Opinion
No. 41583.
Filed July 5, 1978.
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 Nebraska Court of Industrial Relations.
Affirmed.
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.
Appellee Nebraska City Education Association filed a petition on September 9, 1976, with the Court of Industrial Relations, requesting that the court resolve an industrial dispute and establish wages and other terms of employment. A hearing was held on November 29, 1976, and an order entered by the court on July 1, 1977. Defendant School District of Nebraska City appeals from that order. We affirm the order of the Court of Industrial Relations.
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.