| HALL TEACHERS ASSOCIATION, An | | | CASE NO. 320 |
| Unincorporated Association, | | | |
| | | ||
| Plaintiff, | | | |
| | | ||
| vs. | | | OPINION AND ORDER |
| | | ||
| SCHOOL DISTRICT NUMBER 5, LINCOLN | | | |
| COUNTY, NEBRASKA, also known as | | | |
| HALL SCHOOL DISTRICT, A | | | |
| Political Subdivision of the State | | | |
| of Nebraska, | | | |
| | | ||
| Defendant. | | |
Appearances:
For the Plaintiff:Theodore L. Kessner
Mark D. McGuire
For the Defendant:Robert E. Roeder
Before: Judges Wall, McGinley and Gradwohl.
GRADWOHL, P.J.:
Plaintiff's Petition sought an Order under Section 48-818 with respect to base salary, index salary schedule increments and number of vertical steps, and paid personal and professional leave for the 19791980 contract year. The index salary schedule increments and paid personal and professional leave issues were settled by agreement of the parties. Defendant's Answer admits all factual allegations in the Petition, but denies the legal conclusion that the wages established by the School District are not comparable to the prevalent wage rates paid and conditions of employment under the criteria of Section 48-818. The Answer alleges that to provide additional salary and other benefits would violate the Political Subdivision Budget Limit Act of 1979, Sections 77-3412 to 77-3431. Authority to exceed the maximum allowable under the Budget Limit Act was rejected by the electors of the School District in a special election. The Commission has jurisdiction of the parties and of the subject matter.
1. Statutory Criteria.
(a) Section 48-818 provides:
"The findings and order or orders may establish or alter the scale of wages, hours of labor, or conditions or employment, or any one or more of the same. In making such findings and order or orders, the Court of Industrial Relations shall establish rates of pay and conditions of employment which are comparable to the prevalent wage rates paid and conditions of employment maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions. In establishing wage rates the court shall take into consideration the overall compensation presently received by the employees, having regard not only to wages for time actually worked but also to wages for time not worked, including vacations, holidays, and other excused time, and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees. Any order or orders entered may be modified on the court's own motion or on application by any of the parties affected, but only upon a showing of a change in the conditions from those prevailing at the time the original order was entered."
(b) Prior Adjudications.
In Nebraska City Education Assn. v. School Dist. of Nebraska City , 201 Neb. 303, 267 N. W. 2d 530 (1978), both the Commission of Industrial Relations and the Nebraska Supreme Court determined that evidence concerning the School District's ability to finance the teacher pay package was not admissible under the statutory criteria of Section 48-818. The Legislature did not amend Section 48-818 among the many changes adopted by L.B. 444 in 1979, although several other Commission and Supreme Court determinations were legislatively altered in L.B. 444.
The Nebraska City School District argued that the Commission of Industrial Relations should consider evidence of the District's ability to finance the teacher pay package. The Supreme Court opinion noted:
"Concerning this evidence, the Court of Industrial Relations, in its order, stated: 'As has been previously stated by this Court, Fremont Educ. Assoc. v. School Dist. , 1 CIR 50-1, 14 (1972), a school district's ability to pay' is of vital concern, but this Court is not the proper forum under present law to consider that factor. Thus we feel compelled to reject defendant's contention that such be considered. Rather we follow the holding in Nehawka Educ. Assoc. v. School Dist., 2 CIR 65-1 (1973), that '[C]onsiderations as to the results that this Court's decision may have on the tax valuation and the mill levy are beyond the statutory authority of this Court.' " (201 Neb. at 304-305)
In affirming the decision of the Commission of Industrial Relations, the Nebraska Supreme Court stated:
"In Crete Education Assn. v. School Dist. of Crete , 193 Neb. 245, 226 N. W. 2d 752 (1975), we stated: '* * * section 48-818, R. R. S. 1943, further refines the definition of 'comparable' and specifies certain items to be considered in determining comparability under that section. The definition as set forth in the above section is, of course, controlling.' In Bank of Gering v. Glover , 192 Neb. 575, 223 N. W. 2d 56 (1974), we observed that 'unless the context indicates otherwise, the use of the word 'shall' purports a mandatory obligation.'
"Appellant's contention is without merit. Section 48-818, R. R. S. 1943, states specifically those factors which the Court of Industrial Relations shall look to when establishing wage rates and conditions of employment in disputes before it. Section 48-818, R. R. S. 1943, makes no mention of or reference to the school district's 'ability to pay.'
