12 CIR 21 (1993)


ASSOCIATION, An Unincorporated |
Association, |
Petitioner, |
DISTRICT #0009, a/k/a NELIGH- |
Political Subdivision of the |
State of Nebraska, |
Respondent. |


For the Petitioner: Mark D. McGuire

McGuire & Norby

605 South 14th Streets

Suite 405

Lincoln, Nebraska 68508

For the Respondent: Neal Stenberg

Harding & Ogborn

800 Lincoln Square

121 S. 13th Street

P. O. Box 82028

Lincoln, Nebraska 68501-2028

Before: Judges F. Moore, Kratz, Orr, V. Moore, Jr., and Flowers (EN BANC). Flowers dissenting. Kratz and Orr concurring.



A petition was filed by the Neligh-Oakdale Education Association seeking to have the Commission resolve an industrial dispute pursuant to NEB. REV. STAT. §48-818 (1988) for the forty-one full-time teachers employed by Antelope County School District No. 0009 ("Neligh-Oakdale"). The issues presented at the pretrial conference were base salary; health insurance, including the amount of the premium paid by Respondent and specifications, including deductible and co-insurance; and overload pay. The year in dispute is the 1992-93 contract year. Neligh-Oakdale has a 1992-93 student enrollment of 591.


Petitioner and Respondent both offered the common school districts of Madison, Albion, Pierce, Plainview, Elkhorn Valley, Randolph, and Bloomfield for inclusion in the array. Petitioner also presented the school districts of O'Neill, Battle Creek,Creighton and Newman Grove. Respondent also offered the school district of Laurel-Concord. Table 1 sets out the relevant information on the proposed array members.

Petitioner's criteria for array selection were size and geographic proximity. Petitioner chose schools that were within 40 miles of Neligh-Oakdale, and that had a student enrollment of one-half to twice that of Neligh-Oakdale.

Respondent, on the other hand, identified schools that were within 55 miles of Neligh-Oakdale, and had a student enrollment of one-half to twice. Next, Respondent calculated the percentage that the student enrollment at each array school varied from the student enrollment at Neligh-Oakdale. These figures were calculated by taking the difference between the enrollment at Neligh-Oakdale and the other schools and dividing by Neligh-Oakdale's enrollment. Respondent eliminated from its array, any school with an enrollment larger or smaller than 30 percent of the enrollment at Neligh-Oakdale.

Respondent's expert witness, Dr. Roger Macklem, superintendent of the Neligh-Oakdale Public Schools, testified that there is a correlation between enrollment size and a teacher's working conditions. Specifically, he stated that the number of class preparations, the degree of teacher specialization and the amount of extra duty assignments vary according to the size of the school district. He further expressed his opinion that generally, the closer in size school districts are, the more similarity exists with respect to the foregoing elements. For example, Dr. Macklem testified that in a school with 200-300 students, a science teacher may be the entire science department and that person would prepare for biology, chemistry, physical science and physics. In a school with more than 800-900 students, a science teacher may only prepare for one of the four types of science classes.

Dr. Macklem used this rationalization to support his decision to limit the proposed array to schools with an enrollment between 70 percent and 130 percent of the Neligh-Oakdale enrollment. However, no specific evidence was presented by the Respondent to verify this generalization in reference to the actual schools in its proposed array. Likewise, as suggested by the Petitioner, there was insufficient evidence to show that schools with a 40-50 percent variance in enrollment are less comparable than schools with a 30 percent variance in enrollment. The Commission declines to adopt Respondent's size criteria and limit the array to schools with student enrollments plus or minus 30 percent of the student enrollment at Neligh-Oakdale. To adopt Respondent's position would result in altering the Commission's long-standing size criteria of one-half to twice the student enrollment of the disputed school district. The Commission finds that all of the school districts offered by both parties fit within our previously enunciated size and geographic criteria and there was little, if any, evidence presented to exclude any of the districts as not comparable with respect to work, skills and working conditions. The Commission's array shall, accordingly, consist of all of the school districts offered by both parties: Albion, Battle Creek, Bloomfield, Creighton, Elkhorn Valley, Laurel-Concord, Madison, Newman Grove, O'Neill, Pierce, Plainview and Randolph.


The single and family health insurance premiums paid by the array school districts are set out in Table 2. The parties disagree as to the figures that should be used for Plainview when determining the comparable amount of money that Neligh-Oakdale should pay for this fringe benefit. Plainview has a cafeteria plan where the school district pays $260 per month for single coverage [1] and $365 per month for family coverage.[2] Each teacher has the option of applying this money toward health and dental insurance and taking the balance, if any, in cash, or not receiving insurance coverage and taking $245 in cash. Petitioner used the full amount Plainview pays under the cafeteria plan ($260 and $365). Respondent used the actual insurance premium, up to the amount the Plainview school district pays under the cafeteria plan. However, when calculating total teacher compensation (as the Commission has done on Table 4), Respondent used Petitioner's method when determining the fringe benefit costs (which include health insurance) for Plainview. Thus, the Commission shall adopt Petitioner's method of using the full amount Plainview pays under the cafeteria plan.

The Commission finds that the prevalent premiums are $162.15 for single coverage, $417.72 for family coverage and $18.72 for the second spouse under couple coverage.


Overload pay occurs when a school district pays additional compensation to its teachers for teaching a class in addition to the normal teaching load. Overload pay does not occur when a teacher is filling in for an absent teacher, but when a class is taught on an ongoing basis. The number of classes that make up a normal teaching load varies with each school district. At Neligh-Oakdale, a normal teaching load is six-and-one-half periods.

