11 CIR 237 (1992)


ASSOCIATION, An Unincorporated |
Association, |
Petitioner, |
NO. 0002, a/k/a SCHOOL DISTRICT |
Political Subdivision of the |
State of Nebraska |


For the Petitioner: Mark D. McGuire

Crosby, Guenzel, Davis,

Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska 68508

For the Respondent: Bruce L. Wright

Cline, Williams, Wright

Johnson & Oldfather

1900 FirsTier Bank Building

Lincoln, Nebraska 68508

Before: Judges F. Moore, Kratz and Flowers


The Grand Island Education Association filed a Petition on August 15, 1991 for a resolution of an industrial dispute pursuant to Section 48-818. The year in dispute is the 1991-92 school year. Hall County School District No. 0002 is a Class III school district employing 514 teachers with a 1991-92 enrollment of 7,271 students. There were three joint motions filed for extension of time and one additional motion filed by the respondent which were all granted by the Commission with the hope that the parties could reach a settlement. The pretrial conference was held on January 15, 1992 and the trial, originally scheduled for February 20, 1992, had to be postponed twice due to illnesses. The trial finally took place on March 20, 1992. The issues presented by the petitioner (also referred to as Association) and the respondent (also referred to as School District) at pretrial include base salary, composition of array, salary schedule, distribution of benefit dollars, annual sick leave, number of days of employer paid personal leave, amount of planning time for teachers in elementary grades, and a written document reflecting the agreement of the parties for all other terms and conditions of employment. At the trial, the parties stipulated that planning time was no longer an issue.


The Association seeks relief and the Commission has jurisdiction over the dispute pursuant to Neb. Rev. Stat. § 48-818 which, in relevant part, provides:

Except as provided in the State Employees Collective Bargaining Act, 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. 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 parties offered in common the school districts of Kearney, Fremont, and Norfolk. In addition, the petitioner offered Bellevue, Papillion/LaVista (hereafter referred to as Papillion), and North Platte while the respondent offered Hastings, Columbus and Beatrice. The parties stipulated to the similarity of work, skill and working conditions for the school districts of Kearney, Hastings, North Platte, Norfolk, Fremont, Beatrice and Columbus, while reserving the issue of whether or not these districts should be included in the Commission's chosen array.

The parties to this action are in disagreement as to the appropriate methodology the Commission should use in choosing the array in this action. The petitioner asserts that its proposed array was chosen by use of the objective criteria of enrollment and geographic proximity. The respondent, on the other hand, argues that this is an appropriate case to use subjective factors of comparability in choosing the most appropriate array. The parties to this action offer substantial evidence in support of their respective arrays.

In Genoa Education Association v. Nance County School District No. 0003 , 10 CIR 179 (1989), the Commission discussed the evolution of criteria utilized by the Commission in choosing a comparable array in setting wages, terms and conditions of employment for teachers. In Genoa , the Commission held that in choosing comparable school districts, the Commission will consider size and geographic proximity and then, if necessary, look to other discretionary indications of comparability. See , School Dist. of West Point v. West Point Educ. Ass'n , 8 CIR 315 (1986). As quoted in the Genoa opinion, the Commission, in Schuyler Education Association v. School District No. 123 , 8 CIR 331 (1986), held that:

Discretionary indications of comparability such as athletic conference membership and community of interest demonstrated by athletic and non-athletic contacts will be considered to the extent they are related in the evidence to work, skills or working conditions. The weight to be given to such discretionary indications of comparability must rest within the sound discretion of the Commission in applying its expertise to the evidence before it.

Schuyler , 8 CIR at 334. The array determination under Section 48-818 is a factual question that depends entirely on the evidence presented.

These parties were previously before the Commission in 1987, seeking a determination of wages and terms and conditions of employment for the 1986-87 school contract year. In that case, the parties also agreed on the inclusion of Fremont, Kearney, and Norfolk in the Commission's array. The petitioner proposed, in addition, the school districts of North Platte, Lincoln, Millard, and Bellevue. The respondent proposed the additional school districts of Beatrice, Columbus, and Hastings. As was true in 1987, Grand Island continues to present unique problems in array determination as there is a lack of school districts which are in close geographic proximity that meet the size criteria of having enrollment from one-half to twice as large as Grand Island. Therefore, as in the previous Grand Island opinion, we believe it is appropriate to turn to evidence of subjective, discretionary indications of comparability. While the petitioner, as previously noted, is requesting the Commission utilize only the size and geographic proximity criteria in this case, it nevertheless offered evidence regarding community of interest and contacts among its proposed array members.

