| CRETE EDUCATION ASSOCIATION, | | | CASE NO. 64 |
| An Unincorporated Association, | | | |
| | | ||
| Plaintiff, | | | |
| | | ||
| v. | | | FINDINGS AND ORDER |
| | | ||
| THE SCHOOL DISTRICT OF | | | |
| CRETE, IN THE COUNTY | | | |
| OF SALINE, IN THE | | | |
| STATE OF NEBRASKA, | | | |
| A Political Subdivision, | | | |
| | | ||
| Defendant. | | |
Appearances:
Theodore L. Kessner of Crosby, Pansing & Guenzel, for Crete Education Association.
Mr. William A. Harding of Nelson, Harding, Marchetti, Leonard & Tate,
and
Mr. Gerald J. Hallstead, for The School District of Crete.
Before: Baylor, DeBacker, Grant, and Kratz
BAYLOR, J:
This is an action under §48-810 R.R.S. Neb. for settlement of an industrial dispute as defined by §48-801(7) by establishment of scale of wages, hours of labor, and conditions of employment.
For many years approximately ninety-five percent of all those employees of the defendant school district who teach and hold teacher's certificates have been members of the Crete Education Association. In 1971-72 seventy-three of the total seventy-seven certificated teachers of the defendant were members of the plaintiff and in 1972-73 such members in number were seventy-four out of seventy-eight. For five years a committee of the whole Association called the Bargaining Committee, with designated members and a chairperson whose names and meetings have been well known throughout the school system, have heard complaints and suggestions from the membership at large concerning wages and working conditions and have studied salary schedules of teachers throughout the state. For years this and other committees of the Association have had discussions with administrators and the Board of the school district on matters of mutual interest including but not limited to wages and working conditions. Agreements have been reached in years past on matters which then were set forth in the "Policies of the Board of Education of the School District of Crete" (Exhibit No. 13) printed and distributed by the District. "The Board has always been willing to discuss compensatory items with the Association" and has recognized the chairperson of the Bargaining Committee as "the informal emissary of the Association"(testimony of the Superintendent of Schools). Paragraph numbered 2-1.6 on page 9 of Exhibit No. 13 and Exhibit No. 5 establish the Board's current recognition of the Crete Education Association. The plaintiff is an organization in which the defendant's employees participate and which exists for the purpose, in part, of dealing with the defendant concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of work. The defendant admits that as a public school district it is a governmental subdivision of the State of Nebraska.
Relevant to the proviso of §48-810, are the defendant's admissions that it has failed and refused to recognize the plaintiff as a collective bargaining agent, and that the plaintiff has requested such recognition. Exhibits 1 and 2 demonstrate the request to bargain and the testimony is uncontradicted that the defendant failed to respond. All provisions of the Teachers' Professional Negotiation Act, §§79-1287 to 79-1295 have been exhausted without resolution of the dispute involved. School District of Seward Education Association v. School District of Seward , 188 Neb. 772, 199 N.W.2d 752 (1972); Sidney Education Association v. The School District of Sidney , 189 Neb. 540, 203 N.W.2d 762 (1973).
In formulating the preliminary findings relevant to an order establishing or withholding establishment under §48-818 R.R.S. Neb., we follow the guidelines developed in Fremont Education Association v. The School District of Fremont , Case No. 50, Findings and Order entered March 14, 1992, and in Scottsbluff Education Association v. The School District of Scottsbluff , Case No. 70, Findings and Order entered February 15, 1973.
School districts located within 60 miles of Crete, having a number of pupils within 400 of the number of pupils in the Crete School district (with the exact number of pupils) are (see Exhibit No. 12):
Schuyler ............971
Norris-Firth ........1126
Central City ........1169
Auburn ..............1198
Falls City ..........1384
Fairbury ............1458
Seward ..............1509
Waverly .............1538
York ................1618
Of these, Aurora, Central City, Schuyler, and Seward are in the same athletic conference, the Central Ten and in addition to athletic contacts have scholastic and academic contacts. The superintendents of Aurora, Central City, Fairbury, Seward, Crete, and York are on a committee which advises and evaluates the educational department of Doane College and meets frequently to exchange ideas. The defendant urges that we consider the other schools in the Central Ten Athletic Conference, namely Albion, David City, Grand Island Northwest, and Ord. Nevertheless as triers of fact we feel that these other school districts are too small and too distant under the guidelines developed by us in Fremont , Case No. 50, Findings and Order entered March 14, 1972.
From Exhibits No. 6 and 8 we find that the total of the Crete teachers' regular salaries is $650,958. From Exhibits No. 8 and 11 that said total if said teachers were paid under the index schedules of each of the ten school districts listed above would be:
Schuyler ..........$653,423.75
Auburn ............ 654,925.00
Central City ..... 651,234.50
Falls City ........ 654,925.00
Aurora ............ 661,778.00
Fairbury .......... 660,218.00
Seward ............ 659,353.20
Norris ............ 709,248.00
Waverly ........... 704,964.00
York .............. 666,334.50
The approximate midpoint of the respective totals resulting from placing Crete teachers on the salary schedules of the school districts which are comparable as found above is approximately $668,000.
