10 CIR 18 (1988)


Petitioner, |
Respondent. |


For the Petitioner: Mark D. McGuire

Crosby, Guenzel, Davis,

Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska 68508

For the Respondent: Kelley Baker

Nelson & Harding

1200 "N" Street, 500 The Atrium

P.O. Box 82028

Lincoln, Nebraska 68508

Before: Judges Peetz, Cope, and Mullin



The Petitioner Association filed a Petition on February 9, 1988 seeking a Section 48-818 determination as to wages, and other terms and conditions of employment for the 1987-88 contract year. The Respondent School District, hereinafter Papillion, is a Class III district with a total student enrollment of 6,228 for the 1987-88 school year. The District employs 355 teachers.

The issues for determination at trial as set forth in the Report of Pretrial Conference are: base salary, extra duty compensation; in-lieu-of compensation for employees not receiving employer paid dependent health insurance, unpaid extended leaves of absence with right to continued employment, voluntary separation incentive, direct deposit of paychecks, number of non student contact days, definition of teachers work day, including number of hours and the amount of planning time, grievance procedure, and elimination of horizontal movement at midyear. Immediately prior to trial the parties stipulated that number of non-student contact days was no longer at issue.

The Commission has jurisdiction over the parties and subject matter of this action pursuant to Section 48-818 (R.R.S. 1943, Reissue 1984) which provides in part:

...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 insurance and pensions, and the continuity and stability of employment enjoyed by the employees...


The Petitioner seeks a comparability array composed of Millard, Ralston, Fremont, Bellevue and Omaha. The Respondent contends that an array composed of Millard, Ralston, Fremont, Bellevue, Grand Island, North Platte, Norfolk and Kearney is more appropriate. The parties have stipulated that the work, skill and working conditions of teachers employed at the proposed school districts, with the exception of Omaha, are similar and satisfy the standards set forth in Section 48-818 to permit a comparison of terms and conditions of employment. Table 1 sets out the relevant data concerning the proposed districts.

As always in selecting employments for the purpose of comparison in arriving at comparable and prevalent wage rates and conditions of employment the question is whether, as a matter of fact, the employments selected are sufficiently similar and have enough like characteristics to make comparison appropriate. Lincoln County Sheriff's Employee's Ass'n, Local 546, IBPO v. County of Lincoln , 216 Neb. 274, 343 N.W. 2d 735 (1984); Schuyler Education Association v. School District No. 123, Colfax County , 8 CIR 331 (1986). Traditionally, the Commission has found that size and proximity are good indications of similarity. The Commission will also look at community of interest and other subjective factors where the evidence demonstrates that the factors serve to differentiate teacher work skills and working conditions. However, as in all Section 48-818 cases, the issue of array determination is one of fact and just as the evidence varies from case to case so too does any finding based on the evidence presented.

In the case at bar, there are four school districts common to both the Petitioner's and the Respondent's proposed arrays: Millard, Ralston, Bellevue and Fremont. All of the common districts are close geographically with three of the four sharing borders with Papillion-LaVista. The four common districts range in size from the smallest, Ralston, with enrollment of 3,211 to Millard with an enrollment of 15,246. Generally, the Commission attempts to choose districts that range in size from not more than twice nor less than half the size of the district in dispute but often times the evidence is such that other indications of comparability override any mathematical application of enrollment parameters.Previously, the Commission has included districts outside the general size guidelines where the evidence supported a finding that there were other significant indications of comparability. See Ralston Education Ass'n v. School District of Ralston, 6 CIR 416 (1983); Millard Education Ass'n v. School District of Millard, 5 CIR 425 (1982).

The districts common to both Petitioner's and Respondent's proposed array; Millard, Fremont, Bellevue and Ralston are all somewhat similar in enrollment and are proximate to Papillion. Although Millard is outside the Commissions general size criteria both parties have found that the other indications of comparability necessitate a flexible application of the size guideline and there is no other evidence indicating that it should not be included. We thus find that the four common districts, Millard, Fremont, Ralston, and Bellevue, are all sufficiently similar so as to be appropriate for inclusion in our array. However, we generally prefer an array larger than four if possible so the question is then which, if any, of the non-common proposed array members should be members of our array.

The Respondent proposed the districts of Norfolk, North Platte, Kearney and Grand Island in addition to the commons. All of these districts are comparable in size but are considerably more distant than the districts proposed by Petitioner. The additional district proposed by Petitioner, Omaha, is more than six times larger than Papillion but is also contiguous to the district. In fact, each of Petitioners proposed array members is considered to be a part of the Omaha metropolitan area as opposed to the array proposed by Respondent which includes four greater Nebraska districts.

