12 CIR 83 (1994)


Petitioner, |
DISTRICT NO. 0501, |
Respondent. |

Appearances :

For the Petitioner: Mark D. McGuire

605 S. 14th St., Ste. 405

Lincoln, NE 68508

For the Respondent: Kelley Baker

800 Lincoln Square

121 S. 13th St.

P.O. Box 82028

Lincoln, NE 68501-2028

Before: Judges Orr, Kratz, F. Moore, Flowers and McFarland. (EN BANC); Flowers dissenting.



The Nemaha Valley Education Association filed a Petition on January 11, 1994 for a resolution of an industrial dispute pursuant to §48-818. The year in dispute is the 1993-94 school year. Johnson County School District is a Class III school district employing 26 teachers with an enrollment of 284 students.

Petitioner and respondent's common issues are base salary and array. The respondent identified the additional issues of:

1) Elimination of the MA+27 lane on the salary schedule;

2) Elimination of paragraph 8 of the Negotiated Agreement which provides for payment of 2% of base for teachers frozen prior to 1983-84 at MA+9;

3) Elimination of paragraph 9 of the Negotiated Agreement which provides for payment of 2% of base for teachers frozen at MA+18.

4) Elimination of paragraph 13 of the Negotiated Agreement which limits the Board to granting "five years credit for previous experience and hours gained in assigned teaching area." Respondent seeks an order which would not limit the Respondent regarding the number of previous years of teaching experience it could grant in hiring a teacher;

5) An order limiting a certificated employee's vertical movement on the salary schedule to one step per year; and

6) An order establishing that a part-time certificated employee's fringe benefits would be paid based upon the employee's full-time equivalency.

The petitioner's rebuttal argument is:

1) Whether or not the Respondent's issues identified as #1-#6 above constitute "industrial disputes" as those terms are defined by Neb. Rev. Stat. §48-801(7) (Reissue 1988);

2) Whether the Respondent's issues identified as #1-#6 above are alleged in retaliation for Plaintiff filing its Petition contrary to the prohibitions of Neb. Rev. Stat. §48-811 (Reissue (1988);

3) Whether the Commission has jurisdiction over the Respondent's issues identified above as #2, #3, and #6 above

for the reason that each provision in the School District's Negotiated Agreement of September 15, 1992, reflects an individual agreement with individual teachers agreed to in the past, the effect of which was to have an individual contract with the School District's employee grandfathering such person into the provisions provided for in paragraphs identified herein.

The parties stipulated at trial (Exhibit 88) that the school district will continue to pay the amount it presently pays, $172.12 per month for single and $450.59 per month for family, towards health insurance.


The Association seeks relief and the Commission has jurisdiction over the 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 which are 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. 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...


We will first address petitioner's rebuttal argument. Petitioner's Reply states that we do not have subject matter jurisdiction over respondent's issues #1-#6 above because these issues are not industrial disputes. The petitioner did not argue at trial as to why these issues are not industrial disputes. An industrial dispute is defined in §48-801(7) as:

Industrial dispute shall include any controversy concerning terms, tenure, or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, or refusal to discuss terms or conditions of employment.

The claim that these issues are not industrial disputes perhaps hinges on petitioner's rebuttal issues #2 and #3. It was not argued at trial that respondent's issues #1-#6 were not "terms, tenure, or conditions of employment," the statutory definition of an industrial dispute. We find that there is a controversy over these terms and conditions which creates an industrial dispute.

The second rebuttal argument is that respondent's issues #1-#6 are being brought for determination before the Commission as a retaliation against the employees. Petitioner has made the argument before this Commission in the past that because these issues were not negotiated, they can not be brought to the Commission in a Section 48-818 case for a determination. The Commission has found against this argument and does so in the case at bar as well. See Neligh-Oakdale Education Ass'n v. Antelope Co. School Dist. #0009 , 12 CIR 21 (1993), Judge Flowers dissenting.

