|SIDNEY EDUCATION ASSOCIATION,|||||Cases No. 81 and 88|
|An Unincorporated Association,||||
|v.|||||FINDINGS AND ORDER|
||||Appeal to Nebraska|
|THE SCHOOL DISTRICT OF SIDNEY,|||||dismissed June 4,|
|IN THE COUNTY OF CHEYENNE,|||||1974, Docket No. 39571|
|IN THE STATE OF NEBRASKA, also|||||and 39572.|
|known as SIDNEY PUBLIC SCHOOLS, A||||
Theodore L. Kessner of Crosby, Pansing, & Guenzel, for Sidney Education Association.
Robert Barlow of Wilson, Barlow & Watson, for The School District of Sidney.
Heard before Judges Baylor, DeBacker, Grant & Kratz.
In its latest development this litigation has become a §48-818 action to establish rates of pay and conditions of employment. In accordance with the general analysis set forth in Fremont Education Association v. The School District of Fremont , Case No. 50, Findings and Order entered March 14, 1972, the first approach may be the resolution of where to find those rates of pay and conditions of employment which are prevalent with respect to the defendant. In the Fremont case, after exhaustive review of the Legislative history and definitions of the word "prevalent," we held:
The standard (inherent in the word 'prevalent') is one of general practice, occurrence, or acceptance, but the question of how general is general is left to the judgment or feeling of the Judges. The requirement of similarity of working conditions helps the Judges develop that judgment of a receptivity to the proper connotation of the word 'prevalent'> Similarity tends to decrease with increasing distance among what are to be compared and to become more pronounced with increasing proximity.
As in the Fremont case, and as in Scottsbluff Education v. The school District of Scottsbluff , Case No. 70, Findings and Order entered February 5, 1973, the evidence here is such that geographical proximity and size of school as measured by number of resident pupils enrolled appear to be the most persuasive factors in reaching the ultimate conclusion as to where the prevalent is to be found. Evidence of other factors is analyzed below after the preliminary discussion of those two factors, but such evidence of other factors is included in the following tabulation of data:
NOTE: Tables deleted.
We are inclined to exclude additional school district contended for by plaintiff for reasons briefly noted: Fairbury, though ranking 30th in size with a resident pupil enrollment of 1458, at 360 miles is too distant; Falls City, with 1384 resident pupils is even more distant; Seward, 29th with 1509 resident pupils, and York, 26th with 1618 resident pupils, respectively are about the same distance from Sidney as is Fairbury. We are inclined to exclude school districts contended for by the defendant for the following briefly noted reasons: Scottsbluff, though 75 miles away is almost two and one-half times as big as Sidney in resident pupils; Bridgeport, only 35 miles away, at 680 resident pupils is much less than half the size of the Sidney School District, as are 100 mile distant Morrill with 606 and Mitchell with 711; 75 mile distant Imperial has 416 resident pupils, while 100 mile distant North Platte has 5,356; 200 plus mile Hastings and Grand Island have 4,344 and 6,161 pupils respectively. Lexington and Ogallala, which seem to qualify for consideration by reason of distance and pupil enrollment, are not included in the data shown by the evidence. The Court is unanimous in finding that the Minden School District should be excluded from the search for the prevalent with respect to Sidney, although of the four Judges who sat in this case, two base that finding on Minden's nearly 200 mile distance, while the other two Judges base that conclusion on the disparity of Minden's $24,151 of assessed property valuation per resident pupil and Sidney's of $9798.
The defendant pleads several defenses, each of which, however, is premised on the contention that a school district's rate of pay and conditions of employment may not be compared under §48-818 with those of a school district having a substantially greater per-resident-pupil-tax-assessed-valuation-base. We conclude, however, that in this case it is not necessary to decide the basic issue so raised or any of the defendant's defenses flowing therefrom, because there is no substantial difference between such base of Sidney at $9798 and the other school districts found appropriate by reason of only distance and size. The spread of such tax evaluation base is $8,822 to $11,213, and the average is 49,634.
As did the school district in Scottsbluff Education Association v. The School District of Scottsbluff , Case No. 70, Findings and Order entered February 15, 1973, Sidney has established unilaterally, over the objections of and without negotiations with the teachers, a wage scale of which the increments are in dollars rather than an index schedule of which the increments are set at consistently applied additional percentage of base. The evidence here is the same as it was in the Scottsbluff case with respect to the prevalence of an index schedule. Likewise we find from such same evidence here 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.
We note arithmetically that such index schedule with the same number of horizontal and vertical steps as at present but with a $6,725 base and 4% vertical and horizontal increments will bring the total wage rate paid to certificated teachers to $855,420.00, which when added to the present fringe benefits of $12,408.00 will bring the "total teachers compensation" (of which the meaning is more fully discussed in Fremont Education Association v. The School District of Fremont , Case No. 50, Findings and Order entered March 14, 1972, and in Centennial Education Association v. School District 67R of Seward County , Case No. 44, Findings and Order entered August 18, 1972) to $867,828.
