Central City Ed. Assn. v. Merrick Cty. Sch. Dist.

V. CONCLUSION
Thorpe’s assignments of error lack merit. But plain error
exists in the sentences imposed for his murder convictions. We
affirm the convictions and sentences on the weapons charges.
We affirm the murder convictions but vacate the sentences
on the murder charges. We remand with directions that the
district court sentence Thorpe to life imprisonment on both
murder charges.
A ffirmed in pArt, And in pArt
remAnded with directions.
CeNTraL CITy ed. aSSN. v. merrICk CTy. SCh. dIST. 	27
Cite as 280 Neb. 27
centrAl city educAtion A ssociAtion, 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.
783 N.W.2d 600
Filed June 18, 2010. 	No. S-09-521.
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 modi-
fied, 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 pow-
ers, (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 sup-
ported 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 legisla-
tive 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. ____: ____. 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 conven-
tional forms of remedy or, for other reasons, are not conveniently amenable to
the usual remedies.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

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.
appeal 	from 	the 	Commission 	of 	Industrial 	relations.
affirmed in part, and in part reversed and remanded with
directions.
kelley Baker and Steve Williams, of harding & Shultz, P.C.,
L.L.O., for appellant.
mark d. mcGuire, of mcGuire & Norby, 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 dis-
puted 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,
28 	280 NeBraSka rePOrTS

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 preva-
lent in the district’s array, but that pay for unused sick and
personal leave was not. Therefore, the CIr ordered that con-
tract 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 deci-
sion to delete the language relating to pay for unused sick and
personal leave, and on may 3, it issued a “Final Order,” find-
ing 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 con-
tract 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
[1] In our review of orders and decisions of the CIr involv-
ing an industrial dispute over wages and conditions of employ-
ment, our standard of review is as follows: any order or deci-
sion 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
1 See Hyannis Ed. Assn. v. Grant Cty. Sch. Dist. No. 38-0011, 274 Neb. 103,
736 N.W.2d 726 (2007).
CeNTraL CITy ed. aSSN. v. merrICk CTy. SCh. dIST. 	29
Cite as 280 Neb. 27

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 order-
ing 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
[2,3] 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 pur-
poses 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 con-
tinuation 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.
2 See Crete Ed. Assn. v. Saline Cty. Sch. Dist. No. 76-0002, 265 Neb. 8, 654
N.W.2d 166 (2002).
30 	280 NeBraSka rePOrTS

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 histori-
cally 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 conclu-
sion that the contract continuation clause in this case is man-
datorily 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 bargain-
able, until a new agreement can be reached.
and this conclusion is supported by other case law. The
court in Mtr Vil of Lynbrook v PERB5 concluded that the issue
of a “‘continuation of benefits clause’” was mandatorily bar-
gainable and not a violation of public policy. and private sector
cases have concluded that the duration of a collective bargain-
ing 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
3 Hyannis Ed. Assn. v. Grant Cty. Sch. Dist. No. 38-0011, 269 Neb. 956, 698
N.W.2d 45 (2005).
4 Id. at 966, 698 N.W.2d at 54.
5 Mtr Vil of Lynbrook v PERB, 48 N.y.2d 398, 403 n.3, 399 N.e.2d 55, 57
n.3, 423 N.y.S.2d 466, 467 n.3 (1979).
6 Walnut Creek Honda Associates 2, Inc. v. N.L.R.B., 89 F.3d 645 (9th Cir.
1996); N. L. R. B. v. Yutana Barge Lines, Inc., 315 F.2d 524 (9th Cir.
1963).
7 Metro. Tech. Com. Col. Ed. Assn. v. Metro. Tech. Com. Col. Area, 203 Neb.
832, 842-43, 281 N.W.2d 201, 206 (1979).
CeNTraL CITy ed. aSSN. v. merrICk CTy. SCh. dIST. 	31
Cite as 280 Neb. 27

