree. After impasse, the matter was referred to a fact-finding board which recommended "that the 1970-1971 teacher's salary schedule be computed on a starting wage for B.A. teachers in the sum of $6,400.00, with vertical increments of 5 per cent and horizontal increments of 3 per cent in 9 hour steps through the Master's degree." The fact-finding board also recommended that the School District pay monthly health insurance in the amount of a single person's premium and the premium for teacher's income protection insurance at 60 per cent of the scheduled salary coordinated with the sick leave program to eliminate a waiting period without income. The association and the School District accepted the fact-finding board's recommendations at separate meetings on April 20, 1970, but there has been no written agreement between the parties embodying the terms resulting from the 1970-1971 negotiations.
On November 30, 1970, the Association asked the School District to recognize the Association as the representative of the certificated employees of the District in their professional and employment matters and to meet and confer with the Negotiating Committee of the Association on salary schedule, professional leave, sick leave, class size, noon duty, dress code, school calendar, and dues to professional organizations (related to subject area). On December 28, 1970, the School District recognized the Association for matters falling under the Nebraska Teachers' Professional Negotiations Act. It replied as follows to the request on the eight items requested by the Association to be negotiated:
(a) The Board feels that salaries should not be open to negotiation this year. The present salary schedule was carefully negotiated only a few months ago, and having been accepted in good faith by the Board and the Association, it should be considered as binding. There has been no material change in economic conditions on the availability of teachers in this area since the adoption of the schedule. For these reasons, salary negotiations will not be opened.
(b) As to the other subjects, the Board is of the opinion that request for negotiation is premature. It was not the intent of the negotiating law to eliminate the function of the school's administrative staff, or to substitute negotiation for school administration. We, therefore, request that all of these matters be first fully explored and discussed on the administrative level.
(c) If there are then matters for formal negotiation which have not been resolved at the administrative level, the Board would like to have a joint statement from the Superintendent and the Association setting forth the specific areas in which formal negotiation is requested. At that time the Board will take formal action to accept or reject negotiation.
The administrative procedures referred to in paragraphs (b) and (c) are the "Grievance Procedures For Seward School System" adopted by the School District Board at its November 1970 meeting. These procedures specify that if a teacher has a grievance, he should first discuss it with his principal. If the grievance is not resolved at that level, the Superintendent and finally the Board shall take up the matter. The Association made no attempt to present the non-salary items for administrative resolution under the Grievance Procedures but initiated this litigation.
2. Special Appearance. The Court rejects the contentions presented by the Special Appearance, preserved both by answer and at the trial, for the following reasons. The contention in paragraph "(a)" that this Court was not validly established under the Nebraska Constitution, especially Article V, is rejected for the reasons set out in the "Opinion As To General Constitutionality Of Court Of Industrial Relations Statutes", filed on May 13, 1968, in Public Service Employees Council v. Metropolitan Utilities District and United Association of Journeymen v. Metropolitan Utilities District, Cases No. 21 and 22. The contention in paragraph "(b)" concerning Article V, Section 14 of the Nebraska Constitution (as amended in 1970) is rejected for the reasons that the first sentence applies only to judges of the "Supreme or district courts" and, with respect to the second sentence, no judge of this court does practice law in any court "in any matter arising in or growing out of any proceedings in his own court". The contentions in paragraphs "(c)" and "(d)" concerning the application of Chapter 48, Article 8, to the School District Board and the effect of section 48-810.01 are rejected because they are premised on facts not warranted by the pleadings, or the evidence at the trial, and are legally incorrect for the reasons discussed in the "Opinion In Support of Order Overruling Demurrer", in Public Service Employees Council v. Metropolitan Utilities District, entered on January 17, 1968, Case No. 21, Pages 3 through 7, recently reapplied in the Findings and Order entered March 12, 1971, in Mid-Plains Education Association v. Mid-Plains Voc-Tech College, Case No. 33, and for the reasons discussed in other portions of this Findings and Order. The contentions in paragraph "(d)" as to the Nebraska Teachers' Professional Negotiation Act are rejected for the same reasons and for the additional reason that the provisions of such act have been exhausted without resolution of the dispute involved, as discussed below. The contention in paragraph "(e)" as to jurisdiction of the parties or the subject matter is rejected because of the provisions of section 48-810, set out below.
3. Industrial dispute. Section 48-801(7) provides:
Industrial dispute shall include any controversy concerning terms, tenure or conditions or employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment; or refusal to discuss terms or conditions of employment;
We find that an industrial dispute exists between the Association and the School District in each of the following respects:
a. a controversy concerning terms, tenure or conditions of employment;
b. a controversy concerning the representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment; and
c. a refusal to discuss terms or conditions of employment.
4. Jurisdiction of Court of Industrial Relations; Exhaustion of Provisions of Nebraska Teachers' Professional Negotiations Act. The Court has jurisdiction of the parties and the subject matter by virtue of section 48-810 which provides:
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 Nebraska Teachers' Professional Negotiations act, sections 79-1287 to 79-1295, Revised Statutes Supplement, 1967, until all provisions of such act have been exhausted with resolution of the dispute involved.
The industrial dispute in this matter involves governmental service (as defined in section 48-801(2)). The petition was filed by a labor organization (as defined in section 48-801 (6)) in accordance with section 48-811. From the evidence, we find that all provisions of the Nebraska Teachers' Negotiations Act have been exhausted without resolution of the dispute involved.