The parties have stipulated that the certificated school employees in the schools of Holdrege, McCook, Kimball, Alliance, and Chadron are similar workers exhibiting similar skills under similar working conditions as the certificated school employees in the public schools of Sidney. To the schools discussed herein but not included in said stipulation, applicable is our holding in Crete Education Association v. The School District of Crete , Case No. 64, Findings and Order entered February 28, 1974:
Employer school districts' similarity in number of pupils, their geographic proximity, and their having scholastic and academic contacts is sufficient basis for a conclusion that the employers are comparable which in turn, in the absence of evidence indicating the weight to be given to certain of such factors or pertaining to individuals or classes thereof, is sufficient for the ultimate finding of similarity of employees' work, skills, and working conditions.
Likewise here there is an absence of such other evidence.
Although there was pleaded a controversy concerning conditions of employment as they relate to planning time for elementary teachers, there is no evidence of this condition of employment, and so presumably the controversy has been resolved or become dormant.
With reference to the controversy concerning a grievance procedure, we now summarize the evidence. Quotation marks in this and the succeeding paragraph indicate findings more nearly in words of the testimony than are the unquoted portions, but nevertheless the words in quotation marks are not exactly or completely those of the witnesses. There is testimony that the Board of Education has a policy for grievances which tells the grievant where to go but specifies no time or schedule for various steps of the procedure, and that "many times the presentation and resolution of grievances has been a long drawn out affair." The policy, if in writing, is not in evidence. exhibit No. 13, a model grievance procedure guideline prepared and recommended by the Nebraska State Education Association, has been studied by the Association, which now desires that it be effected, but has not submitted it to the Board of Education or its special committee. Nevertheless the Association has made known to the Board of Education the changes that the Association desires. Basically the Association is asking for a time-table for each of the various steps of the grievance procedure, the Association having at present no other disagreement with the form and appellate procedure of grievances.
An NSEA staff member testified, "Exhibit 13 is a goal that the associations are working toward; this is a model; many school districts have adopted this model, but I don't know which specific school districts listed on Exhibit 11 have this exact procedure in every respect." "Sidney has a grievance procedure but it's up for some change. Cozad is in the process of negotiating a grievance procedure. Broken Bow's grievance procedure does have time limits for each step clearly spelled out." "There is a difference of opinion, that is a lack of uniformity of opinion, respecting the type of grievance procedure." The Sidney Superintendent of Schools testified, "There was a proposal from the Association respecting amendment to the grievance procedure; the recommendations were made in early 1972; they were not exactly the same as Exhibit 13 but were very similar. The president of the Board of Education appointed a committee of two Board Members, two members of the SEA, and two principals. Two meetings were held. We revised the grievance procedure but they insisted that the grievance procedure be established under a negotiated contract, and we weren't signing a contract, so they said 'we'll hold this till we negotiate a contract.'" We conclude that said committee agreed on a revised grievance procedure; that the Board of Education expressly approved it; and that the Association, while having no objection to the revised procedure, refused to approve it unless it were part of a contract or decree covering all wages and working conditions still in controversy.
We have reviewed carefully our analysis and holding in Central City Education Association v. The School District of Central City , Case No. 35, Findings and Order entered September 22, 1971, pages 35-1 through 35-16 of the published opinions of this Court. Expressly now do we reaffirm the conclusions of law and their applicability to this case, although it may be that in some other different case some of the language in that subparagraph designated "C" may have to be modified in the light of the Supreme Court's opinion in Sidney Education Association v. The School District of Sidney , 189 Neb. 540, 203 N.W.2d 762 (1973). With respect to negotiations concerning grievance procedure, which was the sole subject of our Central City opinion and which is the subject of this portion of these findings and order, we think any question is governed by the following excerpts from the Supreme Court's Sidney Opinion distinguishing their previous Seward Opinion:
...Section 48-837 R.S. Supp., 1969, enacted in 1969, unequivocally grants teachers the right to negotiate collectively through their association. ...The pertinent question is whether the Industrial Relations act, as amended in 1969, grants the Court of Industrial Relations authority to require a school district to deal with an employee's organization. The following extracts from School District of Seward Education Association v. The School District of Seward (1974), 188 Neb. 772, 199 N.W.2d 752, are appropriate herein: '...it is obvious that by eliminating these sections, the Legislature intended to eliminate advisory arbitration reports, and by L.B. 15 attempted to give the Court authority to order bargaining....The Court (of Industrial Relations) construed Section 48-810.01 R.R.S. 1943 to mean that while the Court could not order a school district to enter into a contract, the Court had the power to settle any controversy pursuant to Section 48-816 (concerning bargaining) and 48-818 (concerning establishment of terms and conditions of employment) R.S. Supp., 1969. In doing so, it was not forcing the district to enter into a contract with the union but was exercising its power to settle a dispute under Section 48-816 or 48-818. There is no other construction which would harmonize the Sections....' In the Seward case, the school district had recognized the Seward Education Association as the representatives of the certificated employees. Here, District refused to do so....Negotiation with the 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....If District refuses to recognize or (emphasis supplied) 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 negotiation and the problems are for solution by the Court of Industrial Relations.