In deciding this case, the Commission is cognizant of the fact that the use of one array in a particular case does not require that it be used in a subsequent case involving the same parties. Omaha Police Union v. City of Omaha , 11 CIR 114, 120 (1991). As in any case, the determination of the appropriate array depends upon the evidence presented in that particular case. It is interesting to note in this case that the petitioner raised the issue of predictability in the determination of the array, by asserting that "strict compliance with the prior long-standing rule of the Commission of size and geographic proximity," (T4:24-5:1) will serve the public's interest in predictability by assisting school districts to negotiate agreements with their teachers. (T5:15-24). As a counter-argument, the respondent submits that if predictability is the goal, we ought to use the array that the Commission determined to be appropriate in the 1987 opinion. While the Commission is required to decide the appropriate array in this case based upon the facts presented by the parties at trial, the Commission in this case does find that the reasoning contained in the 1987 Order regarding the array selection is sound and will be followed, where appropriate.

In addition to the common school districts, the petitioner has asked us to include North Platte, Bellevue and Papillion in the array. Inclusion of North Platte in the array is appropriate in this action. While North Platte is located a substantial distance from Grand Island, it remains well within the Commission's size criteria and has numerous contacts shown on Table 1. The parties have stipulated that the work, skill, and working conditions at North Platte are similar to Grand Island and the respondent has conceded that, if the Commission desires to use an array of more than four schools, North Platte would be appropriate for inclusion.

The issue of whether Bellevue should be included in the array was the subject of considerable debate in this case and requires more thorough consideration by the Commission. The parties did not stipulate to the similarity of work, skills, and working conditions for the Bellevue teachers. The petitioner's evidence on this issue consisted of testimony by its expert, Mr. Kriha, to the effect that the State's activity in controlling teacher training, certification, and accreditation creates similarities in work, skill, and working conditions in the State for all teachers. In addition to this general testimony, the petitioner asserts that additional similarities exist between Grand Island and Bellevue due to similarities in the length of teacher day, number of classes per day, length of high school and junior high classes, life insurance, long term disability insurance, sick leave, and board policies establishing early retirement, grievance procedures, professional growth, and reduction in force.

While the Commission did find in Richland Teachers Education Association v. Colfax County School District No. 0001 , Case No. 833 (Findings and Order entered March 11, 1992), that the association met its burden of proving the requisite similarity among its array by virtue of Mr. Kriha's testimony concerning similarity of work, skills, and working conditions based upon statewide control of teacher training, certification, and accreditation, there was very little rebuttal evidence presented in Richland to dispute this testimony. In contrast, the respondent in the instant action presented considerable evidence regarding the dissimilarities between Bellevue and Grand Island. Bellevue is a part of the Omaha metropolitan area, with a total population exceeding 600,000. As pointed out by the respondent, Bellevue is not a community with a separate and distinct identity, as is Grand Island. The Bellevue School District is closely connected with the Strategic Air Command Base, with sixty-five percent (65%) of its students thereby "federally connected" and seventy-five percent (75%) of its student population coming from outside the State of Nebraska or from foreign countries. (T393:8-17, T399:10-15). Further, Bellevue Public Schools is a more culturally diverse school district than the Grand Island Public Schools, having a significantly higher minority population. (T344:4-8). The investigation conducted by Dr. Plugge, assistant superintendent at Grand Island Public Schools, revealed a great deal of mobility among Bellevue students, with twenty percent (20%) new students every school year. (T344:9-18). Gary Krallman, administrative assistant to the superintendent at Bellevue Public Schools, further testified as to the effect of this high turnover upon the classroom teachers at Bellevue. (T397:7-399:9). Additional evidence was presented regarding the unique programs and curriculum at Bellevue Public Schools, designed to meet the needs of the community, including ROTC, day care, elementary computer labs, elementary foreign language, extensive, free summer school, and evening and weekend remedial class offerings. Bellevue is a member of an organization called Military Impacted School Association, which coordinates curriculum, testing, and graduate requirements with other school districts throughout the United States and in foreign countries which serve military bases. (T344:24-345:16). Bellevue Public School receives Federal Impact Aid which, according to the testimony of Mr. Krallman, amounted to one-third (l/3) of the annual budget for the Bellevue Public Schools. In addition, Bellevue's per-pupil cost is significantly higher than Grand Island's.

