| WEEPING WATER | | | CASE NO. 46 |
| EDUCATION ASSOCIATION, | | | |
| etc., | | | |
| | | ||
| Plaintiff, | | | |
| | | ||
| v. | | | FINDINGS AND ORDER |
| | | ||
| THE SCHOOL DISTRICT OF | | | |
| WEEPING WATER, etc., | | | |
| | | ||
| Defendant. | | |
WALTER NIELSEN, J.:
Gradwohl, Concurring:
The Weeping Water Education Association an Unincorporated Association, "Plaintiff" filed a "Petition" in the Court of Industrial Relations of the State of Nebraska, on June 24, 1971 and prayed that the court accept jurisdiction of the matter.
In the "Plaintiff's Petition" paragraph 13, is "Prior to reaching impasse, the parties had reached tentative agreement on all matters except Base Salary."
This agreement was after several months of negotiations between the two parties and a Fact Finding Board report which was rejected by the Board of Education.
Plaintiff's Exhibit A attached to their Petition, shows the base salary for the Weeping Water School District teachers during the 1970-1971 school year was $6,300.00 with 4% down for years in school system and 4% horizontal for extra degrees.
The association's last offer at the table was $6,600.00 and 4 x 4 and the School District's unilaterally adopted terms following fact finding, was $6,500.00 and 4 x 4. Fringe benefits include such items as, full single and half family Blue Cross and Blue Shield, 10 days sick leave accumulative to 30 days, and 2 days professional ec. leave.
This case came on for trial in Lincoln on September 8, 1971, 1:30 p.m. at the No. 2 court room State Capitol, where documentary evidence was received, witnesses were heard, and oral arguments were given; written briefs were received later.
§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." This section contains the legislative criteria upon which this court must act in making findings and entering orders on this subject.
From the evidence we conclude that the overall compensation presently set for the 1971-1972 school year by the School District of Weeping Water, in Cass County, Nebraska, is comparable to the prevalent wage rates paid by other comparable school districts. For this reason we determine that the court should not alter the compensation presently offered by the School District of Weeping Water.
In making this determination we have examined the evidence submitted by both parties under the standard of §48-818 and find that the School District of Weeping Water salaries compare favorably with other class III schools in their territory namely: Bennington, Elmwood, Humboldt, Louisville, Nemaha, Valley, Palmyra Southeast Cons. and Syracuse a class II school, also a class IV school Nehawka. Exhibit No. 15 shows that the Weeping Water teachers total salaries are higher than 8 of the before mentioned schools. A total of $21,683.00 higher than Elmwood, or about $1,000.00 per year per teacher, while Louisville is $2,403.00 higher or about $100.00 per year per teacher.
The primary basis for the court's decision is a factual determination that the record in this case does not warrant the court's altering the School District's Base salary for teachers of $6,500.00 and 4 x 4 index, a scale of wages which we find meets the criteria required by the second and third sentence of §48-818.
Now, therefore, it is ordered, adjudged, and decreed that the Petition of the Plaintiff be, and is hereby dismissed.
Entered and filed this 6th day of October, 1971. Judge Henatsch did not participate in the hearing of this matter or in the consideration or entry of the Findings and Order.
JOHN M. GRADWOHL, JUDGE
I agree with the Findings and Order entered by Judge Nielsen in favor of the School District, especially the last paragraph of the findings, which states:
The primary basis for the court's decision is a factual determination that the record in this case does not warrant the court's altering the School District's Base salary for teachers of $6,500.00 and 4 x 4 index, a scale of wages which we find meets the criteria required by the second and third sentences of §48-818.
The purpose of this memorandum is to set out the statutory analysis by which I have arrived at this conclusion. The decision reflects a consideration of the language and policies of several statutory provisions, but the factual determination that the record in this case does not warrant altering the salary schedule presently set by the School District rests primarily on the first sentence of section 48-818.
Section 48-810 states that "All industrial disputes involving governmental service....shall be settled by invoking the jurisdiction of the Court of Industrial Relations...." But the statutes do not mean that the Court must automatically establish or alter a scale of wages merely because there is an industrial dispute with respect to the scale of wages. In setting wage rates, the provisions of section 48-818 are controlling. The first sentence of section 48-818 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." The use of the term "may" indicates quite clearly that whether or not to enter an order establishing or altering the scale of wages involves some discretion on the part of the Court. The second and third sentences of section 48-818 employ the mandatory term "shall". The second sentence states that in making a wage order, the Court "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 working conditions." The third sentence of section 48-818 contains the requirement that, "In establishing wage rates the court shall take into consideration the overall compensation presently received by the employees...." In interpreting these provisions, we must distinguish between the permissive action intended from the word "may" and the mandatory action presumed from the word "shall". Section 49-802 provides:
Unless such construction would be inconsistent with the manifest intent of the Legislature, rules for construction of the statutes of Nebraska hereafter enacted shall be as follows:
(1) When the word may appears, permissive or discretionary actin is presumed. When the word shall appears, mandatory or ministerial action is presumed.