The third and final rebuttal argument is that the contract provisions which allow an additional 2% to certain employees and which provide Mrs. Andrew, a l/2 time employee, with full health benefits, are in the contract as a reflection of agreements made with individual teachers in the past, grandfathering them into these contract provisions. The Commission has ruled that individual contracts are binding in the absence of a collective bargaining representative. Lockwood Teachers Educ. Ass'n v. School Dist. No. 1, Merrick Co. , 9 CIR 91 (1987). The Commission has ruled numerous times that a public employer can enter into individual contracts with its employees but that such agreements do not preclude the Commission from establishing rates of pay and conditions of employment under §48-818 where the employer has failed to reach agreement with the collective bargaining representative. See Vincene Bushnell v. Eastern Nebraska Community Office of Retardation , 8 CIR 28 (1985); District 15 Education Ass'n v. School District Number 15 , 5 CIR 242 (1981). The Commission is required to set the terms and conditions of employment based on what is prevalent in the chosen comparable array for the contract year before us.


The parties offered in common the school districts of Adams, Dawson-Verdon, Humboldt, Johnson-Brock, Lewiston, Louisville, Palmyra-Bennett, Pawnee City, Southeast Consolidated, Sterling, Tecumseh and Weeping Water. The petitioner offers the additional school district of Elmwood and the respondent offers the additional school districts of Odell and Diller. Table 1 sets out relevant information on the proposed array members. The parties stipulated at the pretrial to the similarity of work, skill and working conditions of the teachers employed by the respondent school district and the staff employed at the school districts that make up the common array.

Both the Petitioner and the Respondent offered evidence that the non-common schools were same or similar and the work, skill and working conditions were same or similar. Therefore we shall include the non-common schools with the common schools. This will produce an array of fifteen schools. The Commission finds that a suitable array in this case consists of: Adams, Dawson-Verdon, Diller, Elmwood, Humboldt, Johnson-Brock, Lewiston, Louisville, Odell, Palmyra-Bennet, Pawnee City, Southeast Consolidated, Sterling, Tecumseh and Weeping Water.


Respondent requests that the Commission eliminate the MA+27 column on the basis that it is not prevalent. Table 2 lists the schools that have a minimum of an MA+27 column. Petitioner's witness testified that though some of the schools may not have an MA+27 column they might have a column above an MA+27 column of some sort. Respondent's evidence on exhibit 37 reveals that they, too, have looked at the schools that had an MA+27 or higher column. Of the schools in the array, only 6 out of 15 have an MA+27 column or higher. It is thus not prevalent and the Commission finds that the MA+27 column should be deleted.


Table 3 shows that it is clearly not prevalent to pay an additional 2% to those frozen at the bottom of the MA+9 column and the Commission finds that this practice should be eliminated.


The respondent wants us to eliminate the additional 2% paid to those frozen at the bottom of the MA+18 column. This would effect Mr. Eichenberger only. Table 4 shows that it is clearly not prevalent. Therefore, the Commission finds that practice should be eliminated from the contract and that Mr. Eichenberger pay back the additional 2% that he has received to the school district. Testimony at the trial reveals that this amount is not included on the salary schedule so the payback of this money does not go back into the salary pool.


The respondent identified at pretrial an issue of a contract clause which currently limits the Board to granting five years of credit for previous experience. However, the Respondent failed to offer sufficient evidence at trial to allow the Commission to decide this issue.


The respondent requests that we eliminate language in the contract that limits a certificated employee's vertical movement on the salary schedule to one step per year. Table 5 shows that 9 out of 15 of the schools put a limitation on the number of vertical advancement steps. The Commission finds that limiting the vertical movement to one step per year is prevalent.


The respondent requests that the Commission enter an order "..establishing that a part-time certificated employee's fringe benefits would be paid based upon the employee's full-time equivalency." Currently, Mrs. Andrew is the only part-time employee at Nemaha. She teaches one-half time but gets full health benefits.

Table 6 shows that 8 out of the 15 schools pay fringes based on their FTE. At a few other schools the teacher has to work at least half-time in order to receive insurance based on FTE. We find it is clearly prevalent that teachers should be paid insurance benefits based on their FTE and that Mrs. Andrew shall pay back to the school district $2,704, the difference between full-time and half-time insurance benefits.


The parties disagree as to where Mr. Leuenberger should be placed on the schedules of the array members. This specific placement problem is unique as far as we can tell. Mr. Leuenberger taught at Nemaha for 4 years, left to teach at another school district for 7 years and returned to Nemaha for the past 6 years.

