11 CIR 159 (1991)


Petitioner, |
NO. 0019, a/k/a NICKERSON PUBLIC |
SCHOOL, A Political Subdivision |
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: John F. Recknor

Barlow, Johnson, DeMars & Flodman

1227 Lincoln Mall

P.O. Box 81686

Lincoln, Nebraska 68501

Before: Judges V. Moore, F. Moore, and Kratz



A Petition was filed by the Nickerson School Education Association on March 7, 1991, seeking to have the Commission establish the base salary for the three full-time teachers employed by Dodge County School District No. 19 ("Nickerson"). The year in dispute is the 1990-91 contract year. Nickerson is a Class I school district with a 1990-91 enrollment of 44.


The Commission has jurisdiction over this industrial dispute pursuant to Neb. Rev. Stat. section 48-818 (1988) which, in relevant part, provides:

[T]he 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. 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. . . .


Petitioner and respondent both offered Dodge County No. 92 and Platte County No. 84 as array members. Petitioner also presented the school districts of Adams County No. 15, Hall County No. 12, Hall County No. 28, Howard County No. 67, Lancaster County No. 153, Saunders County No. 11, Saunders County No. 14, and Thayer County No. 26. Respondent's additional array members are Buffalo County No. 15, Cass County No. 28, Dodge County No. 49, Dodge County No. 93, Johnson County No. 10, Otoe County No. 78, and Saline County No. 163. Table 1 sets out the relevant information on the proposed array members.

Petitioner and respondent each used different methods for selecting their proposed array members. Petitioner's criteria included geographic proximity, student enrollment of no more than twice as large nor half as small as the enrollment of Nickerson, class one school districts, whether the school contracted for any special services or it had any on-staff specialists, structure of the salary schedule, length of the teacher day, number of contract days, pupil/teacher ratio, paid sick leave, and paid personal leave. Respondent selected school districts which had student populations of no more than twice nor less than half the student population of Nickerson, which were in the eastern half of the State of Nebraska, and which were class one districts.

The parties did not stipulate that the work, skills, and working conditions of the noncommon array members were sufficiently similar to satisfy the standards of Neb. Rev. Stat. section 48-818, and petitioner objected to the offer into evidence of respondent's noncommon array members. Petitioner argued that respondent did not establish the similarity of work, skills and working conditions of these array members. However, petitioner's expert witness, Jerry Kriha, testified that the work, skills and working conditions for teachers across Nebraska tend to be similar, and no rebuttal evidence was presented to the contrary.

According to Kriha, work skills are standardized by the State Board of Education because its requirements are applied to all public schools. To receive a teacher certificate, all prospective teachers must meet the requirements established by the State Board of Education, and to continue to teach, all teachers must comply with the continuing education requirements common to all public school teachers in the state. T18:6-25;T21:1-4.

Kriha further testified that working conditions are standardized due to the accreditation standards developed by the State Department of Education, and adopted by the State Board of Education. T21:5-25; T23:1. Working conditions are also similar because most public schools teachers work between 180-185 days from late August to late May, are paid off the basis of an index salary schedule which recognizes years of experience and graduate hours, and the continuing employment relationship of teachers is governed by state statutes. T23:2-25; T24:1-17. Kriha's testimony and respondent's exhibits provided sufficient evidence for respondent to meet its section 48-818 burden so the Commission can at least consider respondent's array members.

Of the three full-time teachers employed at Nickerson, one was hired two years ago. At the time Heideman was hired, she had fifteen years of prior teaching experience, and the Nickerson School Board credited her with five years of experience for purposes of placing her on their salary schedule. Some schools have an established policy they use when determining the amount of prior teaching experience to credit a newly hired teacher with for purposes of placement on the salary schedule. Other schools do not have an established policy, but instead allow the board to use its discretion.

In the case at bar, the parties could not agree as to the placement of Heideman on the salary schedule of the proposed array members which did not have an established policy regarding such placement. The parties presented a total of five array members which allow the board to negotiate or use its discretion when determining the amount of credit to give to teachers with prior teaching experience. These array members are Adams County No. 15, Howard County No. 67, Dodge County No. 92, Thayer County No. 26, and Otoe County No. 78. Petitioner advocated giving Heideman the same experience granted to her by the Nickerson School District. Respondent, on the other hand, stated that there is no way to know the amount of prior experience a particular school board would credit Heideman with if it had hired her two years ago, and therefore Heideman should not be given any outside credit. Neither party presented evidence as to how much credit these five school districts would give Heideman.

The Commission has held that teachers are to be placed on proposed array member schedules according to the policies and practice of each array member district, and not according to the disputing district's policy. See Genoa Educ. Assoc. v. Nance County School Dist. No. 3 , 10 CIR 179, 186 (1989); District 15 Educ. Assoc. v. School Dist. Number 15 , 5 CIR 347, 350 (1982); Hall County 1-R Teachers Assoc. v. Hall County School Dist. No. 501 , 10 CIR 247, 250 (1990); O'Neill Educ. Assoc. v. Holt County School Dist ., 11 CIR 11, 13 (1990). In O'Neill , the Commission excluded three of respondent's proposed school districts from the final array because, inter alia, "we have no evidence of how much credit [the teachers] would be given for outside experience when placed on the school district's schedules. . . ." O'Neill, 11 CIR at 13. "In every school wage case presented, the Commission must place the teachers in the district at dispute on the salary schedules of the chosen array members in order to make a comparable comparison. In placing the disputing district's faculty on the array member's schedule it is necessary that the Commission follow all of the policies and procedures of the array district in determining proper placement. . . ." Hall County , 10 CIR at 250.

