11 CIR 75 (1991). Appealed May 7, 1991.


Petitioner, |
Respondent. |


For the Petitioner: Michael J. Haller, Jr.

O'Connor & Associates

2433 South 130th Circle

Omaha, NE 68144

For the Respondent: Allen E. Daubman

Koley, Jessen, Daubman

& Rupiper, P.C.

One Pacific Place, Suite 800

1125 South 103rd Street

Omaha, NE 68124

Before: Judges Orr, Kratz and F. Moore



The Service Employees International Union, Local No. 226, filed a Petition herein on October 25, 1990, seeking resolution of a pending industrial dispute. Westside Community School District No. 66. (Respondent) then filed an Answer to Petition requesting that the Commission determine the prevalent wage rates and other terms and conditions of employment for the subject bargaining unit for the year commencing September 1, 1990, and ending August 31, 1991, and order a reduction of such wage rates for the year in dispute. The Service Employees International Union (Petitioner) represents approximately 182 employees in the Westside school District in the classifications of: Education Aide, Para Professional, Teachers Aide, Special Ed Aide and Media Assistant.

A pretrial conference was held at which time the parties agreed that the issues at dispute are hours of work, seniority, lay-offs and recalls, sick leave, vacation leave, holidays, insurance, over-time, promotions, wages, classifications within the bargaining unit, and other terms and conditions of employment. A hearing in this matter was held on January 3, 1991.


The Commission has jurisdiction over the parties and this 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 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 Association introduced the following seven schools or school districts as comparables: Father Flanagan's Boys Home (Boys Town), Millard Public Schools, Omaha Public Schools, Papillion/LaVista Public Schools, Ralston Public Schools, Bellevue Public Schools, and State of Nebraska (School for the Deaf and the School for the Visually Impaired). The District also introduced an array of six comparables: Fremont Public Schools, Elkhorn Public Schools, Millard Public Schools, Papillion/LaVista Public Schools, Ralston Public Schools and Bellevue Public Schools. The following school districts are common to both parties' arrays: Millard, Papillion/LaVista, Ralston and Bellevue. Table 1 sets out the relevant information on the proposed comparables.

Both the Petitioner and the Respondent presented testimony that their arrays were chosen on the basis of size, proximity and community of interest. The Petitioner's expert testified that he placed the greatest emphasis on choosing array points in Omaha's distinct labor market but that he also took into consideration the number of paraprofessionals, the number of professionals and the size of the student body at the districts involved. The Respondent's expert testified that he chose districts that were very near Westside, that had paraeducators on staff and that were very close in size and composition to Westside. All of the Respondent's proposed array points are Class 3 districts while the Petitioner includes one non-public institution, a state agency, and a Class 5 school district.

The common school districts are all proximate to the Westside district. The enrollments of the common school districts also fit the Commission's traditional size criteria of one-half to twice as large, with the exception of Millard which has almost four times the number of students. Both parties contend that Millard is comparable and the number of paraprofessional employees employed at Millard is within the twice to one-half range traditionally relied upon by the Commission. Millard will thus be included in the Commission's array as will the other common districts of Bellevue, Papillion-LaVista and Ralston.

The Petitioner proposes an additional three array members for inclusion in the Commission's array. The Petitioner offers Boys Town, Omaha Public Schools and the State Dept. of Education, which encompasses the State School for the Visually Impaired and the State School for the Deaf. These three additional offerings vary greatly in size and none are within the Commission's general size guideline. Although these proposed comparables are proximate, with the exception of the State School for the Visually Handicapped, their extreme variances in size overcome any similarity based on proximity. These three proposed array members will not be included in the Commission's array.

The Commission is thus left with determining whether or not to include Fremont Public Schools and Elkhorn Public Schools. The Respondent argues that these districts should be included because they are proximate, they are Class 3 districts and their size is reasonably comparable. The Commission finds that while Fremont is comparable in terms of enrollment and number of paraprofessionals employed, Elkhorn only employs 1/6 the number of paraprofessionals and their enrollment is below one-half that of Westside. The Commission will thus include Fremont in its array but will not include Elkhorn.

