3 CIR 14 (1975)


an Unincorporated Association, |
Plaintiff, |
a Political Subdivision of The |
State of Nebraska, also known as |
Defendant. |


Appearances: For the Plaintiff, Theodore L. Kessner

For the Defendant, William L. Walker


The plaintiff is an unincorporated association, having as members 19 of the 21 teachers employed by the defendant district in the 1974-1975 school year, each of whom has been retained for the 1975-1976 school year. The defendant is a Class II district.

The plaintiff association was formed by employees of the defendant in the year 1973-1974. Its president testified that it has at all times held its meetings and received its correspondence and received messages from officials of the defendant at the school building in Malcolm. Certain negotiations between the plaintiff and the board of defendant were had in the spring of 1974 for the year 1974-1975.

By letter dated December 20, 1974 addressed to the president of the defendant's board, copies of which were sent to each other member of that board, the president of plaintiff requested negotiations between a committee of the plaintiff and the board concerning four items for the 1975-1976 contract year. Through its principal, the defendant notified the president of plaintiff of an acceptable date for such negotiation. Two meetings were held, the first was between a committee of six from the association and the full membership of the board and the second between the same committee of the association and the president and one other member of the board. The items in question were not resolved, but one of them, Item 4 in the original letter (Exhibit A-2, was withdrawn by the association. In late March or early April, the board offered contracts to each of its 21 teachers and each of those teachers signed his or her tendered contract and returned same. At about that same time, the president of the association sent a letter to the president of the board (Exhibit A-4) saying in effect that although contracts were being signed and returned, the association was not abandoning its right to negotiate on behalf of its members under pertinent statutes.

Thereafter, this action was commenced. The plaintiff requests this Court to establish terms and conditions of employment for the teaching employees of the district with reference to base salary, salary schedule structure, health insurance and sick leave. By answer the defendant presents three defenses: first, that the plaintiff has no standing to bring this action on behalf of its members, as distinguished from separate actions or a joint action brought in this Court by the individual teachers, for the reason that the defendant being a Class II district is exempt from the provisions of the Teachers Professional Negotiation Act; second, that each of its 21 teachers, including the 19 members of the plaintiff, has signed an individual contract containing terms and conditions of employment adopted unilaterally by the board for the year in question, and third, that the plaintiff has not filed a certificate with the Secretary of State in accordance with Section 25-314, R.S. Supp. 1974.

That section, as amended after the decision of the Supreme Court of Nebraska in Nebraska Council of Educational Leaders v. Nebraska Department of Education , 189 Neb. 811, 205 N.W.2nd, 357, provides that process may be served upon an unincorporated domestic association, such as plaintiff, which has a principal place of business or activity within the state by leaving a copy at its usual place of business or activity with one of the members of the association or with a clerk or general agent. It further requires that when such association has its principal place of activity outside the state and does not have a usual place of activity within the state, it must file a certificate appointing an agent for service of process in the Office of the Secretary of State before it is authorized to engage in any business or activity within the state.

It is clear from the evidence that the members of the board of the defendant and its administrative employees were fully cognizant of the existence of the association, the identity of its members and officers and were able to and did in fact communicate with it. There is no evidence that any issue concerning compliance with the above statute was raised at any stage in this relationship prior to the filing of pleadings by the defendant in this action. There is no suggestion in evidence, brief or argument that the defendant has been in any way prejudiced in this regard. We find that this plaintiff is a domestic association having a usual place of activity within the state and it is, accordingly, not required to file the certificate contemplated by Section 25-314 R.S. Supp. 1974.

This Court first held in Hastings Education Association v. The School District of Hastings , Case No. 42, Order entered july 15, 1971, that the individual contracts of teachers executed under the continuing contract law do not constitute a waiver or abandonment of the representative relationship provided by Chapter 48, Article 8. Judge Gradwohl analyzed the problem in depth in that Order and it will not be repeated at length here. There is little or no difference between the right of collective representation granted teachers in Class III, IV and V school districts under Section 79-1287 et seq. R.R.S. 1943 and the same right granted employees of other governmental subdivisions, not excluding employees of Class II school districts, by Section 48-837 R.R.S. 1943. The contracts for the year 1975-1976 signed by the members of the plaintiff were not an abandonment of their right to be represented in this action by the plaintiff, do not preclude this suit and do not deprive this Court of jurisdiction.

For the same reasons as are set out in the immediately preceding paragraph with reference to the contract issue, we hold that, although the defendant is not subject to the Teachers Professional Negotiation Act, it is subject to Chapter 48, Article 8.

