1 CIR 50 (1972)



Plaintiff, |
A Political Subdivision, |
Defendant. |

March 14, 1972


This is an action to establish wages under §48-818, R.R.S. Neb. and to order under §48-816 R.R.S. Neb. bargaining with respect to the employer's providing in-school time free from attendance on pupils for the purpose of permitting elementary teachers to plan their courses and instruction.

I. Re. Wages

The chief question here is, under the second sentence of §48-818 R.R.S. Neb., what evidence does the court consider in finding the prevalent wage rates to which the defendant's is to be comparable.

In Centennial Case No. 44 Findings and Order of August 18, 1971, we held:

"Section 48-818....also directs the court to take into consideration 'the overall compensation presently received by the employees.'.... A $6,400 base with index increments of 5 x 4...places Centennial at the approximate midpoint in terms of overall compensation among the spectrum of the comparable school districts shown in the evidence. It also aligns Centennial comparably with the York School District as the total teacher compensation.... The present case was initiated on behalf of all teachers in the Centennial School District. All teachers are paid on the same index schedule. They also receive the same insurance and other fringe benefits. As we held in Milford Education Association vs. School District of Milford, Case No. 43 Findings and Order filed July 15, 1971, it is the total teacher compensation which should be compared with the salary schedules and benefits of other comparable school districts.... The effect of actual placement on an index schedule must be considered in carrying out the provisions of §48-818. To make this evaluation the total teacher salaries of comparable school districts must be compared...."

The defendant's entire teaching staff now is being paid on a salary index schedule of 46,550 4 x 5, and each teacher receives health and accident insurance of which the monthly premium per teacher is $9.00. Thus the total teacher compensation, i.e. salary and insurance for the entire teaching staff, for the year 1971-72 at the present rate is $2,180,943.51. (The latter figure is computed by the Court and is different from that appearing on the plaintiff's Exhibits 1 and 7 which is for last year's teaching staff; on Exhibit 7 the plaintiff is comparing the wages of last year's teaching staff on Fremont's salary schedule with the wages of this year's teaching staff on the salary schedules of other schools; that comparison is irrelevant.) The defendant's rates of pay are not comparable to wage rates prevalent anywhere. If the prevalent wage rates within the meaning of the second sentence of §48-818 is found by taking into consideration the wages paid in other school districts of Douglas County and by the Lincoln District in Lancaster County, the defendant's wages are too low; if those metropolitan areas are excluded in making such finding, then the defendant is too high.

One of the plaintiff's contentions is that the prevalent wage rates may be found, within the range permissible under the statute, to be the approximate midpoint of the total teacher compensation on the schedules for the ten largest, by pupil enrollment, school districts in the state, of which the plaintiff is sixth. That midpoint is $2,268,904.64. The plaintiff is in an athletic conference, of which only the salary schedules of Alliance, Columbus, Grand Island, Kearney, McCook, North Platte, and Scottsbluff are available for comparison, and for which the midpoint of the same data is $2,119,193.17. For the reasons discussed herein, we as triers of fact conclude that the prevalent wage is that among the Group One school districts within approximately fifty miles of Fremont, namely Bellevue, Columbus, Lincoln, Millard, Omaha, Papillion, Ralston, and Blair for which the approximate midpoint of the same data is $2,343,397.25; and that the wages of the defendant's teaching staff should be established on a $6650 5 x 5 salary schedule.

By repealing certain portions of §48-818, the 1969 Legislature changed the standards by which rates of pay shall be established. The repealed and retained portions are seen in the following excerpt from LB 15 effective December 25, 1969;

"....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 the same labor market area and, if none, in adjoining labor market areas within the state and which in addition bear a generally comparable relationship to wage rates paid and conditions of employment maintained by all other employers in the same labor market area. The court shall determine in each case what constitutes the same labor market area or adjoining labor market areas in the state. If an employer has more than one plant or office and some or all of such plants or offices are found to be located in separate labor market areas, the court may establish separate wage rates or schedules of wage rates, and separate conditions of employment, for all plants and offices in each such labor market area. 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...."

Under the former standards as set out above we held in IBEW vs. Hastings, Case No. 17, Findings and Order entered May 5, 1967, after remand from the Supreme Court:

"....We conclude that for the purposes of the Nebraska Court of Industrial Relations Act: A labor market area may be defined as a geographic area consisting of a central community and surrounding territory in which there is a concentration of economic activity or labor demands, and within which workers can generally change jobs without changing their residences;

and that whether workers actually do change such jobs is not necessary to the discovery of the labor market area, although evidence of workers' actually changing jobs without changing their residences is certainly relevant though not controlling to a determination of whether they can do so.

