| HOLDREGE EDUCATION | | | CASE NO. 39 |
| ASSOCIATION, etc., | | | |
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| Plaintiff, | | | |
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| v. | | | FINDINGS AND ORDER |
| | | ||
| THE SCHOOL DISTRICT OF | | | |
| HOLDREGE etc., | | | |
| | | ||
| Defendant. | | |
BAYLOR, J.:
Hearing having been had March 12, 1971, pursuant to Order entered March 3, 1971, evidence having been adduced and oral arguments having been made, Now Therefore the Court makes findings as follows:
1. Jurisdiction in light of proviso to Sec. 48-810.
In response to a request to meet and confer given January 5, 1971, by the plaintiff to the defendant in accordance with Sec. 79-1292 R.R.S. Neb. 1943, the defendant conditioned any consideration of the request upon the plaintiff's signing a "Professional Negotiations Agreement" requiring among other things plaintiff's:
a. proving it represented a majority of teaching personnel (Article III of the Agreement);
b. accepting a described bargaining unit (Article III of the Agreement);
c. waiving right to request certain matters for discussion (Article VI paragraph 2 of the Agreement);
d. agreeing not to reopen negotiations for an unspecified period (Article VI paragraph 7 of the Agreement);
In response to the plaintiff's contention here that the foregoing results in exhaustion of the Teachers Professional Negotiation Act, the defendant here contends that the conditions imposed by it are authorized by Sec. 79-1294 as follows:
"Each board of education or school board of a public school district which shall determine to meet and confer with representatives of an organization of certified employees,shall adopt rules and regulations for the administration of such negotiations under sections 79-1287 to 79-1296."
We do not agree with this contention of the defendant for each of the following reasons:
(1) Those conditions of said imposed agreement which we have summarized above are not within the statutory language, "for (or relevant to) the administration of negotiations;"
(2) The Board has not "determine(d) to meet and confer;"
(3) The Board by virtue of the statute may impose proper rules and regulations for administration of negotiations but it may not require the teachers to agree to them. The teachers must comply in good faith with such rules and regulations as the Board by this statute has authority to adopt, but they are not required to, though they may if they choose, agree to something which may be (and here clearly is) broader or different from what the statute requires. In Reinsch v. Pacific Mutual Insurance Co., 140 Neb 225, 299 NW 632 (1941) and Protective Fire and Casualty Company v. Cornelius, 176 Neb 75, 125 NW 2d 179 (1963) in which the contractor contended that he had intended only the statutorily prescribed contract, the court held he was bound by the broader terms of the contract actually written.
(4) There is no requirement of the Teachers Professional Negotiations Act that an organization for the purpose of representation of teachers have a membership of a majority of the school board's employed teachers. cf. Article III of the proposed Agreement with section 79-1289 R.R.S. Neb. 1943.
(5) In Opinion as to Jurisdiction entered March 12, 1971, in Cases No. 35, 36, and 38, and Opinion in Case No. 34 entered March 29, 1971, the Court held:
"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 had 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."
The Statutory scheme explained in those opinions would be nullified by our sustaining the defendant's contention here. By the simple expedient of requiring an unacceptable condition to recognition and discussions under the Teachers Professional Negotiation Act, the employer of certified teachers could deprive the teachers of all recourse to either the Teachers Professional Negotiation Act or the Court of Industrial Relations Act.
(6) Furthermore in Case No. 34 we held:
"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."
It follows that the provisions of the Teachers Professional Negotiation Act have been exhausted without resolution of the industrial dispute involved.
2. Other contentions re absence of Jurisdiction.
a. Absence of Industrial Dispute. 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.
Mid-Plains Education Association v. Mid-Plains Nebraska Technical College, Case No. 33, paragraph numbered 2, of opinion of 3-12-71; Seward Educational Association vs. The School District of Seward paragraph numbered 3 of opinion entered 3-29-71.
B. Constitutionality of a "Court" under Article IV, Section 9, of the Constitution. Treating the reference to Article IV, Section as one to Article XV, Section 9, we think the contention has been analyzed thoroughly and rejected by this court in Public Service Employees Council et al v. Metropolitan Utilities District of Omaha, Case No. 21, opinion of 5-13-68 entitled "Opinion as to General Constitutionality of Court of Industrial Relations Statutes."
3. Jurisdiction of the Court of Industrial Relations to Order Bargaining. In International Brotherhood of Electrical Workers vs. City of Hastings, 179 Neb. 455, 138 NW 2d 822 (1965), the Supreme Court held, "However desirable extrajudicial 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 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 appear to be also legislative determinations that extrajudicial discussions between the parties or a court encouraged voluntary settlement would effectuate the policies of Chapter 48, Article 8. Some of the legislative history of the enactment of LB 298 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.
LB 298 of 1967 amended Section 48-816 to provide in part:
"In the event of an industrial dispute between employer and employees of....any public corporation,....where such employer and employees of....any public corporation,....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.
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.