Petitioner and respondent disagree as to whether the Commission should determine the prevalent overload pay practice. Dr. Macklem testified that, although teacher pay was discussed during negotiations for the 1992-93 contract year, overload pay in particular was not a subject of those negotiations. Petitioner's position is that since overload pay was not an issue during collective bargaining, there is no industrial dispute regarding this issue and, as a result, the Commission lacks subject matter jurisdiction.

Petitioner argues that the statutory scheme defining the Commission's jurisdiction is premised upon the pendency of a preexisting industrial dispute. An industrial dispute is defined in NEB. REV. STAT. §48-801(7) (1988) as "any controversy. . . ." Other statutes cited by Petitioner include NEB. REV. STAT. §48-810 (1988) (all industrial disputes are to be settled by invoking the jurisdiction of the Commission), NEB. REV. STAT. §48-811 (1988) (when an industrial dispute exists, a party may file a petition with the Commission invoking its jurisdiction) and NEB. REV. STAT. §48-813(2) (1988) (provides time requirements after a petition has been filed to resolve an industrial dispute). An industrial dispute, according to Petitioner, assumes the absence of resolution of a term or condition of employment through collective bargaining or the refusal to bargain.

Respondent, on the other hand, contends that any evidence concerning negotiations is irrelevant based on Douglas County Health Department Employees Association v. County of Douglas , 8 CIR 208 (1985) and Norris Education Association v. Lancaster County School District No. 160 , 11 CIR 264 (1991). Respondent further contends that overload pay was raised in its pleadings and at pretrial, and therefore, the Commission is obligated to decide the issue.

The Commission finds that the issue of overload pay was properly pleaded, and that we have subject matter jurisdiction over this issue. The Commission further finds that negotiations held prior to filing with the Commission are irrelevant and immaterial. Douglas County Health Dep't Employees Ass'n v. County of Douglas , 8 CIR 208 (1985), aff'd on other grounds , 229 Neb. 301, 427 N.W.2d 28 (1988); Norris Educ. Ass'n v. Lancaster County School Dist. No. 160 , 11 CIR 264 (1991). "This is a sensible rule, based on the conviction that the parties should not be constrained or prejudiced in any subsequent submittal to the CIR by what transpires during these negotiation sessions." Norris , 11 CIR at 266. The Commission is aware that its position in Grand Island Education Association v. School District of Grand Island , 9 CIR 188 (1987) regarding negotiations may be inconsistent with the above cited cases. In Grand Island , the Commission was opposed to altering the salary schedule when that issue was not raised until after an impasse had been reached following negotiations. Since the salary schedule is an issue of "paramount importance" and the Commission has previously found that "changes in salary schedules are best achieved through negotiations," we declined in Grand Island to order a change from the current salary schedule. Grand Island , 9 CIR 196. To the extent that Grand Island held that the parties must negotiate over an issue prior to raising it in a subsequent CIR proceeding, it is hereby overruled.

The overload pay policies of the array members are set out in Table 3. The Commission was not presented with an exhibit illustrating the overload pay practices for Petitioner's four noncommon array members. After reviewing the collective bargaining agreements for the four noncommon schools, the Commission found that the contracts at Newman Grove and O'Neill are silent on this issue, which we have interpreted to mean that they do not provide overload pay. The contract at Creighton indicates that it provides overload pay. The contract at Battle Creek is unclear as to whether it has an overload pay policy. However, it is not necessary to interpret the Battle Creek contract because eight of the remaining array members do not provide overload pay, so it is clearly not prevalent to do so. Neligh-Oakdale shall eliminate its practice of paying its teachers 10 percent of base salary as overload pay.


Table 4 sets forth the total compensation figures for the schools in the Commission's array. Where necessary, these figures were adjusted for contract day differences. The Commission finds that the base salary for the 1992-93 school year shall be $17,527.


1. The health insurance premium paid by Antelope County School District # 0009 for full-time teachers shall be $162.15 monthly for single coverage, $417.72 monthly for family coverage and, when both spouses work for the school district, $417.72 for one spouse for family coverage and $18.72 monthly for the second spouse for family dental.

2. The overload pay policy shall be eliminated, and no additional compensation shall be provided to teachers who teach classes in addition to the normal teaching load.

3. The base salary for full-time teachers shall be $17,527 per year.

4. All other terms and conditions of employment are not affected by this order.

Entered June 4, 1993.

Karen B. Flowers, Dissenting:

In Grand Island Education Association v. School District of Grand Island , 9 CIR 188 (1987) we were asked to alter the index salary schedule of the Grand Island School District when the index salary schedule was never an issue in negotiations but came up only after impasse had been reached. We said that "((w))here the parties have either not had or not taken the opportunity to bargain over an issue of such paramount importance, we will not order a change from the current condition." Id. at 196. Because I believe what we said then was correct, I dissent from that part of the decision that overrules Grand Island in this regard.

NEB. REV. STAT. §48-811 (1988) prohibits an employer from taking adverse action by threat or harassment against an employee because the employee has filed a petition with the Commission. I am concerned that the majority's decision to overrule Grand Island and alter the overload pay provisions of the Neligh-Oakdale School District licenses what the legislature sought to prohibit.

Dean G. Kratz and Jeffrey L. Orr, Concurring:

The dissenting opinion doesn't explain how our decision here on the overload pay provision, and reversal of certain language in Grand Island , constitutes a threat or harassment against employees in violation of Section 48-811. Since this referenced statute refers only to "employee" harassment and not employer, the dissenting opinion is apparently saying that the CIR cannot consider employer demands which are not raised or discussed at the bargaining table (because that is "employee" harassment), but can consider employee demands which are not raised or discussed at the bargaining table (because there is no statute prohibiting harassment of the employer). We doubt the legislators had this in mind when this statute was enacted.

[1] The actual premium is $141.56.

[2] The actual premium is $385.33.