At the time of the first hearing from which appear was taken to the Supreme Court, the Sidney School District had refused to pass formally a motion granting recognition and had failed to negotiate on any subject. The evidence now shows as detailed above, however, that since said first hearing discussions with respect to grievance procedure have taken place. Accordingly the Supreme Court's Seward holding as distinguished and characterized by its Sidney holding, governs with respect to the applicability of our Central City holding wherein we said:
We agree with the statements in Defendant's brief: 'Clearly, this is not a case of overbearing or inconsiderate employer, unresponsive to the needs and ideas of its employees.' But we do think that the Defendant, because of its misinterpretation of the statutory phrase 'terms and conditions of employment' and the words 'discuss' and 'negotiate,' failed to explore fully the possibilities of agreement with reference to grievance procedure. Since grievance procedure is a 'term and condition of employment', the School District was free to negotiate with the Association on the issue, rather than act unilaterally, under the provisions of Chapter 48, Article 8. The attempted distinction between 'discuss' and 'negotiate' would be improper under these statutory sections. See IBEW v. City of Hastings , 179 Neb. 455, 460, 138 N.W.2d 822, 826 (1965) (use of the word 'communications' for 'bargaining' was mere semantics and did not affect the substance).
Here in Sidney, however, it is the Teachers Association which so misinterpreted and failed to consummate negotiations. There is here no claim which by any interpretation can be characterized as one of complaint that a party's efforts to resolve the grievance procedure controversy were not undertaken in good faith.
The defendant contends that the Court should find that the plaintiff has failed to comply with certain of the provisions of §25-314 R.R.S. Neb.; and that the Court should conclude from such finding that any activity of the teachers in concert toward a mutual, beneficial goal is without any legal significance whatsoever. §25-314 in material part is:
When such ...unincorporated organization does not have a usual place of doing business or activity within this state ...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 on whom process or other legal notice of the commencement of any legal proceedings, or in the prosecution thereof may be served; ...and the doing of business or conducting activities within the state of Nebraska without filing such certified statement and designation of agent or agents shall be deemed an appointment by such ... unincorporated association of the Secretary of State as its true and lawful attorney upon whom may be served all legal processes in any action or proceeding against it growing out of such business or activities.
If the defendant's contention here were correct as to the meaning of the first clause above quoted, then there would be no reason for the second clause.
In Nebraska Council of Educational Leaders v. Nebraska State Department of Education et al. , 189 Neb. 811, 205 N.W.2d 537 (1973) the Supreme Court held:
Section 25-313 R.R.S. 1943, authorizes an unincorporated association to represent employees in collective bargaining with employers as well as to sue and be sued in the name of the association. However, before it may bring an action in the courts of this state, it must comply with the provisions of §25-314 R.R.S. 1943.... we find plaintiff did not have sufficient legal capacity to maintain the action,... It is undisputed that the plaintiff did not file any kind of a written statement with the Secretary of State of Nebraska. Nor did the plaintiff prove that it had a usual place of doing business, or (emphasis supplied) a clerk or general agent within the state. ...Industrial Relations states plaintiff had not yet engaged in any business or activity, however it directs the 'defendant' to undertake good-faith negotiations with the plaintiff on behalf of its employees. This is the sole business or activity for which plaintiff is organized.... The plaintiff, having failed to comply with the provisions of §25-314 R.R.S. 1943, was not authorized to bring this action. It has no legal capacity to sue.
In Crete Education Association v. The School District of Crete , Case No. 64, Findings and Order entered February 28, 1974, we held:
An education association having existed for many years, holding general membership meetings in which members participate, and not organized or existing solely for the purpose of maintaining court action does have a usual place of activity and therefore is not required to file a certified statement with the Secretary of State.
The evidence concerning the Sidney Education Association in this respect is summarized as follows:
The SEA was chartered by the NSEA in 1947, being the twelfth local association receiving such a charter. All meetings since 1947 of the Association and all its committees have been recorded in minutes and are preserved still. Up until about 1971, the school District required that all certificated teachers belong to the SEA and attend meetings. During the last three years all meetings have been held in the school cafeteria at least once each month September through June of each year. Printed notice of each meeting is posted on the school bulletin board and also given by the school in the teachers' mail boxes. In addition to the monthly business meetings social meetings are held at the Sidney Park. although officers of the Association have changed each year, the identity of each officer has been well known to the Board of Education and to the administration. In fact the communications of October 1, 1971 and April 12, 1973, by which the Board of Education "officially" advised the Association of its refusal to recognize it were addressed:
Sidney Education Association
Attention: Mr. Wilbert Higuchi, President
Dear Mr. Higuchi:
Mr. Ken Crookshank, President
Sidney Educators Association
2663 Laredo Lane
Sidney, Nebraska 68162
Dear Mr. Crookshank:
The Board of Education does not object to contracting with the Association nor to meeting "informally" with persons authorized by the Association to represent the Association; the Board's only objection is to the rigidly specified procedure and time prescribed by the Teachers Professional Negotiations Act. The Board of Education on several occasions since October, 1971, has met with representatives of the SEA, or Mr. Crookshank, the President, and Mr. Higuchi, past President, and Mr. Rush, recognizing them as representatives of the SEA and their presentations as being made on behalf of the SEA.
