10 CIR 29 (1988)


An Unincorporated Association, |
Petitioner, |
STATE OF NEBRASKA, A Political Sub- |
division of the State of Nebraska, |
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 and Harding

l200 N Street, 500 The Atrium

P.O. Box 82028

Lincoln, Nebraska 68508

Before: Judges Cope, Mullin, and Kratz



The petition of the Culbertson Education Association requests the Commission to establish terms and conditions of employment for the l987-88 contract year at the School District of Culbertson. Culbertson is a Class III school district which employs 24 full-time teachers and two part-time teachers. It has a student enrollment of 286 for the school year l987-88. A pretrial conference was held on April ll, l988 where the issues were identified as being array, base salary, structure of index salary schedule, Blue Cross-Blue Shield health insurance coverage, personal leave provisions, sick leave bank and hours for advancement on salary schedule. At trial, it was stated that the parties no longer had a disagreement over sick leave bank.


The Commission has jurisdiction over the parties and the subject matter of this action. The controlling statute is 48-8l8, R.R.S. l943 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.


All of the Petitioner's array was in common with the Respondent's array: Cambridge, Dundy County, Hayes Center, Maywood, Medicine Valley (Curtis), Republican Valley, Stratton, Trenton, and Wauneta. In addition to the common, the Respondent also presented the school districts of Arapahoe, Beaver City, Wallace and Wheatland. At the 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 Culbertson employment to allow a comparison of terms and conditions of employment under Section 48-8l8 and the parties also agreed that the Commission could use their previously announced criteria in limiting the number of comparisons to be made. Using Petitioner's Exhibit 2, the Commission notes that all of the proposed school districts are Class III's except for Respondent's school districts of Wheatland and Wallace and the common array member of Stratton. Information on each proposed array member is set forth in 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). Since the Commission has recognized that all schools are somewhat comparable and all working conditions are somewhat similar, the Commission, in determining its array, looks at the most comparable schools and most similar working conditions. Tekamah-Herman Education Ass'n v. School District of Tekamah-Herman , 9 CIR 78 (l987), Wood River Education Ass'n v. School District No. 83 , 2 CIR ll5 (l975).

After considering all the evidence of comparability provided by the parties, we find that the following school districts are sufficiently similar and have enough like characteristics and qualities to make comparison appropriate in this case: Arapahoe, Beaver City, Cambridge, Dundy County, Hayes Center, Maywood, Medicine Valley (Curtis), Republican Valley, Stratton, Trenton, and Wauneta. This array consists of the nine common school districts plus the Respondent's school districts of Arapahoe and Beaver City. We have included Beaver City and Arapahoe because we have found that both are comparable in size and geographically proximate. We have included the common array member of Stratton, which is a Class II school because, each of the parties included it in their array.


The Petitioner has asked that the Commission add one more step to each of the presently existing columns at Culbertson - BA, BA+9, BA+l8, BA+27, MA and MA+l8. The Respondent asks that we make no changes in the salary schedule and argues that adding steps raises the total staff index factor and thus lowers base salary, affecting the school district's ability to attract new teachers to Culbertson, which may be at a disadvantage because of its rural character. The school board's philosophy is to keep as high a base salary as possible so that, should the need arise to hire, they would have both more applications and better qualified applicants. Table 2 shows the number of steps at each of the school districts in our array.

The Commission has frequently favored the position that changes in salary schedules are best left to the negotiation process, due in part to the varying effects of different schedules upon teachers in the bargaining group. Valentine Education Ass'n v. School Dist. No. 6 , 8 CIR 27l (l986); West Holt Faculty Ass'n v. School Dist. No. 25 , 5 CIR 30l (l98l). However, where the evidence indicates that parties have bargained over the salary schedule issue and have been unsuccessful in reaching agreement, the Commission has settled the dispute based on the prevalent of the array. Juniata Education Ass'n v. School Dist. No. l , 9 CIR l73, l76 (l987).

