11 CIR 286 (1992)


Unincorporated Association, |
Petitioner, |
NO. 0001, a/k/a RICHLAND |
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 68501-1686

Before: Judges F. Moore, Orr, and Kratz


The Richland Teachers Education Association filed a Petition on November 4, 1991 for a resolution of an industrial dispute pursuant to Section 48-818. The year in dispute is the 1991-92 school year. Colfax County School District No. 0001 is a Class I school district employing 7 teachers with a 1991-92 enrollment of 82. 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, employer paid health insurance, salary structure and fringe benefits.


The Association seeks relief and the Commission has jurisdiction over the dispute pursuant to Neb. Rev. Stat. Section 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 St. Libory, Platte Co. #84, Saunders Co. #14, and Saunders Co. #11. The petitioner also offered Chapman, Hooper, Bellwood, North Bend, Platte Co. #24 and Platte Co. #9. In addition, the respondent offered Howard Co. #67, Dodge Co. #93, Dodge Co. #49, Colfax Co. #504 and Otoe Co. #20.

Respondent chose not to call a witness of its own but rather attempted to introduce its exhibits into evidence through petitioner's witness, Jerry Kriha. However, Mr. Kriha was not familiar with how respondent's survey information was gathered and was unable to verify the accuracy of the survey information. Further, since petitioner had not waived foundation on respondent's survey exhibits which it was offering as comparables, except for the common array points, respondent could not lay sufficient foundation for many of its exhibits. Due to the lack of foundation evidence to establish the source and reliability of the information contained on the surveys, the Commission had no choice but to sustain the Petitioner's objection to said exhibits. See Plattsmouth Police Dept. Collective Bargaining Comm. v. City of Plattsmouth , 205 Neb. 567, 288 N.W.2d 729 (1980). The Commission is, therefore, left with considering only the common array points and those additional schools offered by the petitioner.

Table 1 sets forth relevant information on these array members. There was no stipulation prior to trial as to the similarity of work, skills and working conditions. Petitioner's witness testified that there is a system in Nebraska that standardizes teacher training and teacher certification and the witness addressed accreditation standards as well. He testified that the state's activity in controlling teacher training, certification and accreditation creates similarities in work, skill and working conditions in the state for teachers and that the work, skill and working conditions of those in the proposed petitioner's array are similar for comparison to the Colfax School District. Again, the respondent did not present any independent evidence to rebut the similarity of work, skills and working conditions among the petitioner's array members.

The Commission's array shall consist of the common schools of St. Libory, Platte Co. #84, Saunders Co. #14 and Saunders Co. #11 and the petitioner's additional schools of Hooper, Bellwood, Platte Co. #24 and Platte Co. #9. All of these schools are Class I's and fall within the Commission's size guideline of one-half to twice and are geographically proximate to the Colfax Co. School District. We decline to use North Bend and Chapman as they fall outside the size guideline and there is a sufficiently large array without them.

Respondent objected to the inclusion of Hooper because Hooper's contract for placement says "When hired, teachers may be credited with all years of previous experience up to a maximum of five (5) years and placed on the salary schedule accordingly...." Respondent argues that the use of the word "may" makes placement discretionary and argues that we have said that discretionary placement should render an array member non-includable. See Nickerson School Educ. Ass'n v. Dodge Co. School Dist. No. 0019 , 11 CIR 159 (1991). The argument for deleting an array member because placement is discretionary is much stronger in Nickerson . In that case the contract specifically said that the school board could deviate from the salary schedule. In the case at bar, we do not believe that the respondent has sufficiently impeached the use of Hooper and we include it in our array.


Presently, the Richland teachers do not receive health insurance. They receive long-term disability insurance only. The petitioner requests that the Commission add to their fringe benefit package by granting each teacher $200 per month in cash or towards health insurance. Table 2 shows that it is not prevalent to

receive a cash annuity; however, receiving health insurance benefits is prevalent and the Commission finds that the prevalent practice is to pay $153.63 per month towards single and $289.84 per month towards family, prorated per FTE. We find that the respondent should establish single and family health insurance coverage as soon as is administratively possible for these employees and contribute the prevalent amount, prorated by FTE.

