2 CIR 70 (1972) & (1973)



Unincorporated Association, |
Plaintiff, |
A Political Subdivision, |
Defendant. |


Theodore L. Kessner of Crosby, Pansing, Guenzel, & Binning, for plaintiff.

Verne Moore, Jr. of Moore & Moore, for defendant.


This case came on for trial Thursday, November 30, 1972 in accordance with an order entered November 21, 1972. On November 27, the defendant filed a motion for continuance, which, again by virtue of said order of November 21, automatically was granted with respect to issues concerning findings and orders authorized by §48-818 R.R.S. Neb.

The remaining issues, which are the subject of these findings, are:

a.The relevancy to the plaintiff's standing to maintain this action or the Court's jurisdiction of the plaintiff of any failure on the part of the plaintiff to comply with §25-314; and

b.The sufficiency, in the light of Rule 4D(1) of the pleading of an industrial dispute.

In Nebraska Council of Educational Leaders v. Nebraska State Department of Education , Case No. 56, Findings and Order entered June 1, 1972, the Court held:

The defendant educed evidence that the plaintiff has not filed in the office of Secretary of State a certified statement, and from that evidence contends that the plaintiff may not maintain this action. Section 25-314 R.S. Neb. providing primarily for service of process on labor unions and other unincorporated associations does include the following language:

'...and before it is authorized to engage in any kind of business or activity in this state such...unincorporated organization shall file in the office of the Secretary of State a certified statement setting forth that such ... unincorporated organization is doing business or conducting activities in the State of Nebraska stating the nature of the business or activity, and designating an agent or agents within the State of Nebraska, upon whom process, or other legal notice of commencement of any legal proceeding, or in the prosection thereof may be served;...'

We hold that §25-314 is not concerned with the power to maintain this action; that the plaintiff has not yet engaged in any kind of business or activity ( see Hurley v. Brotherhood of Railroad Trainmen , 147 Neb. 781, 25 N.W.2d 29); and that the plaintiff may file the required statement before commencing the negotiations hereby ordered.

Here the defendant did not educe evidence of the absence from the records of the Secretary of State of the plaintiff's certified statement, but contends that the plaintiff's failure to plead such filing or other compliance with §25-314 R.S. Neb. makes the petition fatally defective and subject to dismissal. For the reasons stated in case number 56 and quoted above we disagree with that contention. Case number 56 now is on appeal, but until we shall have further guidance from the Supreme Court, we shall adhere to our previous interpretation of §25-314.

Our Rule 4D provides:

A petition for establishing or altering wages, hours, and conditions of work...shall contain...a clear and concise statement of the facts constituting the industrial dispute, and the pleader's characterization in the statutory words of the controversy...

and §48-801(7) R.S. Supp. 1972 is:

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.

We construe paragraphs numbered 9 and 12 of the petition as being the substantial equivalent of, "there exists a controversy concerning the terms, tenure, or conditions of employment insofar as they relate to the scale of wages or rates of pay." Anyone attempting to criticize a pleading in the light of our Rule 4D(1) must remember that under 48-801(7), 'industrial dispute shall include ", but presumably is not limited to, one or more of the statutorily defined controversies. Moreover we cannot equitably require a party to elect by his pleading the precise scale or schedule or rate of pay the party desires, for both parties must realize that, pursuant to the mandate of §48-818, the Court must "take into consideration the overall compensation presently received by the employees...and all benefits received, and the continuity and stability of employment enjoyed by the employees." See also Kramer Power Station Employee's Committee v. Loup River Public Power district, et al, Case No. 16.

In the pretrial conference held November 30, 1972, pursuant to order entered November 21, 1972, the parties agreed that there is no occasion or necessity for an order of the Court governing discovery. Accordingly, we find that the defendant is not prejudiced by the failure of the plaintiff to designate in this action who is subject to process in this proceeding for the purpose of discovery.


1. That the defendant's motions filed November 27, 1972, be and they hereby are overruled except insofar as the continuance prayed for is hereinafter provided for.

2. That the alternative prayer of the answer be and it hereby is denied.

3. That on Thursday, January 11, 1973, at 9:00 a.m. or as soon thereafter as the business of the Court will permit in Courtroom No. 2 of the Supreme Court in the State Capitol Building at Lincoln, Nebraska, shall commence a trial of the matters in this case then before the Court with respect to findings and orders authorized by §48-818 R.R.S. Neb.

4. That Richard C. Thoene or Letty Bartusek, of Lincoln, Nebraska, is appointed the reporter of said trial.

Entered December 26, 1972.