The industrial dispute in this matter involves governmental service (as defined in section 48-801(2)). The petition was filed by a labor organization (as defined in section 48-801(6)) in accordance with section 48-811. From the evidence, we find that all provisions of the Nebraska Teachers' Negotiations Act have been exhausted without resolution of the dispute involved.
The legislative history and intent of the enactment of the "proviso" in section 48-810 is set out and discussed in the "Opinion As to Jurisdiction" entered on March 12, 1971, in Cases No. 35, 36, and 38. We did not decide in that Opinion what events or circumstances constitute an "exhaustion" of the provisions of the Negotiation Act without resolution of the dispute involved. In reaching the conclusion that the Court lacked subject matter jurisdiction in Cases No. 35, 36, and 38, the Opinion stated on page 7:
In the context of the legislative history of LB 15, we conclude that so long as some proper matters properly are proceeding under and in accordance with the Nebraska Teacher's Professional Negotiation act, the Legislature intended that all areas specified in the request constitute a single dispute....Following "exhaustion" under that Act, there is subject matter jurisdiction in the Court of Industrial Relations.....As we view the legislative determination reflected in section 48-810, it was merely one of establishing a priority in the procedures. Taking Senator Carpenter's view, the Legislature intended to retain the special act relating to teachers which has been in effect for only two years, but after that act has been applied, the parties might invoke the jurisdiction of the Court of Industrial Relations. By this interpretation, it is only the time at which subject matter jurisdiction of the Court of Industrial Relations attaches which is held in abeyance.
This legislative history and intention seems equally applicable to the question of "exhaustion" we are now called upon to decide. In the present case, unlike Central City (No. 35), Lyons (No. 36), Clarkson (No. 37), Ashland-Greenwood (No. 38), and Norfolk (No. 40) where the Court determined that subject matter jurisdiction did not then exist, there are no proper matters properly proceeding under and in accordance with the Nebraska Teacher's Professional Negotiations Act. The actions taken by the School District on December 28, 1970, brought the intended method of operation of the Nebraska Teachers' Professional Negotiations Act to an end and, therefore, constituted an exhaustion of the provisions of that act insofar as conferring jurisdiction on this Court is concerned.
The Associations' letter of November 30, 1970, was a "written request to meet and confer with such board regarding employment and relations with certificated employees" which specified "the areas to be discussed by the parties" under section 79-1292 which provides:
A representative organization shall give to the board of education or school board a written request to meet and confer with such board regarding employment and relations with certificated employees. The request to meet and confer shall specify the areas to be discussed by the parties. The board shall have thirty days in which to accept or reject the request in whole or in part, and shall give written notice of its decision. If the board accepts the request, the first meeting shall be held within twenty-one days after such acceptance.
Although it recognized the Association as a representative of its members, the letter of the School District on December 28, 1970, a portion of which is set out above, constituted a complete rejection under section 79-1292 of the Association's request to meet and confer. Paragraph "(a)" of the School District's letter replied that "salary negotiations will not be opened." Paragraph "(b)" requested that the non-salary items "be first fully explored and discussed on the administrative level." Paragraph "(c)" added that the Board wanted a "joint statement from the Superintendent and the Association setting forth the specific areas in which formal negotiation is requested. At that time the Board will take formal action to accept or reject negotiation." There is no doubt that the School District can "accept or reject the request in whole or in part" under section 79-1292. That section does not authorize the School District to make a counter offer or to impose any substantial condition upon its acceptance or rejection. The statute provides a timetable for some aspects of the negotiations, especially that "the board shall have thirty days in which to accept or reject the request" and that "the first meeting shall be held within twenty-one days after such acceptance". The School District's actions in these respects were outside of the intended and authorized operation of section 79-1292 and constitute a complete rejection under section 79-1292 of all "areas to be discussed by the parties." At that point, there were no proper matters properly proceeding under and in accordance with the Nebraska Teachers' Professional Negotiations act. Once the School Board took the position set out in the letter of December 28, 1970, there was no other provision in the Nebraska Teachers' Negotiation Act upon which the Association might rely to pursue its statutorily recognized authority to represent its members. at that time, therefore, all of the provisions of the Nebraska Teachers' Negotiation act were exhausted without resolution of the dispute involved and the subject matter jurisdiction of this court under section 48-810 commenced.
5. Duration of 1970-1971 agreement. The School District's Answer alleges "That said salary schedule is contractual in character for a period of years of not less than six (6) nor more than eleven (11)." It also alleges that the Association "is now estopped to reopen wage negotiations in the absence of a showing by clear and convincing proof that there has been a major change since the adoption of said salary schedule making the same at this time so grossly unjust and unfair as to shock the conscience of the Court." The evidence at the trial does not show either that the 1970-1971 Agreement was, or was intended to be, binding for a period longer than the 1970-1971 school year, or that the Association acted in a manner which might estop it from asserting a written request for discussion of a different salary schedule for 1971-1972. The schedule, itself, is entitled "School District of Seward, Salary Schedule, 1970-1971." The Report of the Fact Finding Board accepted at the separate meetings on April 20, 1970. There is no other written contract between the parties. In addition, section 79-1254 contains statutory requirements for the renewal of teachers' contracts in Class III school districts. We need not inquire in this case whether the authority granted under the Negotiation Act or Chapter 48, Article 8, allows the parties to vary these statutory requirements by agreement. There is no evidence that the negotiations of the parties in arriving at the 1970-1971 agreement contemplated a change in the statutory concept of annual renewals. The evidence at the trial does not support the School District's contention that the Association has estopped itself from presenting a request for changes in the salary schedule for 1971-1972.