Since there have been no prior insurance benefits in place and it is not possible to order the respondent to provide insurance coverage retroactively, it is necessary to determine what to do with the months that have already passed. As was noted by the Commission in the case of E.S.U. No. 12 Educ. Ass'n v. E.S.U. No. 12 of the State of Nebraska , 9 CIR 108 (1987), it is possible to compensate employees who have been forced to obtain coverage with their own resources. The Richland teachers would had to have secured such coverage elsewhere at their own expense or had out-of-pocket expenses for medical care. To make these teachers whole, we find that the school district must, until it can get an insurance plan in place, reimburse these employees for the single or family insurance for any and all months during which said coverage was not provided or is not made available during this contract year. In order to calculate base salary, we have to first allocate an

insurance dollar amount to the fringe benefit pool. Looking at petitioner's exhibit 5-F, 5-G, 5-I, and 5-J, it appears that there are four married teachers (4 FTE) and three singles (2.75 FTE). The prevalent contribution rates multiplied by 6.75 FTE equals $18,982.11 for health insurance for the entire year. This amount should be paid out by the school district in insurance premiums once the insurance program is in place and the balance paid out as reimbursement for the prior months when insurance was not available.


The respondent listed salary schedule as one of its issues. We are unclear as to just what it is about salary schedule that is at issue. Respondent did not offer any summary exhibit on salary schedule that would help define the issue and it had no witness to testify as to what specifically it wanted changed. From the respondent's questioning of petitioner's expert, it appears that respondent's issue is the school district's policy of paying an additional $500 annually to teachers who have two grades with more than 22 students in their classroom. The testimony of respondent's witness revealed that the respondent presently has one teacher that receives this pay. This additional pay can be taken away from her if families move out of the district. In this event, her pay would be prorated for the days that she had the larger classroom size.

Petitioner argued that this additional pay policy wasn't made an issue at pretrial but respondent asserted that this should be considered as a salary schedule issue. The Commission is inclined to agree with the petitioner that this is not a salary schedule issue and should not be included in total teacher compensation, particularly because of its transitory nature. It is similar to an overload pay issue. It does have an economic impact on the one teacher that it presently effects. However, even if we were to consider it a salary issue, we do not have evidence from the other schools to determine its impact on total teacher compensation. While fringe benefits are also listed as being at issue in this case, we hesitate to classify it as a fringe benefit either. We shall, therefore, make no changes to this provision.


The Commission is well aware that it is required by statute to consider "overall compensation" which would include fringe benefits in its wage determinations. However, a 48-818 determination does not require an identity of benefits, but that overall compensation be "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." Such a determination must be made on the basis of the evidence introduced by the parties in the trial and may, therefore, vary from case to case. International Ass'n of Firefighters, Local No. 831 v. City of North Platte , 4 CIR 12 (1979). The moving party also has the burden of proof to demonstrate that existing wage rates, hours of labor, and conditions of employment are not comparable to the prevalent wage rates, hours of labor and conditions of employment. Fraternal Order of Police, Lodge No. 12 v. County of Adams , 3 CIR 585 (1978), aff'd , 205 Neb. 682, 289 N.W.2d 535 (1980). It is customary for the Commission to not make any change in wages or other terms or conditions of employment where the party has not given us sufficient evidence to determine a prevalent.

"Fringe benefits" in general were listed as being at issue in this case by the respondent. We do not have before us a list of which fringes are to be resolved nor summary exhibits which would aid us in determining which benefits the respondent might be referring to or to show us what the comparable fringes would be among the array members. This would have been true even had all of respondent's exhibits been received because none were prepared. Without a list of issues in dispute nor summary exhibits, the only thing left for the Commission to do is to go through the surveys and/or contracts and pick out anything it believes might be considered to be a fringe benefit by the parties and to create summary exhibits on its own. This should not be our responsibility.

The respondent was the moving party in this case listing fringe benefits in general as an issue. Without giving us the needed evidence to determine what is comparable in a form the Commission can use, we find that respondent has not met its burden of proving that fringe benefits are not comparable and thus we will make no changes affecting fringes with the exception of health insurance. In this, as in other school teacher wage determinations, we have been given the necessary salary and insurance costs to calculate base salary.

Rule 15 requires that the parties define specifically which terms and conditions of employment are to be resolved. To not do so, the parties run the risk of having some term or condition changed that they don't want changed.


Table 3 sets forth the total compensation figures for the Commission's array. Applying the statutory criteria of Section 48-818, we find that the base salary for the 1991-92 school year at Colfax County School District shall be $16,270.00.


1. The base salary for the teachers of Colfax County School Dist. No. 0001 shall be $16,270.00 for the 1991-92 school year.

2. The employer's health insurance contribution to single coverage shall be $153.63 per month and to dependent coverage shall be $289.84 per month (prorated per FTE); the employer shall establish such coverage as soon as administratively possible; and these same amounts shall be reimbursed to the teachers for all prior months of the current school year until such coverage can be established.

3. All other terms and conditions of employment for the 1991-92 contract year shall continue.

4. Adjustments in compensation resulting from the final order rendered in this matter shall be made as soon as possible 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 March 11, 1992.