The Commission has no choice but to exclude these five school districts from consideration in the final array. To adopt the position advocated by the petitioner or respondent would require the Commission to make assumptions not supported by the evidence. Such a decision would be improperly based upon speculation or conjecture. See Lincoln Fire Fighters Assoc. v. City of Lincoln , 198 Neb. 174, 252 N.W.2d 607 (1977). In addition, "[i]f the placement of any one teacher is inaccurate, the total staff index factor is inaccurate and the total compensation figure is accordingly incorrect." Genoa Educ. Assoc. , 10 CIR at 186.

For the same reason, the Commission also excludes Dodge County District No. 93, also known as Cotterell. Petitioner pointed out that paragraphs three and seven of the salary survey, exhibit R-18, indicate that raises on the salary schedule are not automatic. T108:15-25; T109:1-7. The salary index is merely a guide, and Cotterell is not contractually bound by the index. T:109:8-25; T110:1-4. Paragraph seven states, "The school board reserves the right to deviate form [sic] the salary schedule." Again, the Commission can only speculate as to where the Nickerson teachers would be placed on this salary schedule.

In addition to the above exclusions, the Commission excludes Buffalo County No. 15 because it is located approximately 148 miles from Nickerson, and there are a sufficient number of comparable school districts that are closer. See Lincoln County Sheriff's Employees Assoc. v. County of Lincoln , 216 Neb. 274, 343 N.W.2d 735 (1984). The remaining school districts range from 14-114 miles from Nickerson.

Kriha testified on behalf of the petitioner that Dodge District No. 49, also known as Uehling, and Johnson County No. 10, also known as Elk Creek, are not comparable school districts because they don't bargain collectively. The Commission has stated in the past that the existence or nonexistence of collective bargaining is not a proper criteria for choosing an array member. "We have never used the existence or nonexistence of collective bargaining as a criterion for choosing an array member. . . ." Local Union No. 647, Int'l Assoc. of Firefighters v. City of Grand Island , 9 CIR 43, 49 (1987).

Although the Commission will not exclude Uehling based on its lack of collective bargaining, we will exclude it because its salary schedule has only two horizontal columns, BA and BA+9. Kriha testified that a school with such a limited salary schedule does not reward its teachers for additional education and skills. T65:7-11. Thus, the conditions at Uehling are not similar to the conditions at Nickerson. T105:2-6.

Petitioner and respondent stipulated that the work, skills and working conditions of the teachers employed by the two common array members are sufficiently similar to satisfy the standards set forth in Neb. Rev. Stat. section 48-818. One common array member, Dodge County No. 92, was excluded above. However, the other common array member, Platte County No. 84, is included in the Commission's array since the parties stipulated as to the comparability of this school district, and it fits the Commission's guidelines of size and geographic proximity. See Lynch Educ. Assoc. v. Boyd County School Dist. , 11 CIR 25, 27 (1990).

The parties each offered slightly different salary schedules for Platte County No. 84. Petitioner's exhibit 20 indicates that Platte County has a BA+36 column in addition to an MA column, and the salary index increases by 4 percent as a teacher moves vertically and by 3 percent as a teacher moves horizontally. Respondent's exhibits R-9 and R-21 contain only an MA column, and the salary increases by 4 percent vertically and by 2 percent horizontally. The Commission chooses to rely on petitioner's exhibit 20. Exhibit R-21 has a large X across the salary schedule which was brought out at trial, but left unexplained by respondent. In addition, petitioner's salary schedule is supported by a survey which was completed and signed by a Platte County employee and notarized. Exhibit R-21 was taken from Salary Schedules & Fringe Benefits 1990-91 prepared by the NSEA Office of Research. Furthermore, Kriha testified that petitioner's exhibit was correct, and respondent's was incorrect. Again, respondent provided no explanation or evidence to rebut Kriha's testimony.

Petitioner contends that the Commission should use balance as a criteria in selecting its array. An array is balanced when one-half of the array members are larger, and one-half are smaller in size than the disputing district. Some argue that balance corrects the economic differences between large and small school districts. This is based on the theory that smaller schools tend to pay less than larger schools. Others argue that balance corrects the different working conditions of large and small schools. For example, teachers employed by larger schools tend to specialize in a particular curriculum area, and teachers employed by smaller schools tend to teach the whole curriculum of a particular subject.

The Commission will not assume that balance automatically impacts array members as stated above or in some other manner. Absent credible evidence indicating balance is linked to the proposed array members, the Commission will not use it as a criteria in its selection process. In the case at bar, no evidence was presented as to how balance affects the proposed school districts, and, therefore, balance was not a criteria in selecting the array.

The Commission's array consists of Cass County No. 28, Hall County No. 12, Hall County No. 28, Johnson County No. 10, Lancaster County No. 153, Platte County No. 84, Saline County No. 163, Saunders County No. 11, and Saunders County No. 14.


Table 2 sets forth the total compensation figures for the schools in the Commission's array. Where necessary, these figures were adjusted for contract day differences. The Commission finds, based on Table 2, that the base salary for the 1990-91 school year at Dodge County No. 19 shall be $14,775.00.


1. The base salary for the teachers of Dodge County No. 19 shall be $14,775.00.

2. All other terms and conditions of employment shall be as previously established by the agreements of the parties.

3. Adjustments in compensation resulting from the final order rendered in this matter shall be made by payment of a single sum with the next payroll check issued following the final order entered herein.

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

Entered July 8, 1991.

NOTE: Commission took judicial notice of highway map.