6. Proper subjects for negotiation. The Association requested that the parties meet and confer on salary schedule, professional leave, sick leave, class size, noon duty, dress code, school calendar, and dues to professional organizations (related to subject area). We do not purport in this Decision to adopt a general legal definition or rule interpreting the phrase "terms and conditions of employment" as that phrase is used in section 48-837, which states, "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...." See also sections 48-801 (6) ("grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work"), 48-801 (7) ("terms, tenure or conditions of employment"), 48-810.01 ("grievances, labor disputes, rates of pay, hours of employment or conditions of work"), 48-816 ("terms and conditions of employment"), 48-818 ("scale of wages, hours of labor, or conditions of employment"), 79-1288 ("all matters of employment relations"), and 79-1289 ("matters of employee relations").
Our determination of the issues which are presently proper subjects of bargaining is based upon the evidence adduced at the trial. This evidence indicated that the professional leave and dues to professional organizations (related to subject area) items in the Association's letter of November 30, 1970, should be considered as a single item. There was evidence that the Superintendent and one Principal were now having some dues to professional organizations (related to subject area) paid for by the School District. The sick leave item had been resolved by the time of the trial and was no longer an issue. The Association stated at the trial that the "class size" item was merely to bring to the attention of the school District the importance of class size; certainly, this item has now been clearly brought to the attention of the School District.
With respect to the other non-salary items, there was evidence that the noon duty and dress code items related to instances of current difficulty in the Seward School District. The tentative school calendar has already been sent out to the teachers for their individual reactions.
From this evidence at the trial, we find that the subjects of salary schedule, professional leave and dues to professional organizations (related to subject area), noon duty, dress code, and school calendar, constitute a pending industrial dispute at this time and are proper subjects for negotiations between the parties under the statutes. School districts derive their powers and authorities from state statutes and state statutes may specify the method and manner in which those powers and authorities are exercised. See "Findings and Orders With Respect to Ordering Bargaining", filed May 13, 1968, in Cases No. 21 and 22, and "Opinion in Support of Order Overruling Demurrer", filed January 17, 1968, in Case No. 21.
7. Effect of the "Grievance Procedures for Seward School System". The members of the Association had a right under section 48-837 to be represented by the Association on the matters presented to the School District Board. The grievance procedures unilaterally adopted by the Board, together with the letter of December 28, 1970, were an effective limitation of those rights since they required the individual teacher first, and the teacher jointly with the Superintendent second, to present matter for consideration. The validity of the grievance procedures, themselves, as a means of resolving present grievances, is not drawn in question. The items for which negotiations were requested apparently related to the 1971-1972 school year. Nor is the effect of a grievance procedure contractually negotiated pursuant to sections 48-837 and 48-816 involved in this case. The single issue presented now is whether the School District could impose a condition or personal or individual administrative exhaustion upon those items which section 48-837 allows to be presented by representatives of the teachers' own choosing. From the letter of December 28, 1970, the Board indicated that it was only after completion of the administrative action under the grievance procedures that "the Board will take formal action to accept or reject negotiation." The School District continued to take the same position at the time of the trial. On the evidence in the present record, we find that the members of the Association were statutorily entitled to present the specified matters relating to the 1971-1972 school year through the Association directly to the School District without first exhausting the administrative grievance procedures.
8. Jurisdiction of the Court of Industrial Relations to Order Bargaining. In International Brotherhood of Electrical Workers v. City of Hastings, 179 Neb. 455, 138 N.W.2d 822 (1965), Judge McCown's opinion concluded, "However desirable extra judicial discussion between the parties or a court encouraged voluntary settlement might seem in effectuating the policies of the statutes, the statutory grant of power does not extend to the order here." Enactment of the Nebraska Teachers' Professional Negotiations Act in 1967, LB 298 of 1967, and LB 15 of 1969 were legislative responses to supply the grant of power found lacking in IBEW v. City of Hastings. These legislative enactments would also appear to be legislative determinations that extrajudicial discussion between the parties or a court encouraged voluntary settlement would effectuate the policies of Chapter 48, Article 8.
LB 298 of 1967 amended Section 48-816 to provide in part:
In the event of an industrial dispute between employer and employees of a privately-owned public utility or any public utility which is owned, managed, or operated by any political or governmental subdivision of the State of Nebraska, any public corporation, or any public power and irrigation district, where such employer and employees have failed or refused to bargain in good faith concerning the matters in dispute, the court may order such bargaining to be begun or resumed, as the case may be, and may make any such order or orders as may be appropriate to govern the situation pending such bargaining.
Some of the legislative history of the enactment of LB 298, and also LB 583 which became Section 48-810.01, by the 1967 Nebraska Legislature is set out on Pages 3 to 7 of the "Opinion in Support of Order Overruling Demurrer" entered January 17, 1968, in Case No. 21. Section 79-401 provides that "every duly organized school district shall be a body corporate and possess all the usual powers of a corporation for public purposes...."
Section 48-810 requires that "all industrial disputes involving governmental service...shall be settled by invoking the jurisdiction of the Court of Industrial Relations". Section 48-823 states "All incidental powers necessary to carry into effect the provisions of Sections 48-801 to 48-823 are hereby granted to and conferred upon the court herein created."
These statutes give the Court of Industrial Relations a broad discretionary authority to order bargaining between the parties. The circumstances in which it is appropriate for the court to exercise its statutory authority are discussed in the next paragraph of this "Findings and Order."