We have applied this important distinction to the effect (and admissibility in evidence) of fact finders' recommendations and the history of the negotiations in a determination under section 48-818. Centennial Education Association v. School District No. 67-R, Case No. 44 . Findings and Order entered August 18, 1971, pages 6 to 9. The recommendations are not admissible, over objection, for the purposes of the determinations required under the second and third sentences of section 48-818. But they may be admissible for other purposes, such as showing exhaustion of the Professional Negotiations Act, the existence of an industrial dispute, or whether the Court should order further negotiations. In the Centennial decision (page 9), we noted that "The history of the negotiations, including the fact finders' recommendations and the parties' actions taken with respect thereto, may be relevant to the appropriateness of the exercise of the Court's discretion whether or not to order bargaining or enter an order under section 48-818." We also held in School District of Seward Education Association v. School District of Seward , Case No. 34, Findings and Order filed August 9, 1971, (appeal to the Nebraska Supreme Court pending), that the history of the negotiations and the litigation between the parties was relevant to the form of the order (an index salary schedule) entered by the Court.
The crucial issue in the present case is whether or not the Court should exercise its discretion to enter a wage order on the evidence in this record. For practical purposes, both parties agree that the Association's request of $6,600, "4x4" and the Board's $6,500, "4x4" fall within the general range of "comparable to the prevalent" in terms of "overall compensation" as required by the second and third sentences of section 48-818. These statutory requirements have a clear and definite meaning, as applied in the Court's previous decisions, even though they are not susceptible of exact mathematical equality. In Werth v. Buffalo County Board of Equalization , 187 Neb. 119, 126, 188 N.W.2d 442, 446-7(1971), the Supreme Court held that in the setting of "nonresident" high school tuition, "The county board of equalization must necessarily deal in approximations just as must the school district in determining its budget requests." The positions of both parties virtually concede that, on the evidence in the record, each proposal lies within the permissible latitude of the requirements of "comparable to the prevalent" in terms of "overall compensation." In fact, Plaintiff's Brief, page 8, requests that "The Court should not decline to make such an adjudication simply because the School District's last offer is also within the range of the prevalent." But the question remains as to why, on the record in this case, the Court should alter the District's "compensation presently received" under the first sentence of section 48-818 if that compensation is already within the range of the requirements of the second and third sentences of section 48-818 by which the Court is compelled to act in setting wages.
Plaintiff argues that this Court should establish a wage rate without regard to the present wages set by the School District. It argues that just as the fact finders' recommendations are not evidence under the second and third sentences of section 48-818, the District's position (that is, its bargaining position unilaterally implemented by establishing the $6,500, "4x4", schedule) should not be evidence. But the third sentence of section 48-818 compels the Court to "take into consideration the overall compensation presently received by the employees." Under section 79-1254, as written for 1971-1972 individual teacher contracts, the School District was required to take some sort of position by April 15th.
Plaintiff also argues that such an examination of the School District's present scale of wages will tend to mean that the District must merely "come close" to the statutory criteria of "comparable to the prevalent" in terms "overall compensation." This is not correct. Whatever wage rate is effective following the Court's order must meet the criteria of the second and third sentences of section 48-818. This is true whether the wage rates are affirmatively established or altered by order of the Court or whether, as in this case, the rates established by the School district are already within the proper area of comparability and are left unaltered by the Court's order. This is not a matter of "coming close." The legislature has specified criteria which, of necessity, must allow some area of mathematical approximation. The rates presently set by the Weeping Water School District lie within that area of permissible latitude, and the criteria of the second and third sentences of section 48-818 have been fully complied with on the record in this case.
I also do not agree that to give attention to the relatively small differences between the Association's proposal and the School District's position in the circumstances of this case is to inject a rule of "de minimis" into section 48-818. Virtually the same amount of base salary was at issue in the Seward (No. 34) and Centennial (No. 44) cases in which the Court did alter and establish salary schedules. The record in the present case is barren of many of the considerations contained in the records and orders in those decisions. For one thing, the School District has increased the base salary $200 over the 1970-1971 base. The Weeping Water teachers will in addition receive index increments over last year (subject, of course, to the federal wage freeze). The School Board has presented a consistent and responsible position in the negotiations and has voluntarily carried out its statutory bargaining obligations. In Centennial , the counteroffer of the School District after fact finding, and in Seward , the unilaterally established wage rates, were demonstrably not comparable to those of their "peers" in terms of overall compensation, even though roughly the same amount of $100 in base salary was the subject of the litigation in this Court.
I am hesitant at this relatively early stage in the development of a new law to attempt to frame a black letter axiom. What I have apparently said above, however, and what I think is quite clear legislative language and policy, is that unless a party invoking the jurisdiction of the Court can establish either that the present (or proposed) scale of wages is below the zone of "comparable to the prevalent" in terms of "overall compensation" or that some other provision or policy of the act can be effectuated by the entry of a wage order, the Court should not exercise its discretion to establish or alter a scale of wages. On the record in the present case, I agree with Judge Nielsen's findings that the evidence does not contain a sufficient factual basis that the Court should exercise its discretion under the first sentence of section 48-818 to fix a scale of wages.
The $6,500.00, 4 x 4, index schedule, unaffected by the Court's Order, fulfills the criteria of the second and third sentences of section 48-818.
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