"The maxim 'expression unius est exclusio alterius' is applicable here. '* * * where a statute or ordinance enumerates the things upon which it is to operate, or forbids certain things, it is to be construed as excluding from its effect all those not expressly mentioned, unless the legislative body has plainly indicated a contrary purpose or intention.' Starman v. Shirley , 162 Neb. 613, 76 N. W. 2d 749 (1956). See, also, Harrington v. Grieser , 154 Neb. 685, 48 N. W. 2d 753 (1951); Ledwith v. Bankers Life Ins. Co. , 156 Neb. 107, 54 N. W. 2d 409 (1952). Had the Legislature wanted the Court of Industrial Relations to consider factors such as 'ability to pay,' when setting wage rates and conditions of employment it would have specifically provided therefor. We cannot rewrite the statute under the guise of interpretation. As we observed in School Dist. of Seward Education Assn. v. School Dist. of Seward , 188 Neb. 772, 199 N. W. 2d 752 (1972), '* * * defendant is making his contentions in the wrong forum. They might appropriately be addressed to the Nebraska Legislature * * *'. " (201 Neb. at 305-306)
(c) Relationship of Political Subdivision Budget Limit Act of 1979 to Section 48-818.
There is no inherent or actual conflict between the lid statutes and Section 48-818. The issue is primarily one of construing a number of legislative enactments pertaining to public school finance. The controlling rule is to give effect to the legislative intentions as expressed in these statutes.
The Legislature has passed a number of statutes which have financial impact on public school districts. For example, extensive obligations are imposed for special education of various categories of students. School districts are required to provide transportation or a transportation allowance to certain students. Workmen's compensation and employment security laws also impose financial obligations on the school districts. Section 48-818 imposes one type of financial obligation upon public school districts with respect to teacher compensation. The lid statutes impose maximum, over-all expenditure limitations upon public school districts. How the various obligations imposed upon the school district are carried out is left to the discretion of the governing board of the school district.
Just as there are alternatives with respect to how special education requirements of the statutes are met and funded, so, too, are alternatives available with respect to teacher personnel staffing. Section 48-818 requires comparability of teachers' salaries and working conditions. It does not relate to other matters of teacher personnel policy. It may be necessary to reach some very difficult decisions, such as a reduction in the teaching staff or the administrative staff, but there is no inherent or actual conflict between the pay provisions in Section 48-818 and the budget limitations imposed by the Political Subdivision Budget Limit Act of 1979.
It is not the function of the Commission of Industrial Relations to specify how a public school district should arrange its affairs consistent with the overall fiscal limitations imposed by the Political Subdivision Budget Limit Act of 1979. The requirements of the special education law must be met. Some pupils must be transported or given a transportation allowance. The requirements of the workmen's compensation law must be met. The requirements of the unemployment compensation law must be met. The requirements of Section 48-818 must be met. There are a number of important requirements of the education statutes which must be met by public school districts within the requirements of the lid bill, and these are very difficult management and fiscal decisions.
The lid bill, itself, does not relieve the governing boards of public school districts from complying with those other statutes. A public school district cannot avoid its obligations under the special education law, the pupil transportation statutes, the workmen's compensation law, or the unemployment compensation law by virtue of the enactment of the lid legislation. So, too, the goveming boards of public school districts must continue to comply with the requirements of Section 48-818 in establishing teacher personnel policies for the district.
These conclusions are re-enforced by the fact that the Nebraska Legislature considered the potential conflict between other statutes and the lid bill. The Legislature chose not to place exceptions in the lid bill for the impact of most of the other financial obligations of school districts. The Legislature did place several exceptions in the lid statutes (Section 77-3424) for funds used for bonded indebtedness; first year's implementation of new programs; emergencies; purchase, erection or repair of certain buildings and equipment by Class I and II school districts; and funds used for the employer's contribution to social security, fuel for any purpose, and electricity in excess of 107% of the prior year's budget. The Legislature did not place an exception in Section 48-818 or other statutes having a fiscal effect on the govemmental subdivision for the newly enacted lid statutes.
From this, it seems clear that the Legislature intended that there be an accommodation designed by the governing boards of the political subdivisions of the state. The goveming boards are obligated to perform their statutory duties within the total fiscal constraints of the lid statutes. There is no allegation in the present case that the Defendant School District cannot do so. At the point where all of the statutory obligations of a public school district exceed the ability of the district to finance its statutorily required operations, there may be some justiciable conflict in the statutes. The present situation, however, is simply one of the school district allocating funds up to the amount allowed under the lid bill and subsequently contending that it cannot pay higher teacher salaries as mandated by Section 48-818 because of the allocation of funds to other portions of its budget.
2. Comparables.
School District No. 5, Lincoln, County, Nebraska, also known as Hall School District, is a Class I public school district located just north of North Platte, Nebraska. It is an "employer"as defined in Section 48-801(4) and, like other Nebraska public employers, subject to the provisions of Sections 48-818 and 48-
810. In the case of Class I school districts, where there is a lack of a sufficient number of comparable school districts within close geographical proximity, the Commission utilizes districts of comparable size and class from a larger portion of Nebraska in which teachers exhibit like or similar skills under the same or similar working conditions. Oshkosh Education Association v. School District No. 131 , 3 CIR 243 (1977); Murray Education Association v. School District No. 56 , 3 CIR 62 (1975); District 8 Elementary Teachers Association v. School District No. 8 (North Bend Grade School) , 2 CIR 95-1 (1974).
