15 CIR 117 (2006)  Reversed and Remanded with directions. 274 Neb.103 (2007) 736 N.W.2d 726 (2007)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 Filed January 25, 2006

APPEARANCES:

           This matter comes on for consideration following the Nebraska Supreme Court’s opinion rendered on June 10, 2005, which affirmed in part, and in part reversed and remanded for further proceedings the Commission’s decision in this case. The Commission’s prior decision is reported at 14 CIR 203 (2004) and the Supreme Court’s opinion is reported at 269 Neb. 956, 698 N.W.2d 45 (2005).          

 In its opinion, the Nebraska Supreme Court analyzed numerous assigned errors, finding that the Commission erred in not deciding the issue of deviation based upon prevalence. The Supreme Court summarized the decision on the deviation issue as follows: “The CIR also determined that it was without authority to resolve an issue raised by the parties concerning the inclusion of a deviation clause in the parties’ agreement, which clause permitted the District to deviate upward from the agreement’s base salary schedule in the course of hiring teachers.” Further summarizing, the Court stated that the Commission found it could not resolve the deviation issue because, for mathematical certainty, the only relevant provisions “would need to be identical.”

After summarizing the Commission’s decision, the Supreme Court then considered, argument by argument, the Commission’s analysis in the instant case. The Court agreed with the Commission that the presence of a deviation clause in the contract is a subject of mandatory bargaining and they also agreed with the Commission’s general observation that our orders are not designed to force a party into a contract, but rather to exercise our authority to settle disputes. The Supreme Court then noted the use of the word “identical” in the Commission’s decision, finding that the analysis should be whether the clause was prevalent. The Supreme Court reasoned that the Commission must 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 analyzing this, the Supreme Court used the Commission’s method of choosing an “array” as an analogous method to the determination of whether the deviation clauses are enough alike to be considered sufficiently similar. The Supreme Court articulated that the use of the word “prevalent” in this context did not require the employment terms elsewhere to be completely identical to the provision at issue, stating: “The standard inherent in the word ‘prevalent’ is one of general practice, occurrence, or acceptance, and determination regarding ‘prevalent’ practices are within the field of expertise of the CIR.” Then the Supreme Court cited the Commission’s Yutan Education Ass’n v. Saunders County School Dist. (“Yutan”), 12 CIR 68 (1994), decision as an example of the Commission’s ability to determine whether a deviation clause was prevalent. The Supreme Court remanded the case, directing the Commission to consider the deviation issue under a prevalence analysis. On all other issues, the Supreme Court affirmed the decision.

SCOPE OF THE REMAND:

Generally defined, a “remand” is an appellate court’s order returning a proceeding to the court from which the appeal began, for further proceedings in accordance with the remanding order. Mace v. Macy, 13 Neb. App. 896 (2005) (citing In re Interest of J.L.M. et. al., 234 Neb. 381, 451 N.W.2d 377 (1990)). As a result of an order for remand and mandate from an appellate court, a trial court is required to adhere to the mandate and render judgment within the mandate’s purview.

PREVALENCE OF DEVIATION:

            Both parties have a distinctly different approach and interpretation of the method or process used in conducting a prevalence analysis of deviation clauses. The Petitioner argues that our analysis should be based upon the specific terms of the deviation clause at issue, and not based upon whether generic deviation language is prevalent. The Petitioner’s methodology determines prevalence by examining the terms in each array schools’ deviation clause independently to determine if prevalence exists.

            Respondent’s argument, restated, is simply that the Commission should look only to whether the other clauses in the array permit the employer to pay a salary in excess of the base salary schedule.

Prevalence has traditionally been determined by the Commission on a case-by-case basis, with a great deal of discretion being granted to the Commission’s determination. The Commission’s case law is reflective of this policy. The concept of “prevalence” was discussed by the Commission in several of its earliest cases.

In Fremont Education Ass’n v. School District of Fremont, 1 CIR 50 (1972), the Commission consulted Webster’s New World Dictionary for authoritative comments on the word “prevalent” and found the following definition:

Prevalent, 1. [Rare], predominant. 2. Widely existing; generally practiced, occurring, or accepted. SYN. See prevailing.  