The Crete base is $6600 with 4% vertical increments for experience and 4% horizontal increments for education. The meaning and significance of "base" and of "vertical and horizontal increments" are explained in Scottsbluff Education Association v. The School District of Scottsbluff , Case No. 70, Findings and order entered February 15, 1973. From all the foregoing we conclude that the prevalent scale of wages for teachers exhibiting similar skills under similar working conditions is that of an index salary schedule the same in all respects as that shown by the evidence to have been employed by the Crete District except that the base should be $6775 and the total of the Crete teachers' salaries thereunder $668,218.00.
With respect to health and accident insurance, six of the nine schools compared provide the same coverage as does Crete, although the other three school districts furnish substantially more favorable coverage. As nearly as the evidence permits us to compare policies of the school districts with respect to granting teachers' leave of absence for personal affairs or for professional affairs, all the school districts compared seemed to be about the same as Crete. Actually the complaint seems to be, not with the number of days set forth in the school district's policy as permissible for personal or professional leave, but with the superintendent's arbitrariness in deciding whether a stated purpose qualifies for such leave. There is no evidence of how any other school district applies its written leave policies, and accordingly we are unable to make a §48-818 determination with respect to this condition of employment. Scottsbluff Education Association v. School District of Scottsbluff , Case No. 70. Findings and Order entered February 15, 1973.
It seems reasonably clear that Crete is out of line by nearly any standard with respect to fringe benefits concerning maintenance of income during absence because of illness. Most of the school districts provide this fringe benefit in part in the form of "income protection insurance" at an average cost of $5.00 per teacher per month, which would be approximately $4,000.00 per year to the Crete School District. In part, however, each school district furnishes this fringe benefit in the form of "sick leave with pay" for a stated maximum number of days per year and a stated number of unused days which may be carried over and accumulated from year to year. Either Crete's sick-leave policy of 10 days per year accumulative to 60 must be increased, or in addition to its present policy the school district must provide "income protection insurance" in order to become comparable to the prevalent.
The plaintiff has quite profound problems with the extra-duty pay schedule. Not only from the words of the testimony but also from the manner and demeanor of the witnesses on the stand, we conclude that the teachers generally feel quite deeply that the administration has required them to work longer hours as a matter of course, has insisted unfairly that they take on without pay irregular duties such as ticket taking or superintendence at extra-curricular activities, and has been arbitrary in making such assignments and in giving extra pay to some and withholding it from others. The trouble is that the written extra-duty pay schedules in evidence are all pretty much the same, and there is no evidence of how the schedules are applied in other schools. The plaintiff points out that coaches are increased 10% per year for each year they have coached. Whereas the pay for all other paid extra-duty jobs is the same each year no matter how many years an individual may have held that same extra-duty job and acquired experience and skill therein. Further trouble arises from the fact that all the other schools have the same discrepancy between coaches and non-athletic extra-duty jobs. The plaintiff, therefore, argues, "Clearly with reference to the extra-duty responsibilities, all teachers performing such duties employed by the Crete School District are doing so under similar working conditions and utilizing similar skills. An adjustment must be made in the extra-duty pay schedule so that every teacher's extra-duty pay is comparable (to every other Crete teacher's extra-duty pay). Therefore, all positions on the Crete teacher's extra-duty pay schedule should be paid upgraded amounts based on experience. The initial year in the position shall be at the rate presently shown in the schedule, Exhibit 10. This amount shall be increased in the second year by 10%, and in the third year by an additional 10%."
We have the strongest doubt of the Legislature's intending that the words of §48-818 would support a conclusion that, for example, Bob Devaney exhibits similar skills under similar working conditions as the skills exhibited by, under the working conditions of, Emanuel Wishnow. We are empowered by statute, not to evaluate the relative contributions of coaches and musicians to society, communities and schools, but only to discover what other schools are paying on the one hand their coaches and on the other hand their extra-curricular music teachers.
To avoid an order in accordance with the foregoing conclusions, the defendant raises many contentions, of which each is set forth hereinafter in italicized sentences following an arabic numeral.
By pleading in limine entitled "Special Appearance" the school district contends:
1. Per §79-801 R.R.S. the Board of Education has exclusive control of the property of the school district and per §79-802 has
exclusive direction and control of the school, so that the Court of
Industrial Relations has no jurisdiction, power, or authority with
respect to an industrial dispute concerning wages or other
conditions of employment.
2. Per §70-1290 R.R.S. Neb. no Board of Education shall be
required to meet or confer with an organization of certified school
employees unless a majority of the members of such board determines
to recognize such organization.
If (the School) District refuses to recognize or negotiate with Association under the present law, it cannot be compelled to do so. The situation is then the same as if an impasse had been reached in negotiations and the problems are for solution by the Court of Industrial Relations.
The judgment is remanded to the Court of Industrial Relations for further proceedings in accordance with this opinion.