9. Discretion As To Order and Bargaining. In the "Findings and Orders With Respect to Ordering Bargaining", filed May 13, 1968, in Cases No. 21 and 22, page 5, the Court interpreted its discretionary authority to order bargaining under Section 48-816 as follows:
What this reasoning clearly demonstrates is that the Court of Industrial Relations can order bargaining to effectuate the purposes of the statutes by implementing a settlement of an industrial dispute. Bargaining can implement settlement of an industrial dispute in two types of situations contemplated in Judge McCown's opinion:
(1) to eliminate, define and simplify controversies; or
(2) to encourage a voluntary settlement of an industrial dispute.
Perhaps there are additional circumstances in which ordering bargaining might effectuate the purposes of the statutes, but if so, they have not been presented by counsel and would not appear to be involved in the two pending cases.
LB 15 of 1969 also embodies a legislative policy determination that it is desirable for an employer and employee association to enter into voluntary collective agreements. From Section 48-810.01, the Court of Industrial Relations cannot compel the parties to enter into any contract or agreement. The Court can, however, under Section 48-818 establish by order or orders the scale of wages, hours of labor, or conditions of employment. As a general proposition, it is more desirable that the parties engage in extra-judicial discussions or enter into a court encouraged voluntary settlement that the Court determine these matters by order under Section 48-818. We find that in the present case the policies of Chapter 48, Article 8 will be best served by an order compelling the parties to meet and confer in an effort to arrive at a voluntary settlement.
10. Subjects Appropriate For an Order Compelling Bargaining. From the evidence in the record we find that the parties should be directed to negotiate in the following areas: (1) salary schedule; (2) professional leave and dues to professional organizations (related to subject area); (3) noon duty; (4) dress code; and (5) school calendar.
From the evidence we find that an order compelling bargaining would encourage a voluntary settlement of the present industrial dispute. Such bargaining will also serve to eliminate, define, and simplify the pending controversies. As to the non-salary issues the School District found that these matters were settled expeditiously during the 1970-1971 negotiations. The School District indicated at the trial that it would probably be willing to negotiate the non-salary items after exhaustion of the administrative grievance procedures this year. Since we have determined that the members of the Association are entitled to present the matters under Section 48-837 on which they are entitled to have the Association represent them directly to the School District Board rather than through the administrative grievance procedures, it is appropriate that the Court now enter an order compelling negotiation on those items.
It is also appropriate that the School District Board meet and confer with the Association with respect to a 1971-1972 salary schedule. The Association indicated it sought an increase in the beginning base salary, and increase of the horizontal percentage from 3 per cent to 5 per cent for additional education, and a new column at the right of the schedule for a Master of Arts Degree plus 9 hours. The Association was interested both in securing a general increase in the salary level beyond the progression which the School District Board indicated it would follow under the present schedule and providing a new column for teachers who had arrived at the maximum pay permitted under the present schedule. Without passing on the merits of the Association's request, we determine that the parties should meet and confer with respect to the salary schedule.
As provided in Section 48-810.01, the order for bargaining does not compel the School District Board to enter into any contract or agreement. It merely requires the parties to negotiate in an effort to arrive at a voluntary settlement of, or to eliminate, simplify or define controversies with respect to, (1) salary schedule; (2) professional leave and dues to professional organizations (related to subject area); (3) noon duty; (4) dress code; and (5) school calendar.
11. Form of the Order. The purpose of the Order is to encourage a voluntary settlement of the industrial dispute. The Order to "undertake good faith negotiations in regard to salary schedule, professional leave and dues to professional organizations (related to subject area), noon duty, dress code, and school calendar" has been left without further procedural requirements so as to leave the parties free to design their own format for bargaining. Section 48-837, the principal statutory provision which this Order is effectuating, does not provide for the mechanical details of negotiations, and, especially in the light of the fact that the parties have negotiated both formally and informally for a number of years, we do not feel it is necessary to make further provision in this Order. The Order is made effective "forthwith" because of the dates at which teaching contracts are originally entered into. If the negotiations do result in an agreement, the settlement should be reported to this Court in whatever form the parties determine is desirable. If the parties are unable to agree, then the parties are to so advise the Court. If there is not a voluntary settlement, the Court will review the situation then existing, especially whether or not it should proceed to decide the unresolved issues under section 48-818. This Order is in no way a determination of those matters which might later be determined under section 48-810.01 that the School District cannot be, and is not, compelled to enter into any contract or agreement, written or otherwise. This is not a final order. The Court may issue further orders, if needed, with respect to the conduct of negotiations, or to govern the employment situation pending such bargaining. Either party is entitled to apply to the Court for such additional orders as may be convenient to carry out the provisions and objects of this Court.
12. Separate Conclusion of Judge Kratz. Judge Kratz is in agreement with all portions of the above Findings and Conclusions except to the extent that the item "school calendar" has been interpreted to allow negotiations regarding the dates and times when the school may operate. To this extent, he does not consider "school calendar" a "condition of employment" and disagrees with its inclusion as a proper subject for negotiations.