With respect to its teachers, Bellevue Public Schools actively recruits minority teachers and recruits a substantial percentage of its teachers from outside the State of Nebraska. Considerable evidence was presented by the respondent concerning the issue of labor markets as it relates to the pool of applicants that each school district uses in recruiting or hiring teachers. We have heard evidence in prior cases regarding the importance of labor markets from both labor ( See Papillion-LaVista Educ. Ass'n v. School Dist. of Papillion-LaVista , 10 CIR 18 (1988)) and management ( See City of Omaha v. Nebraska Pub. Employees, Local No. 251 , 10 CIR 191 (1990)), and find that it is an appropriate consideration in this case.

The greater weight of the evidence presented at the trial supports the conclusion that there are significant differences between the Bellevue Public School District and the Grand Island Public School District, which differences affect the work, skills, and working conditions of the teachers. The evidence further reveals very few, if any, contacts between these school districts. For these reasons, Bellevue shall be excluded from the array in this action.

We next turn to the issue of inclusion of Papillion in the array. The Commission has ruled that it cannot use a school district if the placement of teachers on its schedule is discretionary or can not be known. See Nickerson Educ. Ass'n v. Dodge County School Dist. No. 0019 , 11 CIR 159 (1991); Genoa , 10 CIR 179 (1989). Petitioner's expert placed the Grand Island teachers on the Papillion schedule in reliance upon the assistant superintendent's, Mr. Herfkens, response to placement in its survey. The survey question asked how much outside experience Papillion allows and the answer on the survey was "up to 4 steps". The evidence at trial, however, revealed that this answer alone did not relate the entire policy for crediting teachers with outside experience coming into the Papillion district. What was not known to petitioner was that the Papillion district followed an unwritten, discretionary policy of taking the total years of outside teaching experience, dividing it by two and then giving up to four years credit. For example, if a teacher taught an odd number of years, such as 1, 3, 5, or 7, the resulting l/2 fraction was rounded either up or down depending upon certain criteria that Mr. Herkens then used. Since the Petitioner was apparently unaware of this portion of the Papillion "credit" policy, its placement of the Grand Island teachers on the Papillion schedule was incorrect. It is impossible for the Commission to arrive at the correct placement without having knowledge of how each teacher's experience fits in with Mr. Herfken's criteria and how he would have applied that criteria. While the Commission does not fault the petitioner for having incomplete knowledge of Papillion's placement policies, to utilize the petitioner's placements on the Papillion schedule would result in the misplacement of a substantial number of teachers.

Petitioner argued at trial and in its brief that even though its placement on the Papillion schedule may be incorrect, it used the most conservative approach it could have and, therefore, if anyone would be hurt by this misplacement it would be the Association. While there might be some merit to this theory, we are not convinced that the most conservative approach was used. According to the testimony of Mr. Kriha, in placing the Grand Island teachers on the Papillion schedule, he routinely approached the rounding process for a teacher with a half year credit by dropping the half year off and not moving that teacher up another whole step on the schedule. (T74:13-21). However, by his own admission, he did not follow the practice of first dividing the full outside experience in half. (T75). Accordingly, there is no evidentiary basis to support the claim that the most conservative approach was used.

Given the foregoing uncertainties, the Commission is not convinced that it should deviate from its previously announced policy that teachers are to be placed on proposed array member schedules according to the policies and procedures of the array district in order that an accurate compensation figure can be determined. Genoa , 10 CIR at 186; Nickerson , 11 CIR at 162-163. To utilize the petitioner's placement on the Papillion schedule would require the Commission to make assumptions not supported by the evidence and would quite possibly result in the inaccurate placement of many teachers. For this reason, Papillion must be excluded from the array.

