Historical Explanation of the Nebraska Public School District Bargaining Impasse Resolution Mechanism

• Publication year: 2021

79 Nebraska L. Rev. 1011. Historical Explanation of the Nebraska Public School District Bargaining Impasse Resolution Mechanism

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John M. Gradwohl*

Historical Explanation of the Nebraska Public School District Bargaining Impasse Resolution Mechanism

[T]he findings and order or orders may establish or alter the scale of wages, hours of labor, or conditions of employment, or any one or more of the same. In making such findings and order or orders, the Commission 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 commission 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 insur ance and pensions, and the continuity and stability of employment enjoyed by the employees.1

TABLE OF CONTENTS

I. Introduction .......................................... 1012
II. Development of the Bargaining Impasse Resolution
Mechanism ............................................. 1012
A. The Nebraska Constitutional Convention (1920):
Provision for an Industrial Commission ............. 1012
B. Privately Owned Public Utilities (1947):
Establishment of a Statutory Mechanism ............. 1020
C. Public School Districts and Other Governmental
Employers (1969): Substantial Amendment of the
Statutory Standards ................................ 1024
III. Primary Features of the Bargaining Impasse
Resolution Mechanism .................................. 1026
A. Judicial Characteristics ........................... 1026

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B. Mandatory Single Standard ......................... 1031
C. Application to Public School Districts ............ 1033
D. Overall Compensation .............................. 1039
E. "Comparable to the Prevalent`...................... 1041
IV. Conclusion ........................................... 1043

I. INTRODUCTION

A series of historical circumstances largely unrelated to public school districts and teachers has shaped the statutes for establishing teacher compensation and conditions of employment when negotiations fail to produce an agreement. The system is not a product of particularized legislative study or design.

Public school finance in Nebraska and elsewhere is a major issue of current public policy. So too, are concerns for attracting and compensating quality teachers, not only with respect to academics, but also as the primary component of public school district budgets.

Now is an appropriate time to review the historical development of the rules under which the Nebraska Commission of Industrial Relations (the "Commission,` named the Court of Industrial Relations from 1947 to 1979, both of which are sometimes referred to as the "CIR`) can set public school teachers' wages and conditions of employment. As new policies relating to public school finance and teacher compensation emerge, Nebraska's bargaining impasse resolution mechanism should be reexamined.

II. DEVELOPMENT OF THE BARGAINING IMPASSE RESOLUTION MECHANISM

A. The Nebraska Constitutional Convention (1920): Provision for an Industrial Commission

The Constitutional Convention of 1920 proposed what became Article XV, Section 9, authorizing the Legislature to create an Industrial Commission "for the investigation, submission, and determination of controversies between employers and employees in any business or vocation affected with a public interest.`2 The provision was patterned on a recently established Kansas Industrial Court designed to deal with employment conditions existing in the wake of World War I.3

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The Kansas Act was held unconstitutional in 1923, as applied to the authority of the Kansas Industrial Court to determine wages in a packing house, on federal due process grounds that the packing plant was not, as declared in the Kansas statute, "affected with a public in-terest.`4 The holding might not have invalidated the Nebraska provision since Article XV, Section 9, by its own terms, applies only to "any business or vocation affected with a public interest` and not to a "broader field.`5 The 1923 decision, however, was effectively overruled by the Supreme Court of the United States in a 1934 decision, stating that "there is no closed class or category of businesses affected with a public interest . . . in the application of the Fifth and Fourteenth Amendments.`6 Nevertheless, the provisions in Article XV, Section 9 remained unimplemented until 1947 when a number of states enacted legislation relating to public utilities.

Two major issues have surfaced with respect to the parameters of Article XV, Section 9. There was sharp disagreement among the judges of the Nebraska Supreme Court in a series of cases decided between 1972 and 1981 as to whether the state and political subdivisions and their employees fall within the language "any business or vocation affected with a public interest.` A related issue was whether Article XV, Section 9, is an exception to the Nebraska constitutional rules on separation of powers and delegation of authority. These two issues appear to be linked by the constitutional language that "[a]n Industrial Commission may be created for the purpose of administering such laws.` "Such laws` is a reference to the language in the preceding sentence that "[l]aws may be enacted providing for the investigation, submission, and determination of controversies between employers and employees in any business or vocation affected with a public interest.` That linkage has been unclear throughout the litigation involving these issues.

The first wage determination case to reach the Nebraska Supreme Court on appeal from the Court of Industrial Relations involved the Seward School District and Education Association in 1972.7 The issue of whether Article XV, Section 9 covered public school districts and employees was not raised by the parties.8 The statutes clearly state the legislative purpose is to "make operative the provisions of section

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9, Article XV, of the Constitution of Nebraska . . . .`9 The parties apparently assumed, as did Lincoln attorney C. Petrus Peterson, a principal proponent of both Article XV, Section 9 in 1920 and the implementing legislation in 1947, that governmental activities could constitute a "business or vocation affected with a public interest.`10

The four judge majority opinion in School District of Seward Education Association v. School District of Seward did not focus expressly on whether governmental entities and employees are encompassed by Article XV, Section 9. Rather, it decided at the outset that Article XV, Section 9 is an independent part of the Constitution and not subject to the general rules pertaining to distribution of powers under Article II of the Constitution, a conclusion agreed with by one of the three dissenting judges.11 Article II of the Constitution calls for a separation of legislative, executive, and judicial powers of the government "except as hereinafter expressly directed or permitted.`12 Five judges held that the Constitutional Convention clearly intended to authorize a commission having "combined administrative, legislative, and judicial powers` as an exception to Article II.13

The four judge majority appeared to rely upon the plenary power of the Legislature with respect to public school districts, instead of Article XV, Section 9, for the substantive authority of the commission to establish teacher wages and conditions of employment.14 Two of the four judges, however, stated in a short concurring opinion, "[a]lthough there can be disagreement as to what [the language of Article XV, Section 9] means, it would appear that the terms business or vocation were used in an alternative sense and that legislation relating to controversies between employers and employees under this section is not

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limited to a business affected with a public interest.`15 Finess ing the issue of whether governmental entities and their employees may constitute "any business or vocation affected with a public interest` within Article XV, Section 9, the four judge majority opinion stated:

The Legislature has plenary power and control over school districts, including provision for the appointment or election of governing bodies thereof. 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 [the 1969 legislation], it was exercising that control.16

The four judge majority holding that Article XV, Section 9, is an exception to Article II with respect to the exercise of legislative, executive, and judicial power was not linked to the question concerning "business or vocation affected with a public interest.` One of the dissenting judges agreed with the four judge majority interpretation of Article XV, Section 9, concerning separation of powers and delegation of authority, but he objected to using the plenary power of the Legislature to create an agency possessing such powers and authority.17 He reasoned that although the Legislature might use its plenary power to enact the provisions relating to public school districts, it could not entrust the enforcement powers to a commission established under Article XV, Section 9, because Article XV, Section 9, does not apply to governmental employers and employees.18

In determining that the state and governmental subdivisions are not within the constitutional language...