13 CIR 376  (2001)


ASSOCIATION, an Unincorporated )
Association, )
             v. )
DISTRICT NO. 14-0541, A/K/A )
 A Political Subdivision of the                                    )
State of Nebraska, )
                                       Respondent. )

Filed November 14, 2001


For the Petitioner: Mark D. McGuire
McGuire and Norby
605 S. 14th Street, Suite 100
Lincoln, Nebraska  68508
For the Respondent: John F. Recknor
Recknor and Associates
2525 N Street
P. O. Box 30246
Lincoln, Nebraska  68503-0246

Before: Judges Orr, Blake, and Council.



 Coleridge Education Association (hereinafter, "Petitioner" or "Association") filed a wage petition on January 29, 2001, seeking resolution of an industrial dispute for the 2000-2001 contract year. The Association is a labor organization formed by teachers employed by Cedar County School District No. 14-0541, a/k/a Coleridge Community Schools (hereinafter, "Respondent" or "District") for the purpose of representation in matters of employment relations. The District is a political subdivision of the State of Nebraska and a Class III school district. Coleridge Community Schools has approximately two hundred and one (201) students and employs approximately twenty-three (23) teachers during the 2000-2001 school year.

The parties waived the sixty (60) day hearing requirement set forth in neb. Rev. Stat. § 48-813(2). The Commission of Industrial Relations (hereinafter, "Commission") held a Trial on May 21, 2001. The terms and conditions of employment at issue during the trial were array schools; base pay; employer provided health insurance; indexed salary schedule structure; a deviation clause in the prior negotiated agreement; and entry level placement of the teaching staff.


The Commission has jurisdiction over the parties and subject matter of this action pursuant to Neb. Rev. Stat. § 48-818 (Reissue 1998) which provides in part:

…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…



The Association proposes sixteen (16) school districts for their array. The District proposes that ten (10) of the sixteen school districts proposed by the Association are appropriate for the array. These common array members are: Allen, Bancroft-Rosalie, Beemer, Emerson-Hubbard, Hartington, Newcastle, Osmond, Wausa, Winside and Wynot. The contested array members are: Bloomfield, Niobrara, Omaha Nation, Pender, Santee, and Walthill. In determining a proper array, the parties agree that the work, skill, and working conditions of Coleridge Community School’s teachers are sufficiently similar for comparison under Neb. Rev. Stat. § 48-818 (Reissue 1998), except for Omaha Nation Public School, Santee Public School, and Walthill Public School.

The District’s Proposed Array

The ten common members used by the District meet the Commission’s size and geographic proximity guidelines. The Commission has previously found that larger arrays are more statistically sound than smaller arrays. Adams County Dist. No. 0060 Educ. Ass’n v. Adam County School Dist. No. 0060, 10 CIR 242 (1990). The Commission has also expressed that it would prefer arrays containing more than four (4) or five (5) members whenever possible. Grand Island Educ. Ass’n v. Hall County School Dist. No. 0020, 11 CIR 237 (1992); Douglas County Health Dept. Employees Ass’n v. County of Douglas, 9 CIR 219 (1987). The Commission has held that arrays consisting of six (6) to eight (8) members are appropriate. O’Neill Educ. Ass’n v. Holt County School Dist. No. 7, 11 CIR 11 (1990); Red Cloud Educ. Ass’n v. School Dist. of Red Cloud, 10 CIR 120 (1989); Logan County Educ. Ass’n v. School Dist. of Stapelton, 10 CIR 1 (1988); Trenton Educ. Ass’n v. School Dist. of Trenton, 9 CIR 201 (1987).

The Association’s Proposed Array

The Association proposed an array of sixteen school districts: the ten in common districts proposed by Coleridge School District plus Bloomfield, Niobrara, Omaha Nation, Pender, Santee and Walthill. The issue before the Commission is whether one or more of the Association’s six additional proposed array members should be included in the Commission’s array with the ten common array members.