mandatorily bargainable even though there may be some
minor influence on educational policy or management
prerogative. however, those matters which involve foun-
dational 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 the provisions of an existing contract until a new
contract can be reached, including the salary schedule of the
preceding agreement, is of “fundamental, basic, or essential
concern to an employee’s financial and personal concern.”8
moreover, we conclude that the contract continuation clause
at issue is not a matter “which involve[s] foundational value
judgments, which strike at the very heart of the educational
philosophy of the particular institution.”9 matters that have
been found to be of this nature include an employer’s decision
to hire, retain, promote, transfer, or dismiss employees10; the
establishment of a pension plan11; a change in a school calen-
dar12; or teacher appointment determinations.13
We conclude that the contract continuation clause at issue
was mandatorily bargainable. The district’s argument to the
contrary is without merit.
8 See id. at 842, 281 N.W.2d at 206.
9 See id. at 842-43, 281 N.W.2d at 206.
10 Teaneck Bd. of Educ. v. Teaneck Teachers Ass’n., 94 N.J. 9, 462 a.2d 137
(1983).
11 City of Pittsburgh v. Com., PLRB, 539 Pa. 535, 653 a.2d 1210 (1995).
12 West Central Educ. v. West Central School, 655 N.W.2d 916 (S.d. 2002);
Piscataway Ed. Ass’n v. Bd. of Ed., 307 N.J. Super. 263, 704 a.2d 981
(1998).
13 School Committee of Natick v. Education Association of Natick, 423 mass.
34, 666 N.e.2d 486 (1996).
32 	280 NeBraSka rePOrTS

(b) effect Not in Present, but in
Future Contract years
We turn next to the question of whether the CIr erred in
issuing a decision that affects not the current contract year but
subsequent contract years. Intertwined with this issue is the
district’s argument that the CIr’s inclusion of the contract
continuation language amounted to a declaratory judgment or
advisory opinion.
[4,5] We have noted that “‘[t]he function of a declaratory
judgment is to determine justiciable controversies which either
are not yet ripe for adjudication by conventional forms of rem-
edy or, for other reasons, are not conveniently amenable to the
usual remedies.’”14 and we have repeatedly noted that the CIr
does not have the authority to grant declaratory relief.15 But in
this case, we conclude that the contract continuation clause had
an effect in the current contract year; thus, the decision was
ripe for adjudication and was not a declaratory judgment.
The CCea presented evidence in the form of testimony
by Tory Tuhey, a union employee with the Nebraska State
education association. Tuhey testified that there is contract
continuation language in the collective bargaining agreement
between the state education association and its bargaining unit.
Tuhey indicated that the presence of that language affects her
in that it provides stability in salary and budgeting; she knows
what wage she will be earning until a new agreement is reached.
This evidence supports the CIr’s conclusion that the contract
continuation clause had an effect in the current contract year.
We therefore conclude that the district’s argument that the CIr
was issuing declaratory relief is without merit.
(c) §§ 48-810.01 and 79-515
The district next argues that the CIr erred in including
the contract continuation language, because doing so violated
§§ 48-810.01 and 79-515. Section 48-810.01 provides that
“[n]otwithstanding any other provision of law, the State of
14 Crete Ed. Assn. v. Saline Cty. Sch. Dist. No. 76-0002, supra note 2, 265
Neb. at 28, 654 N.W.2d at 181.
15 See id.
CeNTraL CITy ed. aSSN. v. merrICk CTy. SCh. dIST. 	33
Cite as 280 Neb. 27

Nebraska and any political or governmental subdivision thereof
cannot be compelled to enter into any contract or agreement,
written or otherwise, with any labor organization concerning
grievances, labor disputes, rates of pay, hours of employment
or conditions of work.” and § 79-515 provides:
The school board or board of education of any school
district may enter into contracts under such terms and
conditions as the board deems appropriate, for periods
not to exceed four years . . . for collective-bargaining
agreements with employee groups. This section does not
permit multiyear contracts with individual school dis-
trict employees.
The district contends that § 48-810.01 was violated when
the CIr ordered that the district enter into a contract with the
CCea for a future contract year and that § 79-515 was violated
because the district was ordered to enter into a contract of
indefinite duration by the inclusion of the contract continua-
tion clause.
We conclude that the district misunderstands the effect of
the contract continuation clause. Such a clause neither orders
the district to enter into a contract nor acts as a contract for
an indefinite term. Instead, the effect of the clause is to set
forth the terms of the parties’ agreement until a new agree-
ment can be reached. We conclude that the CIr did not violate
§ 48-810.01 or § 79-515. The district’s argument is with-
out merit.
(d) Public Policy
Finally, the district argues that the CIr violated public pol-
icy when it ordered the contract continuation clause.
The CIr’s order (1) requires the district to negotiate upon
the CCea’s terms or continue under the previous terms indefi-
nitely, (2) lessens the incentive to bargain in good faith toward
an agreement, and (3) deprives the district of its lawful right
to implement a final offer after reaching an impasse in nego-
tiations but prior to the CCea’s filing a petition with the CIr.
The order undermines the Legislature’s determination to autho-
rize the district to implement its final offer upon impasse as
well as appellate court decisions approving this process.
34 	280 NeBraSka rePOrTS