It seems to us that §24-314's phrase, "usual place of activity" and its phrase, "clerk or general agent" of an unincorporated organization must be interpreted or applied from the standpoint of those who usually deal with that organization considering what activities and place of activities those so dealing reasonably might expect of such an organization and what reasonable expectations they might have as to persons to whom and manner by which notice legally binding on the organization might be given. From this standpoint we conclude that at every time material to this law suit the Sidney education Association did have a usual place of business or activity and did have a clerk or general agent.
We reaffirm the analysis set forth in the first two paragraphs under section numbered 12 of our Findings in the Crete case, and from that analysis and its application to the evidence here, we conclude that Sidney Education Association was not such an organization as is required by §25-314 to file and that its failure to file with the Secretary of State prior to March 26, 1973, did not affect the legal significance or validity or effect of activities done prior to that date on behalf of the association.
By paragraphs numbered 11 and 12 of its Answers the defendant pleads in substance that any alleged industrial dispute between the parties became moot before March 26, 1973, and remained so thereafter, because, as required by Chapter 79, Article 12 R.R.S. Neb. the School District and the individual teachers who are members of the plaintiff signed employment contracts in April of both 1973 and 1972. The defendant has not presented to us any argument as to error in this respect in our decision in Hastings Education Association v. The School District of Hastings , Case No. 42, Order entered July 15, 1971; Milford Education Association v. The School District of Milford , Case No. 34, 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; and Central City Education Association v. The School District of Central City , Case No. 35, Findings and Order entered September22, 1971. Rather it contends:
Assuming for the moment that the holdings in the Hastings and Milford cases are correct from a legal standpoint, they nevertheless are not applicable to the present situation before this Court in Case No. 81, since any continuing dispute which arose before individual contracts were signed in the spring of 1972 by the plaintiff's members, was the subject of Case No. 58. The plaintiff on its own motion voluntarily dismissed Case No. 58 on March 26, 1973. This resulted in a waiver and abandonment of that dispute and it is now moot.
We respectfully disagree with the defendant for two reasons: (a) The provisions of the contracts are not in evidence, and (b) the dismissal of an action does not effect the waiver, abandonment, or mootness of the underlying dispute.
In Crete Education Association v. The School District of Crete , Case No. 64, Findings and Order entered February 28, 1974, we held:
An individual teacher's contract of employment does not deprive the Court of Industrial Relations of jurisdiction with respect to such employment, although the provisions of such contract may and frequently do affect the result of exercising that jurisdiction. Furthermore, we found after examination of the contract there involved that the contract itself provided for the continuing jurisdiction of the Court of Industrial Relations with respect to controversies and was subject to all provisions of the laws of the State of Nebraska, including Chapter 48, Article 8, R.R.S. Neb.
Here there is no evidence of the provisions of the contract. The undisputed testimony is that all the plaintiff's 94 members are and continuously have been employed as certificated teachers by the defendant. We take it as axiomatic under our system of law that any employment is a matter of contract. Section 49-1248 R.R.S. Neb. provides, "A contract for the employment of a teacher...for a public school in the State of Nebraska shall be in writing. The contract form or forms to be used shall be recommended by the department of Education." §79-1250 requires that a contract for employment of a teacher must provide that the employed person holds or will hold at the beginning of the term of the term of the contract a valid certificate, that the teacher is not under contract with another school district, and that there shall be no penalty for release from said contract. §79-1254 provides, "The original contract of employment with ... a teacher and a Class ...III... District shall require the sanction of a majority of the members of the Board. Any contract of employment between ... a teacher who holds a certificate which is valid for a term of more than one year and a Class ...III... District shall be deemed to be renewed and shall remain in full force and effect until a majority of the members of the Board vote on or before May 15 to amend or to terminate the contract at the close of the contract period; provided, that the Secretary...shall, not later than April 15, notify each...teacher in writing of any condition...which the Board considers may be cause to ...amend the contract for the ensuing school year." Here the school district pleaded and adduced evidence that the salary schedules have been amended each year since 1971 to provide more favorable pay to the teachers, but there is no evidence of the District's compliance with or noncompliance with §79-1254 respecting amendments of individual contracts. If the contention of the defendant here were to be sustained on the record here, the result would be that no certificated teacher employee or group of employees during their employment could have any access to the Court of Industrial Relations unless they proved affirmatively that such access had been granted expressly to them by written contract with the school district. If that result had been intended by the Legislature, it certainly would have worded the proviso to §48-810 precisely to effect that result. That result is inconsistent with the process of construing various Legislative enactments so as to give effect to each if possible; that process is the basis of our conclusions in the Hastings case. We are instructed to adopt such process of construction of Chapters 48 and 79 by the Supreme Court's opinion in Seward Education Association v. The School District of Seward , 188 Neb. 772, 199 N.W.2d (1972).