The Court of Industrial Relations clearly has jurisdiction of a petition alleging an industrial dispute, although the Court's power to compel a Class III school district to negotiate with a labor organization is limited. While the Supreme Court's opinion in the Sidney case leaves unresolved many questions concerning the harmonization of §79-1290 and §48-810 and §48-816, the continuing jurisdiction of the Court of Industrial Relations despite a prayer for negotiations is not one of them.
3. Any exercise of jurisdiction by the Court of Industrial
Relations with respect to either communication between an employer
and a labor organization representing its employees or an
alteration or establishment of wages and terms of employment under
§48-818 is the equivalent of a compelled contract prohibited by
§48-810.01.
4. The School District can be sued only in the name of "The
School District of the City of Crete in the County of Saline, in
the State of Nebraska" and cannot be sued in the name of "The
School District of Crete, in the County of Saline, in the State of
Nebraska."
A School District of the Third Class shall be known by the name of The School District of (name of city or village) in the County of (name of county) in the State of Nebraska. As such in that name, the District shall be a body corporate...and in that name and style may sue and be sued.
and §17-504 R.R.S. Neb:
The corporate name of each city of the second class or village shall be the City (or Village) of _____, and all and every process and notice whatever affecting such corporation shall be served...
Therefrom the defendant argues that omission of the words, "the city of' from the title and summons is fatally defective. A similar contention was discussed with disapproval in Mid-Plains Education Association v. Mid-Plains Nebraska Technical College , Case No. 33, Findings and Order entered March 12, 1971, where we pointed out that under current statutes costs of service of summons is paid by the state general fund, and governmental employers are not peripatetic. In view of the extraordinarily forceful language of §48-802 R.R.S. Neb.:
...the...proper functioning...of the governmental service...to the people of Nebraska are hereby declared to be essential to their welfare, health and safety. It is contrary to the public policy of the state to permit any substantial impairment...of governmental service...It is the duty of the State of Nebraska to exercise all available means and every power at its command to prevent the same so as to protect its citizens from any dangers, perils, calamities, or catastrophes which would result therefrom. It is therefore further declared that governmental service...are clothed with a vital public interest and to protect the same it is necessary that the relations between the employers and employees...be regulated by the State of Nebraska... (through the Court of Industrial Relations in accordance with Chapter 48, Article 8).
the Court of Industrial Relations so invested with such responsibilities would be held to ridicule and scorn were it to avoid settlement of such controversies by holding that there is a substantial and prejudicial difference between the School District of Crete and The School District of the City of Crete. Nowhere in the evidence is there any indication that the defendant ever used the latter form of name prior to raising the issue in this action, and Exhibits No. 3 and 13 demonstrate conclusively that it uses the former form of name. We must develop, as commanded by §48-816, a system of jurisprudence which will "insure a prompt hearing and speedy adjudication of the industrial dispute," whether the adjudication is requested by governmental employees, governmental employers, or the Attorney General. The Court is concerned with settlement of industrial disputes as commanded by §48-810, and not with putting on the parties medals of "winner" and badges of "loser" without any social or economic significance whatsoever.
5. The individual members of the School Board rather than the
School District as an entity is the proper defendant.
A School District of the Third Class...shall be a body corporate ...and ...may be sued.
The printed form of contract (Exhibit No. 3) approved by the State Department of Education and signed by individual teachers and board members recites: "This Contract made by and between the School District of Crete, in the County of Saline, in the State of Nebraska, hereinafter referred to as The District and ________________, a legally qualified teacher or administrator WITNESSETH:". No case is found in accordance with the defendant's contention, although the defendant here cites several cases, actions on teacher's contracts, in which, presumably out of an abundance of caution, individual school board members were joined as party defendants in addition to the school district itself as an entity. In one of these, Greer v. Chelewski , 162 Neb. 450, 76 N.W.2d 438 (1956), an action for alleged wrongful termination of a teacher's contract, the Supreme Court said, "The contract to teach...is one of employment, and the relative positions occupied by the District represented by the Board and the teacher are those of the employer and employee." This in such context seems to mean that the District as a corporate entity, regardless of the title and authority of those who manage such entity's affairs, is the employer and as such is the proper and necessary party to an action for settlement of a controversy with its employees cognizable under Chapter 48, Article 8, R.R.S. Neb.
6. "That since no proper and sufficient service of summons has
been had upon the Board of Education of said School District, and
the members thereof, no proper and sufficient service of summons
has been had upon the School District of the City of Crete, in the
County of Saline, in the State of Nebraska; and that no proper and
sufficient service of summons has been had upon the School District
of the City of Crete in the county of Saline in the State of
Nebraska."
A school district does not have a corporation president. There is no such office as a "president" of the school district. Nor does the statute authorize the school district to be served with process by service upon the "president" of its board of education.
Here a true and correct copy of the summons, petition, and praecipe were served by "personally handing to David Osterhaut Jr., President of the Board of Education of the School District of Crete, in the County of Saline, in the State of Nebraska...in the county aforesaid."
Perhaps the defendant contends that Chapter 79 does not expressly require the corporate entity school district to elect an officer to be expressly known as "president", as does the Business Corporation Act require of a corporation organized thereunder, and so there can be no president of a school district.