Plaintiff introduced evidence that teachers exhibit like or similar skills under the same or similar working conditions in the following 11 schools, all of which are Class I schools having 7 or more teachers: Atkinson, Bassett, Bellwood, Burwell, Grant, Hall County (located in Hall County), Hooper, Hyannis, North Bend, Oshkosh, and Wood River. Defendant introduced evidence that teachers exhibit like or similar skills under the same or similar working conditions in two additional schools, Osgood School District, located just south of North Platte, Nebraska, and St. Libory School District. The evidence of both parties was based upon the most recent figures available for these districts. We find that teachers in all of these schools exhibit like or similar skills under the same or similar working conditions and that their employments otherwise meet the statutory criteria of Section 48-818.
Defendant argues (page 4 of its Brief) that the Commission "would be justified in the present case of simply comparing the wage rates paid by the defendant school district to the Osgood School District wage rates paid since the evidence showed that the Osgood School District has a closer 'community of interests' than any of the suggested or recommended school districts submitted by the plaintiff." Section 48-818, however, mandates that the Commission look to "the prevalent wage rates paid and conditions of employment maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions." This statutory language requires the Commission to find a suitable array of comparable work and workers in order to establish the required prevalence.
The Defendant also argues that its teaching should be compared with only those in "approved" schools and not with teachers in "accredited" school districts. The Nebraska statutes provide for both approved and accredited schools. Sections 79-328(5)
(c) and 79-1247.02. The evidence establishes that teachers in both categories possess the same qualifications and certifications and generally perform the same or similar skills under like or similar circumstances. The Defendant's evidence and argument do not indicate that any of the differences between approved and accredited schools affect the applicability of the statutory criteria of Section 48-818 in this case.
From the evidence in this case, it is determined that a suitable array for the purposes of Section 48-818 consists of teachers in the following school districts: Atkinson, Basset,Bellwood, Burwell, Grant, Hall County (located in Hall County), Hooper, Hyannis, North Bend, Osgood, Oshkosh, St. Libory, and Wood River.
3. Determination as to "Overall Compensation."
Section 48-818 states that "In establishing wage rates the court shall take into consideration the overall compensation presently received by the employees, having regard not only to wages for time actually worked but also to wages for time not
worked, including vacations, holidays, and other excused time, and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees." This rule of overall compensation does not require an identity of benefits, but that the overall compensation be "comparable to the prevalent wage rates paid and conditions of employment for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions." These determinations must be made on the basis of the evidence introduced by the parties in the trial of the case. The determinations under Section 48-818 may, therefore, vary from case to case depending upon the evidence introduced by the parties.
The two items remaining for determination by the Commission, upon which the parties have not agreed previously, are base salary and the number of vertical steps on the index salary schedule. Defendant argued (pages 4-5 of its Brief) that "fringe benefits are not an issue in this case and should not be considered by this court in making comparisons." Defendant's Brief recognizes that the fringe benefits provided by the Defendant School District are less than those of most of the other districts with which comparisons are to be made. Section 48-818 requires that the determinations of the Commission be based upon "the overall compensation presently received by the employees."
Plaintiff seeks a base salary amount of $9,400 and one additional step on each of the columns of the index salary schedule. The parties agreed to 4 x 4 index increments. Pending a decision in this case, the teachers are being paid the same salaries as in 1978-1979. From the evidence presented in this case, Plaintiff's requests should be ordered.
The evidence establishes the following salary and fringe benefit comparisons. This is based on Exhibit 3, except as otherwise noted.
The record (Exhibits 5, 6, and 11) contains evidence as to time not worked and other benefits received by the teachers in the various school districts. Considering the entire evidence in this case, the requested base salary and additional steps in the index salary schedule would provide overall compensation for the Hall teachers which is comparable to the prevalent wage rates paid and conditions of employment maintained for other teachers exhibiting like or similar skills under the same or similar conditions within Section 48-818.
IT IS, THEREFORE, ORDERED:
1. The base salary for teachers in the Defendant School District shall be $9,400.00.
2. The index salary schedule shall contain 6 steps in the No Degree column; 6 steps in the BA column; 7 steps in the BA plus 9 column; 8 steps in the BA plus 18 column; 9 steps in the BA plus 27 column; and 10 steps in the MA or BA plus 36 column.
3. Other than as ordered above, the wages and conditions of employment agreed to by the parties shall remain unchanged.
4. This Order shall be effective for the 1979-1980 contract year.
All Judges assigned to the panel in this matter join in the entry of this Opinion and Order.
Filed November 20, 1979.
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