The context of the dismissal of Case No. 58 which the defendant argues was a fatal abandonment of the plaintiff's claims is as follows. On September 7, 1971 the Sidney Education Association in writing pursuant to the Nebraska Teacher's Professional Negotiations Act requested (1) recognition, and (2) meetings and conferences re salaries, planning time for elementary teachers, extra-curricular activity pay, fringe benefits, and class size. On October 1, 1971, the Board of Education responded, "The purpose of this letter is to officially advise you that the Sidney Board of Education on September 22, 1971, passed a motion by majority vote declining to recognize the Sidney Educator's Association as the representative of the certificated employees of School District No. 1 under the Nebraska Teacher's Professional Negotiations Act." On October 26, 1971, there was filed and docketed under our number 58 the Sidney Education Association's petition alleging the foregoing and the existence of controversy concerning salaries, planning time, extra pay, and fringe benefits, and praying for settlement of the industrial dispute. After trial, the Court on January 28, 1972, ordered bargaining as one possible means of settling the dispute. From that order, however, the school district appealed, and on January 26th, 1973, the Supreme Court held that under §79-1290 of the TPNA the school district had a right, which it had exercised, to refuse to recognize the Association; that "however, the dispute still exists;" that the provisions of the TPNA had been invoked and exhausted by said letters of September and October 1971; and that "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." Supplemental pleadings were ordered by and filed in this Court and the case was set for trial March 26, 1973. On March 23, 1973, the Supreme Court filed its opinion in Nebraska Council of Educational Leaders v. Nebraska State Department of Education , which was published after March 26, 1973, as cited above. At the commencement of the trial in Case No. 58 on Monday morning March 26, 1973, the defendant moved for leave to amend its answer by alleging the failure of the Sidney Education Association to file a certified statement with the Secretary of State and resisted strenuously the plaintiff's attorney's motion to amend its petition in Case No. 58 by alleging a usual place of business or activity. The record in Case No. 58 shows that at that time there was some confusion and heat as all the judges of this Court and counsel before it attempted to scan the one copy then available of the Supreme Court's opinion in the Nebraska Council of Education Leaders case. In the course thereof, the plaintiff's counsel rose and announced that he dismissed Case No. 58 without prejudice for the purposes of recommencing the action after filing a certified statement in the office of the Secretary of State. Later that same day the certified statement which is Exhibit 14 in this case was filed, and still later the same day Case No. 81 was filed in this court by petition making the same allegations as the Supplemental Petition previously filed in Case No. 58.
From these findings we conclude that the underlying industrial dispute continues, and that plaintiff had no intention whatsoever of waiving, abandoning, or rendering moot said dispute. We hold that a dismissal without prejudice and a refiling are not ipso facto , in all cases, regardless of the intention of the plaintiff and the similarity of the dismissed and refiled actions by, operation of law, a waiver, abandonment, or rendition of mootness fatal to the second action; and that the application of that general holding to maintenance of litigation in this Court despite the execution of individual teaching contracts is not inconsistent with the soundness or application of our reasoning in Hastings Education Association v. The School District of Hastings , Case No. 42, Order entered July 15, 1971.
The defendant's briefs have not developed the allegations of paragraphs numbered 15, 17, and 18 of its Answers or presented arguments in support thereof. We conclude that the allegations of those paragraphs amount to no more than an assumption of inconsistency between Chapter 48, Article 8 concerning the Court of Industrial Relations and Chapter 79, Article 8, concerning the powers of Boards of Education and the further assumption based on the previous one that the powers of the Court of Industrial Relations cannot be exercised with reference to school boards or school districts. These contentions or assumptions have been discussed thoroughly in the light of similar (though here more thoroughly developed evidence concerning budget) facts and circumstances and have been rejected by this Court in The School District of Seward Education Association v. The School District of Seward , Case No. 34, Findings and Order entered August 9, 1971, on page 6 of the original typed opinion and on page 34-33 of the printed opinions of this Court; Mid-Plains Education Association v. Mid-Plains Nebraska Technical College , Case No. 33, Findings and Order entered March 12, 1971, (paragraph numbered 3); Centennial Education Association v. School District No. 67R of Seward County , Case No. 44, Findings and Order entered August 18, 1971, (paragraph numbered 2); Fremont Education Association v. The School District of Fremont , Case No. 50, Findings and Order entered March 14, 1972, (page 50-10 of the printed opinions of this Court); and Crete Education Association v. The School District of Crete , Case No. 64, Findings and Order entered February 28, 1974, (paragraph numbered 1); and by the Supreme Court in The School District of Seward Education Association v. The School District of Seward , 188 Neb. 772, 199 N.W.2d 752 (1972).