The district cites to Transport Workers v. Transit Auth. of
Omaha16 and argues that it “supports a board of education’s
authority to implement its final offer after impasse and before
the association has filed an action in the [CIr].”17
We find Transport Workers inapplicable. In that case, we
concluded that the CIr could issue orders “providing terms
and conditions of employment identical to those which existed
prior to the dispute.”18 Thus, we agree that this case supports
the proposition that the CIr has the authority to maintain the
status quo pending the resolution of a dispute. however, in
Transport Workers, we did not opine as to the source of those
existing terms and conditions. We conclude that Transport
Workers does not speak to the authority of management to
implement its last best offer before impasse.
The district also relies on two prior CIr orders in General
Drivers & Helpers Union, Local No. 554 v. Saunders County,
Nebraska,19 and Lincoln County Sheriff ’s Employees Association
Local No. 546 v. County of Lincoln.20 The district implies that
both support the proposition that it was a “lawful, management
prerogative” for the district to unilaterally implement a bar-
gaining offer after impasse but before a proceeding is initiated
in the CIr and that the CIr “may not deprive an employer of
that right by ordering a ‘continuation clause.’”21 While these
cases do recognize the first part of the district’s argument,
they do not support the second—in fact, neither of these cases
discusses continuation clauses. moreover, we note that the
CIr concluded in Clarkson Educ. Ass’n v. Colfax Co. School
16 Transport Workers v. Transit Auth. of Omaha, 216 Neb. 455, 344 N.W.2d
459 (1984).
17 Brief for appellant at 15.
18 Transport Workers v. Transit Auth. of Omaha, supra note 16, 216 Neb. at
461, 344 N.W.2d at 463.
19 General Drivers & Helpers Union, Local No. 554 v. Saunders County,
Nebraska, 6 C.I.r. 313 (1982).
20 Lincoln County Sheriff ’s Employees Association Local No. 546 v. County
of Lincoln, 5 C.I.r. 441 (1982).
21 Brief for appellant at 18.
CeNTraL CITy ed. aSSN. v. merrICk CTy. SCh. dIST. 	35
Cite as 280 Neb. 27

Dist.22 that it did have the authority to order such a continua-
tion clause.
The district directs us to no other authority which would
support the conclusion that it has an unlimited management
prerogative to implement its final offer before impasse and that
the inclusion of a contract continuation clause would impact
that right. Nor has this court been able to find any other author-
ity to support that assertion.
We also note the district suggests that the reasoning behind
the policy to implement its final offer before impasse is to
level the playing field between it and the CCea. The district
suggests that the CCea is at an unfair advantage if the starting
point in negotiations is with the CCea’s terms. This overlooks
the fact that the terms and conditions which are continued are
those which either were agreed to by the parties during their
prior negotiations or were imposed upon both parties by the
CIr, and thus are not the CCea’s “terms” at all. moreover,
giving the district the right to unilaterally implement its offer
could be seen as giving it the upper hand, in that during nego-
tiations, the CCea would always be aware that the district
had the ability to declare impasse, implement its own terms
and conditions, and force the CCea to appeal to the CIr if it
wishes to change those terms and conditions.
We conclude that the district’s argument that the CIr’s
inclusion of the contract continuation clause was a violation
of public policy is without merit. We further conclude that the
CIr had the authority to include a contract continuation in
the parties’ 2008-09 agreement. Because the district does not
contest the conclusion that such a clause was prevalent within
the array, we affirm the decision of the CIr with regard to the
inclusion of the contract continuation clause.
2. whether pAy for unused sick And
personAl leAve is prevAlent
[6] In its second assignment of error, the district argues
that the CIr erred in finding that paying teachers for unused
sick and personal leave was prevalent. We have said that the
22 Clarkson Educ. Ass’n v. Colfax Co. School Dist., 13 C.I.r. 31 (1997).
36 	280 NeBraSka rePOrTS

