14 CIR 34 (2002)  See also 14 CIR 1 (2002); 14 CIR 33 (2002)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

COUNCIL, J.    

    After trial of the matter, the Commission entered a Recommended Decision and Order on June 24, 2002. The Respondent timely filed a Request for Post-Trial Conference as provided for in Neb. Rev. Stat. § 48-816 (7)(d), which allows the Commission to hear from the parties on those portions of the recommended decision and order which are not based upon or which mischaracterize evidence in the record. A post-trial conference was held July 16, 2002, and the statutory requirement to render a decision within ten (10) days was expressly waived by both parties. The Petitioner was represented by its attorney, Mark D. McGuire. The Respondent was represented by its attorney, L. Bruce Wright.

    The Respondent’s Request for Post-Trial Conference asserted numerous errors in the Recommended Decision and Order, which restated may be described as:

1. Using an inaccurate amount for the cost of family insurance coverage for Educational Service Unit #2 (Fremont), a member of the array;

2. Using an inaccurate amount for the cost of life insurance coverage provided by Education Service Unit #5 (Beatrice), a member of the array;

3.  Using an improper methodology for comparison of fringe benefits which was argued to have effectively created a presumption without statutory authority.  It was further argued within this assignment that the result of the findings with regard to fringe benefits shifted Petitioner's burden of proof, and denied the Respondent due process of law;

4.  Using an improper methodology to determine base salary.

    We have again reviewed the evidence, the Recommended Decision and Order, and the Respondent’s assignments of error.

    The evidence in the record on the fringe benefit contributions by Fremont and Beatrice is in conflict. This is unusual, as the cost of such benefits can ordinarily be determined conclusively. The conflicts were apparently not discovered until after the conclusion of the trial, and no clarification appears in the evidence. At the post-trial conference both parties asserted their evidence was the accurate record of benefits paid.

    Respondent offered Exhibit #23 which reflects a survey response that Fremont employees receive a contribution for family coverage of $4,855.20 per year. Petitioner offered Exhibit #11, which contains the Master Agreement between Fremont and its certified staff. The Master Agreement in Section 3.1 states that eligible employees who designate family health and dental insurance coverage receive "$4,855.20 over the $2,605.32 single cost" (emphasis supplied). Section 3.2 of the Master Agreement provides that the Board shall pay each eligible employee an amount equivalent to the single health insurance premium for a cafeteria plan ($2,605.32). Exhibit #11 further contains the responses of the Fremont Administrator to a clarification request: If the teacher has a family, does the ESU pay up to $621.71 monthly toward the family coverage? Does the money go into the Cafeteria Plan? The handwritten response of the Administrator was "only $217.00 per month into Cafeteria Plan." Both exhibits were received.

    Faced with this inconsistency, we conclude that the Master Agreement is the better evidence of the benefits provided to its certified staff. The ambiguity in the language in the Master Agreement would seem to be explained by the above clarification. The amount used to compute the cost of the family health insurance coverage at ESU #2 (Fremont) will not be changed.

    The cost of the life insurance benefit provided by ESU #5 (Beatrice) presents a similar inconsistency, although with a less significant impact. Exhibit #24 states the premium cost is $2.50 per month. Exhibit #14 states that the premium cost is $5.20 per month. The life insurance benefit reflected is the same. No explanation of the conflict is in the record. Although it is easy to speculate that one of the responses simply transposed the numbers, we must decide which. Exhibit #14 is the signed response of the Beatrice Administrator with his handwritten "yes," appearing directly above the inquiry whether the life insurance premium is $5.20 per month. We relied upon this in our original calculations. We believe it is the more direct, and probably more reliable, statement on the cost of the life insurance. This calculation will not be changed.

    In our Recommended Order and Decision we stated that we would place each employee at the maximum level of fringe benefits to which they would be entitled at the array institution. Respondent has a flexible fringe benefit plan. Some of the array institutions offer different packages. Respondent suggested that the proper placement for each of Respondent’s employees who had elected a benefit not identical to the array school would be to place them on the array as declining all benefits at that institution.

    Respondent has asserted that the effect of our methodology is to create a presumption without statutory authority in order to place the Respondent’s employees on the array in contradiction of the evidence.

    We do not see the distinction between a flexible benefit program, which can be used to pay for insurance, and a program that offers simply to pay for insurance. These benefits are provided for essentially the same purposes. It is illogical, and unfair, to accept the Respondent’s premise that a teacher who has elected payment of cash instead of insurance, would elect no insurance if the cash option is unavailable. That hypothetical teacher has still elected to receive the maximum benefits available to them, he or she has merely chosen the form of the benefit. A selection of cash is a selection of the benefit, not simply a rejection of insurance. The language in our Recommended Order and Decision was not a statement that we would ignore the evidence. It was guidance that we are not accepting the Respondent’s position, and that we consider an election to take the maximum cash in lieu of insurance is nothing more than an election of the maximum benefits.

