11 CIR 89 (1991)


An Unincorporated Association, |
Petitioner, |
NO. 0071, a/k/a SCHOOL DISTRICT |
OF MILLIGAN, 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: Kelley Baker

Harding and Ogborn

500 The Atrium

1200 N Street

P.O. Box 82028

Lincoln, Nebraska 6850l-2028

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



The Milligan Education Association filed a Petition on November l9, l990 for a resolution of an industrial dispute pursuant to Section 48-818. The year in dispute is the 1990-1991 school year. Fillmore County School District No. 007l is a Class II school district employing 14 teachers with a l989-90 student enrollment of 99 and a l990-9l enrollment of ll0 students. 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, amount of extra duty compensation and the amount of accumulated sick leave. The parties did not list amount of health insurance as an issue at pretrial but at trial entered into a stipulation that, if ordered to do so, the Respondent would pay the l990-9l rates as reflected in the exhibits and would compensate the teachers for any difference they have had to pay out of pocket between the l989-90 rates (which is the amount the school district has been paying)and the l990-9l rates.


The Association seeks relief and the Commission has jurisdiction over the dispute pursuant to Neb. Rev. Stat . Section 48-8l8 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....


At the time of pretrial, both parties' exhibits were prepared on the basis of l989-90 student enrollment figures. At trial, the Petitioner marked as Exhibit #57 a publication which is issued by the Dept. of Education and which sets forth the l990-9l enrollment figures. Petitioner also submitted at trial a Nebraska road map as Exhibit #58 and a summary exhibit marked as Exhibit #56. The summary exhibit contained the l990-9l enrollment figures from Exhibit #57 and highway and air miles as the Petitioner calculated them using Exhibit #58. The summary exhibit provides this information for both the Petitioner's and Respondent's array members. Respondent objected to the introduction of all three exhibits because they were not marked at pretrial. Petitioner stated that the mileage figures were offered for the purpose of impeachment of Respondent's mileage information and the enrollment figures were offered to rebut Respondent's enrollment information and to give us the most up-to-date figures. The Commission received these exhibits for consideration.

The Petitioner argues that the dispute concerns l990-9l and so the l990-9l figures should be used. The Respondent argues that only the enrollment figures that were presented and relied upon by both parties at pretrial, the l989-90 figures, should be used. We agree with Respondent. While the Petitioner states that it is rebutting what the Respondent represents their enrollments to be, the Commission does not view these exhibits as true rebuttal, at least in regard to the enrollment figures, since the Petitioner is not rebutting Respondent's '89-90 figures but rather is simply providing a different year's figures. Both parties, on exhibits presented to us at pretrial, were using the '89-90 figures obtained from "Statistics About Nebraska Elementary & Secondary Education 1989-90". It is true that the Commission regularly defers to this publication or the Nebraska Education Directory in determining enrollments for schools in situations where we either were not given the enrollment figures or the figures given to us by the parties were discrepant, perhaps because they come from different years or different sources. See Trenton Educ. Ass'n v. School Dist. of Trenton , 9 CIR 20l, 204 (l987). Using the figures from these books gives the Commission enrollment figures for the arrays presented by both sides for a standardized year, which is preferable to comparing Petitioner's figures from one year to Respondent's figures for a different year.

In this case, however, we have a standard base year for comparison ('89-90) whose figures were available at the time of pretrial, were used by both sides, presented at pretrial, and which do not differ. The Commission cases cited to in Petitioner's brief which state a preference for the most current figures and/or for the same year in question are distinguishable from the facts in this case in that, in those cases, these publications were available to both parties at the time of pretrial and one of the parties gave us the current figures through surveys or summary exhibit. In the present case, it is unclear to the Commission just when this new data was available. According to Petitioner's witness, the publication was made available to them the "Wednesday of last week" which would have been before the pretrial (T90:5-8), but later discussions by counsel indicate that the data was not available at pretrial (T91:6-16). If, in fact, the Petitioner had the data available before pretrial it could have amended its exhibits at pretrial but chose not to do so. If the data was not available at pretrial, the l990-9l enrollment data is not true rebuttal as stated earlier. While the Commission has in the past stated a preference for using the most up-to-date enrollment figures in compiling an array, the particular facts and circumstances in the present case support the use of the '89-90 enrollment figures. Furthermore, the data for '90-9l is not substantially different from '89-90 and would not have made any difference in the array chosen by the Commission.


The Association offered the school districts of Benedict, Bradshaw, Bruning, Davenport, Exeter, Fairmont, McCool Junction and Meridian. The School District offered Bartley, Beaver Valley, Campbell, Douglas, Elba, Farnam, Filley, Guide Rock, Holbrook, Lawrence, Palisade, Rising City and Venango. The parties did not offer any school districts in common. The parties stipulated that all of the school districts in both offered arrays satisfy the work, skill and working condition standards of same or similar pursuant to Section 48-818, except with regard to extra duty. The Association's criteria for choosing an array were size, within the one-half to twice as large parameter, and close geographical proximity. As opposed to some prior cases where Associations have stressed a balanced array of approximately the same number being larger and smaller than the school district in question, the Petitioner this time felt that to do so would require extending a considerable geographic distance to get a balanced array and that balance, in this particular case, should be subordinate to the criteria of geographic proximity.