The Petitioner argues that geographic proximity coupled with the Commission's decisions in Grand Island Education Ass'n v. School District of Grand Island , 9 CIR 188 (1987) and Ralston Education Ass'n v. School District of Ralston , 6 CIR 416 (1983) necessitates inclusion of Omaha in the array. Petitioner's expert testified that in his opinion the Omaha School District is similar to Papillion in terms of work, skills, and working conditions and that the two districts are sufficiently similar for comparison under Section 48-818. (30:13-15) The Petitioner also presented considerable evidence as to the contacts between Papillion and Omaha and the similarity of labor markets from which the districts hire. The Respondent contends that Omaha should be excluded for the following reasons: it is a Class V district while Papillion is Class III; Omaha has magnet schools, Papillion does not; Papillion is a member of a multi district ESU while Omaha has its own service unit; all of Papillions buildings are air conditioned while only some of Omaha's are, and Omaha has more buildings than Papillion. Most of the arguments made by the parties as to whether or not Omaha is comparable are functions of size, i.e. number of buildings, or proximity, i.e. similarity of athletic conference.

Application of our traditional size criteria clearly requires excluding Omaha while application of any geographic proximity guideline requires inclusion of the district. As is often the case, if application of the objective criteria is not sufficient to distinguish the most comparable districts out of the proposed arrays, we will look to more subjective indications of comparability.

The petitioner called four teachers from Papillion and one teacher from Omaha to testify as to the contacts between Papillion and Omaha. These witnesses suggested through testimony that there is continual contact e.g. monthly metropolitan meetings, monthly Omaha suburban Education Ass'n meetings and a definite sense of community between Omaha and Papillion. The Petitioner also presented evidence that the Omaha Metropolitan Schools draw from the same labor market and compete with the other suburban school districts in filling certificated staff positions. (T225:8-11)

The Omaha Metropolitan area presents a unique and distinct set of circumstances as far as a 48-818 wage determination, especially for a larger school district in Nebraska. Four out of the six largest school districts are in the Omaha Metro area. Furthermore, there is a distinct geographic separation between the Omaha area and the larger greater Nebraska districts such as Grand Island. These factors make it both easy and appropriate to compare the Metro schools to each other and Omaha will be included in the array.

The Respondent contends that Norfolk, North Platte, Kearney and Grand Island should also be included in the comparability array for Papillion in order to provide a larger, more balanced array. These districts are within the Commission's size criteria with three of the four smaller than Papillion. These districts however are considerably more distant than the common array members or the district of Omaha. The nearest of the greater Nebraska districts, Norfolk, is 112 miles from Papillion. While the Commission has in some instances been forced to look at apparently comparable districts that far away, that is not the situation in the current array. There is no evidence of contacts between the greater Nebraska districts and Papillion and the Commission determines it unnecessary, given the evidence presented, to go outside of the greater Omaha suburban area in order to establish a comparability array.

The array for purposes of this Section 48-818 wage determination will consist of Millard, Fremont, Ralston, Bellevue and Omaha.


The Petitioner has requested that the Commission establish various economic and non-economic benefits. The Respondent contends that certain of these benefits are moot. The Commission has consistently held that where, as here, the school year has ended and any ruling on the benefit would be advisory we will decline to make such rulings. See Fraternal Order of Police Lodge No. 23 v. The City of Holdrege, Nebraska , 9 CIR 257, 262 (1988), Trenton Education Association v. School District of Trenton , 9 CIR 201, 204-205 (1987), Winnebago Education Association v. School District of Winnebago , 8 CIR 138, 146-148 (1985), see also , District No. 8 Elementary Teachers Association v. School District No. 8, Dodge County , 8 CIR 126 (1985). School District No. 125 v. Curtis Education Association , 7 CIR 96 (1983).

Although the year had not ended at the time of trial, the parties were well aware that the school year was very nearly completed and would be over by the time the parties were able to supply the Commission their revised exhibits and the Commission could issue a decision. We therefore decline to rule on the following benefits because such a ruling would be advisory and it is impossible at this point to retroactively make any change in the benefit provision or the overall compensation received by the employees:

1) Definition of teachers work day.

2) Change in grievance procedure.

3) Right to continued employment after an unpaid employer approved extended leave of absence.

4) Voluntary separation incentive.

There are other benefits at dispute that are not moot.


There was some testimony at trial that teachers in Nebraska are usually compensated on an annual, as compared to a nine month, basis (18:20-23). Although there was no direct evidence as to whether or not Papillion teachers are paid year-round, this provision is arguably not moot. As Table 2 illustrates the Petitioner has requested this provision even though it clearly is not a prevalent condition of employment. Section 48-818 explicitly provides that in establishing conditions of employment the Commission must consider the prevalent practice of array members. Direct deposit is not prevalent and will not be established by this Commission.



Petitioner has requested that teachers who are provided only single health insurance receive additional compensation equal to what the district pays for dependent health insurance coverage. In this regard, Petitioner proposes "that each employee receive a cafeteria benefit equal to the dollar value of the dependent health insurance premium to be applied to the dependent health insurance premium, single health insurance premium plus the balance in a tax deferred annuity, or the entire amount in a tax deferred annuity." Exhibit 4.

We have previously found that "it is clear that the standard inherent in the word "prevalent" is one of general practice, occurrence or acceptance [cite omitted], [and] the extent of such generality is left in each case to the jugment or feeling of the judges." Valentine Education Association v. School District No. 6, Cherry County, Nebraska, a/k/a Valentine Rural High School , 8 CIR 271, 277 (1986). We must therefore examine each of the chosen array members to determine whether a prevalent condition exists.