NOW THEREFORE IT IS ORDERED, ADJUDGED AND DECREED that:
1. The Plaintiff and Defendant are ordered forthwith to undertake good faith negotiations in regard to the determination of salary schedule, professional leave and professional organizations (related to subject area), noon duty, dress code, and school calendar for the 1971-1972 school year;
2. Should such negotiations result in mutual agreement, the matters so agreed upon shall be reported to this Court;
3. If the parties are unable to agree on any such matters, the parties, separately or jointly as they determine, shall so notify the Court;
4. This Order does not compel either party to enter into any contract or agreement, written or otherwise;
5. This Order shall not preclude either party from making application to this Court for such additional Order or Orders as may be necessary to carry out this Order or appropriate to govern the situation pending such bargaining.
JOHN M. GRADWOHL, JUDGE
The main purpose for this Memorandum is to set forth the reasons why the Court on June 21, 1971 overruled Defendant's Objections to Trial Under Section 48-818 R.S. Neb. 1943, filed June 16, 1971.
By its terms, section 48-810.01 is clearly inapplicable to an order or orders of the Court under section 48-818 establishing or altering the scale of wages, hours of labor, or conditions of employment, or any one or more of the same. A judicial order establishing or altering any of these items is not compelling a political subdivision to enter into a contract or agreement. It is the order and not a contract or agreement which must be given effect. agreement of the Governmental subdivision is not required either to enter or to effectuate an order under section 48-818. Such an order would not constitute a contract or agreement with a "labor organization" which is the crux of section 48-810.01. Defendant's interpretation of these sections would effectively nullify the provisions of section 48-818, at least in any case where a "labor organization" were involved. This interpretation would be at variance with the legislative history of the enactments and the prior interpretation of this Court in its Opinion in Support of Order Overruling Demurrer, pages 1 to 9, entered January 17, 1968, in Public Service Employees Council v. Metropolitan Utilities District, Case No. 21. Section 48-818 was substantially modified as a part of LB 15 in 1969 and was certainly intended by the Legislature to be a viable part of the statutes. This judicial and legislative history is entitled to great weight. See IBEW v. City of Hastings, 179 Neb. 455, 138 N.W.2d 822 (1965). A school district is, itself, wholly a creature of state statutes and can exercise its statutory powers only in the manner specified by state statutes. See School District No. 74 v. School District of the City of Grand Island, 186 Neb. 728, 186 N.W.2d 485 (1971); Mann v. Wayne County Board of Equalization, 186 Neb. 752, 186 N.W.2d 729 (1971).
The Amendment to Defendant's Answer filed on June 21, 1971, presents an additional contention that section 48-818 violates Article II of the Nebraska Constitution. The statute contains abundant legislative criteria which must be employed in rendering a decision. In addition, it should be noted that Article II on "Distribution of Powers" applies "except as hereinafter expressly directed or permitted," The Court of Industrial Relations has been created under Article XV Section 9 of the Nebraska Constitution which operates as an exception to Article II. The Constitutional history of these provisions is clear and is set forth in Opinion as to general Constitutionality of Court of Industrial Relations Statutes filed May 13, 1968, in Public Service Employees Council et al, v. Metropolitan Utilities District, and United Association of Journeymen, etc. v. Metropolitan Utilities District, Cases No. 21 and 22.
This case came on for trial on June 21, 1971, on the Application of the Plaintiff filed May 20, 1971, requesting the Court to establish a salary schedule pursuant to Section 48-818, R.S. Neb. 1943, and Defendant's Answer to Application, filed May 25, 1971, evidenced was presented, oral arguments given, and briefs submitted.
From the pleadings, evidence, arguments and briefs, the Court makes the following Findings of Fact and reaches the following Conclusions of Law:
1. History of the negotiations and litigation. The first trial in this case was held on March 12, 1971. Following that trial, the Court, on March 26, 1971, ordered the parties to undertake good faith negotiations in regard to the determination of salary schedule, professional leave and professional organizations (related to subject area), noon duty, dress code, and school calendar for the 1971-1972 school year. Negotiations were held and agreement was reached on all items except that of salary schedule. The record made in the March 12th hearing was made a part of the evidence in the present trial, and the provisions of the Findings and Order entered March 26th are also incorporated herein by reference.
The negotiations between the parties for 1970-1971 reached an impasse under the provisions of the Nebraska Teachers Professional Negotiations Act. The fact-finding board constituted under that Act recommended "that the 1970-1971 teacher's salary schedule be computed on a starting wage for B.A. teachers in the sum of $6,400.00 with vertical increments of 5 per cent and horizontal increments of 3 per cent in 9 hour steps through the master's degree." This recommendation was accepted by both parties and became the basis for the following salary schedule for 1970-1971:
NOTE: SCHEDULE DELETED
Despite the fact that agreement was reached in an apparently easy manner on the other items upon which negotiations were directed in the Order of March 26th, the negotiations as to salary schedule appear to have been less than satisfactory. The proposal of the Education Association was for a base salary of $6,900.00 with increments of 5% both vertically for longevity and horizontally for additional education. The School District proposal was to abandon the index increment concept and allow raises of $300.00 (on a 9-month basis) for all teachers earning less than approximately $8,500.00. The evidence does not indicate that any substantial negotiations or discussions were held on these proposals or that alternative positions were taken by either party. The School District proposal became the basis for individual contracts offered to and accepted by the teachers. The following schedule shows the 1970-1971 salary schedule for the teachers intending to return in 1971-1972 to the Seward School District, the amount of raise for 1971-1972 allowed by the School Board, the extra duty pay for 1971-1972, and the total salary presently set for the returning teachers for 1971-1972:
NOTE: SCHEDULE DELETED
The evidence indicates that some of the Seward teachers had previously signed individual contracts, also formally executed by the School District, based upon a continued application of the 1970-1971 Salary Schedule (set out above) but with the condition:
"The offer and acceptance of this contract is without prejudice to the rights of either the School District or the teacher in litigation pending in the Nebraska Court of Industrial Relations or any direct or indirect result thereof."
