2 CIR 83 (1974). Affirmed. 193 Neb. 675, 229 N.W.2d 172 (1975).



An Unincorporated |
Association, |
Plaintiff, |
ORLEANS IN THE COUNTY OF | Appealed June 27, 1974, Neb.
HARLAN, IN THE STATE OF | Sup. Ct. Docket No. 39658
NEBRASKA, also known as |
also known as the ORLEANS |
Subdivision, |
Defendant. |

May 29, 1974

(Editor's Note: A petition was filed by the Orleans Ed. Assn. on March 9, 1973, docketed as Case No. 80. On April 6, 1973, a certificate was filed with the Secretary of State pursuant to Section 25-314, and a new petition was filed by the Orleans Ed. Assn., docketed as Case No. 83. The action proceeded as Case No. 83.)


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

John E. Dier, John C. Person and Kent E. Person, for defendant.

Before Judges Baylor, DeBacker, Grant, and Kratz.


The plaintiff association requests the court to establish for its members wages and conditions of employment under Section 48-818, including salary schedules, hospital-medical insurance benefits and a grievance procedure.

The defendant, by its Answer and by motions made prior to trial and renewed at the conclusion of the trial attacked the constitutionality of Section 48-818.

The defendant first claims that the enactment of Section 48-818 violates the constitutionally required separation of powers into legislative, executive and judicial departments. This contention was vigorously urged by the School District Appellant and by the amici curiae in School District of Seward Education Association v. The School District of Seward , 188 Neb. 772, 199N.W.2nd, 752, and was rejected by the Supreme Court. The Court there held that Article XV, Section 9, Constitution of Nebraska, was intended as an exception to Article II and clearly authorized the combined administrative, legislative and judicial powers conferred by the Legislature upon this Court by Chapter 48, Article 8.

Defendant further contends that the criteria established by 48-818 for this Court to follow in making its findings and orders respecting wages, hours of labor or conditions of employment are insufficiently definite and, therefore, the section is constitutionally infirm. In urging this position, the defendant argues that there is no private sector employment comparable to that of a teacher in a public school. Neither in its counsel's arguments at trial nor in its written brief after trial has the defendant offered any citation of authority to the effect that there needs to be a private sector employment comparable to the public sector employment in which the Court is being asked to establish wages, hours of labor or conditions of employment. We have, likewise, found no such authority. We have no hesitancy in holding that the guidelines of Section 48-818 are sufficiently definite to overcome this objection. Seward Education Association v. School District , Case No. 34, Findings and Order entered August 9, 1971.

The defendant's other constitutional argument is to the effect that the establishment of a scale of wages by this Court would directly affect the tax requirements of a school district and, therefore, in some manner violate Article VIII, Section 1 of our Constitution. That section reposes taxing authority in the Legislature which the Legislature has, as to Class III school districts such as defendant, delegated to Boards of Education under Section 79-810. The following from Seward, supra , seems pertinent: "The Legislature has plenary power and control over school districts....Consequently, it may provide limitations on any authority to be exercised by a school board. If the Legislature has such complete control over public school districts, it follows, by the enactment of (48-818) it was exercising that control."

The defendant also raises questions concerning constitutionality of Section 79-1287 et. seq. , The Teachers' Professional Negotiations act. The only determination this Court needs to make with reference to T.P.N.A. is whether its provisions have been exhausted, as required by Section 48-810, so as to confer subject matter jurisdiction upon this Court of a dispute between a school district and its certificated teachers. We, therefore, decline to pass upon the constitutionality of that Act.

The defendant's other affirmative defense is that at the time the plaintiff association requested recognition and bargaining of the Board of defendant district, it had not complied with the filing requirements of Section 25-314. The evidence is that the Association was formed by a majority of the defendant's certificated teachers in November of 1972 for the purpose of negotiating employment conditions with their employer, that officers were elected and meetings conducted at the schoolhouse in Orleans, Nebraska, that minutes were kept of these meetings and in pursuance of the Association's purpose, a letter requesting recognition and negotiation was sent to the Board of the defendant on January 23, 1973. By letter dated February 19, 1973, that request was denied. Plaintiff association filed the certificate required by 25-314 with the Secretary of State on April 6, 1973, and thereafter, this action was commenced without repeating the previously denied request.

