10 CIR 1 (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 Mullin, Kratz, Orr, Cope, and Peetz (EN BANC); Cope dissenting.



The Petitioner in this matter requests that we establish specific terms and conditions of employment for the l987-88 contract year at the School District of Stapleton, Logan County, Nebraska. Stapleton is a Class III school district which employs twenty full-time teachers and one part-time teacher. It has a student enrollment of 2l2 for the school year l987-88. A pretrial conference was held on January 2l, l988 where the issues were identified as being base salary and accumulation of sick leave. The number of contract days are at issue only as they relate to determining how to adjust the total salary figures at the compared to school districts - whether adjustment should be based on l85 or l82 contract days.

On April 29, l988, upon motion of Judge Dean Kratz, the Commission ordered that the pending case be decided by the entire Commission sitting En Banc.

The Commission takes jurisdiction under Section 48-8l8 to permit a comparison of terms and conditions of employment.


The controlling statute is Section 48-8l8 which provides in part:

The 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.


The Petitioner and Respondent both presented comparisons with the following five common school districts: Brady, Callaway, Maxwell, Paxton and Sandhills. In addition, the Petitioner included in its proposed array the school districts of Anselmo Merna, Arnold and Sutherland while the Respondent proposed the school districts of Elwood, Maywood, Medicine Valley, Mullen and Sumner Eddyville Miller. By joint stipulation at pretrial, the parties agreed that the work, skill and working conditions of the teachers employed at the proposed array points are similar enough to the Stapleton employment to allow a comparison of terms and conditions of employment under Section 48-8l8. Relative information on each proposed array member is set forth on Table l.

When choosing an array of comparable employers under Section 48-8l8, we consider evidence of the relative size and proximity of proposed array members to the employer in question as well as other evidence indicating the employments selected for comparison are sufficiently similar and have enough like characteristics or qualities to make comparison appropriate in that situation. All of the schools proposed meet the Commission's criterion of geographical proximity and relative size of one-half to twice as large. School District of West Point v. West Point Education Ass'n, 8 CIR 3l5 (l986). Additionally, we prefer balanced arrays with school districts both larger and smaller than the district in question. Diller Education Ass'n v. School District l03 , 7 CIR l96, 200 (l984). We have held that an array of six to eight employers is an appropriate array. State Code Agencies Education Ass'n v. Department of Correctional Services , 7 CIR 226, 232 (l984), aff'd on other grounds , 2l9 Neb. 555, 364 N.W.2d 44 (l985).

Considering the evidence presented by the parties and using the above criteria, we find that a suitable array consists of the five common schools of Brady, Callaway, Maxwell, Paxton and Sandhills Duning plus Arnold. Arnold is only 20 miles from Stapleton and is the closest array member to Stapleton. This gives us a balanced array of six members, with half being larger and half being smaller than Stapleton.


The Report of Pretrial Conference listed accumulation of sick leave as an issue to be determined. We find that accumulation of sick leave should be 34 days. See Table 2.


Since the decision in West Holt Faculty Ass'n v. School Dist. No. 25 of Holt County 5 CIR 301 (1981) we have, in teacher cases, adjusted the salaries in the selected array to the number of contract days of the subject school on the theory that teachers who work a greater number of days expect to be paid more. In cases involving firemen, policemen, and others we have used annual hours for comparison Lincoln Firefighters Ass'n v. City of Lincoln , 8 CIR 3l (l985); North Platte Police Officers Union, IBPO, Local 582 v. City of North Platte , 3 CIR 647 (l979). The basis for the comparison is the language from Section 48-818 which mandates that we consider, inter alia , " . . . time actually worked . . ." The distinction between the two approaches is rooted in the method of compensation. For employees compensated by the hour, their "time actually worked" is capable of being precisely calculated because of the necessary records kept for that purpose. For teachers, who are compensated by an annual salary, there is no legitimacy to attempting to compare the precise number of hours they may work during a contract year. Personal attitudes, efficiency and dedication cause substantial variations in the length of a teacher's day.

A typical teacher's contract in Nebraska provides for a given number of contract days. This number is the minimum obligation of the teacher under the contract and is the number we have continually used for comparison purposes Farnam Education Association v. School Dist. No. 5l , 8 CIR 298, 304 (1986), School Dist. of West Point v. West Point Education Association , 8 CIR 3l5, 3l9 (l986), Juniata Education Association v. School Dist. No. l , 9 CIR l73, l80 (l987), Wayne Education Association v. School Dist. of Wayne , 9 CIR 28l, 292 (l988). Unfortunately, when a precise comparison is impossible, any method of comparison we may attempt to enunciate is susceptible of being exploited. Whether intentionally or unwittingly, that is what has happened in this case.

Near the end of school year 1986-87, the Respondent entered into individual contracts with the teachers for the year in dispute 1987-88. The salary was left blank in each of these contracts because of the then ongoing negotiations but the number of contract days was shown in each of the contracts as 185 (Petitioner's Exhibits 19-21). The number, 185, was a carryover from prior contracts. Shortly after the contracts were signed, the Superintendent determined that the actual number of days needed to fulfill the legal and administrative requirements of the school year was something less than l85 days (T89: 6-25). At his suggestion, Respondent's Board of Education agreed that future contracts would be for 182 days and that would include 1987-88 but only if all teacher's agreed by initialling such a change on his or her contract, and that if the teachers would not agree, the change would not take place until the following year (T90:1-23). When the proposed change in the contracts was explained to the teachers, the Superintendent responded to the teachers' inquiry that the change would not affect the then ongoing negotiations (T8:6-20). Neither the Superintendent nor the teachers had any notion or expectation that the alteration of 185 to 182 on the contracts for 1987-88would impact base salary in any way (T14:9-20; 26:11-21; 147:14-16).