The parties have negotiated under the Teachers' Professional Negotiations act and, having exhausted the provisions of that Act, bring the sole remaining controversy between them, one concerning employment terms of the scale of wages and rates of pay, to this Court for settlement under §48-810 R.S. Neb. 1943 by an order establishing or altering the scale of wages in accordance with §48-818 R.S. Neb. 1943.

The primary question is: Should the Court establish a wage scale of which the increments are expressed in dollars or one of which the increments are expressed in percentages of dollars.

During the last twenty years there has developed in the field of public-school education a form of wage scale, highly standardized as to form, though with infinite varieties within such form. A jargon or special language in referring to such form is common in education circles. The form is always that of a chart or graph with horizontal and vertical columns. In the upper left-hand corner always appears the amount of annual salary paid to a teacher with a BA degree but no experience teaching as a certificated public school teacher. This amount always is called the base. Each vertical column to the right of base represents credit hours of additional education, usually taken in the summer at a university teachers' college with a view to an advanced degree. Each horizontal column below the base represents numbers of years teaching in the public school system. An example of such a chart or graph is found in the Findings and Order entered August 9, 1971, in Seward Education Assn. v. School District of Seward , Case No. 34 aff'd 188 Neb. 772, 199 N.W.2d 752 (1972). There has not come to our attention in this or any other case a schedule in which the differences in wages from one step to another, whether horizontally or vertically, are not constant, although the differences sometimes are expressed in dollars and sometimes in percentages of base. One of the common phrases for describing this schedule is to label it by the base followed by the increments. Thus a "6400 3x5" schedule in the Seward case meant that for each year of teaching in the Seward school system the teacher got an additional 5% of $6400 wages and for each nine hours of additional education he got an additional 3% of $6400 in wages. When the additional increments are expressed in percentage of base, the salary schedule is called an "Index Schedule."

There are few limitations on school boards' and teachers' associations' freedom to contract with reference to wages. In this case there is no hint of the presence of discrimination because of race, sex, or union activity, the prohibition of which does limit that freedom of contract. A board and an association are free to contract for rates of pay having no similarity whatsoever to the form of salary schedule above described, or likewise for rates of pay having any combination of similarities and dissimilarities to said form which they mutually can agree upon for almost any reasons whatsoever. Without limiting the generality of the preceding sentence, we stress the point that the freedom of contract in no way is limited by or even need be affected by the standards found in §48-818 R.S. Neb. A negotiated wage scale need not be comparable to the prevalent, and the parties to such negotiations may consider en route to such agreement factors other than similarity of skills or of working conditions. Fremont , Case No. 50, Findings and Order entered March 14, 1972, especially page 8.

But the Court of Industrial Relations under current statutes may not order rates of pay which are not comparable to the prevalent wage rates paid for similar working conditions. In this case we, as triers of fact, find from the evidence in this case that an Index Schedule with the various increments expressed in terms of percentage of base is the prevalent form (as distinguished from the numbers constituting base and percent) of wage rate.

There is testimony and argument to the effect that a longer employed, more highly educated teacher in fact may exhibit similar skills and perform similar work as those of a neophyte, but there is no evidence, actually an express admission of no evidence, that similarity of skills and work among neophytes on the one hand and teachers senior in teaching and education on the other does in fact now exist with respect to any of the defendant's staff. Until such evidence is educed, we hold that evidence of similarity of longevity and of education is sufficient foundation for a finding of similarity of work and of skills. We perceive no basis for a holding in accordance with the defendant's contention that only school boards are capable of developing and evaluating evidence of skills and work. Accordingly we reject the defendant's conclusion that an order establishing an index Salary Schedule is a violation of §48-818 R.S. Neb. because it might even in the absence of evidence here produce a prohibited similarity of wage for dissimilar work and skills. Fremont , Case No. 50, Findings and Order entered march 14, 1972, especially pages 6 and 7.

The defendant further contends that, while this Court has power to establish the "overall compensation" i.e., the total payroll of all the teaching staff, the Legislature has not ceded to the Court the power to allocate among teachers or classes of teachers, so that the latter power must be held to remain in the school board. The third sentence of §48-818 R.S. Neb. is in part:

In establishing wage rates the court shall take into consideration the overall compensation presently received by the employees,...

