12 CIR 106 (1994)


Petitioner, |
DISTRICT NO. 0001, |
Respondent. |


For the Petitioner: Mark D. McGuire

McGuire & Norby

605 South 14th St., Suite 405

Lincoln, Nebraska 68508

For the Respondent: Neal Stenberg

Harding & Ogborn

800 Lincoln Square

121 South 13th Street

P. O. Box 82028

Lincoln, Nebraska 68501-2028

Be fore : Judges F. Moore, McFarland and DeLay



A petition was filed by the Banner County Education Association seeking to have the Commission resolve an industrial dispute pursuant to Neb. Rev. Stat. § 48-818 (1988) for the nineteen full-time and two part-time teachers employed by Banner County School District No. 0001 ("Banner"). The year in dispute is the 1993-1994 contract year. Banner has a student enrollment of 195-210.

Petitioner's issues are base salary and health insurance. Respondent's issues are (1) base salary, (2) benefits provided to part-time teachers, (3) the value of subsidized housing provided to bargaining-unit teachers, and (4) how the Banner teachers should be placed on the salary schedules of the array schools with respect to post-bachelor degree hours. Respondent withdrew as an issue, structure of the index salary schedule.

Petitioner's rebuttal issues are:

(1)Whether the Commission has subject matter jurisdiction over the Respondent's issues regarding benefits provided to part-time teachers, for the reason that this issue does not constitute an "industrial dispute,"

(2)Whether the issue identified above as Respondent's issue (3) is raised solely in retaliation for the Petitioner seeking resolution of its industrial dispute and whether this constitutes harassment in violation of the prohibitions set forth in Neb. Rev. Stat. § 48-811 (1988), and

(3)Whether the Commission has jurisdiction to grant the relief sought in Respondent's issue identified above as (3) for the reason the alleged subsidized housing is not a negotiated term or condition of employment, is not provided to all bargaining unit members, constitutes an individual contractual relationship certain bargaining unit members may have with Banner and as a consequence is a uniquely personal matter. Respondent's alternative request that teachers who have received the alleged subsidized housing be required to repay money to Banner represents a matter over which the Commission has no jurisdiction and purportedly seeks equitable relief beyond the scope of the Commission's jurisdiction.


Petitioner and Respondent both offered the school districts of Big Springs, Brule, Hay Springs, Leyton, Lodgepole, Minatare, Paxton, Potter-Dix and Wheatland. Petitioner also offered the school districts of Chappell and Crawford. Respondent did not offer any non-common schools. Table 1 sets out the relevant information on the proposed array members. At the pretrial conference, the parties stipulated that the work, skills and working conditions of the teachers employed by Banner and the staff employed at the compared-to school districts offered by both parties are sufficiently similar to satisfy the standards set forth in Neb. Rev. Stat. § 48-818 (1988).

All of the proposed array members fit within the established criteria of size and geographic proximity. The only reason asserted by the Respondent for exclusion of Chappell and Crawford was to arrive at a balanced array. Specifically, the Respondent argues that it is desirable to have an equal number of smaller and larger school districts in the proposed array. However, the Respondent did not present sufficient evidence regarding how size may affect the proposed school districts. The only evidence adduced by Respondent with respect to balance revolved around vague differences in working conditions between schools of differing sizes. However, the parties had previously stipulated at the time of the pretrial conference to the similarity of work, skills and working conditions among all of the proposed array members.

The Commission chooses to follow its previously enunciated rule that, absent credible evidence indicating balance is linked to the proposed array members, balance will not be used as a criteria in its selection process. Nickerson School Educ. Ass'n v. Dodge County School Dist. No. 0019, 11 CIR 159 (1991); International Ass'n of Firefighters, Local No. 1575 v. City of Columbus, 11 CIR 267 (1992). The Commission's array shall consist of all of the proposed array members: Big Springs, Brule, Chappell, Crawford, Hay Springs, Leyton, Lodgepole, Minatare, Paxton, Potter-Dix and Wheatland.


Health Insurance for Big Springs

Petitioner and Respondent differ in their estimation of the fringe benefit costs Big Springs would incur if the Banner teachers were employed there. The Big Springs school district, in addition to paying the health insurance premiums, reimburses its teachers for medical expenses incurred prior to meeting the insurance deductible. The deductibles are $250 or $500 per teacher, for single or family coverage.

In placing the Banner teachers on the Big Springs schedule, the Petitioner included the amount of the health insurance premiums, plus 70 % of the insurance deductibles for all Banner teachers. In arriving at this figure, the Petitioner simply assumed that 70 % of the Banner staff would meet or exceed the deductible amount. No evidence was presented by the Petitioner regarding actual medical expenses incurred by Banner teachers or any other evidence to support this assumption.