The plaintiff has presented evidence of salary schedules, including basic structures and increment factors,and of fringe benefits in the form of health and other insurance, provided their teaching employees by seven school districts located within a 30-mile radius of Malcolm and having student enrollments ranging from 174 to 416. Enrollment at Malcolm is 305. Each of those districts has in effect a salary schedule with columns based upon nine hours of graduate study beyond the BA degree. Six of them have increments of factors 4x4 and one is 4.5x4. Each of those schools offers employer-paid fringe benefits consisting of health insurance. One of them offers such benefit at a cost of $9.95 per teacher per month and each of the others at a cost of not less than $19.10 per teacher per month. The defendant at this time offers no insurance fringe benefits and in negotiations did not offer to provide any such benefit.

Sick leave benefits in the seven districts range from 5 days annually cumulative to 20 days, to 10 days annually cumulative to 180 days. The defendant provides 5 days annually, cumulative to 20.

As in all previous wage determination cases presented to this Court by associations of public school teachers, the plaintiff has presented its evidence based upon what the members of the plaintiff association would receive if placed upon the existing salary schedules and fringe benefit allowances in effect for the year in question at each of the school districts it contends is comparable to the defendant regarding the work, skill and working conditions of teachers. In contract the defendant seeks comparison on the basis of assessed valuation and mill levy with 9 other districts in size of student population from 125 to 208. Of those 9 districts, only one, Spencer at 308, is larger than the defendant in student population. Of the districts used by the defendant, only one is within 30 miles of it, with the others being from 40 to 305 miles distant. Furthermore, the defendant has presented us with no information concerning the salary schedules, fringe benefit schedules or sick leave policies in existence for the 1975-1976 school year in any of those districts. Instead, the defendant has included in its exhibits total salary costs in the districts and average salary per teacher for 1974-1975. Accordingly, the evidence of the defendant is of little help in applying the doctrines and methods used by the Court in previous cases of this kind to the present dispute. We are left with nothing in the record, except the evidence of the plaintiff, which will permit us to determine the total teacher compensation for 1975-1976, which the members of the plaintiff would receive in other districts.

We find that each of the following school districts is similar in size and has geographical proximity to the defendant districts and that, if the teachers employed by the defendant were paid upon the salary schedules and fringe benefits in those districts for the coming year, the following array would result:

School Standard Fringe Total Teacher

Salary Schedule Benefits Compensation

Dorchester $183,707.20 $7,123.60 $190,830.80

East Butler 191,590.80 9,592.92 201,183.72

Elmwood 187,048.40 5,566.80 192,615.20

Mead 191,696.70 4,813.20 196,509.90

Murdock 180,081.40 8,935.20 189,016.60

Rising City 189,477.60 4,813.20 194,290.80

Prague 169,204.00 2,406.60 171,610.60

Under the contracts unilaterally tendered by the board of the defendant for the coming year, those teachers would receive total basic salary of $177,480.00 and no insurance fringe benefits. Interestingly, the last offer by the board in negotiation would have provided a total basic salary of $7,385.00 on a 12-hour schedule with 4x4 increments. The contracts tendered are on a similar schedule but with a base of $7,250.00.

Under the evidence, we find that a salary schedule having a base of $7,500.00, 9-hour columns and index factors 4x4 with the number of columns and the number of steps in each column as shown on Exhibit 2 will produce a total basic salary of $182,175.00. That total basic salary, when coupled with medical insurance at the rate of $19.10 per teacher per month brings total teacher compensation, as that term is defined in a great number of our previous opinions, to $186,988.20, which is not quite $4,000.00 less than the average of the above array.

We will not extend this opinion by graphically portraying the array of sick leave privileges demonstrated by the evidence. We find that a sick leave policy of 5 days annually, cumulative to 30 days, will make the sick leave policy applicable to the teachers employed by the defendant comparable to that policy prevalent among the school districts whose sick leave policies are shown in the evidence.


1. The rates of pay for the teachers employed by the defendant School District No. 148, Lancaster County, Nebraska, for the year 1975-1976 be, and they are, established in accordance with an index salary schedule having a base of $7,500.00, index increments of 4% vertically and 4% horizontally in columns of BA (7 steps), BA+9 (7 steps), BA+18 (8 steps), BA+27 (9 steps), BA+36 or MA (10 steps), MA+9 (10 steps), and MA+18 (10 steps), and that the defendant provide a health insurance contribution of $19.10 per month to or for the benefit of each such teacher.

2. The teachers employed by said defendant for said year shall receive sick leave benefits to 5 days annually, cumulative to 30 days.

3. The other terms and conditions of employment of the teachers employed by said defendant shall remain unchanged by this Order.

Entered August 18, 1975.