2 CIR 105 (1974)



Plaintiff, |
Also Known As Springfield- |
LaPlatte School District No. |
46, |
Respondent. |

May 15, 1974



Theodore L. Kessner, of Crosby, Guenzel, Davis, Kessner & Kuester for plaintiff.

James R. Welsh, of Riedmann & Welsh for defendant.

Before: Judges Baylor, DeBacker, Grant and Kratz.


The controversy here concerns the interpretation and application of that provision of a collective bargaining agreement as follows:

SALARY SCHEDULE 1...All teachers will be placed on their steps in the schedule. All increases in salary will be based on the new base each year with the following stipulations:

A. Hours earned for increases in pay must be graduate hours, unless specifically recommended by the School Board.

in the light of transcripts presented by three of the defendant's teachers to the Superintendent and Board of Education purporting to certify each teacher's acquisition of graduate school credits for courses variously entitled "Seminar in the American Indian," "State and Local History," and "Modern Trends in Football Coaching," for which the teaching was by the University of Santa Clara (Santa Clara College), but conducted at the facilities of an Omaha junior high school for ten to twelve hours on each of four days or for two and one-half hours for each of eighteen evenings.

I. Jurisdiction

The School Board contends that the Court of Industrial Relations lacks jurisdiction to decide this matter. Specifically,the Board asserts that the controversy asserted by the Association is not an industrial dispute within the meaning of Sec. 48-801 R.R.S. Supp. 1972. The Board apparently bases its argument on two grounds; first, that what is in issue is the interpretation of an existing contract, rather than a dispute concerning proposed terms of employment; and second, that the grievances presented are individual, and not collective in nature.

Sec. 48-801, R.R.S. Supp. 1972 provides in part:

Industrial dispute shall include any controversy concerning terms, tenure or conditions of 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.

This Court has held that the statutory phrase "controversy concerning terms... of employment" gives the Court "subject matter jurisdiction to construe and enforce labor contracts in suits between parties properly before the Court." Safeway Cabs, Inc. v. Drivers Union , Case No. 18, pp. 8-10, of Opinion entered March 6, 1964. See also, International Brotherhood of Electrical Workers Local Union No. 1525 and City of Beatrice , Case No. 27, Findings and Order entered October 15, 1970, (construing provisions of collective agreement with respect to vacation benefits); Omaha Police Union, Local No. 112 of the International Brotherhood of Police Officers v. City of Omaha , Case No. 49, p. 4 of Findings and Order entered April 5, 1972, (construing collective agreement's grievance clause as providing that the procedures are not available to probationary employees).

In the instant case, the contract in issue was negotiated successfully by the parties, and is in effect for the 1973-1974 school year. The contract governs the Salary Schedule for the 1973-1974 school year, including the salaries of all teachers in the District. The three teachers, Brown, Buza, and Eickhoff, who are alleged to be placed on the salary schedule improperly without graduate credit earned, are all teachers in the District, and members of the Association. These teachers are, in effect, third-party beneficiaries of the collective bargaining agreement negotiated by the School Board and the Association. See generally , 48 AM. JUR. Labor and Labor Relations §1205 (1970).

The School Board contends, however, that while the teachers involved are covered generally by the provisions of the contract, the refusal by the Board to recognize their graduate hours for purposes of advancement on the salary schedule was in accord with the intent of Paragraph 1A of the contract, and in accord with past practice of "handling these matters on a case-by-case basis," under the same provision in previous contracts, and that the teachers' grievances therefore partake of individual actions, rather than an industrial dispute. In questioning by the Court, the Board's attorney, Mr. Welsh, indicated his reliance, in this argument, on the principles elucidated in Schmieding v. City of Lincoln , Case No. 60, Findings and Order entered March 7, 1972; Nebraska Dept. of Roads Employees Assn. and Kiernan v. State of Nebraska Dept. of Roads , 189 Neb. 754, 205 N.W. 2d 110 (1973); and McCorison v. Nebraska Public Power District , Case No. 90, Findings and Order entered July 20, 1973. In overruling a demurrer in Schmieding , this Court held that the Court had no jurisdiction over a controversy concerning an employee's termination on purely individual grounds unrelated to any collective or concerted employee activity or agreement, supra at p. 4, but proceeded to a determination of whether the termination had some nexus with collective activity. Similarly, in Kiernan , the Nebraska supreme Court determined that the employee's termination was motivated by "anti-Kiernan animus rather than by anti-labor-organization animus," and that accordingly any controversy concerning it was not within the Court of Industrial Relations' jurisdiction. In McCorison , this Court found that "there was no collective or concerted employee activity however informal," supra at pp. 6-7.

