13 CIR 335 (2000).

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Before: Judges Orr, Burger, and Blake.

Pursuant to Neb. Rev. Stat. ' 48-818 (Reissue 1998), Hitchcock County Education Association (hereinafter, Athe Association@), filed a wage petition on January 14, 2000, seeking resolution of an industrial dispute for the 1999-2000 contract year. The Association is a labor organization formed by teachers employed by Hitchcock County Unified School District (hereinafter, Athe District@) for the purpose of representing teachers in collective bargaining. The District is a unified school district organized and existing pursuant to an Interlocal Agreement executed on April 22, 1999. It is a Class III school district.

The parties waived the sixty (60) day hearing requirement set forth in Neb. Rev. Stat.

' 48-813, and the Commission held a trial on April 18, 2000. The only terms and conditions of employment at issue during the trial were base pay and indexed salary schedule structure. Pursuant to a stipulation entered by the parties all other terms and conditions of employment for the District=s teachers for the 1999-2000 contract year shall remain unchanged as previously established in collective bargaining. The stipulation further provides that teachers employed one-half time or more are and shall continue to receive 100 percent employer-paid health insurance.

The parties propose nine (9) common array members. The Association proposes that six (6) additional school districts be included in the array. The District proposes no additional array members. The common array members are Arapahoe, Cambridge, Dundy County, Eustis-Farnam, Grant, Medicine Valley, Republican Valley, Southern Valley, and Wauneta-Palisade. The Association also proposes the inclusion of Hershey, Gothenburg, Elwood, Maxwell, Sutherland, and Bertrand.

The Commission has established size and proximity guidelines for determining arrays of comparable employers. Generally, array members must be no more than twice the size and no less than one-half the size of the compared-to employer. Scotts Bluff County School Dist. No. 79-0064 v. Lake Minatare Educ. Ass=n, 13 CIR 256 (1999)(citing numerous cases). Each of the fifteen (15) proposed array members meet these guidelines.

The parties stipulated that the teachers= work, skill, and working conditions at all fifteen (15) proposed array member school districts are similar and satisfy the standards set forth in Neb. Rev. Stat. ' 48-818 to permit a comparison of terms and conditions of employment if included in the array as decided by the Commission. The Commission recognizes that larger arrays are statistically more sound than smaller arrays. Id. Therefore, the Commission will include all proposed array members when the members meet the Commission=s size and proximity guidelines and share similar work, skill, and working conditions unless specific evidence demonstrates that doing so is otherwise inappropriate or makes the array unmanageable. See, Id.; Geneva Educ. Ass=n v. Fillmore County School Dist. No. 0075, 11 CIR 38 (1990); Lynch Educ. Ass=n v. Boyd County School Dist. No. 0036, 11 CIR 25 (1990). The Association sought inclusion of every proposed array member, and the District failed to present specific evidence demonstrating that any school district should be excluded from the array.

Larry Schall (hereinafter ASchall@), the District=s Superintendent and the District=s only witness, testified that he did not include Sutherland, Maxwell, Hershey, or Gothenburg because of their distance from the District and their close proximity to the interstate. Schall contended that since these school districts are located near the interstate, they have more student population stability. This is uncorroborated, and the District presented no specific evidence proving student populations are more stable in districts located near an interstate. Additionally, the District presented no evidence as to how student population stability affects the Commission=s determination of comparable terms and conditions of employment. The Commission notes that it cannot consider a school district=s ability to pay salaries and benefits comparable to the prevalent. Nebraska City Educ. Ass=n v. School Dist. of Neb. City, 201 Neb. 303, 267 N.W.2d 530 (1978).

Schall further testified that he did not include, or even consider including, Elwood or Bertrand in the District=s array because of their distance from the District. Using either parties= numbers, both schools are geographically proximate to the District and shall be included in the array.

The Commission concludes that the array shall consist of the following school districts: Arapahoe, Bertrand, Cambridge, Dundy County, Elwood, Eustis-Farnam, Gothenburg, Grant, Hershey, Maxwell, Medicine Valley, Republican Valley, Southern Valley, Sutherland, and Wauneta-Palisade.

The District=s 1998-1999 salary schedule is set forth in Exhibits 1 and 25. In summary, it is a 4 x 4 salary schedule with six (6) columns and twelve (12) steps. The Association=s 1999-2000 proposed schedule is found on Exhibit 6. The Association asserts that given the fifteen (15) member array, the comparable schedule is a 4% horizontal and 4.25% vertical schedule with eight (8) columns and sixteen (16) steps. As explained below, however, the Commission does not find the Association=s proposed schedule to be appropriate.

In its proposed schedule the Association utilized a modal analysis to arrive at the salary schedule indices of 4 x 4, then altered the vertical index so that the total staff index factor would be comparable to the total staff index factors arrived at by placing the District=s teachers on the array members= schedules. No authority can be found for this adjusted modal approach.

The Commission utilizes a modal approach in determining prevalent salary schedule indices, but does not compare total staff index factors. The Association did not present a sufficient reason for the Commission to begin comparing total staff index factors.

In Clarkson Educ. Ass=n v. Colfax County School Dist. No. 0058, 13 CIR 31 (1997), the Commission addressed the issue of mean versus modal analysis of salary schedule indices and found no reason to vary from established modal analysis precedent. The Commission held:

The Commission has traditionally used a modal analysis in determining salary schedule indices. No authority can be found for using a different analysis although there is no specific preclusion of the mean approach. No good or sufficient reason was given to reject the modal approach in favor of the mean analysis in this case. The Commission chooses to adhere to its practice of using the modal analysis in reaching the comparable salary schedule in this case.

Id. at 38.

In the current case, the Association urges the Commission to utilize an adjusted modal approach for which, like the mean approach, there is neither authority nor specific preclusion. The Commission=s statutory duty is to Aestablish 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.@ Neb. Rev. Stat. '48-818.

The issue at hand is salary schedule structure. The schedule=s structure must therefore be comparable to the prevalent. Prevalent is defined as A[w]idely existing; generally practiced, occurring or accepted.@ Id. at 257 (quoting Valentine Educ. Ass=n v. School Dist. No. 6, 8 CIR 271, 277 (1986)). None of the array members have a 4 x 4.25 salary schedule; rather, a 4 x 4 schedule is comparable to the prevalent and shall be established in this case. Once the Commission has set the schedule=s columns, steps, and indices as comparable to the prevalent, the total staff index factor can be calculated. The Commission will set the schedule=s columns, steps, and indices comparable to the prevalent.

The 1999-2000 4 x 4 indexed salary schedule shall have the following columns and steps: BA (7 steps), BA9 (8 steps), BA18 (9 steps), BA27 (11 steps), BA36 (13 steps), MA (14 steps), MA9 (15 steps), and MA18 (16 steps). This indexed salary schedule is set forth in Table 1.

Table 2 sets forth the relevant information for determining the appropriate base salary. The midpoint of the total compensation ($2,030,204) minus the cost of fringe benefits ($291,465) equals $1,738,739, which, when divided by the new total staff index factor of 84.4, equals a base salary of $20,600 for the 1999-2000 school year.