Having held in the previous section of this Findings and Order that the school district is a body corporate which may be sued, we now further hold applicable §25-511 R.R.S. Neb.:
A summons against a corporation may be served upon the president, mayor, chairman of the board of directors or trustees, or other chief officer...
and that evidence that the person to whom summons was handed was president, in the absence of contrary or explanatory further evidence, is at least evidence of his being a chief officer of the corporate body of the School District. Without detracting from the simplicity of that holding of ours, we point out that there is no evidence that service of summons upon a person holding the title of president is not calculated to give notice to a school district or did not give notice to this school district of the pendency and nature of this actin.
After oral arguments and submission of written briefs the Court on May 26, 1972, entered an order as follows:
This matter came on for hearing on May 15, 1972, upon the special appearance of The School District of Crete, in the County of Saline, in the State of Nebraska, defendant, and, having been duly advised in the premises by briefs served in accordance with journal entry filed May 22, 1972, the Court finds that for the reasons set forth in our several opinions in Mid-Plains Case No. 33, as well as in Seward case No. 34, Centennial Case No. 44, and Fremont Case No. 50, said special appearance should be overruled.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED as follows:
1. The special appearance filed herein May 1, 1972, be and it hereby is overruled.
2. On or before June 15, 1972, by answer, and at the option of the defendant other pleadings provided for the Code of Civil Procedure of the State of Nebraska, the defendant shall assert every defence, 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 date, shall be deemed to have been waived, except that the defense or 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 light of any evidence that may have been received.
3. On a date and time of which one of the Judges of this Court shall notify counsel by letter, there shall commence at the State capitol Building, in Lincoln, Nebraska, a trial on all matters in this case then before the Court.
Thereafter there were several oral discussions among counsel and the Presiding Judge with reference to the defendant's counsel's contention that delaying the trial until after the momentarily expected pronouncement of the Supreme Court in the Seward case would contribute to efficient adjudication of industrial dispute, and in writing filed July 6th the parties stipulated that the defendant might answer within 10 days after the decision in the Seward case. Nevertheless, ignoring the order of May 26th and the Stipulation of July 6th, the defendant on August 7th filed a Motion to Strike and to Make More Definite and Certain. During the following two and one half months, the Presiding Judge received many communications from the then single attorney of the defendant informing first of the counsel's ill health and then of the counsel's preoccupation with his own running for the office of County Judge. (Additional counsel did enter the case much later, i.e. February 21, 1973.) In deference to such information, the Court on October 31, 1972, ordered Answer on or before November 15 and hearing on November 28th. In the following paragraphs, successively numbered to the preceding paragraphs the Court enters findings and conclusions with respect to the issues raised by the Answer filed November 16th, 1972.
7. Since the individual members of the plaintiff after the filing of the petition had signed individual contracts of employment, "all the issues in this action became and are moot."
The Court finds that the evidence on this issue is exactly the same as the evidence Hastings Education Association v. School District of Hastings , Case No. 42. Order entered July 15, 1971. We have been cited to no reason and have discovered none for departing from the thorough reasoning of that opinion in rejecting precisely the same contention as here made on behalf of the Crete School District. We further note that the same contention with similar rejection has been made in:
Milford Education Association v. School District of Milford , Case No. 43. Findings and Order entered July 15, 1971; Centennial Education Association v. School District No. 67R of Seward County , Case No. 44, Findings and Order entered August 18, 1971.
In 1972 the Legislature made extensive revisions in the Court of Industrial Relations act, all of which were in response to decisions of this Court, but none of which affected the underpinnings of the decision in our Hastings case. In Sidney Education Association v. School District of Sidney , 189 Neb. 540 203 N.W.2d 762, 766 the Court held:
The Legislature chose to let the machinery for permissive negotiation for Class III, IV, and V school districts established by TPNA stand, but clearly, by amending the Court of Industrial Relations act without repealing TPNA, it did not intend to deny the teachers employed by those school districts the rights granted to all other public employees. When the Legislature subsequently enacts legislation making related preexisting laws applicable thereto, it will be presumed that it did so with full knowledge of such preexisting legislation and the judicial decisions of this Court construing and applying it. Airport Authority of City of Millard v. City of Omaha (1970), 185 Neb. 623, 177 N.W.2d 603.
This seems to be some ground for belief in the legislative satisfaction with the doctrine of the Hastings decision. In Mid-Plains Education Association v. Mid-Plains Nebraska Technical College , 189 Neb. 37, 199 N.W.2d 747 (1972), the majority opinion, particularly as it is characterized by the dissenting opinion, may indicate a broad, at least not completely unanalogous, view that the granting or withholding of individual contracts may not be done for the purpose of interfering with the hearing and the adjudication of industrial disputes by this Court.
