2 CIR 85 (1974)



An Unincorporated Association, |
Plaintiff, |
known as Milligan Public Schools, a |
Political Subdivision, |
Defendant. |

May 13, 1974


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

James J. DeMars and Kile W. Johnson of Wilson, Barlow & Watson, for Defendant.

Before: Judges Baylor, Debacker, Grant and Kratz

Grant, J.

This action was instituted by a Petition filed by the Milligan Education Association. The Petition alleges that plaintiff is an unincorporated association formed by the certificated teachers in School District No. 71 of Fillmore County, Nebraska to represent such teachers in the determination of their terms and conditions of employment; that plaintiff was a labor organization and that defendant School District was an employer, as those terms are defined in Section 48-801, R.R.S. Neb. 1943, as amended; and that an "industrial dispute," as that term is defined in Section 48-801, existed between the parties. The Petition prayed for this Court to enter appropriate orders to resolve the dispute.

Defendant, in its Answer, generally denied that plaintiff was an unincorporated association authorized to represent the certificated teacher-employees of defendant in any negotiations for the reason that at the time of the alleged negotiations plaintiff had not filed a certified statement with the Secretary of State of Nebraska as required by Section 25-314, R.R.S. Neb. 1943, and for that reason plaintiff had no standing to sue and this Court lacks jurisdiction over the parties and the subject matter set forth in the Petition.

Defendant further denied that the employees had formed an association and that the defendant's teachers had authorized plaintiff to represent them, and while admitting that meetings were held, denied there had been any negotiations; denied that plaintiff is a labor organization; and denied that an "industrial dispute" existed between the parties.

The Answer admitted that defendant was a Class II School District and was an employer within the definitions set out in Section 48-801. The Answer further alleged that this Nebraska Industrial Relations act is unconstitutional for various reasons, and prayed for dismissal of the action.

The points presented in defendant's Answer concerning the constitutional issues have not been discussed in the briefs filed, and in light of the holdings of the Supreme Court of Nebraska in Seward Education Association v. School District of Seward , 188 Nebr. 772, 199 N.W.2d 752, to the general effect that the legislation establishing the Court of Industrial Relations is constitutional, these matters will not be discussed further herein. Furthermore, many of the paragraphs of the Answer here are in the same words of the Answer in Sidney Education Association v. School District of Sidney , Cases No. 81 and 88, and were discussed in our Findings and Order entered therein on March 27, 1974.

Defendant presses its point that plaintiff does not have standing to bring this action because of the requirements of Section 25-314, R.R.S. Neb., which generally provides that an unincorporated association either must have a usual place of doing business or activity within the State, or have a clerk or general agent, or must file with the Secretary of State a statement designating an agent. We find that the plaintiff unincorporated association did have a usual place of activity (at the school building); that the association collected dues during 1972; that while the association had no formal officers, the business teacher acted as secretary; that members of the association voted to elect a negotiating team which met with representatives of the School Board; and that plaintiff is, in fact, the representative of the certificated teachers in defendant school district. We further point out that on April 6, 1973, the Milligan Education Association filed a statement with the Secretary of State of Nebraska (Ex. 5) designating an agent for service and that the Petition in this action was filed on April 9, 1973. It is stated in Nebraska Council of Educational Leaders v. Nebraska State Department of Education , 189 Neb. 811; "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 Section 25-314, R.R.S. 1943." We, therefore, find that this Court has jurisdiction of the parties hereto and of the subject matter of this action. Sidney Education Association v. School District of Sidney , Cases No. 81 and 88, Findings and Order entered therein on March 27, 1974; Crete Education Association v. School District of Crete , Case No. 64, Findings and Order entered herein on February 28, 1974.

Both parties now agree that the only real item of dispute between the parties (excluding the constitutional issues and the 25-314 problem discussed above) remaining concerns the salary schedule. During the 1973-74 school season, the teachers in defendant District are being paid on an index salary schedule [1] with a base of $6,300 and increments of 4 x 4. Such a schedule results in salary compensation of $102,942, which when added to the fringe benefits of $10.00 per month per teacher for health and accident insurance totalling $1,680, equals a total teacher compensation of $104,622.