The Commission’s Array

When choosing an array of comparable employers, the Commission applies a well-established size guideline of one-half to twice as large. See, Scotts Bluff County School Dist. No. 79-0064 v. Lake Minatare Educ. Ass’n, 13 CIR 256 (1999); Yutan Educ. Ass’n v, Saunders County School Dist. No. 0009, 12 CIR 68 (1994); Crawford Teachers Ass’n v. Dawes County School Dist No. 0071, 11 CIR 254 (1991); Red Cloud Educ. Ass’n v. School Dist. of Red Cloud, 10 CIR 120 (1989). Employers falling outside this guideline are often excluded from arrays; however, the size criteria used by the Commission is a general guideline and not a rigid rule. Nebraska Pub. Employees Local Union 251 v. Sarpy County, 13 CIR 50 (1998); Nebraska Pub. Employees Local Union 251 v. County of York, 13 CIR 128; 13 CIR 128; 13 CIR 157 (1998); 12 CIR 309; 12 CIR 248 (1997). Nonetheless, since the size guideline is based on objective criteria, it provides predictability and should not be lightly disregarded when a sufficient number of comparables which meet the guidelines exist. See, School Dist. of West Point v. West Point Educ. Ass’n, 8 CIR 315 (1986); Richland Teachers Educ. Ass’n v. Colfax County School Dist. No. 0001, 11 CIR 286 (1992).

The Commission has held that if potential array members share similar work, skills, and working conditions, the Commission will include all of the schools submitted in the array unless there is specific evidence that to do so would be otherwise inappropriate or would make the array unmanageable. Geneva Educ. Ass’n v. Filmore County School Dist. No 0075, 11 CIR 38 (1990); Lynch Educ. Ass’n v. Boyd County School Dist. No. 0036, 11 CIR 25 (1990). Even in such cases, the Commission does not disregard the size and geographic guidelines. See, Id. The Commission need not consider every conceivable comparable, but only "a sufficient number in a representative array so that it can determine whether the wages paid or the benefits conferred are comparable." Nebraska Pub. Employees Local Union 251 v. County of York, 13 CIR 157 (1998).

Contested Array Schools: Bloomfield, Niobrara, Pender and Walthill

Bloomfield is twenty-three (23) miles from Coleridge, Niobrara is forty-six (46) miles from Coleridge, and Pender is thirty-seven (37) miles from Coleridge. All three schools are sufficiently proximate for inclusion in the array. See Table 1.

Coleridge has two hundred and one (201) students enrolled. Bloomfield, Niobrara, and Pender all meet the Commission’s size guidelines of one-half to twice as large with student enrollments of three hundred and six (306), one hundred and fifty-seven (157), and three hundred and ninety-nine (399), respectively. See Table 1.

The Commission will generally include all proposed array members where the parties have stipulated or proved similarity of work, skills, and working conditions unless there is specific evidence that this is otherwise inappropriate or unless the array becomes unmanageable. Lynch Education Ass'n. v. Boyd Co. School Dist., 11 CIR 25 (1990)

Here, both parties stipulated to the similar work, skills, and working conditions between Bloomfield, Niobrara, and Pender as compared to Coleridge. Accordingly, since these three schools meet both the geographical and size requirements, the Commission finds that Bloomfield, Niobrara, and Pender shall also be included in the array.

On the other hand, while Walthill meets the Commission’s size and proximity guidelines in Table 1, it shall not be included within the array because the Petitioner and the Respondent did not stipulate to similar work, skills and working conditions and no evidence was presented to prove or disprove the lack of similar work, skills and working conditions at Walthill as compared to Coleridge. If the Commission were to include Walthill in the array, it would require the Commission to make assumptions not supported by the evidence. Such a decision would be improperly based upon speculation or conjecture. See Lincoln Fire Fighters Assoc. v. City of Lincoln, 198 Neb. 174, 252 N.W.2d 607 (1977). The Commission therefore, will not include Walthill in the array.

Contested Array Schools: Omaha Nation (Macy, NE) and Santee

The Respondent and the Petitioner presented considerable evidence either to include or exclude Omaha Nation and Santee in the proposed array. The parties did not stipulate to the similarity of work, skills, and working conditions between the Omaha Nation and Santee schools and Coleridge Community Schools.

Although both Omaha Nation and Santee appear to be comparable in size and proximity to Coleridge, a review of the evidence substantiates our exclusion of these districts from the array. The evidence with respect to work, skills, and working conditions by the Respondent advocating the exclusion of Omaha Nation and Santee from the array far outweighs the Petitioner’s evidence in support of the two schools.

Where the evidence presented at trial indicates that the work, skills and working conditions between schools are not similar, the Commission has held to exclude those schools from the array. See Grand Island Educ Ass’n v. School Dist. of Grand Island, 11 CIR 237 (1992). See also, Grand Island Educ. Association, v. Hall County School Dist. No. 0002, 9 CIR 188 (1987) (The Commission relied upon factors such as: the school district offered unique programs due to its diverse student body, including ROTC, day care, elementary computer labs, elementary foreign language, and free summer school, the transient nature of the school population, and the fact that there was high turnover rate in classroom teachers in the district.)