Since the Court must consider overall compensation, and if there were no other evidence of wage rates to consider, then the Court could do no more than compare payroll totals. But here there is abundant evidence of how each school district in the State allocates its payroll on the basis of longevity and education. "Take into consideration" does not mean "decide solely on the basis of;" nor does "overall compensation" mean total payroll in every evidentiary context. The Court's explanation in Seward (supra) and Centennial , Case No. 44, Findings and Order entered August 15, 1971, of its comparison of total teacher compensation among several selected schools makes clear that such comparison was made because the evidence in those cases would not yield any other comparison. On the other hand this Court has made in IBEW v. Hastings , Case No. 17, Findings and Order entered May 5, 1967, and in Kramer v. Loup & Platte PPD , Case No. 16, Findings and Order entered December 16, 1963, different comparisons on entirely different quantum of evidence. In the school cases recorded so far in this court, the only evidence supporting a similarity of work and of skills was with reference to experience and education; the form of salary schedules prevalent among school districts facilitates a comparison of wages and total payrolls where similarity of work and skills is based on longevity and education. On the other hand, in the power district cases, the evidence supporting a conclusion of similarity of skills was job classification, and there was no evidence of the respective longevity or education. On the latter type of record, comparing total payrolls would be inappropriate.

In selecting appropriate schools as the first step in the development of an ultimate finding of prevalency of wage rate, the plaintiff would ignore geography and consider only number of pupils enrolled, while the defendant would ignore the latter and consider only the former. for the reasons set forth in Fremont , Case No. 50, Findings and Order entered March 14, 1972, and in Hastings , Case No. 42, Findings and Order entered March 14, 1972, we shall consider both. Nevertheless, we stress continually and consistently that the weight given here to each of these factors depends on the absence here of persuasive evidence of other factors and the further absence of foundation for a conclusion that either size or geography of the particular school before us has less or little relevancy to the similarity of its working conditions to those of other schools.

Ranking Nebraska school districts according to pupil enrollment, Scottsbluff stands 11th; Grand Island 5th, North Platte 7th; Hastings 9th; Gering 18th; McCook 19th; Sidney 21st. Other schools closer to Scottsbluff geographically are too small (e.g. Mitchell 63rd; Bayard 88th; Morrill 80th); and other schools more nearly the size of Scottsbluff are too far away (e.g. Millard 8th; Papillion 10th; Ralston 12th; Norfolk 13th). The 1972-73 certificated teachers per their current longevity and education would have a total teacher compensation on the salary schedules of the selected school districts as follows:

Grand Island, 6750 4x8........$1,625,427.00

North Platte, 6700 4.7x4.7.....1,630,576.32

Hastings, 6700 4x4.............1,605,614.80

Gering, 6700 4x6...............1,552,416.80

McCook, 6650 250x400...........1,490,270.00


The average, which we conclude here but not in every case to be the approximate midpoint, is $1,580,324.

There are 104 Scottsbluff teachers out of the total 186 who have reached a point on the salary schedule from which they cannot obtain an increase in pay without taking the initiative of acquiring additional education. Examination of salary schedules indicates that when such a condition with respect to a faculty has developed, a prevalent condition of salary schedule is that the percentage salary increment for education is greater than the percentage increment for longevity.

Accordingly, we find that the prevalent wage rate is an Index Salary Schedule with a base of $6700 and such lower longevity (or vertical) increments and higher education (or horizontal) increments as will effect a total teacher compensation for the school year 1972-73 of approximately $1,580,000.

NOW THEREFORE IT IS ORDERED that counsel will submit so as to be received by the four judges who heard this case within seven days of the date noted below as that of entry of this order, proposals for a rate of pay which is comparable to the Index Salary schedule last above found to be the prevalent wage rate and which is consistent with all findings herein.

Evidence and argument with respect to such proposals will be heard February 23, 1973, beginning at 1:00 p.m. or as soon thereafter as the business of the court will permit in Courtroom No. 2 of the Supreme Court in the Capitol Building at Lincoln, Nebraska.

Judge Nielsen did not participate in the trial or the decision of this case.

Entered February 15, 1973.




This action on February 23, 1973 came on for further hearing in accordance with Findings and Order entered February 16, 1973. From the arguments, and the record previously made, it appears clear that in order to be consistent with our Findings of February 15, 1973, the School District of Kearney, ranking 14th according to pupil enrollment and geographically approximately 250 miles from Scottsbluff must be added to the schools selected for comparison. Doing so brings the approximate midpoint (as explained more fully in the previous Findings) to approximately $1,582,000.

We further find that the prevalent wage rate for the Scottsbluff teachers for the school year 1972-73 is in accordance with an Index Salary Schedule of 46700 3.75x4.00.


That for the school year 1972-73, 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 $6700, index increments of 3.75% vertically and 4.00% horizontally, with the same number of steps and columns as the schedule recognized at the time of trial of this action; and that the other aspects of compensation and terms and conditions of employment are not altered by this order.

Judge Nielsen did not participate in the formulation or entry of this order.

Entered March 9, 1973.