Table 3 sets out the relevant data of the compared to schools concerning this benefit. The Millard provision is silent on the issue of whether in-lieu-of compensation for employees is based upon dependent premium cost stating: "Full-time teachers may exercise a cash option in lieu of single or family dental, health, and major medical insurance in accordance with the cash option plan adopted by the district." Exhibit 44. The Fremont plan provides that each teacher "who is receiving only single health insurance coverage, no dependent or portion of dependent coverage, or who is covered as a dependent on another district employee's policy will receive $50 per month in additional salary." Exhibit 21. Bellevue allows employees to utilize a gross amount equal to the cost of dependent insurance for "health insurance, dental insurance, tax deferred annuities, cash discounted to reflect social security and teachers' retirement contributions by the district, or a combination of these benefits . . . ." Exhibit 24 or 30. Omaha and Ralston do not provide cash in-lieu-of insurance. Exhibit 4.

Petitioner requests that we provide all employees with a cafeteria benefit equal to the gross cost of dependent health insurance. However, only Bellevue has implemented that type of benefit scheme. Millard and Fremont provide distinctly different options. This variance and dissimilarity provides the Commission with no clear prevalent to establish the benefit.


Respondent has asked that we eliminate a provision in Papillion-Lavista's 1986-1987 collective bargaining agreement allowing mid-year horizontal movement on the salary schedule. As Table 4 indicates, elimination is appropriate as mid-year movement is not the prevalent practice of the Commission's selected array members. Nevertheless, we are unable to eliminate the provision due to insufficiency of evidence.

There was evidence that the staff index factor agreed to by the parties and presented to the Commission was computed after mid-year movement. (T51:1-5). Furthermore, there was evidence that some teachers did, in fact, move mid-year. (T51-1-13)

However, at no point was the Commission presented with any evidence indicating how many teachers made mid-year salary schedule movement, nor any evidence reflective of the character of the movement. This lack of evidence is of fundamental importance because mid-year salary schedule movement directly alters the staff index factor used by the Commission in determining total salary. Absent adequate evidence, we are unable to adjust the salary schedule appropriately and ultimately unable to eliminate an otherwise nonprevalent provision.


The Petitioner requests that the Commission establish extra duty pay as a condition of employment. At trial, the Petitioner's expert witness suggested that the Commission increase the total extra duty package at Papillion to be equal to the average of the maximums paid in the compared to districts. The very least the teacher Association seeks is to increase the total package of Papillion to the minimum average of the array. The Petitioner also suggests that the Commission could look to the individual extra duty assignments listed on its exhibit and add the differences between what is paid at Papillion and the average maximum of the array to arrive at the total increase in extra duty dollars Papillion should be ordered to pay.

After review of the evidence, we are not inclined to change the extra duty compensation schedule on the proof before us in this case. We are not convinced that the extra curricular programs are similar enough to allow an across-the-board comparison of benefit; some programs may be voluntary, some programs are compensated at one district and not at another, and still other compensated programs may be unique to one individual district. Furthermore, the Commission has consistently held that the nature and structure of extra curricular programs are within the province of the school board's authority. The school board knows the needs and priorities of the district and can, by allocating funds, emphasize those areas. See Tekamah-Herman Education Ass'n v. School District of Tekamah-Herman , 9 CIR 1978 (1987); Valentine Education Ass'n v. School District No. 6 Cherry County Nebraska a/k/a Valentine Rural High School , 8 CIR 271 (1986); Diller Education Ass'n v. School District No. 103 Jefferson County, Nebraska a/k/a Diller Public Schools , 8 CIR 12, (1985); Diller Education Ass'n v. School District No. 103 Jefferson County, Nebraska a/k/a Diller Community School , 7 CIR 196 (1984).

Lastly, there is little, if any, similarity between the extra duty schedule exhibited by Petitioner and the extra duty schedule exhibited by Respondent. Many of the extra duty positions listed on Petitioners schedule do not appear on Respondent's and the converse is also true. It is impossible to set a total extra duty compensation pool at comparable if there is no substantiated evidence setting out all of the positions that draw from the pool.


Table 5 sets out the overall compensation data for the Commission's array. Applying the statutory criteria of Section 48-818 to the evidence in this case, we find the 1987-88 contract year base salary to be $16,539.00.


1. The base salary amount for the School District of Papillin-LaVista shall be $16,539.00 for the 1987-88 contract year.

2. The amounts due for the difference in salary for the portion of the year already elapsed shall be paid in a single sum with the payroll check issued next following the final order entered herein.

3. All other terms and conditions of employment for the teachers employed by the Papillion-LaVista School District for the 1987-88 year shall be as previously established by the agreements made by the parties.

All judges assigned to the panel in this case join in the entry of this Findings and Order.

Entered July 14, 1988.

NOTE: This case had some merit pool money included for one of the compared-to-school districts in its adjusted salary figures (See Table 5).