4. Plaintiff's prayer for order to bargain.
Elements of a decision to exercise discretion, appropriate subjects, and the form of the order, for bargaining are thoroughly analyzed in Sections 9, 10, and 11 of Opinion entered March 29, 1971, in Seward Education Association vs. The School District of Seward, Case No. 34, and are reaffirmed herein.
It remains to apply the principles there formulated to the record thus far in this case. The evidence shows that in past years through at least December of 1970 relations and discussions between the parties have been amicable and effective; and that the present litigation arose only because the board misconstrued sec. 79-1294 re rules and regulations for the administration of negotiations. The tone of the parties' communications indicates that such misconstruction and the commencement of this action were in good faith because of the absence at that time of judicial interpretation and application of the proviso to 48-810 and of the Teachers Professional Negotiation Act. If it were not for section 79-1254 popularly known as the Continuing Contract Law and construed in Balka v. School District 53-J, 184 Neb. 706, 171 NW 2d 643, we might order a full evidentiary hearing similar to the order of February 23, 1971, in Seward Education Association vs. School District of Seward Case No. 34. But the deadlines imposed by Sec. 79-1254 on both the teachers and the Board now give rise to the compelling public interest and need specified by 48-816 and 48-823. Therefore not under the Teachers Professional Negotiations Act but by virtue of the order of this court under the Court of Industrial Relations Act, the parties should meet and confer, discuss, bargain, and negotiate forthwith to eliminate, define, and simplify controversies or aspects of them and to arrive at if possible a voluntary settlement of the industrial dispute. On or before April 19, 1971, the parties by pleadings shall inform the court of the status of negotiations and of the relief respectively desired, and on Saturday April 25, 1971 shall commence a full evidentiary hearing of all issues, if any, then unresolved. Either party is entitled to apply at any time to this court for such additional orders as may be convenient to carry out the provisions and objects of this Order.
NOW THEREFORE IT IS ORDERED, ADJUDGED, AND DECREED:
1. That the Pleading entitled "Special Appearance" be and it hereby is overruled.
2. That the plaintiff and the defendant forthwith shall negotiate with a view to defining, simplifying, and eliminating controversies between them and to arriving at a voluntary settlement of the industrial dispute.
3. That on or before April 19, 1971, the parties by pleading shall inform the court of the status of negotiations and of the relief then respectively desired, the day described by paragraph numbered 2, otherwise incorporated herein, of the order entered April 3, 1971, being April 19, 1971.
4. That on Friday, April 23, 1971, shall commence a full evidentiary hearing of all issues then unresolved.
5. That the parties are not compelled to enter into any agreement or contract, written or otherwise, although they are free and encouraged to do so.
6. Either party may apply to this Court for such additional orders as may be convenient to carry out the provisions and objects of this order, or appropriate to govern the situation pending such bargaining.
GRADWOHL, J.:
This case came on for hearing on April 23, 1971, on the Showing of the Plaintiff and the Defendant's Status Report of Negotiations and Prayer for Interim Relief Pursuant To Order of March 30, 1971, evidence was adduced, and oral arguments were presented by counsel.
The pivotal issue is whether following the Court's Order of March 30, 1971, the School District is entitled to act under section 79-1292 of the Nebraska Teachers' Professional Negotiations Act to accept or reject the Association's request to negotiate in whole or in part. Four agenda items had been settled or withdrawn by the parties before the hearing. The School District agreed to negotiate salary schedules and negotiations had been held on that item. The School District elected to reject negotiations on items other than salary schedules under the provisions of section 79-1292, and suggested in its Status Report "That the Court of Industrial Relations should allow the parties to complete their negotiations under the Nebraska Professional Negotiations Act."
Section 48-810 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 provisions of 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 without resolution of the dispute involved.
The phrase "until all of the provisions of such act have been exhausted without resolution of the dispute involved" was discussed in the Findings and Order in this Case (Case No. 39) filed March 30, 1971, the Findings and Order in the Seward Case (Case No. 34) filed March 26, 1971, and the Opinion As To Jurisdiction in the Central City, Lyons, and Ashland-Greenwood Cases (Cases Nos. 35, 36, and 38) filed March 12, 1971. By definition, it is necessary that all of the provisions of the Nebraska Teachers' Professional Negotiations Act be exhausted before the Court of Industrial Relations is given jurisdiction in the matter. Once the Court of Industrial Relations acquires jurisdiction of the subject matter and enters an order that the parties shall negotiate, the governing statutory provisions are Chapter 48, Article 8, rather than the Nebraska Teachers' Professional Negotiations Act. The previous hearing in this case considered evidence as to the Plaintiff requests to meet and confer with the Defendant under the provisions of the Nebraska Teachers' Professional Negotiations Act, and the Defendant's responses to the Plaintiff's requests. From the evidence, the Court concluded in its Findings and Order of March 30, 1971, Page 3, "that the provisions of the Teachers Professional Negotiations Act have been exhausted without resolution of the industrial dispute involved." The Nebraska Teachers' Professional Negotiations Act contains statutory guidelines for negotiations including some procedural time requirements within which the negotiations under that Act are expected to proceed. The statutory provisions of the Nebraska Teachers' Professional Negotiations Act were exhausted prior to the Order of March 30, 1971, and are no longer applicable to this case.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that:
1. Insofar as the Plaintiff's Showing prays "for an Order directing the School District to forthwith undertake good faith negotiations", its prayer is sustained; the balance of the Plaintiff's prayer is overruled;
2. Insofar as the Defendant's Status Report prays "that the proposed salary schedule and the counter-proposals of the Board may be negotiated", its prayer is sustained; the balance of the Defendant's prayer is overruled;
3. The Plaintiff and Defendant are ordered forthwith to undertake, or continue, as the case may be, good faith negotiations in regard to teachers' salaries and other terms and conditions of employment;
4. Should such negotiations result in mutual agreement, the matters so agreed upon shall be reported to this Court;
5. If the parties are unable to agree on any such matters,the parties, separately or jointly as they determine, shall so notify the Court;
6. This Order does not compel either party to enter into any contract or agreement, written or otherwise;
7. 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.
