2 CIR 72 (1972) & (1973)



unincorporated Association, |
Plaintiff, |
NEBRASKA, A Political |
Subdivision, also known as |
Defendant. |

December 26, 1972


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 4 (D)(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 the commencement of any legal proceeding, or in the prosecution 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 4(D) 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 4(D)(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.


February 14, 1973


This case came on for trial on January 11, 1973, upon the Petition of the Plaintiff and the Answer of the Defendant. Evidence was presented and oral arguments heard. Written briefs were thereafter submitted by counsel for both parties.

The Plaintiff Association has as members all nineteen of the full-time classroom teachers employed by the Defendant District. In response to a request of the Plaintiff, the board of the Defendant District recognized the Plaintiff as bargaining representative of its members and negotiations were held under the provisions of the Nebraska Teachers' Professional Negotiation Act. Upon reaching impasse, the fact-finding procedures of T.P.N.A. were utilized. When those processes failed to resolve the dispute between the parties, the Plaintiff commenced this action for a determination under Section 48-818.

Although Defendant in its Answer denies that the provisions of T.P.N.A. had been exhausted, its counsel, in his opening statement at trial, admitted that those provisions have, in fact, been exhausted.

The evidence presented by both parties relates entirely to teacher compensation. Evidence presented by the Plaintiff is restricted to the matter of salary schedule, base salary and index factors for longevity and for additional credit hours earned after obtaining a baccalaureate degree. The defendant's evidence, in addition to salary base and index issues, includes free housing made available to teachers employed by the Defendant, and free lunches given the teachers at school on school days. The Defendant claims these two items must be considered by the Court in arriving at total teacher compensation as required by Section 48-818.

Mr. Layba, chairman of the Plaintiff's negotiation committee, testified that the free lunches are furnished the teachers in exchange for their supervision of lunch periods. Nothing in the evidence contradicts that testimony. While the lunches do have monetary value, the only conclusion which can be drawn from the evidence is that this represents additional compensation for additional services performed, and is not a factor in fixing the items of base salary and index factors on a salary schedule. This benefit is comparable to additional pay for athletic coaching or supervising extra-curricular activities.

The Defendant does make available to its faculty rent-free housing in accommodations owned by the District. Harrisburg is an unincorporated community having a population of approximately 100. There is little or no rental property available in and about Harrisburg. Mobile homes can not be used, according to Mr. Anderson, the Superintendent, because of a lack of municipal water and sewer facilities. The housing units owned by the Defendant are largely former country school buildings which have been moved into Harrisburg and remodeled for residence purposes. The District owns seventeen such units and it employs nineteen teachers, two principals and one superintendent. Not all of the faculty members take advantage of the free housing.

The evidence concerning the housing units, such as type of construction, numbers and kinds of rooms, heating equipment, sanitary facilities and modernity is, at best, very sketchy. No evidence was offered concerning the fair rental value of these units in Harrisburg or in nearby communities within commuting distance of Harrisburg. While Exhibit 11 contains estimates of the cost of rental housing in a great many Nebraska communities, those figures have no direct relationship to the fair rental value of the housing units made available to all or most of the teachers employed by the Defendant District.

On the state of this record, any effort on our part to assign a value to the housing would be completely speculative. The Defendant chose not to, or was unable to, obtain and present sufficient evidence relating to this matter. In this instance, we choose not to exercise the investigative powers granted to this Court by Article 8 of Chapter 48.

The calculations presented in Plaintiff's Exhibits related to salary schedules do not reflect one teacher, the elementary principal, who is also a classroom teacher. The evidence is that this person spends a larger portion of his time in classroom teaching, and a smaller portion in performing administrative duties.

We have been unable to reconcile the calculations appearing on defendant's Exhibit 10, a list of schools located in the Panhandle which the Defendant contends are of similar size to it and in which the teachers perform similar work, exercise similar skill and function under similar working conditions.

We have, accordingly, used other portions of the evidence, principally Exhibit 8, a compendium of salary schedules in effect in 302 of the 338 Nebraska school districts, and Exhibit 9 which shows the positioning of the present faculty of the Defendant District by experience and educational advancements. In making these calculations, we have placed the elementary principal on each salary schedule at Step BA, plus 36, or MA, with no experience, at 70% of the value of that position on the schedule being used. The calculations which appear below have been made by the Court. We have recalculated the amount the faculty employed by the Defendant District in the year 1972-1973 would receive on the salary schedule in force, with insurance benefits paid, in the schools listed below. In making these calculations, we have utilized placements for experience and advanced education reflected by Exhibit 9, except as relates to the Principal mentioned above:









The mid-point of the above-listed figures is $148,303.

The faculty of the Defendant District is presently paid on a $6600 3x4 schedule and has received no advancement for additional experience or additional advanced education from the positions they occupied in the year 1971-1972. Utilizing the 1971-1972 placements and adding the elementary principal as indicated above, the faculty is presently receiving, with insurance benefits, $140,594.

Placing the faculty, including the elementary principal at 70% of value, with the advancements for additional experience and additional advanced education as indicated by Exhibit 9 on a $6700 3x4 salary schedule, with insurance benefits presently paid, produces total teacher compensation of $148,008, a figure very near the mid-point of those shown above.

We have chosen the eight schools listed above for comparison on the basis of the geographical criteria set forth in Fremont Education Association v. School District of Fremont , Case No. 50, Findings and Order entered March 14, 1972. Witnesses for each party contend these schools and the Defendant are similar with respect to work, skill and working conditions. The eight schools are all of similar size to the Defendant and are located within a fifty-mile radius of Harrisburg. They constitute all of the schools of similar size within that radius for which the evidence reveals salary schedules upon which computations can be made. Dix, Lyman and Minatare are also schools of similar size within the fifty mile radius. The evidence does not reveal a salary schedule for either Dix or Lyman. The Minatare schedule is based on twelve hour columns for advanced education and the evidence does not permit us to place the faculty of the Defendant District on such a schedule for computation.

We find, on the pleadings and the evidence of this case, that an index salary schedule, having a base of $6700, 3% increments for longevity and 4% increments for each nine hours of additional advanced education, and the same number of vertical columns and steps on each column as are contained in the 1971-1972 salary schedule will establish rates of pay and conditions of employment which meet the mandate of Section 48-818.


1. The scale of wages for certificated teachers employed by the School District of Harrisburg in the County of Banner and the State of Nebraska for the 1972-1973 school year shall be computed in accordance with an index salary schedule having a base salary of $6700, index increments of 3% vertically and 4% horizontally, and the same number of vertical columns and steps on each column as are contained in the 1971-1972 salary schedule. This scale of wages shall be effective for the 1972-1973 school year only. The administration of the index increments, vertical and horizontal, shall be in conformity with the practices of the Defendant during the 1971-1972 school year.

2. This Order does not compel either party to enter into any contract or agreement, written or otherwise.

Judge Nielsen did not participate in the trial of this matter or in the consideration or entry of this Order.