11 CIR 82 (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


This matter comes before the Commission upon the Petitioner's March 21, 1991, filing of Petitioner's Request for Post-Trial Conference, Motion for New Trial, Petitioner's Brief in Support of Motion for New Trial, Motion to Clarify, Brief in Support of Petitioner's Motion to Clarify, Motion to Recuse, and Petitioner's Brief in Support of Motion to Recuse. A Post-Trial Conference was held by conference call with the Honorable Jeffrey Orr on March 29, 1991. A hearing on the motions filed was held before the panel assigned to this case on April 2, 1991. The Petitioner was at all times represented by its attorneys, Michael Haller and Robert O'Connor. The Respondent was at all times represented by its attorney, Alan Daubman.

At the Posttrial Conference and again at the April 2 hearing on the motions, the Petitioner requested that the Commission clarify or explain certain portions of the Findings and Order issued in this case on March 11, 1991. Specifically, the Petitioner challenged the Commission's array choices, the implementation of the pay plan and wages ordered by the Commission, and the Commission's treatment of the fringe benefit issues.

The petitioner requested through a motion that Judge DeanKratz be recused form taking part in the decision of this case. After hearing Petitioner's arguments and the response of the Respondent, the Commission finds that Petitioner's Motion to Recuse should be and is hereby overruled.

Substantively, the Petitioner challenges the Commission's finding that Omaha should be excluded from the array and Fremont should be included. The Petitioner argues that there is insufficient evidence, rationale and explanation for the Commission's choice.

Generally, array choice is not a proper subject for discussion at a Posttrial Conference. See , District 8 Elementary Teachers Association v. School District No. 8 , 8 CIR 136 (1985). However, if a party challenges array choice on the basis that the Commission mischaracterized or did not base its choice on the evidence presented, then the Commission can correct any such error after having heard the matter in a conference setting with all parties being represented. The Commission does not find any such error as to array choice in the present case.

Omaha Public Schools is a Class 5 district while all of the districts included in the Commission's array are Class 3 districts as is Westside. Omaha is not only outside the Commission's traditional size criteria, it has very nearly nine times the student enrollment of Westside. Westside employs 169 paraprofessionals for a ratio of 1 paraprofessional to every 28 students. Omaha employs 698 paraprofessionals, or four times the number employed at Westside, for a ratio of 1 paraprofessional to every 60 students. While Omaha is geographically proximate to Westside the Commission does not find sufficient evidence to establish a similarity of work, skills and working conditions as required by Section 48-818.

Fremont is the closest, in student enrollment, to Westside of all of the districts offered as comparables. It is also reasonably proximate and is organized or structured similarly to Westside; a Class 3, Class A school with one high school. There is sufficient evidence of similarity of work, skills and working conditions to support inclusion of Fremont. Petitioner also expressed concern that the Commission was unable to include Fremont for lack of necessary statistical information. The Commission rejected the Respondent's methodology and adopted in full the methodology used by the Petitioner for presentation of its case. The Respondent, however, provided all of the necessary wage and benefit information thus allowing the Commission to apply the Petitioner's methodology to the array points offered by the Respondent and include Fremont as a comparable.

The Petitioner next contends that there is insufficient explanation of the Commission's Findings and Order with regard to the wages and pay plan ordered to be implemented. The Petitioner has raised questions as to whether or not the pay plan ordered by the Commission is applicable to employees who are not presently receiving a wage rate that is within the scale. In effect the petitioner argues that since some employees in the bargaining unit are outside the minimums and maximums of the wage scale ordered by the Commission they somehow are exempt from the Commission's Order.

The Commission, in almost all instances, used the evidence presented by the Petitioner. Petitioner's Exhibit A (page 12) clearly shows that the prevalent practice is to have a pay plan with a set number of steps and a set number of years to move through the range. Furthermore, Petitioner's Exhibit A (page 6) shows that even had the Commission adopted the Petitioner's array in its entirety, a significant number of the employees in this unit would have received a wage decrease at maximum. In fact, those employees at the highest level of the previously existent wage scale would have received a 26% decrease in wages using only the Petitioner's array and the Petitioner's evidence presented.

The Commission's order is clear. The pay plan and the wage scale ordered by the Commission shall apply to all employees in the unit, regardless of their current wage rate, and shall be applicable for the entire contract year at dispute. The wages ordered are thus effective beginning September 1, 1990. All of the employees in the unit shall fall somewhere within the established range and shall be placed on the pay plan at the level applicable to their tenure. The increments between the steps shall be equal as follows:



Education Paraprofessional 4.88 5.11 5.34 5.57 5.80 6.03

Special Ed. Paraprofessional 5.48 5.71 5.94 6.17 6.40 6.63

The Commission does not lightly undertake ordering a wage decrease for public employees but the Commission is bound by the mandatory requirements of Section 48-818. We have herein established rates of pay and conditions of employment 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.

Lastly, the Petitioner questions the Commission's finding as to fringe benefits. Again, the Commission primarily used the Petitioner's evidence (Exhibit A) and found that none of the benefits requested by Petitioner were prevalent other than a pay plan with established steps. Specifically, only one of the five members of the Commission's array provides any contribution towards health insurance. This benefit is thus not even arguably prevalent and the Commission chose not to include tables on every non prevalent benefit listed as an issue.

Additionally, the Petitioner in its Motion for New Trial also raised the following reasons for granting a new trial:

3. Error of law occurring at trial and duly excepted to by the undersigned.

4. Admission of evidence over objection, namely the opinions and findings of the Respondent's expert concerning comparability.

After considerable, careful review of the transcript of the trial, the Commission is unable to find any objection, which was not subsequently withdrawn, to the testimony of the Respondent's expert, or any other challenge to the expert's credibility. Therefore, we can find no basis for granting Petitioner's Motion for New Trial on these grounds.

The Findings and Order issued on March 11, 1991 is clarified as set out above but in all respects remains as previously issued. The Petitioner's Motion to Recuse is overruled as is the Petitioner's Motion for New Trial.

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

Entered April 8, 1991.