Plaintiff seeks an index salary schedule with a base of $6,600 with increments of 4.5 x 4.5 (which would result in a total teacher compensation, including insurance at $11.00 per month per teacher, of $111,982) or one with a base of $6,700, with 4 x 4 increments (which would result in total teacher compensation, including insurance, of $111,353). Defendant, on the other hand, takes the position that the existing schedule of $6,300 base, with 4 x 4 increments (resulting in total teacher compensation, including insurance at $10 per month per teacher, of $104.622), is adequate under the law.

Defendant submits highly persuasive argument that the evidence permits or requires that we compare Defendant school district with the school districts in Byron, Roseland, Ruskin, and Hardy. Nevertheless, there is no evidence of the skills and working conditions of the teachers in those schools, nor even any evidence of individuals' respective longevity and education with relation to the salary of each which the Court has held are sufficient for a 48-818 comparison of skills and rates of pay, except for evidence presented by Plaintiff as to Ruskin. Even if we were to find per the Defendant's contention that the prevalent wage rates in Byron, Roseland and Hardy could or should be established, what wage rates are comparable to the prevalent is not evident. Does Section 48-818 permit a party to prevail by adducing evidence of where the prevailing rate is to be found but not of what such wage rate is in dollars? We have concluded that where one party's contentions concerning existence of the prevalent have merit, even though somewhat less persuasive than the other party's contention concerning location of the prevalent, the 48-818 comparison and establishment will be made with respect to that rate which is evident.

Plaintiff submitted evidence that the Court should consider the following schools as comparable: Bladen, Bruning, Campbell, Dorchester, Exeter, Fairmont, Guide Rock, Meridian, Ruskin, and Shickley. Evidence was submitted to the effect that the teachers in those schools exhibited like or similar skills under the same or similar working conditions. After inquiry by the Court, in its brief Plaintiff submitted a narrowed-down list of the above schools, restricting schools to those within a 25 mile radius of Milligan. This narrowed list is comprised of Bruning, Dorchester, Exeter, Fairmont, Meridian and Shickley.

The Court finds that the following schools should be considered as comparable, within the meaning of Section 48-818, to Milligan, giving some weight to the factors of geographic proximity (all within 35 miles), athletic conference affiliation (each school is in a conference in which Milligan has had at least athletic competition with each), number of students (Milligan had 142 students, Ruskin had 116, Bruning had 198, Dorchester had 279, Exeter had 365. Fairmont had 271, Meridian had 312, and Shickley had 276), teacher-pupil ratios (Milligan had 16.3-1 ratio in elementary grades and 7.6 in the high-school grades, while the others were Bruning 15.2 and 9.2; Dorchester 15.1 and 10.8; Exeter 21.2 and 8.9; Fairmont 17.2 and 11.0 Meridian 17.4 and 13.6; Ruskin11.8 and 9.9; and Shickley 15.6 and 12.6):

In so determining, we recognize that these schools generally have a larger student enrollment than Milligan, but when all the evidence submitted in this case is considered, there are no schools with enrollments smaller than Milligan, except Ruskin, that can be used in determining comparability, and we feel that the same schools satisfy our earlier criteria in general.

We then consider the present situation in Milligan, which defendant feels should continue. The existing index schedule is one with a $6,300 base, increments of 4 x 4, with $10 per month health and accident insurance, resulting in a total teacher compensation of $104,622. This figure is $8 higher than the lowest of the comparable schools (Ruskin) and $10,148 lower than the highest of the comparable schools (Shickley). We find that the existing schedule is too low to comply with the requirements of Section 48-818.

We further find that the approximate mid-point of the total teacher compensation in the schools listed above as comparable, including $11.00 per month health and accident insurance, is approximately $110,000. Establishing a base salary of $6,600 with increments of 4 x 4, and including $11.00 per month per teacher insurance, results in total teacher compensation of $109,718. We find such a schedule should be ordered.


1) That the scale of wages for certified teachers employed by defendant school district be and they hereby are established in accordance with a salary schedule having a base salary of $6,600, index increments of 4% horizontally and 4% vertically and a health insurance contribution of $11.00 per month per teacher;

2) That, the horizontal and vertical steps shall be those as in the existing schedule as shown on Exhibit 2 filed herein.

3. That, except as provided in Paragraphs 1 and 2 of this Order, the terms and conditions of employment are unaffected.

1For discussion of this term see Scottsbluff Education Assoc. v. School District of Scottsbluff , Case No. 70. A simplified definition of index salary schedule, as used in this case, would be a schedule in which increments of increase, both for additional hours of teacher education and for additional years of teaching experience, are expressed in percentages of the base salary.