1 CIR 42 (1971) & (1972)



Plaintiff, |
vs. | ORDER
OF NEBRASKA, A Political |
Subdivision, |
Defendant. |

July 15, 1971


This case came on for hearing on June 25, 1971, on the Defendant's Motion For Summary Judgment, affidavits in support of the motion and in opposition to this motion were presented by the respective parties, and oral arguments given.

The critical issue is whether the fact that all Hastings certificated teachers have signed individual teaching contracts for the 1971-1972 school year in compliance with section 79-1254 precludes this suit by the Hastings Educational Association under Chapter 48, Article 8. The Educational Association and School District proceeded to impasse under the Nebraska Teachers' Professional Negotiations Act (sections 79-1287 to 79-1295). Prior to impasse, the parties had reached agreement on all items to be negotiated except base salary and index percentage factors. On April 3, 1971, the fact finding board established under the Nebraska Teachers' Professional Negotiations Act rendered its findings. The Board of Education, after giving good faith consideration to the findings of the board, adopted a different salary schedule on April 12, 1971, and issued individual teaching contracts by April 15, 1971, pursuant to section 79-1254. All of the teachers represented by the plaintiff association in this case who intend to return to the Hastings school system next fall delivered signed individual contracts before the April 30, 1971, deadline of section 79-1254. One teacher apparently tried to condition his individual contract that "change in salary is subject to the findings of the Court of Industrial Labor Relations Board" but this was not accepted by the School District, the notation was deleted by the teacher, and an executed contract without the notation filed with the Board of Education. This suit was filed by the Association on April 27, 1971. None of the teachers involved in this matter has requested a release from the individual contract.

There are at least four sets of statutes which must be taken into consideration to determine whether execution of the individual teacher contracts is a bar to bringing this case: (1)the continuing contract statute applicable to Class III school districts, section 79-1254, under which the contracts were issued, executed, and returned by the teachers; (2) the Nebraska Teachers Professional Negotiations Act; (3) the statutes directly effectuated by the Court of Industrial Relations, Chapter 48, Article 8; and (4) statutes relating to teacher contracts, including prohibitions on contracting by or with a teacher under contract with another school district (section 79-1251) and the statute authorizing revocation or suspension of a teaching certificate for the breach of contract for teaching services (section 79-1234). Giving an interpretation to all of these statutes, we conclude that the individual teaching contracts are binding and enforceable obligations but that their terms and conditions may be subject to an order of this Court under Chapter 48, Article 8. We do not now decide or infer whether an order is, in fact, warranted in this Case; the present decision is merely that the Petition alleges a cause of action for which the Court has subject matter jurisdiction and is not subject to Defendant's Motion For Summary Judgment.

Section 79-1254 has had a tortuous legislative history. As effective for the 1971 contracts relating to the 1971-1972 school year, it required the board to act by April 1 if the Board intended to terminate a teacher's "continuing" contract at the conclusion of the current school year. If the Board wished to amend the contract, it was required to notify the teacher of the amendments by April 15th. The teacher was required to file a written notice of acceptance within fifteen days after receiving notice of the amendments or renewal of the contract. Because of the legislative history of this section, a teacher was required to file a notice of acceptance of the contract by April 30, 1971, even if the School District had neglected to tender the renewal by April 15th, or had neither terminated nor renewed the contract. See Balka v. School District of Lisco, 184 Neb. 706, 171 N.W.2d 646 (1969). The 1971 Nebraska Legislature, in LB 266, has again changed this section, and has eliminated the existing requirement for notice of acceptance where no renewal has been tendered. But for the current year, teachers were required to act by April 30th under the Balka decision in order to be assured that their relationships as teachers would continue into the 1971-1972 school year.

The 1967 Nebraska Legislature adopted the Nebraska Teachers' Professional Negotiations Act. Section 79-1287 is a legislative policy determination that "in order to promote the growth and development of education in Nebraska" certificated teachers should be able to join employee associations and "be represented by such organizations in their professional and employment relations with the school district." Section 79-1288 recognizes a right to form, join and participate in employee organizations and section 79-1289 states that "Organizations of certificated public school employees shall have the right to represent their members in matters of employee relations with their public school district employers." Section 79-1288 also states that "individual employees shall have the right to individually represent themselves in their employment relations."

The 1969 Nebraska Legislature, in amending Chapter 48, Article 8, recognized both the right of employees to form employee organizations and "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." Section 48-837. It was provided, however, that the Court of Industrial Relations would not have jurisdiction over persons, organizations or school districts subject to the provisions of the Nebraska Teachers' Professional Negotiations Act "until all provisions of such act have been exhausted without resolution of the dispute involved." Section 48-810. The 1969 amendments also changed section 48-818 containing the requirements for the Court to establish or alter the scale of wages, hours of labor, or conditions of employment, or any one or more of the same.

There are other statutes relating to teacher contracts. For example, section 79-1248 states the contract form to be used shall be recommended by the Board of Education. A teacher under contract with one school district cannot contract with another district (sections 79-1250 and 79-1251) and a school district cannot contract with a teacher bound to another district (79-1250). There are also provisions for holding a valid teaching certificate and that there shall be no penalty for a release. Section 79-1234. The Professional Practices Commission may also be concerned with contractual obligations. See section 79-1282.