Section 25-314 provides alternative methods for meeting its requirements. The first is to have a usual place of doing business within the State, and the second is to file a certificate with the Secretary of State appointing an agent upon whom service of process may be made. There is no dispute of plaintiff's evidence that its usual place of doing business at the time recognition and negotiation were requested was at the schoolhouse in Orleans, Nebraska. We, therefore, find that the plaintiff had sufficiently complied with the requirements of Section 25-314 at the time it made its request, and that the defendant's refusal to recognize and negotiate satisfied the exhaustion requirements of 48-810. See Nebraska Council of Education Leaders v. Nebraska Department of Education , 189 Neb. 811, 205 N.W.2nd, 537; Sidney Education Association v. school District , 189 Neb. 540, 203 N.W.2nd 762. We have determined that compliance with Section 25-314 is not an essential prerequisite to a request for recognition and negotiation, the denial of which will satisfy the proviso of Section 48-810 requiring exhaustion of the provisions of T.P.N.A. before this Court acquires subject matter jurisdiction. Sidney , Cases No. 81 and No. 88, Findings and Order entered March 27, 1974.

As a further affirmative defense, the defendant alleges that a considerable number of the members of the plaintiff association signed contracts with the defendant for the school year in issue, which incorporate the terms and conditions of employment established by the defendant's Board. This contention has been raised and answered in a number of previous cases. Hastings , Case No. 42, Order entered July 15, 1971; Milford , Case No. 43, Findings and Order entered July 15, 1971; Seward , Case No. 34, Findings and Order entered August 9, 1971; Sidney , Case Nos. 81 and 88, Findings and Order entered March 27, 1974; Crete , Case No. 64, Findings and Order entered February 28, 1974.

The other affirmative defense pleaded alleges that the plaintiff association does not represent all of the certificated employees of the defendant district and further requests an election and determination of an appropriate bargaining unit. (Paragraph 119, Answer.) There is no statutory requirement that a labor organization represent all employees of a public employer or even all members of a claimed appropriate unit in order that it have standing to represent its members in negotiations with their employer or have standing to institute an action in this Court. Section 48-837 R.S. Supp. 1972 says, in part: "Public employees shall have the right to be represented by employee organizations to negotiate collectively with their public employers in the determination of their terms and conditions of employment..." Section 79-1289 R.R.S., 1943, says: "Organizations of certificated public school employees shall have the right to represent their members in matter of employee relations with their public school district employers."

The evidence is that at the time recognition and negotiation were requested, the plaintiff had as members 14 of the 22 certificated teachers then employed by the defendant and at the time of trial 12 association members had received contracts from the defendant for the 1973-1974 school year. The evidence of the defendant was that it anticipated a total of 21 certificated teachers for that year. In its request for election, the defendant made no effort to comply with Section 48-838 or with the Rules of this Court governing election procedures. No evidence was offered concerning appropriate unit. The brief of the defendant is silent on the question of appropriate unit. The request for an election fails to meet the requirements of Section 48-838 and the requirements of our Rules and is, therefore, denied. We further hold that the issue of appropriate unit has been abandoned. Cf. I.B.E.W. v. Lincoln , Case No. 48, Findings and Order entered October 13, 1971; Mid-Plains Education Association v. Mid-Plains Voc-Tech College , Case No. 33, Findings and Order entered March 8, 1972.

We turn now to the request of the plaintiff for the establishment of a grievance procedure. The evidence presented by the plaintiff, principally the attachments to Exhibit No. 5, would indicate that a grievance procedure is a part of the employer-employee relationship existing in a majority of the schools shown in Exhibit 5. The only evidence presented to us containing the specifics of any grievance procedure is Exhibit 9, a "model" grievance procedure promulgated by the Nebraska State Education Association. While the record justifies our holding that the existence of a grievance procedure is a prevalent condition of employment in the public schools of Nebraska, the evidence is not sufficient to permit us to establish a particular grievance procedure. Cf. Sidney, Case Nos. 81 and 88. supra .