The evidence in this matter is uncontroverted and to the effect that more than 90% of the employees of the Defendants were residing in the City of Hastings at the time they first started to work for the Defendants. The record indicates that there is no substantial labor interchange between Hastings and Grand Island or between Hastings and any other areas outside of Adams County. We find that the City of Hastings and Adams County, Nebraska, are the central community and surrounding territory in which there is a concentration of economic activity or labor demand. We determine, therefore, that Adams County, Nebraska, constitutes the labor market area in this case.

"As originally introduced in the 1947 Nebraska Legislature, what is now section 48-818 would have required that '....such wages, hours of labor, conditions of employment, or other matters affecting harmonious relations between employer and employee shall conform to those generally prevailing in like or similar fields of employment in this state....' File on L.B. 537 (Section 18, page 7 of original Bill), 1947 Nebraska Legislature, Office of the Clerk of the Nebraska Legislature. The labor market area concept was added by Committee Amendment. 1947 Legislative Journal, page 1066.

"The recommendation of the court-appointed Investigator is that the Defendants' wages and conditions be compared with those in Grand Island, because Grand Island is the 'closest adjoining (labor) market area of comparable type.' He did not take into consideration other labor market areas adjoining the Hastings area because Grand Island was the closest comparable operation supplying full utility services. The Defendants contended that the evidence pertaining to grand Island should not be given weight since Grand Island was not comparable to Hastings. The Defendants adduced evidence of an existing general labor shortage in Grand Island caused by a number of new industries in that area. The Defendants also adduced evidence of wage rates and working conditions for the cities of Kearney, Holdrege, Fairbury, Auburn, Nebraska City, Fremont, Beatrice, Columbus, Scottsbluff, and North Platte.

"In view of the legislative history of section 48-818, set out above, we hold that the section in its present form requires that a comparison be made with respect to all adjoining labor market areas in which comparable workers are shown to exist, and precludes a comparison with respect to labor market areas which are not adjoining to the labor market area in question....

In the absence of specific testimony, we resort to a map of the State of Nebraska, of which we take judicial notice, and from this and the foregoing evidence, we find and determine:

a. That Hall County (in which Grand Island is located) and Buffalo County (in which Kearney is located) are adjoining labor market areas to Adams County, Nebraska, and are the adjoining labor market areas in this case; and

b. That, although evidence has been adduced with reference to the cities of Holdrege, Fairbury, Auburn, Nebraska City, Fremont, Beatrice, Columbus, Scottsbluff, and North Platte, and although each may be a separate labor market area in the State of Nebraska, none of them constitutes an adjoining labor market area with respect to Adams County, Nebraska."

Webster's New World Dictionary of the American Language, 1969 Edition, has these authoritative comments on the word "prevalent" and its synonyms:

"Prevalent, 1. [Rare], predominant. 2. widely existing; generally practiced, occurring, or accepted. -SYN. see prevailing.

"Prevailing, 1. being superior in strength or influence. 2. predominant. 3. widely existing; prevalent. 4 efficacious. SNY-prevailing applies to that which leads all others in acceptance, usage, belief, etc. at a given time and in a given place (a prevailing practice); current refers to that which is commonly known or accepted in general usage at the time specified or, if unspecified, at the present time (that pronunciation was current in the 18th century); prevalent implied widespread occurrence or acceptance but does not now connote the predominance of prevailing (a prevalent belief); rife implies rapidly increasing prevalence and often connotes excitement or commotion (rumors about the plague were rife)."

The Legislature originally intended as a standard of wage rates those which were predominate or at least widely existing throughout the whole state. Then 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 the 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.

The plaintiff's evidence is that all schools in Nebraska require approximately the same number of working days (called in the trade "contract days"), the same number of teaching days (called in the trade "calendar days"), and the same dates and length of period for vacations; and that all teachers must meet the same standards for certification by the State Board of Education and be graduated by a teacher's college which meets the standards of one organization the Council on teacher Education. In this case the only evidence, as distinguished from argument, pertaining to foundation for a finding of the defendant's athletic conference's furnishing a standard of prevalence is the defendant's superintendent's testimony:

"Q-Is Fremont presently a member of any specific organization of schools of its class, population wise or otherwise?

A-Yes, we are members of what's known as the Big Ten Conference, started out as an athletic conference, but it is a conference of so-called outstate schools of similar-in the beginning much more so similar size than it is at the present time, there is quite a variation but they are all Class A schools."