The Respondent presented considerable evidence regarding the dissimilarities between Omaha Nation/Santee and Coleridge. The evidence presented regarding the two schools revealed a great deal of mobility among students at Omaha Nation and Santee, for the most part due to a powwow circuit that lasts from late spring, early summer until approximately late September. The evidence indicated that there was a high turnover of classroom teachers at the two schools. Additional evidence was also presented regarding the unique programs and curriculum at Omaha Nation and Santee, designed to meet the needs of the community, including day care, native language classes, a breakfast program, expeditionary learning classes, behavioral modification rooms, and additional truant officers. The teachers at both of these schools are required to attend Boys Town training in addition to their regular in-service hours as well as be prepared to deal with children diagnosed with fetal alcohol syndrome, teen pregnancy, and diabetes. The teachers working conditions are constantly affected by physical violence from students and parents. In addition to dealing with these problems, the teachers must deal with the fact that approximately thirty percent (30%) of the student population requires special education.

Both Santee and Omaha Nation receive a large percentage of their funding from federal government impact aid. Both schools are also either exempted or allowed waivers from the Regulations and Procedures for the Accreditation of Schools in Nebraska, Rule 10.

The greater weight of the evidence presented by the Respondent supports the conclusion that there are significant differences between the Omaha Nation and Santee School Districts and the Coleridge School District. These differences clearly affect the work, skills and working conditions of the teachers. The Commission, therefore finds, that a suitable array for comparison in this case consists of Allen, Bancroft-Rosalie, Beemer, Bloomfield, Emerson-Hubbard, Hartington, Newcastle, Niobrara, Osmond, Pender, Wausa, Winside and Wynot.


The Commission determines health insurance coverage based on prevalence. See, Yutan Educ. Ass’n v. Saunders County School Dist. No. 009, a/k/a Yutan Public Schools, 12 CIR 68 (1994); Nemaha Valley Educ. Ass’n v. Johnson County School Dist. No. 0501, 12 CIR 83 (1994); Richland Teachers Educ. Ass’n v. Colfax County School Dist. No. 0001, a/k/a Richland Public Schools, 11 CIR 286 (1992). At the Pretrial, the parties requested the Commission to determine "employer provided health insurance including deductible amount and employer premium contribution." Currently, Coleridge carries Blue Cross Blue Shield with a $100 Deductible 1 Plan. This plan is prevalent, as indicated by Table 2, and shall continue to be the plan at Coleridge.

Table 2 indicates that the prevalent premium paid by the school districts is $217.11 for individual coverage (single health and single dental) and $588.29 for dependent coverage (family health and single dental). These figures represent 100% of the monthly premium amount at Coleridge. Therefore, the Respondent shall pay $217.11 per month for individual coverage, $588.29 per month for family coverage.


The Commission prefers not to alter the structure of schedules because alteration of the salary schedule does not affect every teacher in the bargaining unit in the same way. See Culbertson Educ. Ass’n v. School District of Culbertson, 10 CIR 29 (1988); Valentine Educ. Ass’n v. School Dist. No. 6, Cherry County, Nebraska, a/k/a Valentine Rural High School, 8 CIR 271 (1986).

In spite of the Commission’s preference of not altering salary schedules, the Commission will order a change in the salary structure when the Petitioner meets the burden of proving the prevalent structure, as long as it is a substantial variance from the prevalent practice. Valentine Educ. Ass’n, 8 CIR at 276. See also Genoa Educ. Ass’n v. Nance County School Dist. No. 0003, 10 CIR 179 (1989).

The Commission has altered salary schedules in the past. See Clarkson Educ. Ass’n v. Colfax County School Dist. No. 0058 a/k/a Clarkson Public Schools, 13 CIR 31 (1997) and Nemaha Valley Educ. Ass’n, 12 CIR at 83. In altering salary schedules, the Commission adheres to its practice of using the modal analysis in reaching the comparable salary schedule in this case. Clarkson Educ. Ass’n, 13 CIR at 38.

Respondent's teachers are presently paid on a 4 x 4 salary schedule. The Districts’ current schedule has the following columns: BA, BA+9, BA+18, BA+27, MA, MA+9, and MA+18. Petitioner's proposed schedule is found on Exhibit 50. Petitioner wishes to change the salary schedule by subtracting a step from the BA column, adding a BA+36 column with 12 steps, adding one step to the MA+9 column, and adding two steps to the MA+18 column. (See Table 3). Respondent did not present any specific evidence in reference to the salary schedule.