Perhaps paragraph number 18 of the Answers is a broader allegation to the effect that no state-wide agency can be empowered to fix a budget for which a local agency is responsible without providing for payment of excess from a source other than the tax base of the local agency. In the absence of the defendant's presenting authorities and argument in support of this contention, and in view of the length of time which has elapsed and the desirability of entering a decision as soon as possible, we have not researched independently the answer to their contention. In dismissing it thus somewhat summarily we remark that the Legislature, whose powers, though of course immensely greater than our, yet nevertheless flow from the Constitution as do ours Seward Education Association v. The School District of Seward, supra) , sets budgets for which the state colleges and universities are responsible, and that territorially broad units of government, such as cities and counties, establish conditions, such as local assessment districts, which must be paid for by the benefited taxpayers rather than by all the taxpayers of the broader unit.
By paragraph numbered 15 of its Answers the defendant alleges:
The 1973 Nebraska Legislature enacted a State Aid to Education bill which will penalize a school district in its budget increases over a specified amount from the previous year. In this respect, any fixing of a salary schedule, institution of a salary index or additional insurance benefits which would require additional expenditures for the school year 1973-74, or thereafter, might be detrimental to the members of the plaintiff and the defendant's taxpayers, if not legally impossible.
Offered and received in evidence are LB 172, now appearing in the Revised Statutes of Nebraska 1943, 1973 Supplement, as Chapter 79, article 4(q), and a communication dated June 26, 1973, from the State Commissioner of Education to "All public school administrators and county superintendents," the principal significance of which lies in:
The Department is now ready to instruct all districts to use: 3.56% as the increase in the cost of Living Index; and 6.49% as the increase in the Wholesale Price Index.
To the extent that an understanding of LB 172, now Section 79-4159 through 79-4168, is desirable we summarize the requirement for computing the maximum amount of only a certain portion of the many kinds of financial aid furnished by the state to each school district. From the district's entire budget for all receipts and disbursements, those for bonded indebtedness, building and equipment, and programs or activities funded in whole or in part by the United States Government are excluded, leaving what is defined in the Act as the General Fund Budget. The latter is to be divided into two parts: "one part shall be salary and salary related items," and "the other part shall be other expense items." We note that the first part is not limited to the question here involved which pertain to salary and salary related items of only certificated teachers. §79-4164 is as follows:
For the 1973-74 school year, the general fund budget of any school district may not be increased over its budget for the preceding year by more than the amount arrived at pursuant to the following computations: (1) To the amount of salary and salary related items shall be added an amount equal to two per cent of the salary and salary related items and this total shall be increased by a factor or percentage which shall be in the increase in the Cost of Living Index as established by the United States Department of Labor for the immediately preceding calendar year. To the amount resulting from this computation may be added an amount equal to any increase in employer contributions under the federal Social Security Act, which will take effect during the year for which the budget is being set such amount to be computed based upon the number of employees and their salaries in the year preceding the year for which the budget is being set; (2) to the amount of other expenses shall be added an amount equal to two per cent of the other expenses and this total shall be multiplied by a factor or percentage which shall be the increase in the Wholesale Price Index as established by the United States Department of Commerce for the immediately preceding calendar year; and (3) the amounts resulting from computations pursuant to subdivisions (1) and (2) of this section shall be added together and shall constitute the dollar amount that the general fund portion of the budget described in section 79-4160 may be increased, except that if there is an increase in student enrollment the amount determined under this subdivision may be further increased by the percentage increase in student enrollment.
§79-4166 provides in part:
...If expenditures are made in excess of the amount permitted under §79-4159 to 79-4168, the State Board of Education through the State Department of Education shall for each dollar of excess expenditure subtract one dollar from any state funds being distributed to such district for general school purposes. The amounts so subtracted shall revert to the State General Fund. Such subtraction shall be from such funds next distributed to the school district and such district shall not use such excess expenditures in computing its succeeding budget or expenditure limitation.
§79-4167 and 79-4168 are:
If the governing board of any school district desires to seek a budget higher than authorized by sections 79-4160 to 79-4164, such governing board may submit the higher budget issue to the voters of the district at either a general election or a special election called for that purpose. If a majority of the votes cast at such an election approve such higher budget, it shall become the budget for the district.
At the time of deciding to submit a budget to an election, the governing board shall, by resolution, show the following information: (1) The amount of the previous year's budget; (2) the allowable increase in such budget under sections 79-4159 to 79-4168, both as to percentage and dollar amount increases; (3) the dollar amount of increase above the limitation provided in sections 79-4160 to 79-4165 sought to be approved in the election; and (4) the intended use of the funds which are in excess of the allowable increase under section 79-4163.