There is no evidence that historically Fremont had sought comparability of its wage rates with these other schools in the conference as there was in Seward, Case No. 34, Findings and Order of August 9, 1971, and in Centennial, Case No. 44, Findings and Order August 18, 1971, and in Minden, Case No. 51, Findings and Order February 5, 1972. Nor is there evidence here of competition in academic subjects aside from athletics or of teachers' meetings and programs of demonstrations of teaching methods and general cooperation among the conference schools as there was in Falls City, Case No. 45, Findings and Order January 6, 1972. On the other hand 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." Likewise here there is community of interest among Group Four Class A Schools in geographical proximity (within approximately 50 miles) namely Columbus, Blair, Millard, Ralston, Bellevue, Papillion, Lincoln and to a lesser but still significant extent Omaha and Westside. The defendant school district lies partly in Douglas County in which are also Omaha, Millard, Ralston, and Westside and adjoins the Columbus and Blair districts; there are no Group One Class A schools located between Fremont and Lincoln, Columbus, or Blair.

The approximate midpoint of the total compensation of the 1971-72 Fremont teaching staff when placed on the respective salary and fringe benefit schedules of said Group One Class A schools within a fifty-mile radius is $2,343,497.25. Paraphrasing our language in Centennial, from an examination of all the evidence we find that the Fremont salaries should be established at a $6650 base with index increments of 5 x 5 and with the same number of vertical columns and steps in each column as the present schedule. This (in terms of overall compensation of $2,311,109) places Fremont as near as is practical to the approximate midpoint ($2,343,497.25) in terms of overall compensation among the spectrum of the comparable school districts shown in the evidence. Westside is not included in the comparison because its salary schedule is not in evidence and is of such different character that it cannot come within the foregoing concept of prevalent.

Except in the testimony re athletic conference quoted above the defendant makes no effort to refute the results of the foregoing reasoning process or to educe evidence which might produce a different result under the same reasoning process. Instead the defendant raises the following affirmative defenses:

a.The Court has no jurisdiction or authority because §79-802 and 803 place exclusive control in the defendant;

b.The Court's establishing under §48-818 wage rates different from those established by the Board is contrary to §48-810.01's prohibition against compelled contracts.

These defenses were discussed and their invalidity determined by this Court in Mid-Plains, Case No. 33, Findings and Order, March 12, 1971, in Centennial, Case No. 44, Findings and Order, August 18, 1971, and in Seward, Case No. 34, Findings and Order, August 9, 1971, of which the latter at the time of entry of this Order in Case No. 50 is on appeal to the Supreme Court of Nebraska wherein the School District of Fremont has filed a brief amicus curise.

c.There is no evidence that the current rates of pay by the School Board are "unfair" by some standard extraneous to §48-818 even though they may not be comparable to the prevalent under §48-818.

This defense was discussed and its invalidity determined in Centennial Case No. 44, August 18, 1971.

d.Salary index schedules are not used to determine rates of pay by employers other than school districts.

We think this defense was invalidated by the Legislature in 1969 when it amended §48-818 by striking the words indicated below:

"....the Court of Industrial Relations shall establish rates of pay which are comparable to the prevalent wage rates paid....for....similar skills under....similar working conditions....and which in addition bear a generally comparable relationship to wage rates paid and conditions of employment maintained by all other employees in the same labor market area."

e.The court has no authority to establish an index salary schedule because under such schedule a school district could pay disproportionate wages for the same work, hours, and conditions, whereas §48-818 does not permit the court to establish disproportionate rates of pay for the same work hours and conditions.

We think that the defendant probably is correct as to its interpretation of §48-818, but that the interpretation is not applicable to the evidence here. Undoubtedly here the evidence does not show expressly that each specific teacher with several years longevity has greater rather than the same or similar skills as specific teachers with less longevity even though both teach the same subject and number of pupils. The defendant without educing evidence merely argues that a salary index schedule could produce the prohibited result, and that therefore court establishment of any salary schedule is prohibited. We think that the following from our Findings and Order in Kramer, Case No. 16, December 16, 1963, is the applicable rule in this respect:

"Whether the relationship between the conclusion and the evidence can be termed 'a reasonable inference' as distinguished from 'pure speculation' must be determined in the light of what is reasonable in view of the purposes of the act. The public interest, as set forth in §48-802, requires that the burden and expense of litigation in this court be within the means of the working man, and that the public purse be not greatly strained by the expense of governmental unit's and public utility's defense. Cost of litigation in this court would become excessive if this court were to adopt a rule requiring detailed evidence of technical processes and operation to support a conclusion of similarity of work and skills.