“standard inherent in the word ‘prevalent’ is one of general
practice, occurrence, or acceptance” and that contract terms
need only be “‘sufficiently similar and have enough like char-
acteristics or qualities’” in order to be considered prevalent.23
The language in question provides in part:
any teacher having served the [district] for 10 or more
years shall receive severance pay for each day of accumu-
lated, unused sick leave or personal leave at the rate of
one-third (1/3) of his/her daily earnings are to be based on
the amount of the last contract, and the number of service
days on the contract.
at least 10 of the 14 schools in the district’s array have
some sort of provision requiring payment for unused sick and
personal leave as follows:
Adams Central: “Unused personal leave days will be com-
pensated at a rate of $80 per day.”
Aurora:
all unused Sick Leave and Personal Leave days shall
accumulate. Teachers who have taught five or more years
in the aurora Public Schools shall receive severance
pay upon ceasing employment with the aurora School
district. Such pay shall be for each day of accumulated
sick and personal leave at a rate of one-fourth (1/4) of the
teacher’s daily earnings.
Boone Central: “In a given year, a staff member may trade 2
sick days in for 1 additional personal day.”
Centennial: “If six (6) or less sick leave days are used during
the contract year, the teacher will be reimbursed one (1) day of
the substitute teacher rate of pay . . . . Unused personal leave
days will be reimbursed at the substitute rate of pay . . . .”
Centura:
If the employee does not use two (2) personal days, the
district will buy back both days at the substitute pay
rate. If the employee uses only one (1) personal day, the
remaining day may be rolled over to the next year, and
the employee begins the year with three (3) personal
23 Hyannis Ed. Assn. v. Grant Cty. Sch. Dist. No. 38-0011, supra note 3, 269
Neb. at 967-68, 698 N.W.2d at 55.
CeNTraL CITy ed. aSSN. v. merrICk CTy. SCh. dIST. 	37
Cite as 280 Neb. 27

days. (The day must be rolled over and will not be
bought back.)
Cross County:
Payment for Unused Sick Leave days at Separation
Should a teacher, at the time of separation from the dis-
trict, and having a minimum of five years with the district,
have accumulated unused sick leave days, the teacher will
be entitled, on or before June 15th immediately following
the school year, to turn back to the school district [his
or her] unused sick days and shall be paid by the School
district fifty dollars ($50.00) each for two-thirds (2/3) of
the days the teacher is entitled to. . . .
Payment 	for 	Unused 	Sick 	Leave 	days 	Continuing
employee
Option I: Should a teacher, as of the last duty day of
any school year, accumulate more than forty (40) unused
sick leave days, the teacher will be entitled, on or before
the June 15th immediately following the school year, to
turn back to the school district any unused sick days in
excess of forty (40) days, and shall be paid by the School
district twenty dollars ($20.00) for each day the teacher is
entitled to. . . .
Option II: Should a teacher, as of the last duty day of
any school year, accumulate forty-three (43) or more sick
days, the teacher will be entitled, on or before June 15th
immediately following the school year, to turn back to
the school district any unused sick days in excess of forty
(40) days, and shall be granted one additional Personal
day for the following school year.
Doniphan-Trumbull:
employees with a balance in excess of 45 days at the end
of the contract year will be paid at 25% of the employee’s
daily rate of pay for each day in excess of 45.
. . . .
. . . Teachers . . . will be reimbursed at the end of the
contract period $100 for each day of the unused leave.
Grand Island Northwest:
district #82 will pay for unused sick leave in excess of
fifty (50) days cumulative sick leave at the rate of $50.00
38 	280 NeBraSka rePOrTS