Exhibit 27 contains copies of five such contracts. For example, the contract for Harold A. Thorell for the 1971-1972 school year shows a salary schedule location of BA+18, Step 8 and a base salary of $9,344.00. Last year, his base salary was $8,832.00 (BA+9, Step 7). The base salary presently set for Harold A. Thorell, listed above, is $8,832.00 and not $9,344.00 as shown in Exhibit 27. The parties apparently considered the figures in the individual contracts subject to modification in the light of the Court's Findings and Order of March 26, 1971, and overruling Defendant's Motion filed April 13, 1971, for a release from all liability under the 1970-1971 salary schedule. Paragraph 5, of the Findings and Order of March 26, 1971, and the Order entered May 14, 1971, overruling the Motion filed April 13, 1971, were a rejection of the allegation in Defendant's Answer "That said salary schedule is contractual in character for a period of years of not less than six 96) nor more than eleven (11)." In addition, the execution of individual contracts under the mandate of section 79-1254, in the circumstances of this litigation, does not constitute an abandonment of the representative relationship provided under Chapter 48, Article 8, or the jurisdiction of this Court to settle industrial disputes, including a determination under section 48-818. See Hastings Education Association v. School District of Hastings, Case No. 42, Order (overruling Motion For Summary Judgment) entered July 15, 1971; Milford Education Association v. School District of Milford, Case No. 43, Findings of Fact, Conclusions of Law, and Order (paragraph 1) entered July 15, 1971.
The Defendant has raised several additional objections to the trial under section 48-818.
The Defendant contends that section 48-810.01 bars a wage determination hearing by this Court. By its terms, section 48-810.01 is clearly inapplicable to an order or orders of the Court under section 48-818 establishing or altering the scale of wages, hours of labor, or conditions of employment, or any one or more of the same. A judicial order establishing or altering any of these items is not compelling a political subdivision to enter into a contract or agreement. It is the order and not a contract or agreement which must be given effect. Agreement of the Governmental subdivision is not required either to enter or to effectuate an order under section 48-818. Such an order would not constitute a contract or agreement with a "labor organization" which is the crux of section 48-810.01. Defendant's interpretation of these sections would effectively nullify the provisions of section 48-818, at least in any case where a "labor organization" were involved. This interpretation would be at variance with the legislative history of the enactments and the prior interpretation of this Court in its Opinion in Support of Order Overruling Demurrer, pages 1 to 9, entered January 17, 1968, in Public Service Employees Council v. Metropolitan Utilities District, Case No. 21. Section 48-818 was substantially modified as a part of LB 15 in 1969 and was certainly intended by the Legislature to be a viable part of the statutes applicable to industrial disputes between Nebraska governmental employers and employees. This judicial and legislative history is entitled to great weight. See IBEW v. City of Hastings, 179 Neb. 455, 138 N.W.2d 822 (1965). The legislative history of the enactment of section 48-810.01 in 1967 is set out and applied in the Order of January 17, 1968, in Case No. 21, above.
By Amendment to its Answer, filed June 21, 1971, the Defendant alleged that "Setting salaries by this Court would violate Article II of the Constitution of Nebraska." This Constitutional provision relates to the Separation of Powers and Delegation of Powers in Nebraska. Section 48-818 contains constitutionally sufficient criteria, which criteria are applied in rendering the decision in this case. As discussed more fully below, it is the legislative criteria which control the order entered herein. This body, by whatever title denominated, does no more than follow the clear map of legislative directives. In addition, it should be noted that Article II on "Distribution of Powers" applies "except as hereinafter expressly directed or permitted." The Court of Industrial Relations has been created under Article XV, Section 9, of the Nebraska Constitution which operates as an exception to Article II. The constitutional history of these provisions is clear and is set forth in the Opinion as to General Constitutionality of Court of Industrial Relations Statutes, filed May 13, 1968, in Public Service Employees Council et. al. v. Metropolitan Utilities District, and United Association of Journeymen, etc. v. Metropolitan Utilities, Cases No. 21 and 22.
Defendant has also contended that an order of this Court under section 48-818 would be at variance with section 79-802 that "All schools organized within the limits of such cities shall be under the direction and control of the boards of education authorized by section 79-803." But this statement avoids the controlling legal and constitutional principle. A school district is, itself, wholly a creature of state statutes and can exercise its statutory powers only in the manner specified by state statutes. See School District No. 74 v. School District of the City of Grand Island, 186 Neb. 728, 186 N.W.2d 485 (1971); Mann v. Wayne County Board of Equalization, 186 Neb. 752, 186 N.W.2d 729 (1971).
2. Statutory criteria for an order establishing or altering the scale of wages. Section 48-810 directs that "All industrial disputes involving governmental service...shall be settled by invoking the jurisdiction of the Court of Industrial Relations." Section 48-818, the controlling section in this proceeding, provides:
The findings and order or orders may establish or alter the scale of wages, hours of labor, or conditions of employment, or any one or more of the same. In making such findings and order or orders, the Court of Industrial Relations shall establish rates of pay and conditions of employment which are comparable to the prevalent wage rates paid and conditions of employment maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions. In establishing wage rates the court shall take into consideration the overall compensation presently received by the employees, having regard not only to wages for time not worked, including vacations, holidays, and other excused time, and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees. Any order or orders entered may be modified on the court's own motion or on application by any of the parties affected, but only upon a showing of a change in the conditions from those prevailing at the time the original order was entered.