Furthermore the contract itself provides, "SECOND: Said Teacher hereby agrees to be governed by the policies of the Board of Education of said District and that the duties to be performed by him under this Contract shall be subject to assignment by the Superintendent of said District...SIXTH:...this Contract shall be deemed to have been entered into subject to all provisions of the Laws of the State of Nebraska..." Insofar as the policies and assignments left open by said contract in turn are subject to all provisions of the Laws of the State of Nebraska..." Insofar as the policies and assignments left open by said contract in turn are subject to orders of the Court of Industrial Relations under at least §48-818 and possibly other sections of the Act, the contract itself provides for the continuing jurisdiction of the Court of Industrial Relations with respect to controversies; likewise "all provisions of the Laws" in paragraph designated SIXTH unquestionably include Chapter 48, Article 8 R.R.S. Neb. This interpretation of the contract is consistent with the reasoning of Greer v. Chelewski , 162 Neb. 450, 76 N.W.2d. 438 (1956), wherein it was held that the contract's provision for termination only in accordance with law meant termination only by the State Commissioner of Education in accordance with his statutory authority over teaching certificates.
Other defenses affirmatively pleaded by the Answer of November 16, 1972, have been preserved in subsequent pleadings as hereinafter discussed. After an evidentiary hearing and submission of briefs on November 28, 1972, the Court entered January 8, 1973, detailed findings with respect to the points raised, contrary to the Court's Order, in a pleading entitled Motion and correctly by the Answer and furthermore made detailed findings respecting the jurisdiction of the Court in the light of the proviso to §48-810 and respecting the reasonable expectation of a temporary bargaining order's aiding in the elimination, definition, or simplification of the controversies between the parties. An interlocutory order to bargain and to report the results thereof to the Court was entered. The defendant's refusal to comply in any respect with the Order became conclusively manifest by further pleadings filed by and communications from it, and so on application of the plaintiff February 14, 1973, the Court on February 15, 1973, superseded its Order of January 8, insofar as the latter ordered bargaining and ordered hearing and trial of all matters pertaining to the underlying industrial dispute. The trial originally was set for February 23, 1973, but after motion and hearing was continued to March 21, 1973. On March 7, 1973, the defendant's amended answer was filed. To the defenses pleaded therein as developed by the briefs, we now make findings in paragraphs numbered successively to the previously numbered paragraphs.
8. Since rules approved by the Governor and the Attorney General were not filed with the Secretary of State until September 20, 1972, the Court had no jurisdiction, power, or authority to act in any way whatsoever prior to that time, acquired none thereafter since the only petition and service of summons were made prior thereto.
No point with respect to the Administrative Procedures Act was raised in this case prior to November 16, 1972. In School district of Seward Education Association v. School District of Seward , 188 Neb. 772, 199 N.W.2d 752, 760 (July 21, 1972) the Court said:
One of the amici curiae raised the point that the Court had not complied with the Administrative Procedures Act. The point was not raised by defendant, and there is nothing in the record to indicate noncompliance with the Act. Because the question may be raised in the future, we hold the Court of Industrial Relations is an agency within the purview of the administrative Procedures act.
and went on to affirm the judgment of this Court by which an index salary schedule was established in accordance with §48-818 R.R.S. Neb. International Brotherhood of Electrical Workers v. City of Hastings , 179 Neb. 455, 138 N.W.2d 822 (1965) and City of Grand Island v. The American Federation of State, County and Municipal Employees et al. 186 Neb. 711, 185 N.W.2d 860 (1971) were remanded to this Court for further proceedings. The failure to file in the Office of the Secretary of State a document approved by the Governor and the Attorney General and entitled "Rules" does not nullify all actions taken in accordance with Chapter 48, Article 8 R.R.S. Neb. and prior to the raising of objection based on such failure.
9. All orders of the Court entered in this case prior to the filing of these findings and order are void for failure to comply with §84-915 concerning findings.
§84-915 is as follows:
Every decision and order adverse to a party to the proceeding, rendered...in a contested case shall be in writing or stated in the record and shall be accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise statement of conclusions upon each contested issue of fact.
§48-817 in part is as follows:
After the hearing and investigation the Court shall make its findings and enter its order or orders in writing, which decision and order or orders shall be entered of record.
and §48-819;
Orders, temporary or final, entered by the Court of Industrial
Relations shall be binding on all parties involved therein and
shall be deemed to be of the same force and effect
as like
orders entered by a District Court
...Failure on the part of
any person to obey any
order
, decree of judgment of the Court
of Industrial Relations, either temporary or final, shall
constitute a contempt of such tribunal
in all cases where a
similar failure to obey a similar order
, decree or judgment
of
a District Court would constitute a contempt of such tribunal,
and
...shall be dealt with as would a similar contempt of the
said District Court. (emphasis supplied)
The procedure which the Administrative Procedures Act prescribes for use in contested cases by administrative agencies is essentially that which is normally used in adversary proceedings. In applying the Administrative Procedures Act to the proceedings of the State Board of Equalization and Assessment, some consideration must be given to the peculiar nature of the State Board including its purpose and function.
There are practical difficulties which would present a strict and literal application of the Administrative Procedures Act to the proceedings of the State Board where the Board is attempting to equalize the valuation of real estate in all 93 counties.