The Respondent, in making its placement, only included the amount of the health insurance premiums paid by Big Springs and did not include any amount for payment toward the deductible. While it is unrealistic to assume no contribution by Big Springs toward the deductible amount, there is no credible evidence before the Commission to determine the amount of any actual economic impact in making the Big Springs comparison. For this reason, the Commission, in making the placement on the Big Springs schedule, includes only the amount of the insurance premiums paid by the school district.

Post-Bachelor Degree Hours

Teachers advance horizontally on a salary schedule by completing college classes beyond their bachelor's degree, according to the policies of their school. Banner has a more liberal policy for horizontal advancement than does some of the array schools. Banner, for example, gives its teachers credit for undergraduate classes and classes outside of teaching, such as in administration.

Respondent argues that, in making our base salary deter-mination, the Commission should place Banner teachers on the salary schedules of the array schools according to each school's policy regarding credit for post bachelor hours. In other words, if an array school does not give its teachers credit for classes in administration, the Commission should not give the Banner teachers credit for administration classes when placing them on that school's schedule. Under Respondent's senerio, several of the Banner teachers would be placed on a lower step on the array salary schedules than the step they are currently on at Banner. This will reduce the salary costs at the array schools, resulting in a lower base salary for the Banner teacher.

This same issue was addressed in Benkelman Education Association v. School District of Benkelman, 8 CIR 119 (1985) where the Commission disagreed with the position of the Respondent in the case at bar.

By giving teachers credit for approved undergraduate hours, the Benkelman School District has made the determination that both graduate and undergraduate classes can benefit the district. Other school districts may have made different determinations. Nevertheless, the actions of Benkelman's teachers in selecting post-baccalaureate classes have, without doubt, been influenced by the long-established policy at Benkelman of giving teachers salary schedule credit for taking certain undergraduate classes with the District's prior approval. It is impossible for us to now determine whether any individual teacher would have requested approval for the undergraduate classes he or she has taken, had that teacher known that the District would later seek a reduction in base salary for the undergraduate hours the teacher earned with the District's prior approval. We will not now penalize teachers who took undergraduate classes with the belief, fostered by the District at the time, that they would actually receive a higher salary for doing so.

Id. at 122-23. In light of the Commission's decision in Benkelman, the Commission shall give the Banner teachers the same credit as awarded by Banner when placing these teachers on the salary schedules of the array schools.


Petitioner raised health insurance as an issue in its petition and at the pretrial. However, health insurance wasn't addressed as an issue during the trial, nor were any summary exhibits presented on this issue. The Commission shall make no changes regarding health insurance at Banner, with the exception of benefits to part-time staff addressed below.


Respondent has raised as an issue, the comparability of Banner's current practice of providing full-time benefits to part-time teachers. Respondent contends that such a practice is not prevalent and also raises as an issue whether the part-time teachers should be required to repay benefits received by them in excess of prevalent practice. Petitioner argues that the practice of providing full-time benefits to part-time teachers is a schoolboard policy and, as such, it isn't contractual and can be unilaterally altered by the board at any time. In support of its' position, Petitioner points out that this issue was not negotiated at Banner nor is it included in the collective bargaining agreements of the array schools.

Whether or not an issue was negotiated by the parties or previously included in their collective bargaining agreement is not necessarily determinative of whether the Commission has jurisdiction over the issue. Parties don't always negotiate all of the issues which are mandatory topics of bargaining. In some instances, parties regularly negotiate many mandatory topics of bargaining, but fail to negotiate all mandatory topics of bargaining. See Omaha Police Union Local 101 v. City of Omaha, 7 CIR 179 (1984) (collective bargaining agreement contained no reference to employee parking stalls and the Commission concluded that assignment of parking stalls was a term or condition of employment). In other instances, parties may regularly negotiate items which are management prerogative. See Yutan Educ. Ass'n v. Saunders County School Dist. No. 9, Case No. 865 (Findings and Order entered Mar. 10, 1994) (Length of work day and work year were contained in the parties' prior collective bargaining agreement and the Commission held that these were subjects of management prerogative).

The Commission finds that benefits provided to part-time teachers is a mandatory topic of bargaining over which it has subject matter jurisdiction. Table 2 indicates that it is not prevalent to provide to part-time teachers the same benefits provided to full-time teachers. The prevalent practice is to compute benefits on the basis of full-time equivalency (FTE). The fringe benefits for part-time teachers at Banner shall be based upon FTE. Banner has employed two part-time teachers during the 1993-94 contract year. Both received family health insurance and single dental coverage at a cost to Banner of $407.33 per month. Since Jenkins' FTE is .630, Banner shall pay $256.62 per month for her health insurance ($407.33 x .630 = $256.62). Schledewitz is no longer employed at Banner. When she was so employed, her FTE was .556. For the period of time in the 1993-94 contract year when Schledewitz was employed by Banner, Banner is obligated to pay $226.48 per month for her health insurance ($407.33 x .556 = $226.48). Jenkins shall reimburse Banner $150.71 per month and Schledewitz shall reimburse Banner $180.85 per month for the excess amount of health insurance paid during the 1993-94 contract year.