Section 48-818 was extensively considered and amended in 1969 in LB 15. As presently drawn, it is an important section in the Nebraska government employee labor relations statutory system. By section 48-837, public employees have been granted "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 thereunder". Section 48-816 authorizes public employers "to negotiate and enter into written agreements with such employee organizations in determining such terms and conditions of employment." The Nebraska Teachers' Professional Negotiations Act, although not applicable in the present resolution of this case, contains similar provisions. See sections 79-1287 to 79-1289 and 79-1293. The failure to arrive at a voluntary agreement by the parties is a "controversy concerning terms, tenure or conditions of employment" within the definition of "industrial dispute" in section 48-801(7). Any employer, employee, or labor organization, or the Attorney General of Nebraska, may file a petition in the Court of Industrial Relations when an industrial dispute exists between the parties. Section 48-811. The sole industrial dispute presently existing between the parties in this case concerns the salary schedule for 1971-1972. To settle that industrial dispute, the provisions of section 48-818 are controlling.
Section 48-818 requires that the Court shall establish rates of pay "which are comparable to the prevalent wage rates paid...for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions." In a sense, this statutory language as to "comparable" and "prevalent" requires the Court to measure the settlement of the industrial dispute before the Court by the standards set by the "peers" of the parties before the Court. The Court is directed by this statute to examine the wage rates paid "for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions." The statute also directs the Court to take into consideration "the overall compensation presently received by the employees". It is only by the application of these statutory standards that the Court is authorized to establish or alter the scale of wages, hours of labor, or conditions of employment.
3. School districts with which the Seward School District should be compared. We find that in determining "the prevalent wage rates paid and conditions of employment maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions", consideration should be given primarily to other schools in the Central Ten Athletic Conference, and secondarily to any additional "comparable" school districts. This finding is supported by the evidence of each of the parties in this case.
The schools comprising the Central Ten Athletic Conference are Albion, Aurora, Central City, Crete, David City, Ord, St. Paul, Schuyler, Seward and York. These are all Class III public schools (as defined in section 79-102) and compete in Class B athletics. Richard Halama, a salary and negotiation consultant to the plaintiff association, testified that the conditions under which the teachers work in these schools is similar, that the work performed is similar, and that the skills required by them are similar (29:5-14). David J. Tuma, a member of the Seward Board of Education, testified that the Board, itself, compared the Seward District with other districts in the Central Ten Athletic Conference in fixing teacher salaries. His testimony, in response to questions by Judge Baylor, was as follows with respect to establishing the salaries proposed for 1971-1972;
JUDGE BAYLOR: To what extent if at all did you compare the salaries in Seward with the salaries in other school districts?
THE WITNESS: We have always tried to stay in line with, for example, the Central Ten. However, we feel that the Central Ten is in about the same position we are.
JUDGE BAYLOR: Wait a minute, you're not....this may be all relevant but you're not quite answering my question; to what extent did you study figures from any other school district in arriving at your, what you called the Board's composite feeling that a certain figure was enough pay.
THE WITNESS: Well, I think that I would have to say that in the first place we did not know what the other-I'm using Central Ten as an example, you're asking me for a comparison, did we base our judgment on what was happening in other schools, how much did that control that?
JUDGE BAYLOR: Did you study other schools at all?
THE WITNESS: Yes, we did.
JUDGE BAYLOR: All right, what schools did you study?
THE WITNESS: The Central Ten which has been brought out in testimony.
JUDGE BAYLOR: Did you study any of the latest figures for the '71-72 school year that have been presented in, particularly in Exhibits 28, 29, and 30?
THE WITNESS: No, Your Honor, we haven't given that too much time because we were not in negotiation at the time, since these figures have come out, these have been settled since we have stopped negotiating.
Mr. Tuma testified at length concerning the other reasons motivating the Seward Board of Education in establishing the salaries proposed for 1971-1972. Section 48-818 directs this Court to make a comparison with other employments. Mr. Tuma and the Seward Board of Education have relied heavily in the past on salaries set by other school districts in the Central Ten Athletic Conference. We do likewise in settling the present industrial dispute. Additionally, the information introduced in evidence with respect to other school districts for 1971-1972 is supportive of the quality of "prevalence" for salaries and overall compensation paid by districts in the Central Ten Athletic Conference.
4. Overall compensation of teachers in the Central Ten Athletic Conference. Appendix 1 (a portion of Exhibit 28), attached hereto and incorporated herein, is a summary of salary schedules presently set for the other nine members of the Central Ten Athletic Conference for 1971-1972. Appendix 2 (portions of Exhibit 10), attached hereto and incorporated herein, contains descriptions of the salary schedules for all members of the Central Ten Athletic Conference for 1970-1971.