per day. The maximum number of days that can be paid
is ten (10) days. . . .
. . . .
. . . district #82 will reimburse unused personal leave
in excess of two (2) days cumulative personal leave at the
rate of $50.00 per day. The maximum number of days for
reimbursement would be (2) days unless the teacher is
resigning from the district, and then the maximum num-
ber of days would be four (4).
Columbus Lakeview:
Upon leaving the system, a teacher will be compen-
sated up to a maximum of thirty (30) accumulated sick
leave days. The district’s sick leave buy-back policy does
not apply to the personal sick leave bank days. The rate
of compensation will be based on fifty (50) percent of a
substitute’s rate of pay at the time of separation.
St. Paul: No language allowing payment for unused sick and
personal leave in contract.
Sutton:
at the end of each school year a teacher who has accu-
mulated more than 50 days of sick leave will be given a
stipend of $10 for each day in excess of 50 days.
. . . a teacher shall choose to have unused personal
leave days added to [his or her] cumulative sick leave
or reimbursed at the rate of 75% of the substitute rate
of pay.
Twin River:
The teacher will be entitled on or before June 15th imme-
diately following the end of the school year to turn back
to the School district a maximum of ten (10) sick leave
days. The School district shall then pay fifteen dollars
($15) for each day the teacher is entitled . . . .
. . . a teacher leaving the school system will receive
fifteen dollars ($15) per day to a maximum of thirty
(30) sick leave days for each day of unused accumulated
sick leave.
Wood River Rural: No language allowing payment for unused
sick and personal leave in contract.
York: No language allowing payment for unused sick and
personal leave in contract.
CeNTraL CITy ed. aSSN. v. merrICk CTy. SCh. dIST. 	39
Cite as 280 Neb. 27

Plainly, pay for unused leave is permitted by 10 of the 14
schools in the district’s array. We therefore agree with the CIr
and the CCea that the inclusion of a provision providing for
pay for unused leave is prevalent within the array, and to that
extent, we affirm the CIr’s order.
But we also conclude that on this record, the terms of the
provision ordered by the CIr are not supported by a prepon-
derance of the evidence. For example, we note that the rate of
reimbursement differs in many of the schools in the array. In
addition, some schools in the array pay for both sick and per-
sonal days, while others pay for just one or the other. Still other
schools offer additional personal days in return for unused
sick days rather than payment for unused days. We therefore
remand this action to the CIr with directions to consider the
appropriate terms of the pay for unused leave provision to be
included in the parties’ agreement.
VI. CONCLUSION
We affirm in part, and in part reverse and remand the deci-
sion of the CIr.
A ffirmed in pArt, And in pArt reversed
And remAnded with directions.
heAvicAn, C.J., concurring in part, and in part dissenting.
I concur with the majority insofar as it concludes that the
inclusion of payment for unused sick and personal leave is
prevalent and should be included in the parties’ agreement. I
also concur with the majority’s directive that the terms of such
a clause should be considered by the CIr upon remand.
however, I disagree with the majority’s conclusion that the
CIr has the authority to include a contract continuation clause
in the parties’ agreement. Because I believe that such a clause
is a violation of Neb. rev. Stat. § 48-810.01 (reissue 2004)
and therefore in excess of the CIr’s authority, I respectfully
dissent from the portion of the majority’s opinion conclud-
ing otherwise.
Section 48-810.01 provides that “[n]otwithstanding any other
provision of law, the State of Nebraska and any political or
governmental subdivision thereof cannot be compelled to enter
into any contract or agreement, written or otherwise, with any
40 	280 NeBraSka rePOrTS

labor organization concerning grievances, labor disputes, rates
of pay, hours of employment or conditions of work.” I believe
that essential to the question of whether this section has been
violated is an understanding of the importance placed upon
the bargaining and negotiation process under the Industrial
relations act (act).1
Under the act, public employees are given the right to be
“represented by employee organizations to negotiate collec-
tively with their public employers in the determination of their
terms and conditions of employment and the administration of
grievances arising thereunder.”2 To bargain in good faith under
the act requires “the performance of the mutual obligation of
the employer and the labor organization to meet at reasonable
times and confer in good faith with respect to wages, hours,
and other terms and conditions of employment or any question
arising thereunder.”3 Public employers are required under the
act to bargain collectively; any failure to do so is generally
considered a prohibited practice and is viewed as a violation
of the act.4 and the CIr is given the authority to order parties
to an industrial dispute to bargain collectively in situations in
which the CIr believes the parties have failed to bargain or
have not bargained in good faith.5
With this backdrop, I turn to the question of whether the
CIr ordered the district to enter into a contract in violation of
§ 48-810.01. I acknowledge that the CIr’s inclusion of a con-
tract continuation clause was not an explicit order to enter into
a contract. however, I would find the inclusion of such a clause
akin to such an order and thus in violation of § 48-810.01.
In this case, the CIr’s authority is limited to deciding indus-
trial disputes for the contract year in dispute.6 Unlike a situa-
tion in which the parties agree during the bargaining process to
1 Neb. rev. Stat. §§ 48-801 to 48-838 (reissue 2004 & Cum. Supp. 2008).
2 § 48-837.
3 § 48-816(1).
4 § 48-824.
5 § 48-816(1).
6 § 48-818.
CeNTraL CITy ed. aSSN. v. merrICk CTy. SCh. dIST. 	41
Cite as 280 Neb. 27