The interpretation which will best carry out the language and purposes of the above statutes is that individual teacher contracts do not necessarily bar the employee association's suit in this court. We do not now determine all of the legal consequences of individual teacher contracts. We determine merely that those individual contracts involved in this case do not preclude this suit. The execution of these contracts under the provisions of section 79-1254 does not constitute a waiver or abandonment of the representative relationship provided under the Nebraska Teachers' Professional Negotiations Act and Chapter 48, Article 8. To hold otherwise would reduce and limit the intended scope of collective negotiations under the Nebraska Teachers' Professional Negotiations Act and Chapter 48, Article 8, and the jurisdiction of this Court to settle industrial disputes. According to one of the Plaintiff's Affidavits, the District Court for Adams County reached a similar conclusion last year as to the Professional Negotiations Act with respect to the 1970-1971 contracts of the Hastings teachers. On the other hand, an assertion of jurisdiction by this Court does not destroy the basic enforceability of the individual contract entered into. The teacher is obligated to return to the Hastings school district next fall, a commitment which precludes teaching in any other Nebraska school district and which may be enforceable by a revocation of a teaching certificate by the Department of Education. The school district is committed to rehire the teacher next year. The obligations of each party are subject to the jurisdiction of this Court to the extent of the provisions in Chapter 48, Article 8. 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 vs. School District of the City of Grand Island, 186 Neb. 728, 186 N.W.2d 485 (1971). The School District of Hastings is equally bound by all state statutes relating to the execution and enforcement of teacher contracts, including those statutes subjecting governmental employers, employees, and associations of employees to the jurisdiction of this Court.


1. The Defendant's Motion For Summary Judgment should be, and it hereby is, overruled.

2. On or before August 16, 1971, by answer and at the option of the defendant other pleadings provided for in the Code of Civil Procedure of the State of Nebraska, the defendant shall assert every defense, in law and in fact, available to it at the time of such filing; that no defense or objection shall be waived by being joined with one or more other defenses or objections; that all defenses and objections then available to the defendant which may be raised by motion, demurrer, or special appearance, if not asserted by said answer, on or before said day, shall be deemed to have been waived, except that the defense of failure to join an indispensable party or the objection that the court lacks jurisdiction of the subject matter may be made at the trial on the merits in the light of any evidence that may have been received.

3. On Monday, August 23, 1971, at 9:00 A.M. at the State Capitol Building, in Lincoln, Nebraska, shall commence a trial on all matters in this case then before the Court.

4. In accordance with Section 48-808, Elmer Shamberg or Patricia Lewis, of Lincoln, Nebraska, is appointed the reporter in this matter.


March 14, 1972


This is an action to establish wages of certificated teachers under §48-818 R.R.S. Neb. We, as triers of fact in the following cases: Milford No. 43, July 15, 1971; Seward No. 34, August 9, 1971, Holdrege No. 39, August 12, 1971; Centennial No. 44, August 18, 1971; Weeping Water No. 46, October 6, 1971; Falls City No. 45, January 6, 1972; Minden No. 51, February 5, 1972, following a reasoning process so fully set forth in the findings therein that it need not be elaborated here. Those holdings of this Court based on that reasoning process supply some rules of relevancy and of sufficiency of evidence to reach the respective results of those cases, but of course that does not mean that those rules will be applicable to every record or that parties must educe only evidence to fit that process. There is no evidence in this case, however, that induces us to adopt a different approach to the solution of the problem here. Under that reasoning process, the total cost of basic salary and fringe benefits for all the 1971-72 Hastings teaching staff if they are paid in accordance with wage and fringe rates of other schools is relevant, and the evidence here discloses such total costs of Hastings teachers at rates of other schools to be:


The record contains sufficient data that a similar computation for the Hastings teachers can be made with reference to the salary schedule and fringe benefits in nearly every school in the State of Nebraska. The issue then in this case is the selection of schools for the determination of the prevalent wage in accordance with the reasoning process following in our previous cases listed above.

For the purpose of delimiting the issue here, without intending to characterize fully our previous opinions at this point in this opinion, it is sufficient to say that in these previous cases we have tended to give weight to an approximate midpoint among the respective computations of total teacher compensation on the salary schedule of each of the school selected. More-over, for reasons appearing in the evidence and set forth fully in our findings in previous cases, we have tended to compare, at least preliminarily, the litigating school with other school districts in the same athletic conference. Other schools in the defendant's athletic conference are Fremont, Columbus, North Platte, Alliance, Scottsbluff, McCook, Kearney, and Grand Island. Said midpoints of various groups of schools are:


The defendant has adopted a $6,575 4 x 4 salary schedule which together with fringe benefits yields all the plaintiff's teachers a total or overall compensation of $2,048,339.50. The defendant has filed no counterclaim for a lowering of the compensation of its teachers, and so we need not decide whether the wage rates currently paid by the defendant are higher than the prevalent. See Kramer, Case No. 16, Findings and Order, December 16, 1963, for our holding with respect both to relieve on a general prayer of a counterclaim and to discretionary power to affect benefits not specifically pleased when necessary to effect a 48-810 settlement; and IBEW vs. Hastings, Case No. 17, Findings and Order of May 5, 1967, re discretionary limitations of relief in absence of a counterclaim. Accordingly it becomes obvious from the foregoing that we need consider only the weight to be given and the law to be applied to the plaintiff's contentions that wage rates paid by schools in Douglas and Sarpy Counties should be included in those to be selected for the finding of that wage rate which is prevalent, for, in accordance with our reasoning in Weeping Water, No. 46, including Judge Gradwohl's well developed concurring opinion, and in Falls City, No. 45, any other selection of schools will result in either the conclusion that the defendant's current wages are comparable to the prevalent wage, or the conclusion that the Court should exercise its discretion under the first sentence of 48-818 by not altering the current rates of pay.

In Fremont, Case No. 50, Findings and Order of March 14,1972, we reviewed the legislative history of the standards for establishing or altering wage rates as such standards have been set forth in §48-818, we set forth dictionary definitions of "prevalent" and "prevailing", and we reviewed the Court's application of those standards during the various periods of legislative history. We summarized as follows:

"The Legislature originally intended as a standard of wage rates those which were predominate or at least widely existing throughout the whole state. Than it changed the standard to one of general practice, occurrence, or acceptance but in a very limited area; this Court, under that former standard, felt the area to be one or two counties in extent, and expressly rejected a contention in cases No. 19 and 20 that it might be all three eastern end of the state. Thereafter, in 1969 the Legislature withdrew the mandatory limitation on area, but it did not reexpress a mandatory consideration of either predominance or of existence throughout the whole state. The standard now is one of general practice, occurrence, or acceptance, but the question of how general is general is left to the good judgment or feeling of the judges. The requirement of similarity of working conditions helps the judges develop that judgment or a receptivity to the proper connotation of the word "prevalent". Similarity tends to decrease with increasing distance among what are to be compared and to become more pronounced with increasing proximity.

"....In Holdrege, Case No. 39, August 12, 1971, we took 'into consideration...school districts in the same part of the State;' In Centennial, Case No. 44, August 18, 1971, we spoke of 'nearby York' and in Weeping Water, Case No. 46, October 6, 1971, of 'other Class III schools in their territory,' and in Falls City, Case No. 45, January 6, 1972, of 'community of interest between Humbolt and Falls City District as a geographical proximity."

We concluded in Fremont Case No. 50 that the prevalent wage rate paid was the approximate midpoint in terms or overall compensation among the spectrum of comparable school districts, namely Group Four Class A schools within approximately a fifty-mile radius of Fremont.

We do not, however, apply solely an analogy of the fifty-mile radius to the evidence in this case, even though the Fremont School District lies partly in Douglas County and close proximity to the schools there compared, while Hastings is approximately 100 miles from Lincoln and more than 150 miles from Omaha. While we found in Fremont Case No. 50:

"....no evidence that historically Fremont had sought comparability of its wage rates with those other schools in the conference as there was in Seward Case No. 34, Findings and Order August 9, 1971, and Centennial Case No. 44, Findings and Order August 9, 1971, and Centennial Case No. 44, Findings and Order August 18, 1971, and in Minden Case No. 51, Findings and Order February 15, 1972,....",

we find in this record of Hastings Case No. 42, that Hastings historically has sought comparability of its wage rates with those of Columbus, Kearney, and grand Island. While we found in Fremont Case No. 50, no evidence of:

"competition in academic subjects aside from athletics or of teachers' meetings and programs of demonstrations of teaching methods and general cooperation among the (athletic) conference schools as there was in Falls City No. 45, Findings and Order January 6, 1972,...."

There does seem to be here in Hastings Case No. 42 some testimony, albeit conclusionary, of such competition and general cooperation among those schools of the conference which are in closer geographical proximity to Hastings than are the Lancaster County, Douglas County, and Sarpy County schools. Moreover, Hastings has belonged to a second athletic conference which includes each of the four high schools in Lincoln, but Hastings is in the process of withdrawing from that conference because the metropolitan schools are too big for Hastings to compete with. The evidence here yields quite positively the inference that there is no community of interest of Hastings with the schools of Lancaster, Douglas, and Sarpy counties. For the reasons set out immediately preceding the foregoing discussion of our opinions in Case No. 50, we do not reach here the factual question of Hastings' actual community of interest.

We find that on this record in Hastings, Case No. 42, that wage rates paid by schools in Douglas and Sarpy counties are not appropriate for consideration in formulating the finding of that wage rate which is prevalent. accordingly it follows from our holdings in Weeping Water Case No. 46, including Judge Gradwohl's well developed concurring opinion, and in Falls City Case No. 45, that judgment should be entered for the defendant.

NOW THEREFORE IT IS ORDERED, ADJUDGED, AND DECREED that judgment be and it hereby is entered in favor of the defendant and against the plaintiff.

Judge Henatsch did not participate in the hearing of this Order or in the consideration and entry of this Findings and Order. Judge Gradwohl joins in the entry of this Order but neither joins nor concurs in the Findings as stated above.