AN
UNINCORPORATED ASSOCIATION, APPELLEE,
V.
IN
THE STATE OF
THE
STATE OF
201
Filed
July 5, 1978. No. 41583.
1. Court of Industrial Relations:
Administrative Law: Statutes. In establishing wage rates, the provisions of
section 48-818, R. R. S. 1943, in relevant part, provide that 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. The definition of
"comparable" as set forth in section 48-818, R. R. S. 1943, is
controlling.
2. Statutes: Ordinances. 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.
Appeal from the
Hoch & Steinheider, for appellant.
Theodore L. Kessner of Crosby, Guenzel, Davis, Kessner & Kuester, for
appellee.
Heard before WHITE, C. J., SPENCER, BOSLAUGH,
MCCOWN, BRODKEY, and WHITE, JJ.
WHITE, C. J.
In its order
the Court of Industrial Relations set a base salary level of $8,325 and
determined other benefits. In arriving at these determinations, the court used
an array of school districts which it deemed comparable to appellant. In
ascertaining the comparable school districts, the court looked to enrollment,
athletic relationship, geographic proximity, general cooperation, and community
of interest.
At the
hearing, the school district presented testimony from a member of the board of
education and from the superintendent of the school district concerning the tax
consequences of the proposed salary increases. Also introduced into evidence by
appellant was exhibit 12, a compilation of financial information from appellant
and seven other school districts which it deemed comparable, showing valuation
per pupil for 1975-76, and the general levy for 1975-76. Appellant contends that
the Court of Industrial Relations erred in refusing to consider evidence of the
appellant's ability to finance the teacher pay package.
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.'"
Section
48-818, R. R. S. 1943, in relevant part provides: "* * * 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." (Emphasis supplied.)
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
"expressio 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 * * *.' "
The order of
the Court of Industrial Relations is correct and is affirmed.
AFFIRMED.
CLINTON, J.,
participating on briefs.
SPENCER, J.,
dissenting.
I am in total
disagreement with the holding that a school district's ability to pay is not an
issue which can be raised before the Court of Industrial Relations. In my
judgment the school district's ability to pay is of vital concern and its
consideration of the issue is inherent in the act itself.
It is apparent
to me that to pass constitutional muster the act must be so construed. The power
to tax is the power to destroy. The Court of Industrial Relations by this
decision is given the power to require taxation beyond the ability of the
district to pay. It can even ignore maximum levy limits if any such exist. We
have held the Legislature may destroy a school district. We now hold the Court
of Industrial Relations has that legislative authority.
To brush off
the contention that because section 48-818, R. R. S. 1943, makes no mention or
reference to the school district's ability to pay, indicates that the
Legislature did not intend the Court of Industrial Relations to consider it as a
factor, is in my judgment a "copout."
Section
48-818, R. R. S. 1943, says nothing about enrollment, athletic relationship,
community of interest, geographic location, or general cooperation, or other
considerations which have been adopted by the Court of Industrial Relations as
guidelines. Certainly, ability to pay is a much more important criteria than
those now being considered by the Court of Industrial Relations.
In spite of
the thrust of the majority opinion to the contrary, I believe this court has
heretofore recognized the obligation of the Court of Industrial Relations to
consider ability to pay. In Lincoln Fire Fighters Assn. v. City of Lincoln,
198 Neb. 174, 252 N. W. 2d 607 (1977), we said: "We hold that in
determining prevalent wage rates for comparable services in reasonably similar
labor markets, the Court of Industrial Relations is required to weigh, compare,
and adjust for any economic dissimilarities shown to exist which have a bearing
on prevalent wage rates."
It is time we
recognize that sweeping with a broad brush, as we have been doing in these
cases, is not only permitting the Court of Industrial Relations to legislate,
but also permitting it to become the court of last resort in these cases. This
case should be remanded to the Court of Industrial Relations for reconsideration
in light of our holding in Lincoln Fire Fighters Assn. v. City of