    It must be remembered that the convention used by the Commission for the calculation of total compensation, and base salary in teacher cases is a hypothetical statistical model. Due to the overwhelming prevalence of indexed salary schedules in public schools, this mathematical model has long been used by the Commission to calculate base salary. See Coleridge Educ. Ass’n v. Cedar County School Dist. No. 14-054 a/k/a Coleridge Community Schools, 13 CIR 376 (2001); Hitchcock County Educ. Ass’n v. Hitchcock County Unified School District, 13 CIR 335 (2000); O’Neill Educ. Ass’n v. Holt County School District No. 0007, 11 CIR 11 (1990); Broken Bow Educ. Ass’n v. School District of Broken Bow, 6 CIR 60 (1982). It is logical, simple, inclusive of total compensation, and yields a precise result. Nevertheless, it must be remembered that it is still a hypothetical. The array is done by inference from the evidence in the record, and almost never by direct evidence, as the process is simply a mathematical model. The teachers at the subject school are not employed at the array schools, we simply attempted to compare total compensation by hypothetically placing them under the contracts in existence at the schools selected for the array. This process is generally accomplished by inference from the facts in evidence concerning the subject employee’s eligibility for placement on the schedule, and eligibility for fringe benefits. We do not believe the methodology used to determine fringe benefits at the array schools in this case is effectively a presumption.

    A true presumption is a device whereby an ultimate fact may be assumed through the proof of one or more other facts. It shifts either the burden of production, persuasion, or both. See G. Michael Fenner, 383 Presumptions: 350 Years of Confusion and It Has Come To This, 25 Creighton L. Rev. 383(1992) (for a discussion on presumption). An inference is not a deduction drawn by law, but, a permissible deduction drawn from the facts. Although the two terms have been used interchangeably and imprecisely in reported decisions over the years, they are different, and distinct concepts.

    The methodology used by the Commission in the Recommended Decision and Order was an inference drawn from the facts in evidence that an employee at Educational Service Unit #13 who elected to take the maximum fringe benefits available (in whatever form) would make the same election at the array schools. This is an inference, not a presumption. It is not a shifting, nor an abrogation of the Petitioner’s burden of proof. It is a conclusion reasonably inferred and deduced from the facts in evidence.

    In our post-trial review of the evidence, we noted three employees whose fringe benefit elections should be modified. Two employees, Olson and Blaha-Moore, are reflected as married, and thus eligible for dependent coverage. In the process of again reviewing the evidence, we find in Exhibit #10 handwritten notations which appear to be a concession by Petitioner that these two employees should be placed as "single throughout" the array. This concession was not pointed out directly, or explained at trial. Nevertheless, consistent with our discussion of our methodology above, it will be honored.

    Janelle Mathews testified by deposition that she would elect only single coverage at the array schools. As discussed below, we do not encourage this procedure, but, we will place Mathews according to this admission in her deposition.

    We understand the motivation and perceived necessity for the numerous depositions taken in this case. Yet, it is our hope that this discussion of the process by which inferences were drawn, and will be drawn in future cases, will decrease the wasteful, and expensive efforts to establish the election each employee might make at each hypothetical array institution. The foundation necessary for admissibility of such evidence will be a difficult task in most instances. We believe that it is reasonable to deduce that an employee electing the maximum to which he or she is entitled, would do so at an array institution. It is a permissible inference, is not a presumption, and is consistent with our responsibility under Neb. Rev. Stat. § 48-818. We question the value in future cases of efforts to glean answers to such hypothetical questions in light of the Commission’s approach to this case.

    Respondent finally asserts that the base salary methodology commonly used in teacher cases by the Commission is inappropriate under the facts. Although the two psychologists provided us with a scenario that is part fish, and part fowl, the beast still seems to essentially be a teacher case. The isolation of the two psychologists off schedule is an anomaly, but, not one we conclude requires us to follow the methodology used in Board of Regents of the University of Nebraska v. Nebraska Association of University Professors, 7 CIR 1 (1983) to meet our obligations under Neb. Rev. Stat. § 48-818.

    This leaves us again with the issue of the psychologists’ salary. Neither party wishes downward adjustments in the salary. Each party proposes to adjust their salaries by an increment, but, no stipulation has been made to do this. A comparison to the array schedules cannot support an increase, and in the absence of a stipulation we decline to arbitrarily impose a salary increase based upon a computed percentage adjustment to base salary.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that:

1. After the recalculation of the benefits for the three employees discussed, Respondent shall pay a base salary of $22,490.

2. Tables 1, 3 through 10 shall be changed to Table 1A, 3A through 10A to reflect the corrections made in this Final Order.

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 and by the Decision and Findings of the Commission.

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.

Entered August 26, 2002.