We, though recognizing the possibility of a reasonable argument to the contrary, now construe the foregoing precept as applicable to any tribunal which is within the purview of the Administrative Procedures Act. For the purpose of the consideration to be given in applying the Act to the Court of Industrial Relations, the particular nature of this Court including its purpose and function is found in (though certainly not exclusively in) the quoted provisions of §48-817 and §48-819. For the purpose of any requirement, whether that of §48-817 or that of §84-915 or any other, of expression of findings in support of an order, the Court of Industrial Relations is expected to support its orders to the extent that a similar order of the District Court would be supported. It follows then that the extent of findings required differs depending on the type of order; an order overruling a special appearance, an order to file an answer, an order to proceed to trial, an order overruling a procedural motion, an order for bargaining, and an order establishing in accordance with §48-818, each may require a different extent and form of expression of findings.
We note from Prigge v. Director of Motor Vehicles , 184 Neb. 103, 165 N.W.2d (1969) that even an order of the Director of Motor Vehicles suspending a license without sufficient findings is not invalid, but that the case will be remanded to the Director for findings of fact and conclusions of law supporting the order. Certainly a contrary rule would cripple the fulfillment of the legislative mandate in §48-816 that the "Court shall...take such preliminary proceedings as may be necessary to insure a prompt hearing and speedy adjudication of the industrial dispute." The execution of that mandate by part-time judges must not become a trap to be sprung at the option of those desiring to maintain disharmony and to avoid hearing and settlement of controversy.
The defendant makes specific reference to only our finding in the Order of May 26, 1972, that "for the reasons set forth in our several opinions in Mid-Plains Case No. 33, as well as in Seward Case No. 34, Centennial Case No. 44, and Fremont Case No. 50, said Special Appearance should be overruled." The defendant, by either evidence or argument, points to no prejudice to it by reason of insufficiency of findings except the statement in its brief. "It is in no way clear which reasons, conclusions, and findings of fact in previous cases are referred to by the Court in making its May 26, 1972 Finding which served as the basis for overruling the defendant's Special Appearance." We point out that there were no controverted issues of fact with respect to the Order of May 26, 1972, and we respectfully suggest that when a Court later evaluates a finding, its requiring the party to whom the order was adverse to scan the cited opinions is less economically and socially inefficient than would be its requiring the prevailing party to recommence all its efforts.
10. The plaintiff's pleading of February 14, 1973, denominated by the plaintiff "Application", is a new, separate, and distinct cause of action that may not be joined with the plaintiff's initial petition, requires praecipe and summons for acquisition of jurisdiction with respect thereto, and is such that the defendant by inflexible statutory mandate may not be denied 5 weeks within which to make answer thereto.
By Petition filed March 30, 1972, the plaintiff pleaded the existence of an industrial dispute as defined by §48-801 including a controversy concerning terms, tenure, and conditions of employment, specifically with respect to salary schedules, fringe benefits, extra-duty compensation, released time for association meetings, credit or reimbursement for expenses for professionally related work shops, and policies relating to employment practices, a further controversy concerning the representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, and further controversy respecting the refusal to discuss terms and conditions of employment and prays for "such findings...and...orders as are necessary and appropriate to define the industrial dispute...and...to resolve the industrial dispute including orders concerning the recognition of the association...representing its members...and...such orders as are necessary or appropriate to require the parties to enter into good faith negotiations for the purpose of defining and eliminating the industrial dispute..."
By the pleading denominated "Application" and filed February 14, 1973, the plaintiff sets forth in detail the various pleadings and contentions made by the defendant over an eleven-month period and appearing of record in the base and concludes therefrom "the Order directing bargaining between the parties will not fulfill any purpose," so that the industrial dispute can be settled by the Court's entering a §48-818 Order with respect to the same items alleged by the Petition of March 30, 1972, as being in controversy and concluded, "Wherefore, the association renews the prayer of its petition herein for appropriate orders resolving the industrial dispute...including the determination of terms and conditions of employment as hereinabove set forth."
The defendant construes the petition as one solely for bargaining or having no reference to any controversy concerning wages, hours, and conditions of employment, and the "Application" as amended petition for an establishment or alteration of wages, hours, and conditions of employment and cites many judicial statements respecting the prohibition of changing the cause of action by amendment. Without considering the legal commentaries on the phrase "cause of action" or the usefulness of that phrase and commentary as an aid to decision under the unique Nebraska Court of Industrial Relations act, we conclude that the Supreme Court's opinion in Sidney Education Association v. School District of Sidney , 189 Neb. 540, 203 N.W.2d 762 (1973) is controlling. There, after holding that this Court's order to bargain was improper or ineffective, the Supreme Court did not dismiss, but remanded for further proceedings saying:
Negotiation with District is now at an end, and the Association may present all problems on terms and conditions of employment to the Court of Industrial Relations...every public employee is given the right to form and to be represented by an association in collective negotiation of the terms and conditions of his employment. The Court of Industrial Relations has been authorized to protect that right...the situation is then the same as if an impasse had been reached in negotiation and the problems are for solution by the Court of Industrial Relations. The judgment is remanded to the Court of Industrial Relations for further proceedings in accordance with this opinion.