The instant case is distinguishable from Schmieding, Kiernan, and McCorison , in that a collective bargaining agreement, negotiated by an employer and a labor organization, as defined in Sec. 48-801(4) and (6), exists, in that the grievance procedures as described in Paragraph 13 of the contract were pursued by the Association in behalf of its members, and in that the determination of the School Board with respect to its interpretation of Paragraph 1A of the contract, is a ruling for all teachers subject to the provisions of the contract, regardless of the number who were in fact affected in the 1973-74 school year.

2. Interpretation of the Contract

As the Supreme Court in City of Grand Island v. American Federation of State, County and Municipal Employees , 186 Neb. 711, 185 N.W.2d 860 (1971) relied on general principles of labor law set forth in AMERICAN JURISPRUDENCE, likewise are we here influenced by the following from the same authority, also quoted in the concurring opinion in our American Federation of State, County and Municipal Employees, Omaha City Civilian Employees, Local No. 251 v. City of Omaha , Case No. 41, Findings and Order entered July 14, 1971:

A collective bargaining agreement is not an ordinary contract to which apply the principles of law governing ordinary contracts. It must be construed liberally, rather than narrowly and technically, and it must be read as a whole in the light of the law relating to it when made. The law of labor agreements cannot be based upon abstract definitions unrelated to the context in which the parties bargained and the basic regulatory scheme underlying that context.

In order to interpret a collective bargaining agreement, it is necessary to consider the scope of other related collective bargaining agreements as well as the practice, usage, and custom pertaining to all such agreements. Words in particular collective bargaining agreements are like words in a statute, in that the same word may have different meanings in different contexts, and the language in each agreement should be construed with reference to the particular practices, background, and milieu which gave rise to its use.

The industrial common law-the practice of the industry and the shop-is equally a part of the collective bargaining agreement although not expressed in it. In some collective bargaining agreements, gaps may be left to be filled in by reference to the practices of the particular industry and of the particular shops covered by the agreement, notwithstanding that many of the specific practices which underlie the agreement may be unknown, except in hazy form, even to the negotiators. Where past practice has established a meaning for language used by the parties in a collective bargaining agreement, the language will be presumed to have the meaning given to it by the past practice.

An employee's claim does not necessarily fail where he cannot point to a specific contract provision on which the claim is founded, because there are too many people, too many problems, and too many unforeseeable contingencies to make the words of the contract the exclusive source of rights and duties." (Emphasis supplied.) 48 AM. JUR.2d 760 Labor and Labor Relations §1208 (1970).

In construing the language contained in Paragraph 1A of the contract in the instant case, the following factors merit consideration:

1. Although Paragraph 1A does not specifically so state, it is reasonable to infer that the purpose of allowing increments on the salary schedule based on the accumulation of graduate hours is the encouragement of the teacher's professional growth and thus quality of instruction in the school district.

2. The accumulation of graduate hours, in order to be meaningful for purposes of professional growth, should, as a minimum requirement, meet standards generally acceptable in the profession, that is to say should be acquired in a program which is accredited (by generally accepted standards of accreditation) for graduate work.