The School District emphasized choosing an array that was somewhat balanced, staying within the one-half to twice size criteria. After the District eliminated Class I districts, there were only seven school districts in the state of Nebraska that were smaller than Milligan. The School District surveyed those seven districts and choose the six school districts that were next larger than Milligan to arrive at a balanced array which they felt was important. To do so they extended the geographic limits as far as 250 air miles.

Table 1 sets out relevant information on the array points offered by the parties. While the Respondent used air miles and the Petitioner used counted or highway miles, the Commission has used both types of mileage in the past. Using air miles usually tends to shorten the distance between array points. Whether we used air or highway miles, in this particular case, would have made no difference in the Commission's choice of an array.

The Commission is to be given discretion in arriving at comparables. Lincoln Co. Sheriff's Employees Ass'n v. Co. of Lincoln , 2l6 Neb. 274, 343 N.W.2d 735 (l984). The Commission finds an appropriate array in this case to include Benedict, Bradshaw, Bruning, Campbell, Davenport, Douglas, Elba, Exeter, Fairmont, Filley, Guide Rock, Lawrence, McCool Junction, Meridian and Rising City. All of these schools fall within the one-half to twice parameter and are within approximately l00 miles of Milligan. We agree with the Petitioner that geographic proximity should be strongly considered in this case. There is no need to extend the geographic limits as far as the Respondent has when there is a sufficiently large and comparable array that can be found closer to Milligan. See Fraternal Order of Police, Sarpy Lodge No. 3 v. Co. of Sarpy , 10 CIR 61 (l988).


The Fillmore Co. School District presently pays extra duty on a flat amount basis but, according to Petitioner's witness, the parties agreed through negotiations to go to a system of paying a percentage of base salary. The parties apparently reached agreement during negotiations on the percentage to pay some positions but the Petitioner requests that the Commission set extra duty pay for those positions on Petitioner's Ex. l4 for which the parties have been unable to reach agreement.

The Commission has declined in the past to set extra duty pay on a job for job basis but has instead set a total pool for extra duty pay. The Commission has held that "the nature and structure of extra curricular programs are within the province of the school board's authority. The school board knows the needs and priorities of the district and can, by allocating funds, emphasize those areas." Papillion-LaVista Education Ass'n v. School Dist. of Papillion-LaVista , 10 CIR 18 (l988). See also Diller Educ. Ass'n v. School Dist. No. 103 Jefferson Co ., 7 CIR196 (1984).

Even if the Commission were inclined to do so, it is unable to set extra duty in this case on either an individual job basis or a pool basis. No summary exhibit was presented by the Respondent on extra duty pay at the schools in its array and the parties did not stipulate to same or similar work, skills and working conditions for extra duty pay. To use the information in the surveys and contracts would require the Commission to make job matches with no evidence upon which to make those matches. Where there is insufficient evidence presented to the Commission to comply with Petitioner's request, we choose not to disturb the Commission's previous reluctance to set extra duty on an individual basis.


The Respondent requests that the Commission reduce the number of sick leave days that can be accumulated. The Milligan teachers do not receive long -term disability insurance (LTD). There was testimony from the Superintendent that LTD dovetails with sick leave and the Petitioner's expert testified that there is a relationship between accumulated sick leave and LTD. Petitioner argues that school districts that do not have LTD tend to allow the teachers to have more days of sick leave accumulation for the teachers' protection. Petitioner would ask that we not reduce sick leave accumulation because of the absence of LTD.

Table 2 indicates that LTD is a prevalent condition of employment in the Commission's chosen array - 9 out of l5 have it. While there was testimony that a relationship exists between the number of sick leave accumulation days and the presence or absence of LTD, it is unclear what that relationship is. Petitioner's expert admitted that he had no knowledge with regard to the allowance of a certain amount of accumulated sick leave and the decision in any of the districts by the Board or any association to have a long-term disability with a certain exclusion period (T99:l-7). Whether we examine the prevalent practice based on all l5 array members or whether we look only at those six array members which, like the Milligan district, do not receive LTD, we reach the same conclusion. The prevalent number of sick leave accumulation days is 38.


Table 3 lists the single and family health insurance rates presently being paid for by the array members. The prevalent rates paid are $130.25 per month for single health and $355.60 per month for family health insurance.


Table 4 sets forth the total compensation figures for the compared to school districts. These figures have been adjusted where necessary for contract day differences. The Commission also added to Rising City's compensation (both for salary and LTD) the figure given us at trial by the Petitioner's expert. Rising City gives to its teachers a flat dollar amount cash payment to teachers who have been on the last step of their column for at least two years. This additional compensation had been left out of the Respondent's figures (T94:l6-25; 95:l-3). Applying the statutory criteria of Section 48-8l8, we find that the base salary for the l990-9l school year at Fillmore Co. School District 007l shall be $l5,709.00.


1. The base salary for the teachers of Fillmore Co. School Dist. 007l shall be $l5,709.00.

2. The number of sick leave accumulation days shall be 38 days.

3. The prevalent contribution towards health insurance shall be $l30.25 per month for single and $355.60 per month for family and the school district shall reimburse those teachers for the difference between what the school district has been paying and the prevalent.

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

5. Adjustments in compensation resulting from the final order rendered in this matter shall be made by payment of a single sum with a payroll check issued next 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 5, l991