The district filled one opening in l987-88 and two or three openings in l986-87 with a lower base salary than is presently being paid. The superintendent testifed that they had no problem hiring for those positions, with 5 or 6 applicants for the late resignation position opening in '87-88 and l7 or l8 applicants for the '86-87 openings, although he felt that the number of applications received was inadequate to be assured of receiving well-qualified applicants. However, a low number of applicants can occur for other reasons besides low base salary, such as the nature of the subject taught and other qualifications needed; as in the case of the l987-88 late resignation, the opening was for someone qualified to teach high school social science and who was a qualified coach.

The evidence in this case shows that the teachers bargained over additional steps in the '87-88 negotiations and in prior years as well to no avail. The Association is aware that added steps will lower the base salary, and be advantageous to certain teachers, but that is their desire nonetheless. In addition, the Superintendent testified that there are no plans to hire anyone for the l988-89 contract year, even for the one teacher who has been terminated because of a reduction in force. Thus, the argument that the district must maintain the present schedule in order to keep the base salary higher for hiring purposes is without merit.

Culbertson's index factors of 4 x 4 are prevalent in the array. To make the number of Culbertson's steps comparable to the prevalent, we find that there needs to be an additional step added to the BA, BA+9, BA+l8 columns.


The Petitioner would like us to order the school district to pay 'full single and full family health insurance', without specifying any specific amounts. Presently, the school district is paying $66.5l for single and $l80.48 for dependent per month, which was the l986-87 premium rate. The Respondent stated at trial that they would be willing to pay $70.43 for single and $l90.95 for dependent coverage per month and make payments to the teachers to the extent the school district underpaid these amounts during the school year (T77:l-ll). However, the district does not agree with language saying 'full single and dependent' without dollars specified. Table 3 shows the dollar amounts which are prevalent and we find that the Respondent should pay $70.43 per month for single and $l90.95 per month for dependent. The district should also pay to the teachers any amounts which were underpaid during the school year. In determining base salary, the Commission uses these amounts and recalculates fringe benefits to be $47,277.72.


The Petitioner requests that the personal leave provisions of one day earned per year with total accumulation of two days be changed to two days earned per year with no accumulation. The Petitioner's and Respondent's figures for personal leave differ in many respects. Whereas the Petitioner consistently says there is no accumulation at the common array points, the Respondent lists days of total accumulation. For total accumulation amounts, the Petitioner's exhibit relies upon the NSEA annual research survey while the Respondent's exhibit relies upon the negotiated agreements and responses to its questionnaires. However, neither parties' questionnaire asks whether personal leave can be accumulated and many of the negotiated agreements do not have any language pertaining to accumulation. Those that do address accumulation consistently say there is no accumulation. The data supports Petitioner's contention that there is no accumulation. Table 4 clearly reveals the finding of the Commission that two days of personal leave per year with no accumulation is the prevalent.


In its Answer, the Respondent asks the Commission to order "that advancement on the salary schedule for educational attainment be limited to graduate hours in a master degree program or such other hours as are approved by the school administration and board of education as being beneficial for the school district." There was no exhibit summarizing the various policies at the schools. We do, however, have the contract language and surveys. Respondent's Exhibit 5 states that at Culbertson all hours beyond BA+9 must be applied on a masters program or have prior board approval. The first nine hours must be graduate hours, with the exception that they may be undergraduate hours in their field with board approval. It appears to the Commission that what the Culbertson school district is asking for is something that they already have, with one minor exception - that, at present the first 9 hours beyond the Bachelors do not have to be in a masters degree program.

In looking at the contract language and the surveys of the other districts, it appears that Culbertson is at least as restrictive if not more restrictive than the comparable districts. For many of the other districts, their language merely says the hours have to be graduate hours or in their instructional area - not necessarily in a program. We find that the presently existing condition of employment at Culbertson for advancement on the salary schedule is prevalent and so we make no change.