We find that the 4 x 4 schedule is comparable (See Table 3), along with the following: 1) subtracting one step from the BA column; 2) adding a BA+36 column with 12 steps; 3) adding one step to the MA+9 column; 4) adding two steps to the MA+18 column.


The Petitioner seeks the elimination of the following deviation language from the parties’ previous Negotiated Agreement: "The District retains the authority to deviate upward from that number [base salary] when, in its sole discretion, it is in the best interests of the District to do so. The District agrees to notify the Association each time this occurs." This discretionary deviation language has been in the contract approximately ten years prior to the year in question. The Respondent testified that sometime between June of 2000 and August of 2000, Mr. Schnoor, the Coleridge Superintendent, negotiated with the two teachers, Mike Bargen and Jeff Finley, who had no prior teaching experience, regarding their employment at Coleridge upon graduation from Wayne State College. Both teachers contracted with Mr. Schnoor for placement on Step 6 of the salary schedule. Mr. Bargen and Mr. Finley student taught at Coleridge up until December 15, 2001 when they graduated from college. Starting December 16, 2001 they both became full-time teachers at Coleridge. On December 18, 2001 both teachers were placed on annualized payroll on Step 6 of the salary schedule. The Respondent argues that this placement was permissible under Article V Clause B "Initial Placement" of the September 9, 1999 Negotiated Agreement.

The deviation clause language presents an interesting question before the Commission on whether such language is a mandatory, permissive, or prohibitive topic of bargaining. Generally, the goal of labor law is to equalize the bargaining power between employer and employees. In order to equalize bargaining power, the Commission follows three categories of collective bargaining subjects: mandatory, permissive and prohibited. Mandatory collective bargaining subjects are those which relate to "wages, hours, and other terms and conditions of employment, or any question arising thereunder." Neb. Rev. Stat. § 48-816(1). Additional mandatory subjects of bargaining are those which "vitally affect" the terms and conditions of employment. Allied Chemical & Alkali Workers Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971). Fraternal Order of Police Lodge 41 v. County of Scotts Bluff Nebraska, et. al., 13 CIR 270 (2000).

The Industrial Relations Act only requires parties to bargain over mandatory bargaining subjects. Neb. Rev. Stat. § 48-816(1). Permissive bargaining subjects are legal subjects of bargaining, which do not fit within the definition of mandatory subjects. See, NLRB v. Borg-Warner Corp., Wooster Div., 356 U.S. 342 (1958). Either party may raise a permissive subject during bargaining, but the non-raising party is not required to bargain over permissive subjects. Id. Finally, prohibited bargaining subjects are topics that the law forbids the parties from agreeing upon.

Additionally, some subjects are considered management prerogatives and may generally be altered at the will of the employer. See, Metropolitan Tech. Community College Educ. Ass'n v. Metropolitan Tech. Community College Area, 203 Neb. 832, 281 N.W.2d 201 (1979) (holding in a school case that the following subjects are management prerogatives: the right to hire; to maintain order and efficiency; to schedule work; to control transfers and assignments; to determine what extracurricular activities may be supported or sponsored; and to determine the curriculum, class size, and types of specialties to be employed).

In an effort to establish working guidelines of what constitutes mandatory subjects of bargaining the Nebraska Supreme Court in Metro Technical Community College Educ. Ass’n, set forth the following test:

A matter which is of fundamental, basic, or essential concern to an employee’s financial and personal concern may be considered though there may be some minor influence of educational policy or management prerogative. However those matters which involve foundational value judgements, which strike at the very heart of educational philosophy of the particular institution, are management prerogatives and are not a proper subject for negotiation even though such decisions may have some impact on working conditions. However, the impact of whatever decision management may make in this or any other case on the economic welfare of employees is a proper subject of mandatory bargaining.

Id at 842. The Commission in Service Employees International Union, Local No 226 v. School District No 66, 3 CIR 514 (1978), used a relationship test in determining bargaining issues.

"Whether an issue is one for bargaining under the Court of Industrial Relations Act depends upon whether it is primarily related to wages, hours and conditions of employment of the employees, or whether it is primarily related to formulation or management of public policy." Id at 515.

The Commission has also previously held that initial placement of employees on the pay line is not a management prerogative. Lincoln Firefighters Ass’n Local 644 v. City of Lincoln, 12 CIR 211; 12 CIR 221 (1996); 12 CIR 309; 12 CIR 248 (1997).