"....The average, reasonable, and prudent employer, in considering employee compensation, doubtless makes some inquiry as to prevalence of wage rates and similarity of work, skill, and conditions. Under unusual circumstances he may make much more intensive investigation than the evidence indicates has been made here by counsel and these defendants, but under the normal, usual circumstances he would do no more than has been done here. Therefore, we hold that no more is required here so far as meeting any burden of proof is concerned...."

Likewise here the public interest will best be served by requiring the party contending that a particular longer serving teacher has skills similar to those of specified neophites to make more intensive investigation and educe the evidence. Cost of litigation in these teacher-wage cases would become excessive if this court were to adopt a rule requiring detailed evidence of each teacher's processes and operations to support a finding of similarity of skills or to support a finding that longevity justifies a wage disproportionate to that of a neophite.

The defendant further contends in it's brief:

f.Since Art. XV, Sec. 9 authorizes only "laws....for the prevention of unfair business practices and unconscionable gains in any....vocation affecting the public welfare, "the Legislature is without power to authorize, and the Court without power to assume, a standard for establishing rates of pay which does not have reference to availability of teachers (supply and demand), to comparison of historical increase of salaries with increase in cost of living, and to the tax rates.

Art. XV, Sec. 9, however, provides that the Legislature shall determine what practices are unfair and to whom they are unfair, what gains are unconscionable, how they should be prevented, and what constitutes the public welfare. The Legislature expressly has done so in the following words of §48-802:

"To make operative the provisions of Section 9, Article XV of the Constitution of Nebraska, the public policy of the State of Nebraska is hereby declared to be as follows:

The....proper functioning and operation of the governmental service....to the people of Nebraska are hereby declared to be essential to their welfare...It is therefore further declared that governmental service...are clothed with a vital public interest and to protect same it is necessary that the relations between the employers and employees...be regulated by the State of Nebraska to the extent and in the manner hereinafter provided;...."

"Hereinafter provided" includes the provisions of §48-818 which by no stretch of the imagination authorizes in the establishment of wage rates direct consideration of the litigating employer's labor supply and demand, its tax problems, or its own history of giving raises or cuts vis a vis the cost of living. (We say "direct consideration" because conceivably such factors might be elements of a contention that some but not other wage rates are not "prevalent".) This does not mean, however, that these very vital matters are not to be considered elsewhere or that school boards and the public purse are at the mercy of teachers' associations. It means only that this court is not the proper forum under present law for such consideration.

The arguments and evidence educed by the defendant and hereby rejected by us should be presented forcefully and fully under the negotiation and fact-finding procedures of Chapter 79, Article 12 (g). In fact, it would seem from the defendant's exhibit 12 that they were so presented and from the plaintiff's exhibit 2 that rebuttal thereof was made, but as we have held in centennial No. 44, August 18, 1971, they are not to be considered by us nor are decisions during the course of such procedures reviewed by us. The procedures of Chapter 79, Article 12(g) were provided by the Legislature for a purpose and are a vital part of the entire plan of the Legislature to be used wisely and effectively; the Legislature, not we, commands that the recommendations of the special board therein provided for shall receive the good faith consideration of the parties. That special board in a sense is an independent separate tribunal from this court entitled to thorough, full presentation of the respective arguments and evidence and to respect for, i.e. good faith consideration of, its decisions. Except to the extent of making the jurisdictional finding, admitted by the parties, of exhaustion of provisions of §79-1287 to 79-1293, we are not adjudicating herein the defendant's or the plaintiff's compliance with any of the procedures of Chapter 79, Art. 12(g), nor are we making a judicial declaration of the scope or effect of those statutes; we are merely observing that rights, if such they be, as the defendant contends for them here (re relating wage rates to supply and demand, history of raises and effect on taxes) must, under present law, be and seemingly may be developed and remedied elsewhere than in this Court. On the other hand if any of those elements elates to prevalence of wage rates paid rather than to a wholly independent standard for comparison not authorized by §48-818, then such relationship to prevalence may be shown to this court and must be so demonstrated before this court may consider those elements.