While the respondent did not present as substantial evidence to rebut the similarity of work, skills, and working conditions between Papillion and Grand Island, as it did with respect to Bellevue, we find that Papillion should be excluded from the array for the additional reason that the evidence presented at trial does not convince the Commission that Papillion is similar enough for inclusion in the array. Like Bellevue, Papillion is part of the Omaha metropolitan area, is not in Grand Island's labor market, has very few contacts with Grand Island and is geographically distant.

In the prior Grand Island decision, we were asked by the respondent to include Beatrice, Columbus and Hastings, just as we have been in the case at bar. Each of these school districts is less than l/2 the size of Grand Island, as was true in 1987. In the prior decision, we included Hastings but excluded Beatrice and Columbus, for the reasons that Hastings was the largest of the three, was in close proximity to Grand Island and had many contacts. Since that 1987 decision, Table 1 shows that Columbus has increased in size over Hastings. Both schools continue to have numerous contact with Grand Island. Beatrice is the smallest in size with less than l/3 the enrollment of Grand Island and has fewer contacts than either Hastings or Columbus. We find that Hastings and Columbus should be included in the array and that Beatrice should be excluded. Although Hastings and Columbus also fall outside the Commission's size criteria, the variance is not great and the Commission remains flexible in applying this objective criteria. Further, if we were to eliminate Hastings, Columbus and Beatrice on the size criteria, we would be left with an array of four and we have specifically expressed a preference for an array larger than four when possible. Papillion-LaVista , 10 CIR at 20.

The Commission finds that a suitable array for comparison in this case consists of Columbus, Fremont, Hastings, Kearney, Norfolk and North Platte.


While the Commission often refrains from altering salary schedules, it will do so if there is a substantial variance from the prevalent. See Crawford Teachers Ass'n v. Dawes County School Dist. No. 0071 , Case No. 827 (Findings and Order dated December 10, 1991); Genoa , 10 CIR 179 (1989). Presently, Grand Island has an MA+54 column and a Ph.D. column. Table 2 reveals that this is clearly not a prevalent practice. The respondent wants us to eliminate these two columns and the parties have stipulated at trial that if this is done, an MA+45 column should be added with a 5% horizontal increment. The Commission finds that the MA+54 and Ph.D. columns should be eliminated and an MA+45 column should be added with a 5% horizontal increment (keeping the present 4%, 6% vertical increments found on the other steps). When this is done, the Commission finds that the new salary staff index factor to determine base salary should be 800.695. This is .15 higher than the staff index factor indicated in respondent's Trial Brief. In reviewing the respondent's figure, it does not appear to take into consideration the three teachers who are presently on the MA+36 column (Campbell, Rupprecht, and Shields) who would move up to the new MA+45 column.


Presently, the Grand Island teachers do not receive separately stated dollars for fringe benefits but rather it is included in their base salary. The total compensation pot is divided by the staff index factor so that the fringes are distributed on the salary schedule. A teacher who is on the upper end of the salary schedule would, therefore, receive proportionately more for fringes than would a teacher lower on the schedule. The teachers have an IRS Section 125, flexible cafeteria plan from which they can choose several insurance benefit options, including a cash option.

The respondent requests that we eliminate this practice of adding insured benefit dollars to the base salary and, instead, direct that benefit dollars be distributed on a flat-dollar, across-the-board basis, while the petitioner wants this practice to remain unchanged. Examining respondent's exhibit 37, the Commission finds that the clearly prevalent practice is for a flat dollar distribution of fringe benefit dollars. Petitioner, in its brief, argues that 45% of the teachers do not take health insurance through the Section 125 plan and use it for other purposes and that the teachers would be further hurt by changing to a flat dollar benefit amount. Since the Section 125 plan provides a cash benefit option, we fail to see how the teachers could be hurt by this change in distribution of dollars since they can still receive cash, just as they would if it were included in their base salary.

The respondent sets forth three different ways that the Commission could make this distribution: l) to provide for distribution of the amount that represents the lowest amount paid by any of the districts; 2) to use the average of the minimum dollar amounts paid by the districts; and 3) to use the midpoint total insured benefit dollars from respondent's exhibit 31. The respondent prefers the third method and so does the Commission. It is the only method that takes into account all of the fringes offered at the other schools, whereas the first two methods only consider health insurance.