3. A determination of whether the meaning of "graduate hours" is even more restricted than indicated by the two preceding paragraphs should be measured by the past practices of the parties under past collective bargaining agreements. The language in pre-1970 contracts between the parties pertaining to the subject of the present Paragraph 1A explicitly restricted graduate hours to those obtained in furtherance of a graduate degree in the teacher's field. However, in 1970, that language was altered, the contract now providing salary increments simply for "graduate hours." No evidence was presented to explain how or why this change occurred, and it is therefore difficult to determine whether the change was inadvertent or was a conscious reflection of the parties' intentions. However, another measure may be taken by ascertaining the practices of the parties under the language in Paragraph 1A since 1970. The evidence shows (1) no teacher who has been denied advancement on the salary schedule for any graduate hours obtained between 1970 and the time of this action; (2) at least one teacher who has been advanced on the salary schedule for course-work taken in an off-campus program (Florida); (3) a number of teachers who have taken at least one course offered by UNL in an off-campus course structured somewhat similarly to that of the Santa Clara courses (Icenogle's course in "Teaching Junior High Science"); (4) the School Board's requiring teachers to provide transcripts as proof of having completed graduate hours; and (5) the School Board's having no way of determining whether any of the credits previously given to teachers for purposes of salary advancement, were earned in furtherance of a degree in the teachers' fields, and transferable for that purpose.

Thus, while it would seem totally unreasonable for the Association to argue (as it has not done) that anything that anybody called "graduate hours" must be accepted as such by the School Board, nevertheless, the language of Paragraph 1A of the contract, in the light of the past practices of the Board, would seem to preclude the Board's current interpretation of the meaning of "graduate hours" as "hours towards an advanced degree in that teacher's particular field." We hold that in order to qualify for increases in pay for education under this contractual provision, the required number of credit hours must be bona fide credits from an educational institution accredited by generally accepted standards and further must be in subjects bearing some reasonable relationship to the teacher's employment by the defendant.

3. Exhaustion of the Grievance Procedure.

Finally, the school Board denies that the grievance procedures as described in Paragraph 13 of the contract, were exhausted, without satisfactory resolution of the dispute. Paragraph 13 provides:

A grievance committee representing Teacher Association or any member within the Organization in District No. 46 shall have the privilege of meeting with the School Board of District No. 46 whenever the professional relationship between the Board, or those representing the Board has been impaired, restricted or misunderstood.

In the instant case, the teachers, Brown, Buza and Eickhoff went to Mr. Icenogle, who is their building representative, and Vice-Chairman of the Professional Rights and Responsibilities Committee of the Association, and asked him to present their grievances to the School Board. He did so on two occasions, in December, 1973, and January, 1974. He attempted, through correspondence with the University of Santa Clara and the Nebraska Department of Education, and through conversations with representatives of the University of Nebraska at Lincoln, to clarify facts and issues which were the subject of "misunderstanding" between the Board and the Association. Because of a temporary impasse resulting from the Board's erroneously interpreting the contractual phrase "graduate hours" as "hours towards an advanced degree in that teacher's particular field," the contractual grievance procedures have been suspended. Now that the proper interpretation of the "graduate hours" provision of the contract has been declared by this Court, the grievance procedure can proceed in the light of that declaration. On the other hand it does not appear that the evidence is sufficient for a judicial decision by this Court, as distinguished from an administrative decision by the Board, as to the exact placement on the salary schedule of the three teachers whose graduate-hours credits are in question.

Nevertheless, we are not prepared now to formulate a comprehensive definition of "exhaustion of grievance procedures", or comprehensive rules as to when parties to a grievance procedure may obtain interlocutory declarations from this Court, or as to when a grievant may present to this Court less than sufficient competent evidence for a complete settlement here of the dispute in complacent reliance upon remand to the grievance procedure.


1. That it be and hereby is declared that in the subject contract the unmodified phrase "graduate hours' means hours credited bona fide both by an educational institution recognized generally under accepted standards and for education bearing some reasonable relationship to employment under said contract; and

2. That the parties shall pursue further but in accordance with the foregoing declaration the grievance procedure provided for by their contract.