II. Re Planning Time for Elementary Teachers

In the last ten years the instructional materials and requirements in the elementary grades, kindergarten through sixth have increased in complexity and number. Particularly important is the requirement that instruction and training be highly individualized in accordance with each pupil's abilities to master and progress. This requires daily or at least weekly reevaluation by the teacher of what should be taught and how it should be taught to individual pupils or at least small groups of pupils with particular abilities or deficiencies. These requirements are not so pronounced in the secondary educational program, and the secondary teachers have sufficient time to plan their courses. On the other hand the elementary teachers, the entire Association, and the principals and supervisors feel strongly the need for elementary teachers' having more time free from attendance on pupils for reevaluation and organization of instructional materials. To some, but not sufficient, extent such time is provided for currently by the use of special-subject teachers, that is, an art teacher, a music teacher, and a physical education teacher, each of who teaches the pupils a special subject with the result that during the time of such teaching of special subject the regular teacher of reading, mathematics, science, and social studies is free to do the planning and reevaluation required for the latter subjects. The Association requested bargaining only with reference to the hours of labor or conditions of employment constituting this planning time for elementary teachers. The Board of Education replied that it could not afford either the time or the money necessary to readjust all the schedules in the three elementary schools. To this, then, the Association offered to help plan the rescheduling and to effect economies elsewhere so that the rescheduling of classes and teaching assignments would result in little or no cost to the school district, and the Association presented a rather detailed plan involving the shift of three presently employed teachers from regular classwork to special-area teaching and setting up of a pilot program in one school with the help of a school board member who is particularly specialized and interested in teaching methods.

With respect to this plan, the defendant argues in this Court that the plaintiff Teachers' Association is attempting to control the school board or to unsurp management functions or is asking this Court to order bargaining on an unbargainable subject. The plaintiff, however, educes evidence and argues to the effect that the offer and proposal of the Association is merely an offer of help in effecting the desired result; and that, so long as the result is effected, the offer of help need not be accepted, and the means of effecting the result is entirely at the control of the defendant if it wishes to retain such control.

The planning time as described above constitutes hours of labor or conditions of employment about which the parties may negotiate collectively in accordance with §48-837 R.R.S. Neb. and which may be established or altered by the findings and order of this Court in accordance with §48-818 R.R.S. Neb. There is no evidence from which this Court can establish or alter such hours of labor or conditions of employment in accordance with the second sentence of §48-818, although probably it is a matter which shall be taken into consideration, being a matter "having regard not only to wages for time actually worked but also to wages for time not worked, including...excused times and all benefits received, including...the continuity and stability of employment enjoyed by the employees," under the third sentence of §48-818. Nevertheless we need not reach the question of whether the third sentence of 48-818 permits us in this case to make some order with respect to establishing planning time hours. We think the appropriate order is governed by our holdings in Minden, Case No. 51, Order of September 22, 1971, and Central City, Case No. 35, Findings and Order of September 22, 1971. Like the grievance procedures in the latter cases, the hours of planning time have not been negotiated fully by the parties here. We find that it would effectuate the purposes of Chapter 48,Article 8, to order further bargaining at this time on the issue. This order is entered primarily under the authority of §48-816, but also §48-810, §48-823, and §48-837.


1. The rates of pay for certificated teachers employed by the defendant for the 1971-72 school year be and they hereby are established in accordance with an index schedule having a base salary of $6,650, index increments of 5% vertically and 5% horizontally, and the same number of vertical columns and steps on each column as contained in the 1970-71 salary schedule. These rates of pay shall be effective on and from the date of these Findings and Order. The administration of the index increments shall be in conformity with the practices during the 1970-71 school year.

2. The plaintiff and defendant are ordered to undertake forthwith good faith negotiations in regard to the hours of planning time free from attendance on pupils with respect to only the elementary teachers of the defendant.

3. Should such negotiations result in mutual agreement, the matter so agreed upon shall be reported to this Court.

4. If the parties are unable to agree on any such matters described in paragraph numbered 2 of this Order, the parties separately or jointly as they determine shall so notify the Court.

5. This order does not compel either party to enter to any contract or agreement, written or otherwise.

6. 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 paragraph numbered 2 of this Order or appropriate to govern the situation pending the negotiations thereby ordered.

Judge Kratz and Judge Nielsen did not participate in the hearing of this matter or in the consideration or entry of the Findings and Order. Judge Gradwohl (1) joins in the entry of the Order in this case; (2) concurs in those findings of fact essential to the entry of paragraph 1 of the Order pursuant to the second and third sentences of section 48-818; (3) concurs in those findings of fact essential to the entry of paragraphs 2 through 6 of the Order pursuant to sections 48-816, 48-837, 48-810, and 48-823; and (4) neither joins nor concurs in any other portion of the Findings.