At or about the same time, respondent changed the length of the minimum day for each teacher from eight hours to eight hours and fifteen minutes (T9:19-10:6).

At the pretrial conference Petitioner's counsel presented exhibits based on a contract calling for 185 contract days while Respondent's exhibits were based on the modified number of 182 contract days. The parties were then granted leave to present additional exhibits prior to trial to deal with the contract day discrepancy. In response to the leave to present additional exhibits on this issue, Petitioner introduced exhibits 23 and 23A at trial which compared the minimum number of hours per contract day at the schools in its proposed array to those at the subject school. These exhibits were objected to by Respondent and admitted into evidence subject to the objections which were to be ruled on in this opinion (T63:8-17; 69:1-7).

The number of contract days agreed upon by the parties was 182. Every teacher initialed a modification to their signed contract to that effect. While it is true that neither party to the various teacher contracts realized the adverse economic effects this change might cause when comparisons were made to other schools, the fact remains that the agreement was reached. The teachers were only obligated for 182 days and that was all the district could demand. The district established through its own witnesss and cross examination of the teachers that later negotiations did not include discussions of contract days (T20:4-8; 23:l3-23; 166:12-18). Petitioner apparently wants us to interpret the contract and the parol evidence to a conclusion that there were really 185 contract days. This we cannot do. We are prohibited by statute from compelling the parties to agree on the number of contract days in the first instance

. . . .To bargain in good faith shall mean the performance of the mutual obligation of the employer and the labor organization . . . . but such obligation does not compel either party to agree to a proposal or require the making of a concession. 48-816 (1), R.R.S. 1943.

and therefore cannot rewrite the contract now. In Transport Workers of America v. Transit Auth. of City of Omaha , 205 Neb. 26, 286 N.W.2d 102 (1979) our Supreme Court addressed the limitations on our authority and noted:

. . . . The mandate language of section 48-818 does not lend itself to any suggestion that the CIR could alter or modify the terms of an existing agreement during the life of the agreement, any more than either party could unilaterally do so.

Id. at 32.

Exhibits 23 and 23a were offered by Petitioner to show that, notwithstanding the reduction in contract days, the teachers worked more annual hours than is prevalent and their base salary should be determined by an adjustment to annual hours rather than contract days. While we hold that these exhibits are admissible under Section 48-818, they are not helpful in this case because the parties did not negotiate their contracts on the basis of annual hours (T167: 4-10). In Farnam Education Association v. School District No. 51 , 8 CIR 298 (1986) we were faced with the issue of adjusting to annual hours rather than contract days and held that we would continue to use contract days in teacher cases until the parties began to negotiate annual hours. Applying the ruling of Farnam , we have determined to adjust to 182 contract days in this case.

Table 3 sets out the overall compensation data on the Commission's array. Applying the statutory criteria of Section 48-8l8 to the evidence in this case, we find the l987-88 school contract year base salary for Stapleton teachers to be $l4,100.


1. That the base salary amount for School District of Stapleton shall be $l4,100, effective for the l987-88 school contract year.

2. That sick leave accumulation shall be 34 days.

3. That all other terms and conditions of employment for the l987-88 contract year shall remain as established by agreement of the parties.

4. That any adjustments in compensation resulting from the final order in this matter shall be made by payment of a single sum with a payroll check issued next following the entry of the final order.

Thom K. Cope, Dissenting:

I respectfully dissent.

The evidence is clear that the teachers in this case would not have signed the addendum to l82 contract days had the Superintendent not represented that the new terms would have no effect. Clearly, the Superintendent represented to the teachers that this change would have no effect on the teachers' contract negotiations. This was his intent; it was the teachers' intent.

Now the School District wishes the Commission to use the l82 contract day provision, and it does in fact have a negative impact on the teachers. Therefore, I find that there was no meeting of the minds on the l82 contract days and that the Commission should use l85 contract days in resolving this case.

I am mindful that we have said in the past, and the Supreme Court in Transport Workers of America v. Transit Authority of the City of Omaha , 205 Neb. 26, 286 N.W.2d l02 (l979), held that the Commission lacks jurisdiction to interpret a contract. However, it would indeed be an anomaly if the Commission would accept terms and conditions of a "purported" contract, when no contract exists. To this end, it is my opinion that the addendum of l82 days is not valid because of the misrepresentation of the Superintendent. Clearly, the teachers would not have agreed, but for the Superintendent's misrepresentation. That is not to say that it was an intentional misrepresentation. Nonetheless, it misled the teachers into agreeing to something to which they had no duty or obligation to agree. Thus, I believe we can determine if a contract exists. State Troopers Association of Nebraska v. Nebraska State Patrol , 8 CIR 323 (l986).

Because the addendum to l82 contract days does not, in the first instance, have the necessary elements of a contract, the Commission is not interpreting contract provisions. I would find that the l85 contract day provision is not modified and that we should use that provision in deciding this case.

Entered June 1, 1988.