If any reference to common law pleading and analogies is desirable, we find O'Neill v. Union National Life Insurance Company , 162 Neb. 284, 75 N.W.2d 739 (1956) more appropriate than the cases cited by the plaintiff without mention of their specific facts. This was a suit on a life insurance policy in which for the first trial the defendant pleaded failure to furnish due proof of loss and for the second trial by amended answer death in the military service. The plaintiff in the trial court and the Supreme Court contended unsuccessfully that the defendant fatally had attempted to "mend his hold" or "to substitute a defense substantially different from those relied on at the original trial. In the course of such rejection, the Supreme Court said:
On the record before this Court however it becomes clear that no basis is found to support and sustain the contention that the defendant at any time changed its defensive position as to liability for a recovery on the insurance policy. As pointed out earlier herein the position of the defendant has been that the policy was in full force and effect...that amended answer as to this subject did not depart from the contentions made at any time prior thereto...(the Court then cites and comments on all the cases cited by the School District of Crete in this case now before the Court of Industrial Relations and then with reference to said cases and their applicability to that case the Supreme Court continued) these cases are in point only where a new and different defense is attempted to be asserted. They are not in point in instances where, as here, there has been no change in the defensive position on the merits of the pleaded cause of action.
In support of this defense and at the heart of many contentions otherwise characterized as separate defenses but generally concerning the question of pleading and proof in this Court, the defendant argues that this Court must (presumably by reason of some natural law, or universal feeling for justice) establish sine qua non of pleading and proof of details for the omission of which a labor organization will fail.
We have resisted similar attempt to persuade us to go beyond what the statutes (e.g. 48-801(6) and 48-838(3)) require of us. In the concurring opinion in Nehawka Education Association v. School District No. 103 of Cass County, Case No. 65, entered March 22, 1973, appears:
Both the parties stress the obvious that "prevalency" is not equivalent to "mid-point." Plaintiff contends that therefore the teachers' demands, despite a tendency up from the mid-point, should be respected if the opposing party has not shown them unreasonable by some other extrinsic standard. The Defendant contends that therefore the School Board's good faith setting, despite a tendency down from the mid-point should be respected when the opposing party has not shown them to be unreasonable by another extrinsic standard. I think the doctrine of the approximate mid-point is more likely to achieve the legislative purpose set forth in §48-802 R.R.S. Neb.
See also Memorandum Opinion entered August 1, 1963, in Kramer Power Station Employees Committee v. Loup River Power District, et al. Case No. 16; Findings and Order entered December 16, 1963, paragraph numbered 3, paragraph numbered 4, paragraph numbered 6, and paragraph numbered 7 especially the following:
Whether the relationship between a conclusion and the evidence can be termed "a reasonable inference" as distinguished from a "pure speculation" must be determined in the light of what is reasonable in view of the purpose of the act. The public interest, as set forth in Section 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 operations to support a conclusion of similarity of work and skills.
This Court must assume the attitude which a reasonable and prudent employee would have in making demands under all the economic pressures of the marketplace including those pressures which conceivably would be present but for the prohibitions of Article 8, Chapter 48. Then must the Court assume the attitude which a reasonable and prudent employer would have in considering his employees' compensation under all the economic pressures on him, including again pressures which conceivably would be present but for the statutory prohibition. And finally the Court must balance the attitudes and reach the decision as to prevalence, similarity, and relationship required by Section 48-818. 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. Thus the conclusions set forth in the following paragraphs are reached by us as triers of fact and are not conclusions of law based in any respect upon a legal insufficiency of evidence to sustain a finding for a party having the burden of proof.
In IBEW v. the City of Hastings , Case No. 17, Findings and Order entered October 5, 1964, we held:
Under §48-823 and §48-816 R.R.S. Neb. 1943, the Court has broad powers to formulate its own rules of pleadings and practice. It would be unwise for this Court to promulgate rules which would require in all industrial cases either employees or employers to set down publicly in pleadings or even in letters to each other all the possible extreme demands that ingenuity of their counsel might imagine. Our experience as lawyers is that setting down such extremes is the necessary result of the usual rules of pleadings in the District Courts of this State. On the other hand, in appropriate cases in an industrial setting harmony may be promoted and settlement of disputes achieved or at least facilitated by requiring no more of a petition than the bare allegations of a controversy and by ordering upon the filing of such a petition the parties to get together, under conditions, rules, or supervision appropriate to the particular circumstances, for the purpose of defining or eliminating the areas of controversy.
See also in the same case the Order Overruling the plaintiff's Motion for New Trial filed December 28, 1964.
The relationship of the parties to actions under Chapter 48, Article 8, requires a somewhat different approach here than in a typically contested case in the District Court. Here the representatives of the governmental employers personally have an interest in the governmental employees' output and services, while the employees as citizens and taxpayers have an interest in the community at large. On the other hand to litigation in the District Court involving contracts and torts the parties normally have no interest whatsoever in their adversaries' welfare. Here the parties universally will have been working to some extent in close relationship prior to the commencement of the action, so that it is not so necessary here as in a more nearly completely adversary proceeding that the pleadings give complete and detailed notice of the respective claims and positions. The Court's throwing out a pleading for less than the grossest insufficiency will invite and encourage successive attacks by those desirous of promoting industrial strife or dissatisfaction and of avoiding adjudication of controversy, and such attacks in turn will invite voluminous pleadings, since there is no penalty for surplusage of allegation.