The following table summarizes the salary schedules and index increments for the years 1970-1971 and 1971-1972, and the differences between the two years, for all members of the Central Ten Athletic Conference:
NOTE: TABLE DELETED
For the 1970-1971 school year, 8 districts, including Seward, had a base salary of $6,400; the other 2 districts were at $6,300. All ten school districts used an index salary schedule. Four districts, including Seward, had a 5% vertical increment for teaching experience; six districts had a 4% vertical increment. All ten schools used horizontal increments for each 9 hours of college credit to the level of MA. Seward was one of five districts having increments only as far as the MA level. The other five districts had horizontal increments beyond the MA level (one district used 3 levels beyond MA, 3 districts used 2 levels beyond MA, and 1 district used 1 level beyond MA). See Attachment 2 hereto. One school used a 5% horizontal increment factor; 7 schools used a 4% horizontal increment factor; 2 schools, including Seward, use 3%. The school other than Seward with a 3% horizontal factor in 1970-1971 increased the increment to 4% in 1971-1972, whereas Seward's was eliminated. The number of steps in the Seward index schedule for 1970-1971 was at the approximate mid-point of the conference districts for 1970-1971. Some items of the Seward leave policy were "being worked on" when the 1970-1971 figures were prepared (Appendix 2). The Seward board paid insurance for 1970-1971 was greater than any of the other districts except one district. Taking into consideration all evidence in the record, the rates of pay and overall compensation of teachers in the Seward School District for 1970-1971 were comparable to those of the entire membership of the Central Ten Athletic Conference.
For the 1971-1972 school year, one district has set a $6,600 base (on a two year contract); 1 district has a $6,525 base; 6 districts have set a base of $6,500; and 2 districts, including Seward, have set a base of $6,400. The only district with index increments as high as "5x5". Both of the districts at $6,300 for 1970-1971 increased the base to $6,500 for 1971-1972. Three conference districts increased their bases by $200 (one on a two year contract), one school increased its base by $125, four schools increased their base by $100, and Seward and one other district did not increase the base for 1971-1972. But the only district other than Seward which did not increase its base was the one on the "5x5" index increments, whose teachers received those increases. seven districts retained the same index increments for 1971-1972 as were in effect for 1970-1971. Two districts increased the horizontal increment by 1%, one of which was the only district other than Seward with an increment as low as 3% for 1970-1971. No district other than Seward eliminated or reduced its index increment for 1971-1972. Seward eliminated the index schedule for 1971-1972. Seward eliminated the index schedule for 1971-1972, but teachers earning less than approximately $8,500 were given a $300 increase. A 5% increment on a $6,400 base would have been $320 for all teachers not already at the highest pay level in the applicable column. A 3% increment for additional education attained during the year, a factor enjoyed by teachers in all other districts in the conference, would amount to $192. See, for example, the salary information for Harold Thorell, above. The salaries of teachers entering the Seward district in 1970-1971 were set in accordance with the 1970-1971 index schedule, with an agreement that they would be adjusted following any Order of this Court as to the salaries for the returning teachers. The 1971-1972 leave policies and board paid insurance benefits for the conference schools is contained in Exhibit 38; although the information is not complete in all respects, it appears that the fringe benefits received by teachers in several of the districts were increased for 1971-1972.
5. Determinations under section 48-818. From the evidence in the record, we determine that the Salary Schedule for the School district of Seward for 1971-1972 should, pursuant to the provisions of section 48-818, be ordered by this Court to be a base salary of $6,500.00 with index increments of 5% vertically and 3% horizontally. The salary schedule so established is contained in the Order, below. This salary schedule is effective for the 1971-1972 school year only. We have left unaltered the Seward index increments of "5x3" and the number of steps in each column contained in the 1970-1971 Seward Salary Schedule. The administration of the index increments shall be the same as the practices during the 1970-1971 school year. Except as altered by the order for this salary schedule, the other aspects of the compensation and terms and conditions of employment presently set or agreed upon for 1971-1972 shall remain unchanged by this Order.
In making these findings and orders, the Court finds, from the evidence in the record, that a scale of wages for the Seward teachers with a base salary of $6,500.00 and index increments of 5% vertically and 3% horizontally, as set out below, is comparable to the prevalent wage rates paid and conditions of employment maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions. The Court has taken into consideration the overall compensation presently received by the employees, having regard not only to wages for time actually worked but also to wages for time not worked, including vacations, holidays, and other excused time, and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees. The Court additionally finds, from the evidence in the record, that, taking into consideration the history of the negotiations between the parties and this litigation, the establishment of a base salary of $6,500.00 and index increments of 5% vertically and 3% horizontally, as set out below, will carry out and effectuate the purposes of Chapter 48, Article 8, of the Nebraska statutes.
We do not hold or infer that an index salary schedule may be required in all cases. Our decision in this case is based on the evidence in the record that an index salary schedule will, in this instance, establish comparable rates of pay and will effectuate the purposes of Chapter 48, Article 8.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that:
1. The teachers named in paragraph 1 of the Findings above, shall, if employed by the Defendant School District of Seward for the 1971-1972 school year, be paid in accordance with a scale of wages having a base salary of $6,500.00 and increments of 5% vertically and 3% horizontally, as follows:
NOTE: SCHEDULE DELETED
2. The scale of wages fixed in paragraph 1 of this Order is effective for the 1971-1972 school year only. the administration of the index increments as altered by paragraph 1 of this Order, the other aspects of the compensation and terms and conditions of employment presently set or agreed upon for 1971-1972 shall remain unchanged by this Order.
3. This Order does not compel either party to enter into any contract or agreement, written or otherwise.
4. The Motions for New Trial previously filed by the Defendant in this matter, and now pending, are hereby overruled.
Entered and filed this 9th day of August, 1971. Judge Kratz did not participate in the hearing of this matter or in the consideration or entry of the Findings of Fact, Conclusions of Law, and Order.
NOTE: APPENDICES DELETED
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