a contract continuation clause where such a clause is included
by the CIR in the parties’ agreement, the parties are potentially
bound by terms that govern their relationship beyond that con-
tract year. These would be terms that were previously imposed
upon them by the CIR with no attempt by the parties to reach
their own agreement through the bargaining process so essen-
tial to the act.
moreover, the CIr has only the authority given to it by
statute, specifically, the authority to determine industrial dis-
putes between employers and employees.7 and this court has
also held that such is not a violation § 48-810.01.8 I would
not disturb that holding. But in my view, the inclusion of a
contract continuation clause is not the resolution of an indus-
trial dispute. Instead, these types of clauses almost seem
designed to resolve, without the input of either party to an
agreement, future industrial disputes. as such, I would find
it to be in excess of the CIr’s authority to determine indus-
trial disputes.
I find unpersuasive Clarkson Educ. Ass’n v. Colfax Co.
School Dist.,9 which the CCea cites in support of its position.
In that case, the CIr concludes that it is within its author-
ity to include a contract continuation clause. But the primary
basis for the CIr’s decision in that case was a National
Labor relations Board case, United States Pipe and Foundry
Company v. N. L. R. B.10 I believe the CIr’s reliance on that
case was misplaced, as the case involved contract duration as
a topic of mandatory bargaining. In my view, contract duration
and contract continuation are two different things: duration is
the length of any given contract as agreed upon by the parties,
while continuation is the forced implementation of a contract
upon both parties.
7 School Dist. of Seward Education Assn. v. School Dist. of Seward, 188
Neb. 772, 199 N.W.2d 752 (1972).
8 See id.
9 Clarkson Educ. Ass’n v. Colfax Co. School Dist., 13 C.I.r. 31 (1997).
10 United States Pipe and Foundry Company v. N. L. R. B., 298 F.2d 873 (5th
Cir. 1962).
42 	280 NeBraSka rePOrTS

The CCea also relies on this court’s decision in Hyannis
Ed. Assn. v. Grant Cty. Sch. Dist. No. 38-0011.11 I also find
that unpersuasive. This court concluded in Hyannis Ed. Assn.
that a deviation clause allowing the district to deviate from the
bargained-for salary schedule affected wages and that thus, it
was within the CIr’s authority to include such a term in the
parties’ agreement. But because the issue in Hyannis Ed. Assn.
was a deviation from the salary schedule, it had a direct impact
on wages. Such is distinguishable from the contract continua-
tion language at issue in this case.
I would conclude that the inclusion of a contract continua-
tion clause by the CIr is akin to an order to enter into a con-
tract, is contrary to the parties’ right to bargain, and was a vio-
lation of § 48-810.01. and because I believe the CIr violated
§ 48-810.01, I would also conclude that the CIr exceeded its
authority when it ordered a contract continuation clause to be
included in the parties’ agreement.
connolly, J., joins in this concurrence and dissent.
11 Hyannis Ed. Assn. v. Grant Cty. Sch. Dist. No. 38-0011, 269 Neb. 956, 698
N.W.2d 45 (2005).
STaTe v. WOLLam 	43
Cite as 280 Neb. 43
stAte of nebrAskA, Appellee , v.
Jon d. wollAm , AppellAnt.
783 N.W.2d 612
Filed June 18, 2010. 	No. S-09-768.
1. Courts: Appeal and Error. Both the district court and the Nebraska Supreme
Court generally review appeals from the county court for error appearing on
the record.
2. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal case from
the county court, the district court acts as an intermediate court of appeal, and as
such, its review is limited to an examination of the county court record for error
or abuse of discretion.
3. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth amendment, an appellate court applies a two-part
standard of review. regarding historical facts, the appellate court reviews the trial
court’s findings for clear error. But whether those facts trigger or violate Fourth