Although by its brief the defendant makes from the evidence an agreement for a certain conclusion (strenuously resisted by the plaintiff's brief) as to the impact of LB 172 on any 48-818 establishment, the defendant gives no clue as to where the Court of Industrial Relations gets its authority to consider such impact in reaching its §48-818 conclusions or in withholding any §48-818 establishment. Is the authority for considering LB 172 found in the first sentence of §48-818, "Findings and Order...may establish...a scale of wages..." that is, is the discretion inherently extended by the Legislature's use of "may?" Is it found in the second sentence of §48-818, "In making such findings and order...the court of Industrial Relations shall establish rates of pay...which are comparable to the prevalent wage rates paid...for...similar work of workers exhibiting...similar skills under...similar working conditions?" Is it found in the third sentence, "In establishing wage rates the Court shall take into consideration the overall compensation presently received by the employees...and the continuity and stability enjoyed by the employees?" Is there to be imposed on the language of the standards of §48-818 some equitable power to temper or ameliorate the final order re wages in accordance with some feeling of the judges for fairness or for which of the parties has been reasonable, good, and conscientious in its past dealings with the other party? Does the duty to consider the impact of LB172 arise from the constitutional prohibition against a taking without due process of law or the constitutional doctrine of separation of powers? After substantial consideration, we have concluded that the answer to each of the foregoing questions is no; and that accordingly the impact of LB 172, that is the possibility of a decrease in allotment from the School Foundation and Equalization Fund, is not relevant to the question as to whether the particular litigating school district's rates of pay are comparable to the prevalent. Incidentally, it appears to us probable, however, that this legislation and other "lid bills" will affect what will be shown by the evidence in future cases to be the wage rates prevalent among the school districts compared to the litigating district in cases hereafter before us.
In Fremont Education Association v. The School District of Fremont , Case No. 50, Findings and Order entered March 14, 1972, we held:
The defendant further contends in its brief:
f.Since Art. XV, Sec. 9 authorizes only "laws...for the prevention of unfair business practices and unconscionable gains in any...vocation affecting the public welfare," the Legislature is without power to authorize, and the Court without power to assume, a standard for establishing rates of pay which does not have reference to availability of teachers (supply and demand), to comparison of historical increase of salaries with increase in cost of living, and to the tax rates.
Art. XV, Sec. 9, however, provides that the Legislature shall determine what practices are unfair and to whom they are unfair, what gains are unconscionable, how they should be prevented, and what constitutes the public welfare. The Legislature expressly has done so in the following words of §48-802:
To make operative the provisions of Section 9, Article XV of the Constitution of Nebraska, the public policy of the State of Nebraska is hereby declared to be as follows:
The...proper functioning and operation of the governmental service...to the people of Nebraska are hereby declared to be essential to their welfare...It is therefore further declared that governmental service...are clothed with a vital public interest and to protect same it is necessary that the relations between the employers and employees...be regulated by the State of Nebraska to the extent and in the manner hereinafter provided;...
"Hereinafter provided" includes the provisions of §48-818 which by no stretch of the imagination authorizes in the establishment of wage rates direct consideration of the litigating employer's labor supply and demand, its tax problems, or its own history of giving raises or cuts vis a vis the cost of living. (We say "direct consideration" because conceivably such factors might be elements of a contention that some but not other wage rates are not "prevalent.") This does not mean, however, that these very vital matters are not to be considered elsewhere or that school boards and the public purse are at the mercy of teachers' associations. It means only that this Court is not the proper forum under present law for such consideration.
The arguments and evidence educed by the defendant and hereby rejected by us should be presented forcefully and fully under the negotiation and fact-finding procedures of Chapter 79, Article 12 (g). In fact, it would seem from the defendant's Exhibit 12 that they were so presented and from the plaintiff's Exhibit 2 that rebuttal thereof was made, but as we have held in Centennial , Case No. 44, August 18, 1971, they are not to be considered by us nor are decisions during the course of such procedures reviewed by us. The procedures of Chapter 79, Article 12 (g) were provided by the Legislature for a purpose and are a vital part of the entire plan of the Legislature to be used wisely and effectively; the Legislature, not we, commands that the recommendations of the special board therein provided for shall receive the good faith consideration of the parties. That special board in a sense is an independent separate tribunal from this Court entitled to thorough, full presentation of the respective arguments and evidence and to respect for, i.e. good faith consideration of, its decisions. Except to the extent of making the jurisdictional finding, admitted by the parties, of exhaustion of provisions of §79-1287 to 79-1293, we are not adjudicating herein the defendant's or the plaintiff's compliance with any of the procedures of Chapter 79, Art. 12 (g), nor are we making a judicial declaration of the scope or effect of those statutes; we are merely observing that rights, if such they be, as the defendant contends for them here (re relating wage rates to supply and demand, history of raises and effect on taxes) must, under present law, be and seemingly may be developed and remedied elsewhere than in this Court. On the other hand if any of those elements relates to prevalence of wage rates paid rather than to a wholly independent standard for comparison not authorized by §48-818, then such relationship to prevalence may be shown to this Court and must be so demonstrated before this Court may consider those elements.
In Scottsbluff Education Association v. The School District of Scottsbluff , Case No. 70, Findings and Order entered February 15, 1973, we held:
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 work of workers exhibiting similar skills under similar working conditions.