11. §48-818 is unconstitutionally vague, creates a system of process that deprives the defendant of property without due process of law, and unconstitutionally delegates power to this Court.
Although we find expressly that the defendant has submitted no argument or authority whatsoever on any aspect of constitutionality, nevertheless we point out that the contention with respect to vagueness has been rejected by this Court in School District of Seward Education Association v. The School District of Seward , Case No. 34, Findings and Order entered August 9, 1971, on page numbered 6, affirmed 188 Neb. 772, 199 n.W.2d 752 (1972), wherein the contention with respect to delegation of power is rejected.
12. The plaintiff has the burden of showing compliance with §25-314 and the Nebraska Council of Educational Leaders v. The Department of Education, Case.
In view of the dissenting opinion in Nebraska Council of Educational Leaders v. Nebraska State Department of Education , 189 Neb. 811, 205 N.W.2d 537 (March 23, 1973), suggesting the disastrous results of denying access to any Court in this state by any unregistered partnership or other unincorporated association, a great responsibility is placed on any Court called upon to construe and apply the holding of the majority opinion of that case.
With complete deference to our controlling Court and merely by way of preface to our reasoning in support of the conclusion hereinafter set forth, we state that the insufficiency of that plaintiff's legal capacity may well have been placed on the Nebraska Council's failure to fulfill the requirements of a labor organization found in §48-801(6). On reviewing the evidence in this Court in our Case No. 56, we think we erred in holding that the plaintiff there was an organization in which employees participate. The evidence there was that the employees of the defendant were scattered throughout the State of Nebraska despite their concentration in Lincoln; that no meeting of all the members of the plaintiff ever had been held; and that the written constitution of the plaintiff had been signed only shortly before the commencement of the action. In any event under such circumstances as those last described herein, a group would not qualify under even the most liberal construction of that portion of §25-314, "...when such...unincorporated organization does not have a usual place of doing business or activity within the state, nor a clerk or general agent within the state...(it) shall appoint an agent...in this state and before it is authorized to engage in any kind of business or activity in this state...(it) shall file in the office of the Secretary of State a certified statement...designating an agent...upon whom process, or other legal notice of the commencement of any legal proceedings...may be served;..." In other words we and the other Courts of this state are free to give a liberal construction to the phrase "a usual place of...activity within the state" thus permitting such unregistered unincorporated associations as partnerships for the practice of law or farming, churches, and reciprocal insurers, as well as well established labor organizations, access to the Courts of general as well as limited jurisdiction. In this case before us now the evidence is that the Crete Education Association has existed for many years; that its meetings are held in one of the Crete school buildings, usually the high school building; and that all the members discuss or have an opportunity to discuss very many questions of interest of which the attempt at negotiation and the bringing of this law suit are a very small part. Abundantly clear is the fact that the plaintiff here is not, as the Supreme Court found of the Nebraska Council in the last cited case, an organization of which "the main activity for which the plaintiff is formed is to represent its members in the area embraced in these proceedings; this is the (only) purpose of its very existence." Accordingly we hold that the plaintiff, having a usual place of activity within this state, is not such an organization as is required by the proviso to §25-314 R.R.S. Neb. to file with the Secretary of State.
Alternatively we note that the record here with respect to pleading and proof of non-compliance with §25-314 is exactly the same as was the record in that respect in School District of Seward Education Association v. School District of Seward , 188 Neb. 772, 199 N.W.2d 752 (1972) in which the Supreme Court affirmed the judgment of this Court establishing an index salary schedule under the authority granted by §48-818 R.R.S. Neb. Here the defendant raised the question for the first time by supplemental Post-Trial Brief; the case was submitted after trial two days before the Supreme Court filed its Department of Education opinion. accordingly we hold that we will not judicially notice a failure to file in the office of the Secretary of State the certified statement required in some instances by §25-314 R.R.S. Neb. in the absence of pleading and proof of such failure.
The Court of Industrial Relations Act has been invoked and doubtless will be invoked by employers as well as by labor organizations. Accordingly in reaching our conclusions with respect to each of the contentions here of the school district, we have tested each against the probable result of such a contention if raised by a labor organization to frustrate litigation initiated by an employer. We find that the principles herein announced will be equitable, judicially defensible, and socially, politically, and economically balanced, regardless of whether they are relied on by labor organizations or by employers.
NOW THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED:
1. That the rates of pay for certificated teachers employed by the defendant be and they hereby are established in accordance with an index salary schedule having a base of $6,775.00, index increments of 4% vertically and 4% horizontally, and the same number of steps and columns as the schedule recognized at the time of trial of this action; and
2. That the defendant furnish in addition to said pay to each of said teachers, such income protection insurance as is currently available at an average cost of $5.00 per teacher per month.
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