NIELSON, J.:
Hearing was held March 12, 1971, pursuant to order entered March 3, 1971, evidence having been adduced and oral arguments having been made. The Court issued a Findings and Order on March 30, 1971.
This case came on for hearing again on April 23, 1971, on the Showing of the Plaintiff and the Defendant's Status Report of negotiations and Prayer for Interim Relief Pursuant to Order of March 30, 1971. Evidence was adduced and oral arguments were presented by counsel.
On April 27, 1971 the Court of Industrial Relations entered the following Order:
It is Therefore Ordered, Adjudged and Decreed that:
1. Insofar as the Plaintiff's Showing prays "for an Order directing the School District to forthwith undertake good faith negotiations" its prayer is sustained; the balance of the Plaintiff's prayer is overruled.
2. Insofar as the Defendant's Status Report prays "that the proposed salary schedule and the counter proposals of the Board may be negotiated: its prayer is sustained: the balance of the Defendant's prayer is overruled.
3. The Plaintiff and Defendant are ordered forthwith to undertake or continue, as the case may be, good faith negotiations in regards to teachers salaries and other terms and conditions of employment.
4. Should such negotiations result in mutual agreement, the matter so agreed upon shall be reported to this court.
5. If the parties are unable to agree on any such matters, the parties separately, or jointly as they determine, shall notify the Court.
6. This Order does not compel either party to enter into any contract or agreement, written or otherwise.
7. 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.
On May 19, 1971, the Plaintiff filed an application with the Court of Industrial Relations, indicating that the parties had been unable to settle their difference on a salary schedule by negotiation and requested the Court make a determination under Section 48-818 R.R.S. Neb.
On trial June 21, 1971, evidence was presented, witnesses were heard, oral arguments were given and briefs were received at a later date, and the only difference to be resolved between the Holdrege Education Association and The School District of Holdrege is the salary schedule.
Section 48-818 provides that the Court "may establish or alter the scale of wages, hours of labor, or conditions of employment, or any one or more of the same." The section contains the legislative criteria upon which this Court must act in making findings and entering orders on this subject.
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 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 school district offered a 1971-1972 salary schedule having a base of $6,500.00 with increments of 4% per year for longevity in the district and 4.5% for 9-hour units of additional education beyond the bachelors level. The district will contribute $166.20 per year for insurance to a teacher with a family and $63.96 per year to a single teacher.
From the evidence, we conclude that the overall compensation presently set for 1971-1972 by the Holdrege School District is comparable to the prevalent wage rates paid for other comparable teachers by other comparable school districts. For this reason we determine that the Court should not alter the compensation presently offered by the Holdrege School District.
In making this determining we have examined the evidence submitted by both parties under the standard of section 48-818, and find Holdrege School District salaries compare favorably with the other schools in the South West Conference, namely Cozad, Broken Bow, Lexington, Minden, Ogallala and Gothenburg. From the evidence, the salaries presently offered by the Holdrege School District are greater than the total teacher salaries would be if set by the salary schedule of other members of the Southwest Conference (See Exh. "G").
Taken into consideration also are 5 school districts in the same part of the State: McCook, Kearney, Grand Island, York and Aurora. One district has a base salary of $50.00 more and one $100.00 less than Holdrege. The others have the same base salary.
The average Holdrege teachers salaries, both elementary and secondary, rank among the top 10 in the State of Nebraska.
We have examined the evidence submitted by both parties in the case and from this evidence we determine that in terms of overall compensation for the individual teachers, and all the teachers in the Holdrege School district, the schedule offered by the defendant for 1971-1972 is comparable to the rates prevailing for comparable teachers.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the salaries of certificated teachers of the School District of Holdrege be set, and they hereby are established in accordance with a scale of wages having a base salary of $6,500.00 and increments of 4% vertically and 4 1/2% horizontally. The number of vertical columns and horizontal steps on each vertical column shall be the same as for the 1970-1971 school year. This scale of wages is effective for the 1971-1972 school year only. The administration of the index increments shall be in conformity with the practices during the 1970-1971 school year.
Entered and filed this 12th day of August, 1971. Judge Kratz and Judge Gradwohl did not participate in the hearing of this matter or in the entry of this Order.
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