The Commission's array for this case consists of Bellevue Public Schools, Fremont Public Schools, Millard Public Schools, Papillion-LaVista Public Schools and Ralston Public Schools.


The parties used differing methodologies in determining the prevalent wage rates for the paraprofessionals at Westside. The Petitioner merely determined the prevalent minimum and maximum wage rates of the wage scales and then compared the fringes on a benefit by benefit basis. The Respondent used a total compensation model and attempted to determine what each array member would pay the Westside paraprofessional staff if that staff were employed at the proposed school district. The Respondent then compared the total compensation figures and determined that using their array Westside was above the prevalent in total compensation. Although the Respondent does provide evidence of the individual minimums and maximums at its proposed array points it makes no conclusions based on those rates.

The Commission has found the total compensation model invaluable in determining the prevalent salary for school teachers but has rarely, if ever, used the total compensation model for other groups of employees. In order to use a total compensation model the Commission must find that the party advocating its use has accurately and precisely determined the placement of each individual in the bargaining unit. Due to the nature of the two-dimensional index salary schedule used by almost all of the school districts in the state, this process is exact and requires no independent assumptions. Teachers in all districts are rewarded for longevity and education beyond their degree and this reward is reflected in their placement on the given salary schedule. There is no similar corollary in other employee groups. One employer may reward previous experience by bypassing the initial hiring rate and another employer will not, but it is rarely a set policy in this type of employee group. Furthermore, using a total compensation model does not allow the Commission to actually set the minimum and maximum wage rates of the the one-dimensional wage scale, which both parties ask the Commission to do in this case. Lastly, this employee group receives few if any fringe benefits and it is unnecessary to look beyond wages to determine comparability.


There are two job classifications at dispute in this case: Educational Paraprofessional (Regular Education and Regular Special Education) and Special Education Paraprofessional (Special Education with Special Assignment). Currently at Westside, the Special Education Paraprofessional (Category II) receives a pay differential of 60 cents per hour more than the Educational Paraprofessional (Regular Education). Initially, the Commission finds that it is prevalent, according to the chosen array, for these employees to be paid within the parameters of a minimum and a maximum. Table 2 sets out the prevalent wage rate as determined by the Commission's array for the job classification of Educational Paraprofessional. The Petitioner was not able to make any matches for the Special Education Paraprofessional at any of the school districts included in the Commission's array and although it would appear from the Respondent's Exhibit 23 that there is a matching job for this classification at Fremont, data from only one array point is insufficient for determining wages based on similar classification. Furthermore, neither party challenged the current pay differential as not being comparable. The Commission will, thus, continue the relationship between the scales for the two positions and will set the wages for the Special Education Paraprofessionals at 60 cents per hour more than the wages for the Education Paraprofessional. The Commission makes no findings as to any other pay differential currently in existence in the Westside School District.


The parties listed numerous specific fringe benefits as being at dispute and then also included 'all other terms and conditions of employment' as an issue. Both parties introduced considerable evidence as to the comparability of various benefits but there were issues listed, such as promotions, on which no evidence was adduced and about which the Commission makes no findings. After comparing all of the benefits, for which there was sufficient evidence, the Commission finds that Westside currently has a comparable over-time policy and a comparable sick leave policy.

The only other benefit or term of condition prevalent to the array but not currently comparable at Westside is the existence of a pay progression plan. Westside does not currently have a defined progression plan. As Table 3 sets out, four of the five districts in the Commission's array do have such a plan. The Commission thus finds that Westside should establish a pay plan within the minimums and maximums set by the Commission. The plan should have 6 steps and it should take 5 years to progress through the schedule. The Commission does not find any additional benefit to be prevalent.


1. The hourly wages for the job classifications at dispute for the 1990-1991 school year shall be as follows;

Job Classification Minimum Maximum

Education Paraprofessional $ 4.88 $ 6.03

Special Education Paraprofessional $ 5.48 $ 6.63

2. The Westside School District shall establish a pay progression plan for this bargaining unit containing 6 steps and whereby an employee progresses through the plan in 5 years.

3. All other terms and conditions of employment for the year at dispute are not effected by this Findings and Order.

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

Entered March 11,1991.

NOTE: Took enrollment figures from Nebraska Education Directory.