Before we can determine the appropriate base salary, we must settle a disagreement between the parties over the placement of two Culbertson teachers on the salary schedules of our array members. Two teachers at Culbertson, previously frozen on the BA+l8 column, received additional education over the summer and moved from Culbertson's BA+l8 to the BA+27 column for the '87-88 contract year. At the school districts of Arapahoe, Beaver City, Cambridge, Republican Valley and Trenton, there is a two step vertical difference when going from the BA+l8 to the BA+27 column and there is a conflict over where these teachers should be placed on the schedules of these schools. The other schools' schedules only increase by one step when going from BA+l8 to BA+27.

Respondent's salary survey asks the question "Number of steps a teacher may move vertically on the salary schedule in one contract year" to which the response in all cases was "l". Therefore, in placing these two teachers who had been frozen at the bottom of Culbertson's BA+l8 column, the Respondent moved them horizontally to the next column but only advanced them down one step, rather than two steps to the bottom of the column based on their years of experience, as did the Petitioner.

Petitioner claims that Respondent's survey question is misleading and does not really ask what it intends to ask. Petitioner's rebuttal witness claims that if that information is to be used in the manner Respondent used it, the survey question should ask "if a teacher moves horizontally are they limited in the number of vertical steps that they may move vertically on the schedule" (Tl34:ll-l7). Petitioner's argument is that those responding to the survey are responding in the abstract to someone who is simply moving vertically based on experience and not considering a horizontal movement simultaneously.

While NSEA does not ask a question in its survey regarding limitations on vertical movement, Petitioner's witness testified that the restriction policies should be considered and that he would ask them to supply the agreements to substantiate the answer to the question. Contract language is in evidence for all of the schools in question in our array and all, with the exception of Arapahoe, have language which says vertical movement is limited to one step per year. Arapahoe's contract is silent as to movement, but its survey says they are limited to l vertical step.

We do not determine whether the Respondent's survey question is misleading. The contracts speak for themselves. It is clear that at least to one of the array members, Hayes Center, the question was not asked in the abstract or their answer to that survey question would not have been "one, (Two if BA+9)." Also, the Commission has stated before that the Petitioner has the burden of proof so that when numbers disagree, barring substantiation from other evidence in the record, the Respondent's numbers will be used. Farnam Education Ass'n v. School Dist. No. 5l, of Dawson Co. , 8 CIR 298, 304 (l986); Valentine Education Ass'n v. School Dist. No. 6, Cherry County , 8 CIR 27l, 280 (l986). We follow that reasoning here as well and accept Respondent's restricted vertical placement of these teachers. Table 5 shows a comparison of the Petitioner's and Respondent's staff index factors, along with the index factor the Commission has chosen to use after checking the parties' calculations. For many of the survey points, the parties agreed except for rounding. In these cases, we used Repondent's numbers. Other explanations are offered in the table.

We determine that with the proper vertical movement, and after the additional steps are added, the new staff index factor is 33.864.

There is also a discrepancy over health insurance paid to Culbertson's part-time teachers who receive dependent insurance. At trial, the parties stipulated that Culbertson pays l00% for Wagner and 60% for Lambert, subject to the parties reviewing the billing records to assure accuracy. The parties were given time to confirm to the Commission whether these figures were correct. Having failed to hear from either party, the Commission is accepting their accuracy and the Respondent's calculation for fringes, based on the stipulation, as shown in Respondent's Revised Exhibit 20, dated May l0, l988, submitted after trial.

Table 6 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 Culbertson teachers to be $l4,360.00.


l. That the base salary for the teachers of the Culbertson School District shall be $l4,360.00 for the l987-88 school year.

2. That the structure of the index salary schedule be changed to include one additional step on the BA, BA+9, and BA+l8 columns.

3. That the school district's contribution to health insurance shall be $70.43 per month for single insurance coverage and $l90.95 per month for dependent insurance coverage and that they reimburse the teachers to the extent they have been underpaying for prior months.

4. That there shall be two days of personal leave per year with no accumulation.

5. That all other terms and conditions of employment shall not be effected by this order.

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

Entered June 29, l988.