Cent. City Educ. Ass'n v. Merrick County Sch. Dist. No. 61-0004

• Citation: 280 Neb. 27,783 N.W.2d 600
• Decision Date: 18 June 2010
• Docket Number: No. S-09-521.,S-09-521.
• Parties: CENTRAL CITY EDUCATION ASSOCIATION, an unincorporated association, appellee,v.MERRICK COUNTY SCHOOL DISTRICT NO. 61-0004, also known as Central City Public Schools, a political subdivision of the State of Nebraska, appellant.
• Court: Supreme Court of Nebraska

280 Neb. 27

783 N.W.2d 600

CENTRAL CITY EDUCATION ASSOCIATION, an unincorporated association, appellee,v.MERRICK COUNTY SCHOOL DISTRICT NO. 61-0004, also known as Central City Public Schools, a political subdivision of the State of Nebraska, appellant.

No. S-09-521.

Supreme Court of Nebraska.

June 18, 2010.

COPYRIGHT MATERIAL OMITTED

Syllabus by the Court

1. Commission of Industrial Relations: Appeal and Error. In a review of orders and decisions of the Commission of Industrial Relations involving an industrial dispute over wages and conditions of employment, an appellate court's standard of review is as follows: Any order or decision of the commission may be modified, reversed, or set aside by the appellate court on one or more of the following grounds and no other: (1) if the commission acts without or in excess of its powers, (2) if the order was procured by fraud or is contrary to law, (3) if the facts found by the commission do not support the order, and (4) if the order is not supported by a preponderance of the competent evidence on the record considered as a whole.

2. Commission of Industrial Relations: Administrative Law. The Commission of Industrial Relations is an administrative agency empowered to perform a legislative function and, as such, has no power or authority other than that specifically conferred on it by statute or by a construction thereof necessary to accomplish the purposes of the act establishing the commission.

3. Commission of Industrial Relations: Administrative Law. Under Neb.Rev.Stat. § 48-818 (Reissue 2004), orders of the Commission of Industrial Relations may establish or alter the scale of wages, hours of labor, or conditions of employment, or any one or more of the same.

4. Declaratory Judgments. The function of a declaratory judgment is to determine justiciable controversies which either are not yet ripe for adjudication by conventional forms of remedy or, for other reasons, are not conveniently amenable to the usual remedies.

5. Commission of Industrial Relations. The Commission of Industrial Relations does not have the authority to grant declaratory relief.

6. Contracts: Words and Phrases. The standard inherent in the word “prevalent” is one of general practice, occurrence, or acceptance. Contract terms need only be sufficiently similar and have enough like characteristics or qualities in order to be considered prevalent.

Kelley Baker and Steve Williams, of Harding & Shultz, P.C., L.L.O., Lincoln, for appellant.

Mark D. McGuire, of McGuire & Norby, Lincoln, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

PER CURIAM.

I. INTRODUCTION

This industrial dispute is between the Central City Education Association (CCEA) and Merrick County School District No. 61-0004, also known as Central City Public Schools (District). A complaint was filed with the Commission of Industrial Relations (CIR) after the CCEA and the District were unable to reach a negotiated agreement for the 2008-09 contract year. The CIR entered an order setting forth the disputed terms of the parties' agreement. The District appeals. We affirm in part, and in part reverse and remand.

II. STATEMENT OF FACTS

The CCEA filed a complaint with the CIR on December 2, 2008, after it and the District were unable to reach an agreement regarding the terms of their 2008-09 negotiated agreement. As relevant to this appeal, there were two disputes between the parties: the inclusion of contract continuation language and the removal of language providing that the District would pay teachers for unused sick and personal leave.

The following array was set: Adams Central, Aurora, Boone Central, Centennial, Centura, Cross County, Doniphan-Trumbull, Grand Island Northwest, Columbus Lakeview St. Paul, Sutton, Twin River, Wood River Rural, and York. Following a hearing, the CIR issued an order on April 21, 2009, providing that contract continuation language was prevalent in the District's array, but that pay for unused sick and personal leave was not. Therefore, the CIR ordered that contract continuation language be included in the contract, but pay for unused sick and personal leave be deleted. Pursuant to a request by the CCEA, the CIR later reconsidered its decision to delete the language relating to pay for unused sick and personal leave, and on May 3, it issued a “Final Order,” finding that such language was prevalent and should remain in the parties' agreement.