Because of its length, we refer to rather than quote in full that portion of Centennial Education Association v. School District No. 67R of Seward County , Case No. 44, Findings and Order entered August 18, 1971, and entitled "4. Statutory Criteria for an Order Establishing or Altering the Scale of Wages." found on pages 44-10 through 44-19 of the printed opinions of this Court.
We note that a Board of Education concerned about the effect of certificated teachers' salaries on the amounts it may be allocated from sources other than local taxation has many sources of possible relief other than the Court of Industrial Relations. It can negotiate. See Scottsbluff, supra. It may submit the issue to a special election. See §79-4, 147 and 79-4, 168 R.R.S. Neb., supra . It can appeal to the Nebraska State School Boards Association for aid in obtaining corrective legislation. See NEBRASKA SCHOOL BOARDS ASSOCIATION BULLETIN , February 1974 and pages 2 and 3 and School district of seward Education Association v. School District of Seward , 188 Neb. 772, 199 N.W.2d 752 (1972) syllabus numbered 8 by that Court and the discussion beginning at the bottom of page 783 of the Nebraska Reporter. We do not and cannot decide in this litigation whether LB 172's phrase "the amount of salary and salary related items" includes wages as established or declared by this Court in accordance with §48-818 or includes only wages as determined unilaterally by the Board of Education. That question must be decided in an appropriately framed action with appropriate parties before an appropriate tribunal. We hold here merely that the existence of such a question does not preclude us from entering an order in accordance with §48-818.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED:
1.That the rate of pay for certificated teachers employed by the defendant be and they hereby are declared and established in accordance with an index salary schedule having a base of $6,725.00, 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 these actions.
2.That the grievance procedure of the certificated teachers of the School District of Sidney be and it hereby is declared to be that which was agreed to by a committee of the Association and of the Board of Education as more fully set forth in the foregoing findings.
Entered this 27th day of March, 1974.
After hearing April 16, 1974, pursuant to order entered April 4, 1974, the Court now modifies its findings and order entered March 27, 1974, as follows:
1. That the last full paragraph on page 2 of the Findings entered March 27, 1974, is withdrawn and substituted therefor is:
We note arithmetically that an index schedule in such form with $6,725 base and 4% increments as set out in Appendix A attached hereto and made a part hereof will bring the total wage rate paid to certificated teachers to $855,420. The latter when added to the present fringe benefits of $21,408 will bring the "total teachers compensation" to $867,828. The meaning of "total teachers compensation" is more fully discussed in Fremont Education Association v. The School District of Fremont , Case No. 50, Findings and Order entered March 14, 1972 and in Centennial Education Association v. School District 67R of Seward County , Case No. 44, Findings and Order entered August 18, 1974.
2. That paragraph numbered 1 beginning at the bottom of page 15 and continuing on the top of page 16 of the Order entered March 27, 1974, is withdrawn and substituted therefor is:
1. That the rates of pay for certificated teachers employed by the defendant be and they hereby are declared and established in accordance with an index salary schedule having a base of $6,725.00 and index increments of 4% horizontally as set out in Appendix A attached hereto and made a part hereof.
Entered this 19th day of April, 1974.
NOTE: Appendix A omitted.
On the defendant's motion for Order Fixing Amount of Supersedeas Bond, the Court, without raising, considering, or deciding any issue relating to effect or necessity for such bond, hereby fixes said amount at One Hundred Fifty Dollars.
Done this third day of May, 1974.
(On June 3, 1974, the parties filed a stipulation for dismissal in Case No. 88, agreeing that plaintiff would dismiss its petition filed with the Court of Industrial Relations and that defendant would dismiss its appeal. On June 4, 1974, defendant's appeal was dismissed by the Nebraska Supreme Court.)
This cause came to the attention of the Court this 6th day of June, 1974, upon the Stipulation for Dismissal filed herein by the parties and considering the files herein, and being duly advised in the premises, the Court finds that said Stipulation for Dismissal should be allowed.
IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED that the judgment entered herein is set aside and the plaintiff's Petition filed herein is dismissed with prejudice; and defendant having dismissed its appeal of this action to the Supreme Court of the State of Nebraska, and having paid all costs in connection with said appeal, the cash cost bond and the Supersedeas Bond filed herein by the defendant is satisfied and the defendant and its sureties on said Supersedeas Bond are released and discharged.
Dated, entered and filed this 20th day of June, 1974.
(On June 3, 1974, the parties filed a stipulation for order releasing bonds. On June 4, 1974, defendant's appeal in Case No. 81 was admissed by the Nebraska Supreme Court.)
This cause came to the attention of the Court this 6th day of June, 1974, upon the Stipulation for Order Releasing Bonds; and considering the files herein, and being duly advised in the premises, the Court finds that said Stipulation should be allowed.
IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED that the defendant having dismissed its appeal of this action to the Supreme Court of Nebraska, and having paid all costs in connection with said appeal, defendant's cash cost bond and Supersedeas Bond has been satisfied, and the defendant and its surety are discharged in connection with said bonds.
Dated, entered and filed this 20th day of June, 1974.