Banner County School District owns several homes and apartments that it rents to school employees. Specifically, there are seven rental units, known as "teacherages," available to be rented by Banner teachers. For many years, Banner did not charge rent to the occupants of these units. For the 1993-94 school year, rent on the teacherages ranges from $50.00 to $80.00 per month. Banner enters into separate agreements, called "Occupancy Agreements," with the teachers who choose to avail themselves of the housing, which agreements provide for a month-to-month tenancy.

Banner argues that the rent it charges on its teacherages is lower than the fair rental value for these units. It is not asking the Commission to determine whether it is comparable to offer such a benefit because it wants to continue renting these units to its teachers. Banner argues, however, that since it is renting these units below the fair rental value, the Commission should include in overall compensation the amount it is "subsidizing" its teachers. Banner asserts that the amount of the subsidy is $5,770. This figure was arrived at by taking the difference between the fair rental value of the teacherages, as determined by Banner with evidence from a realtor, and the amount for which the units are actually rented. Alternatively, Banner asks that the teachers who have benefitted from the "subsidized" housing be required to repay the district in an amount equal to the subsidy.

We shall first address the Petitioner's position that this issue was raised by the Respondent solely in retaliation for the Petitioner seeking resolution of its industrial dispute and whether this constitutes harassment in violation of the prohibition set forth in Neb. Rev. Stat. § 48-811 (1988). The Commission has previously held that prior negotiation regarding an issue is not a prerequisite to raising the issue in a § 48-818 case before the Commission. Neligh-Oakdale Educ. Ass'n v. Antelope County School Dist. 0009, 12 CIR 21 (1993); Nemaha Valley Educ. Ass'n v. Johnson County School Dist. No. 0501, Case No. 868 (Findings and Order entered April 15, 1994). The Commission accordingly rejects the Petitioner's argument that Banner has violated Neb. Rev. Stat. § 48-811 (1988) in raising housing subsidy as an issue.

The Petitioner next asserts that the Commission does not have jurisdiction to grant the relief sought by the Respondent regarding the subsidized housing issue. At the time of trial, only three of the teacherages were rented, although there were twenty-one teachers employed by Banner for the 1993-94 contract year. The evidence adduced at trial revealed that the rental agreements could be terminated upon thirty (30) days notice. Further, the amount of the rent charged for the teacherages was determined by Banner. In the event that any "subsidy" amount is included in overall compensation, the salary would be effectively reduced for all teachers, even though a very small minority are actually taking advantage of the housing. For the minority who do take advantage of the housing, they will receive less salary, thereby reducing the benefit of any alleged "subsidy."

The Commission determines that it is not appropriate in this case to include the amount of housing "subsidy" in overall compensation, in light of the fact that the rental of teacherages is governed by separate, individual contracts with the teachers. Further, we do not believe the rental of teacherages constitutes a term or condition of employment, and thus does not rise to the level of an industrial dispute as defined in Neb. Rev. Stat. § 48-801(7) (1993 Supp.). The Commission finds that housing in the case at bar is not a mandatory topic of bargaining and, thus, is not an issue over which it has subject matter jurisdiction. Banner is obviously free to negotiate the leases on an individual contractual basis with the individual teachers seeking housing.

Since we hold that the Commission does not have jurisdiction over the rental of teacherages, it is not necessary to address the evidentiary issues concerning determination of the fair rental value.


Table 3 sets forth the total compensation figures for the schools in the Commission's array. Where necessary, these figures were adjusted for differences in contract days. The midpoint of the total compensation minus the cost of fringe benefits equals

$ 507,744. This figure was divided by the staff index factor of 28.2599 to get a 1993-94 base salary of $ 17,967.


1. Banner shall eliminate full-time fringe benefits for it's part-time teachers and shall instead pay for such benefits on a pro-rata basis determined by the teacher's FTE. For health insurance and single dental coverage, Banner shall pay $256.62 per month for Jenkins and $226.48 per month for Schledewitz. Jenkins shall reimburse Banner $150.71 per month and Schledewitz shall reimburse Banner $180.85 per month for the excess amount of health insurance paid during the 1993-94 contract year.

2. The base salary for the teachers employed at Banner shall be $ 17,967 for the 1993-94 school year.

3. All other terms and conditions of employment for the 1993-1994 school year shall be as previously established by the agreements made by the parties.

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

Entered June 1, 1994.