The distinction between the different categories of bargaining subjects is important. The Commission therefore, must determine if deviation from salary schedules is primarily related to management functions or primarily related to wages or conditions of employment.

The teacher salary schedule has historically been the basic framework of teacher contracts. The virtual universal use of salary schedules for teachers by local districts raises no basic legal question if there is reasonableness of classifications and uniformity of treatment of those performing similar service and having like training and experience. Salary schedules clearly constitute wages under Neb. Rev. Stat. § 48-818(1). School Dist. of Seward Educ. Ass’n v. School Dist. of Seward in the County of Seward, 1 CIR 34 (1971). Deviation from the salary schedule affects wages. Therefore, we find that the right to deviate from the salary schedule is a subject of mandatory bargaining.

The testimony indicated that Article V Clause B "Initial Placement", had been in the Bargaining Agreement for at least ten years. Neither party could testify as to when Article V Clause B was placed in the contract, nor could the parties testify to the circumstances surrounding that placement. However, while the School District believed that it had the discretion in entry-level placement in the 1999-2000 contract, the 1999-2000 agreement expired in September of 2001. The contract expired over three months prior to the placement of Mr. Bargen and Mr. Finley on the salary schedule in December of 2001. We find that the District did not have the right to deviate from the salary schedule because there is no evidence that they bargained for Article V Clause B in the contract. Therefore, for the purpose of calculating base salary, we have placed both Mr. Finley and Mr. Bargen on Step 1 in order to calculate total compensation for each array school and for Coleridge’s schedule.

Entry-Level Placement

The Petitioner argues that the entry-level teachers should be placed on the first step of the salary schedule. The Respondent, however, argues that it should be allowed to deviate from the proposed salary schedule for placement of the entry-level teachers.

As we stated above, placement on the salary schedule is a mandatory subject of bargaining. Therefore, Jeff Bargen and Mike Finley should have been placed on Step 1 for the 2000-2001 contract year. This placement presents a public policy issue because it could result in the Commission ordering repayment for compensation out of the employee’s own pocket.

In Rodeo Telephone, Inc., Employees Association v. Rodeo Telephone, Inc., 9 CIR ll8 (l987), the Commission, upon similar issues, held that a requirement for repayment of compensation or benefits out of the employee's own pocket, subsequent to receipt of the benefits during the contract year, "would further strain the employee - employer relationship at Rodeo and is against public policy." Id. at l3l. In Douglas County Health Department Employees Association v. County of Douglas, 229 Neb. 30l, 427 N.W.2d 28 (l988), the Nebraska Supreme Court found that the Commission had the authority to order a wage decrease, but held that the Commission did not act arbitrarily in failing to order a retroactive wage decrease in that case especially in light of difficult implementation and policy questions. In Nebraska Public Employees Local Union 251, AFSCME v. Otoe Co,12 CIR 177 (1996), the Commission reviewed the history of the CIR orders and Supreme Court decisions in regard to this issue, and held:

We hold that absent compelling evidence to the contrary, because of difficult implementation and policy questions, wage reductions will not be retroactive, we will not order employees to pay back any overpayment to the employer. Retroactive wage reductions are appropriate only where they can be accomplished without conflicting with public policy and without implementation difficulties. Such reductions will be required only when shown by the evidence to be appropriate.

Id. at l88.

Neither party presented any compelling evidence to reduce the wages retroactively of Mr. Bargen and Mr. Finley. Therefore, we will not reduce Mr. Bargen’s and Mr. Finley’s wages for the 2000-2001 contract year. To do so would further strain the employer-employee relationship at Coleridge and is against public policy.


Table 4 and Table 5 set forth the relevant information for determining the appropriate base salary. The midpoint of the total compensation $724,372 minus the cost of fringe benefits $136,668 equals $587,704, which, when divided by the new total staff index factor of 28.523, equals a base salary of $20, 610 for the 2000-2001 school year.


1. Respondent shall subtract one step from the BA column, add a BA+36 column with 12 steps, add one step to the MA+9 column, and add two steps to the MA+18 column.

2. Respondent shall pay the teachers a base salary of $20,610 for the 2000-2001 school year.

3. All other terms and conditions of employment for the 2000-2001 school year shall be as previously established by the agreement of the parties.

4. Adjustments in compensation resulting from this order shall be paid in a single lump sum with the payroll checks issued next following issuance of this final order.

All panel judges join in the entry of this order.


Tables 1 through 5 are available in the printed CIR Reporter.