When Mr. Leuenberger returned to Nemaha, he was given the standard five years previous years experience plus the four years previous experience in the district. The parties agree as to where he is placed on Nemaha's schedule. In placing him on the schedules of other schools, the petitioner counted the first four years as in-district experience while the respondent counted them as prior years experience. Since schools place a limit on how many years of credit they will give for prior teaching experience, this leads to

the respondent placing Mr. Leuenberger at a lower level on the salary schedule than the petitioner.

Petitioner failed to show at trial that it was prevalent within the array to give credit for the previous years taught in the district. Therefore we shall use the Respondent's placement of Mr. Leuenberger.


Health insurance is not in dispute in this case. How to treat the teachers when placed on the fringe benefit schedules of the other schools is in dispute and must be resolved before base salary can be calculated.

Two teachers at Nemaha (Mrs Anderson and Mrs. Henderson) take cash-in-lieu of full family coverage. The different treatment by the parties of Mrs. Anderson in the amount of insurance she should be credited with and the different LTD amount that would result as a result of placing Mr. Leuenberger on the salary schedule differently explains the fringe benefit differences at all of the common schools except for two: Adams and Johnson-Brock. The differences for these two schools are explained in the footnotes numbered (b) and (f) on the Comparability Summary table, Table 7.

The health insurance amount that Mrs. Anderson should be credited with at the compared to schools is in dispute. Mrs. Anderson is a full-time teacher who takes Nemaha's cash-in-lieu insurance payment because her husband, as school principal at Nemaha, already receives full family insurance. Respondent credited $0 to her at those schools that do not have a cash-in-lieu of policy. Petitioner credited her with full family insurance in those same districts. (T40-41).

Petitioner's expert testified that Mrs. Henderson is a teacher at Nemaha who takes cash-in-lieu of full family health insurance and that, when determining how much to credit her for insurance at the other schools, the petitioner gave her $0 credit at those schools that did not offer a cash-in-lieu of policy. Respondent treated her in the same fashion. When petitioner's witness was asked why they treated her differently in that situation than they did Mrs. Anderson, the reply was that he was told that Mrs. Henderson would choose no insurance in that situation. He testified that it was his belief that the computation should reflect the choice of the individual who might be affected. (T44:4-7).

Mrs. Anderson testified that if she were employed at another school that did not offer cash-in-lieu of payment that her first priority would be to make sure that her family had full family insurance. She testified that she would expect her husband to continue to be employed at Nemaha even if she worked at another school district and that she would probably not take full family insurance in another district if her husband could receive full benefits in the district he was in (T6-8).

It seems evident that if the parties can agree as to how Mrs. Henderson should be treated, there is no reason why Mrs. Anderson should not be treated in the same manner. Both teachers take cash-in-lieu of insurance at Nemaha and both have expressed that if they were employed at another district that did not offer cash-in-lieu of they would not take full family insurance. Therefore, we believe respondent's treatment of Mrs. Anderson should be followed.


Table 7 sets out the total compensation figures for the schools in the Commission's array. These figures have been adjusted for contract days where necessary. The new fringe benefit figure for Nemaha based on the Commission's findings in this opinion comes to $126,948.00. The midpoint of the total compensation minus this new fringe benefit figure leaves $608,126.00 for salaries. This divided by the new staff index factor of 34.48 equals a base salary figure of $17,637.00.


1. The MA+27 lane shall be eliminated.

2. The provisions for a payment of 2% of base for teachers frozen prior to 1983-84 at MA+9 and for payment of 2% of base for teachers frozen at MA+18 shall be eliminated. Mr. Eichenberger shall pay back the additional 2% that he has received to the school district

in whatever manner the parties can agree upon.

3. The provision of full-time benefits to Mrs. Andrews, a half-time teacher, be eliminated and that instead teachers who work part-time should be paid on a pro-rata basis determined by their FTE. Mrs. Andrew shall pay back to the school district the difference between full-time and half-time insurance benefits, $2,704.00. The method of repayment is left up to the parties.

4. The base salary for full-time teachers shall be $17,637.00 per year.

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

6. Adjustments in compensation resulting from the final order rendered in this matter shall be made as soon as possible following final order entered herein.

Karen B. Flowers, Dissenting:

For the reasons stated in my dissent in Neligh-Oakdale Education Ass'n v. Antelope Co. School Dist. #009 , 12 CIR 21 (1993) I dissent from those portions of the Commission's Findings and Order which address and detemine issues not raised by the Respondent prior to the filing of the Petition in this case.

Entered April 15, 1994.