III. ASSIGNMENTS OF ERROR

On appeal, the District assigns, restated and consolidated, that the CIR (1) exceeded its authority by including the contract continuation clause in the parties' agreement and (2) erred by finding payment for unused sick and personal time prevalent in the District's array.

IV. STANDARD OF REVIEW

In our review of orders and decisions of the CIR involving an industrial dispute over wages and conditions of employment, our standard of review is as follows: Any order or decision of the CIR may be modified, reversed, or set aside by the appellate court on one or more of the following grounds and no other: (1) if the CIR acts without or in excess of its powers, (2) if the order was procured by fraud or is contrary to law, (3) if the facts found by the CIR do not support the order, and (4) if the order is not supported by a preponderance of the competent evidence on the record considered as a whole.¹

V. ANALYSIS

1. Whether CIR Exceeded Its Authority in Ordering Inclusion of Contract Continuation Language

In its first assignment of error, the District assigns, restated and consolidated, that the CIR exceeded its authority by ordering the inclusion of contract continuation language in the parties' agreement. The language in question provides that “ ‘[t]his Agreement shall continue in full force and effect until a successor agreement is adopted which is then retroactive to the beginning of that school year.’ ”

The District makes several arguments in support of its assignment, which we have restated and consolidated. First, the District argues that the contract continuation clause is a topic of permissive, not mandatory, bargaining and thus exceeds the CIR's authority. The District also complains that in ordering the agreement to include the contract continuation clause, the CIR issued an order affecting a future contract year and thus entered a declaratory judgment, which also exceeds its authority. In addition, the District also contends that the CIR violated Neb.Rev.Stat. §§ 48-810.01 (Reissue 2004) and 79-515 (Reissue 2008) by ordering it to enter into a contract and violated public policy by issuing an order that prevents the District from exercising its authority to implement a final order after reaching an impasse.

(a) Mandatory Topic of Bargaining

We turn first to the question of whether the contract continuation language is a mandatory or permissive topic of bargaining. The CIR is an administrative agency empowered to perform a legislative function and, as such, has no power or authority other than that specifically conferred on it by statute or by a construction thereof necessary to accomplish the purposes of the act establishing the CIR.² And under Neb.Rev.Stat. § 48-818 (Reissue 2004), orders of the CIR may establish or alter the scale of wages, hours of labor, or conditions of employment, or any one or more of the same. In other words, the CIR may decide mandatory topics of bargaining, but has no authority to determine permissive topics of bargaining.

The issue presented in this case is whether the contract continuation clause ordered by the CIR deals with hours wages, or terms and conditions of employment such that it is mandatorily bargainable. We conclude that it is.

This court, in Hyannis Ed. Assn. v. Grant Cty. Sch. Dist. No. 38-0011,³ addressed the issue of whether deviation from a salary schedule was mandatorily bargainable. We concluded that it was, noting that “[t]eacher salary schedules have historically been the basic framework for teacher contracts and the method by which teacher wages are determined.... Deviation from the salary schedule pursuant to a deviation clause affects those wages.” ⁴

We find Hyannis Ed. Assn. helpful in reaching our conclusion that the contract continuation clause in this case is mandatorily bargainable. In the same way that deviation relates to wages, we conclude that contract continuation relates to hours, wages, and terms and conditions of employment, because such a clause keeps in effect previously agreed-upon (or ordered) contract terms, including those which are mandatorily bargainable, until a new agreement can be reached.

And this conclusion is supported by other case law. The court in Mtr. of Incorporated Vil. of Lynbrook v. PERB ⁵ concluded that the issue of a “ ‘continuation of benefits clause’ ” was mandatorily bargainable and not a violation of public policy. And private sector cases have concluded that the duration of a collective bargaining agreement is mandatorily bargainable. ⁶

Lending further support to our conclusion is this court's decision in Metro. Tech. Com. Col. Ed. Assn. v. Metro. Tech. Com. Col. Area,⁷ where we noted:

A matter which is of fundamental, basic, or essential concern to an employee's financial and personal concern may be considered as involving working conditions and is

mandatorily bargainable even though there may be some minor influence on educational policy or management prerogative. However, those matters which involve foundational value judgments, which strike at the very heart of the educational philosophy of the particular institution, are management prerogatives and are not a proper subject for negotiation even though such decisions may have some impact on working conditions. However, the impact of whatever decision management may make in this or any other case on the economic welfare of employees is a proper subject of mandatory bargaining.

We conclude that a contract continuation clause, because it continues

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