Table 5 discussed later shows the midpoint total fringe benefit dollars to be $1,729,984. When this number is divided by the FTE at Grand Island, 504.26, the result is $3,431 rounded to the nearest dollar per FTE. The Commission finds that $3,431 per FTE is the prevalent amount of dollars for the respondent to contribute to the IRS Section 125 cafeteria plan.


Grand Island presently allows its teachers to earn 10 days of sick year per year for the first ten years and then 70 days per year thereafter. Table 3 indicates that this is clearly not prevalent. Respondent asks us to reduce the number of earned sick days to 10 per year. Five out of the six school districts allow 10 days or fewer. The Commission finds 10 days of sick leave per year to be the prevalent.


Grand Island teachers presently receive two days of personal leave, one day with no reasons and one day with reasons. Petitioner wants the Commission to add one sub-deduct personal day, which is a personal day off but the teacher has to pay for the cost of hiring a substitute teacher. Petitioner's witness testified that the practice of a sub-deduct personal day was not prevalent (T142:6-17) in its array. Table 4 clearly shows that the prevalent practice among the chosen array members is two days of personal leave so this benefit shall remain unchanged.


At the trial, petitioner's expert witness testified that it would like the Commission

to direct the parties to -- once the order is finalized and becomes a final order, that the contents of the order and those other terms and conditions which have been previously negotiated and are not at issue before the commission, be compiled into a written -- a single written document and then authorized by both parties. And I guess we would we would [sic] ask the Commission to retain jurisdiction over that issue until such time as that document is prepared and signed by both parties.

(T88:11-21). This issue was not further discussed at trial by either side. To further confuse things, the respondent's brief asserts that what the petitioner really wants is a bargaining order to negotiate all matters not resolved. However, the only evidence we have of what is meant by a "master contract" is what the petitioner's expert stated at trial as quoted above; that is, items already negotiated.

It appears to us that if the Commission were to grant petitioner's request, it would be similar to ordering the parties to enter into a contract, which is expressly forbidden by Neb. Rev. Stat. § 48-810.01 (1988). The Supreme Court has affirmed the notion that the Commission's orders are not designed to force a school district to enter into a contract but rather are a way for the Commission to exercise its power to settle an industrial dispute. School Dist. of Seward Educ. Ass'n v. School Dist. of Seward , 188 Neb. 772, 199 N.W.2d 752 (1972).

There have been cases in the past where the parties have reached agreement in a wage case either before or during the trial and have jointly asked the Commission to incorporate the parties stipulated settlement agreements into our Order, which we have done. In the case at bar, we have no such joint agreement. Also, in most school teacher wage cases, the parties stipulate in the Pretrial Conference Order that all other terms and conditions of employment not at issue shall be as previously established by the agreement of the parties. No such stipulation was entered into in this case.


Table 5 sets forth the total compensation figures for the schools in the Commission's array, adjusted for differences in contract days where necessary. Taking the determined prevalent figure of $3,431 per FTE for the distribution of benefit dollars times FTE at Grand Island, we arrive at a total for distribution dollars of $1,730,116 (which is slightly different from the amount mentioned above under "Distribution of Benefit Dollars" but that is due to our rounding to $3,431). Subtracting out this midpoint total benefit dollars from the midpoint total compensation of $16,523,208 and dividing by the new staff index factor of 800.695 gives us a base salary of $18,475.00 which the Commission finds to be the base salary for the 1991-92 school year.


1. The base salary for the teachers of Hall County School District No. 02 shall be $18,475.00.

2. The MA+54 and Ph.D. columns be eliminated and an MA+45 column be added with a 5% horizontal differential (keeping the present 4%, 6% vertical increments found on the other steps).

3. The benefit dollars be paid on a flat dollar per FTE basis of $3,431 per FTE.

4. Annual sick leave be earned at the rate of 10 days per year.

5. If wage increases occur as a result of this order, amounts attributable to pay periods ending prior to the date of the order will, subject to applicable withholding, be paid in a lump sum on or before the pay day next following the date on which the order became final and nonappealable. If wage decreases occur as a result of this order, wage adjustments shall be implemented by adjusting the wages of affected faculty for the balance of the year to take into account such decreases and employees will not be required to make direct cash reimbursements for excess amounts received prior to the date of the order.

6. All other terms and conditions of employment are not effected by this order.

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

Entered May __, 1992.