We now come to the remaining issue of teacher compensation. In the year 1972-1973 and in preceding years, the certificated employees of the defendant were compensated on the basis of an "index" salary schedule, providing a base salary (the amount paid a teacher possessing a B.A. degree and no experience) and providing 4% increments of that base figure for each additional nine hours of graduate study completed and 4% increments of that base figure for each year of teaching experience. For the year 1973-1974, the Board of the defendant unilaterally adopted a salary schedule in which the increments are measured in dollars, as opposed to percentages of base salary.

Each of the schools with which the plaintiff seeks comparison (Exhibit 5) and each of the schools with which the defendant seeks comparison (Exhibit 12), with the single exception of red Cloud which was then in negotiation, is shown by the evidence to have in existence an index salary schedule, a schedule in which increments for longevity and advanced education are expressed in terms of a constant percentage of base salary. We, accordingly, find that such form of schedule under the evidence here is a prevalent condition of employment. Cf. Valentine , Case No. 66, Scottsbluff , Case No. 70, South Sioux City , Case No. 73.

The salary schedule adopted by the Board of the defendant for 1973-1974 has a base of $6,650.00 and increments both horizontal and vertical of $275.00, producing "total teacher compensation" of $173,815.00. The defendant makes no contribution or payment toward health insurance for its teachers.

Of the 14 school districts in the Republican Valley Conference with which the defendant seeks comparison under 48-818, 10 under the evidence of the defendant make some contribution to health insurance for their teachers. Doniphan, included on defendant's Exhibit 12, while shown on the defendant's exhibit as an unknown with reference to insurance contributions, appears in the evidence of the plaintiff, Exhibit No. 5, as contributing $11.00 per month per teacher toward health and accident insurance costs. Exhibit 5 of the plaintiff lists the total teacher compensation, including fringe benefits, paid in 18 schools, which the plaintiff claims are comparable to the school district of Orleans. Only 3 of those 18 contribute nothing toward the cost of insurance protection for their certificated employees.

We find that the below listed School Districts, each of which was utilized by each party in making its evidentiary comparisons, are comparable to the defendant district under the criteria set out in a great many of our previous decisions, and further find that the certificated employees of the defendant, if paid upon the salary schedules and fringe benefits existing in those respective districts, would receive as total teacher compensation the amounts shown:

Total Teacher School District Compensation

Alma $177,062

Arapahoe 179,566

Beaver City 178,352

Bertrand 176,730

Blue Hill 181,720

Cambridge 179,134

Elwood 174,426

Franklin 174,822

Nelson 180,636

Oxford 171,130

Republican Valley 174,916

The approximate midpoint of total teacher compensation as demonstrated in the foregoing list is $177,154.00

The salary schedule adopted by the Board of the defendant, $6,650.00 base, index 275 x 275, produces a total figure of $173,815.00. We find that an index salary schedule having a base of $6,700.00 and increments for longevity of 4% and for advanced education of 4%, with columns of B.A., B.A. plus 9, B.A. plus 18, B.A. plus 27, M.A., M.A. plus 9, and M.A. plus 18 an with the number of steps on the respective columns as shown on Exhibit No. 6, together with an insurance contribution of $11.00 per month per teacher produces "total teacher compensation" of $177,330.00, which total teacher compensation under the evidence in this case and under the prior holdings of this Court will meet the criteria of Section 48-818 and should be ordered.


1. The rates of pay for the members of the plaintiff association employed by the defendant School District of Orleans for the year 1973-1974 be, and they are, hereby established in accordance with an index salary schedule having a base of $6,700.00, index increments of 4% vertically and 4% horizontally in columns of B.A. (5 steps), B.A. plus 9 (6 steps), B.A. plus 18 (6 steps), B.A. plus 27 (7 steps), M.A. (8 steps), M.A. plus 9 (9 steps) and M.A. plus 18 (10 steps), and that the defendant provide a health insurance contribution of $11.00 per month to or for the benefit of each such member.

2. The prayer of the plaintiff for the establishment of a grievance procedure is denied.

3. The other terms and conditions of employment of the members of the plaintiff association shall remain unchanged by this Order.

This Order was adopted by the Court on May 15, 1974, prior to the resignation of Judge Grant.

Entered this 29th day of May, 1974.

(Editor's Note: Defendant's motion for new trial was overruled in open Court on July 5, 1974.)