Id, at 50-7. The Commission reviewed its application of the prevalent standard, as set out in Fremont, and summarized its findings in Hastings Education Ass’n v. School District of Hastings, 1 CIR 42 (1972) as follows:

The Legislature originally intended as a standard of wage rates those which were predominate or at least widely existing throughout the whole state. Then it changed the standard to one of general practice, occurrence, or acceptance but in a very limited area... Thereafter, in 1969 the Legislature withdrew the mandatory limitation on area, but it did not re-express a mandatory consideration of either predominance or of existence throughout the whole state. The standard now is one of general practice, occurrence, or acceptance, but the question of how general is general is left to the good judgment or feeling of the judges. The requirement of similarity of working conditions helps the judges develop that judgment or a receptivity to the proper connotation of the word “prevalent”. Similarity tends to decrease with increasing distance among what are to be compared and to become more pronounced with increasing proximity.

 Id, at 42-10.  

From these cases it is clear that the standard inherent in the word “prevalent” is one of general practice, occurrence or acceptance [see, Webster’s New World Dictionary], but the extent of such generality is left in each case to the judgment of the Commission.

To emphasize the subjectivity of the “prevalent” standard, in Omaha Ass’n of Fire Fighters v. City of Omaha, 2 CIR No. 117 (1975) Aff’d 194 Neb. 436, 231 N.W.2d 710 (1975), the Commission stated that,

the ascertainment of the prevalent wage rate in a given case is a matter incapable of exact mathematical demonstration. It is one of reasonable approximation having its basis in a proper consideration of all relevant factors... Section 48-818 does not fix any single formula or combination of formulas whereby the prevalent wage rate is to be determined. Rather the court must make the pragmatic adjustments which may be called for by particular circumstances.

Id, at 117-5.

On appeal to the Nebraska Supreme Court, the Omaha Ass’n of Fire Fighters decision was affirmed. The Court stated that a prevalent wage rate “must almost invariably be determined after consideration of a combination of factors.” Id, at 440. The Court specifically pointed out that the Commission had not determined the prevalent wage rates for firefighters “by any direct computation or application of average or mean rates” from cities in the selected array. Id, at 441. Instead, according to the Court, the Commission “weighed, compared, and adjusted all the factors involved in each of the cities, which resulted in a determination of prevalent wages paid...” Id. The standard for prevalent wage rates is practice, occurrence or acceptance, not a predetermined percentage or formula. This standard grants a great deal of deference to the sound judgment of the Commission.

            In its opinion in this case, the Supreme Court scrutinized three of the Commission’s past cases: Coleridge Education Ass’n v. Cedar County School Dist., (“Coleridge I”), 13 CIR 376 (2001), Yutan, 12 CIR 68 (1999) and Wayne Education Ass’n v. School District of Wayne, (“Wayne”), 9 CIR 281 (1988). In deciding this case based upon prevalence, we first examine the three past Commission cases again, utilizing the Supreme Court’s analysis.

Coleridge I

In its opinion, the Supreme Court reviewed the analysis of Coleridge I, where the Commission found that there was no evidence that a deviation provision was bargained for in the past-negotiated agreement. The Supreme Court made a factual distinction between Coleridge I and Hyannis.  Because the evidence showed this was a previously bargained-for provision in the 2001-2002 Hyannis contract, it was appropriate for the Commission to analyze the issue on a prevalence basis. The Supreme Court reasoned that, unlike Coleridge I, approval of the deviation clause by the Commission would not force the parties into a contract term where none existed, because such a term was previously agreed to. The Supreme Court reasoned that where the parties have “bargained” for a provision in the past, it is not unfair to a party for the other party to request that the provision be retained in the future.

Historically, provisions in a contract have not been decided based upon past inclusion, but instead the provisions are decided based upon current comparability. In the original trial, it is clear from the testimony that the parties did not utilize the provision for the 2002-2003 contract year. The parties did not provide the Commission with evidence in the instant case of whether the other array contract provisions were bargained into their contracts. The Commission cannot force a party to be bound by a past provision unless the provision is prevalent. The Commission will utilize Coleridge I to the extent of its historical significance, yet the Commission’s ultimate determination must be founded on a prevalence analysis of the deviation clauses.

Yutan

            The Supreme Court, in its opinion, noted the importance of Yutan in deciding a deviation clause based upon prevalence. The Supreme Court stated that “contrary to the reluctance exhibited by the CIR in the instant case, it has in the past considered a deviation clause composed of language similar to the clause at issue, utilizing a prevalence analysis in such consideration.”

 In Yutan, the Commission, in the context of a wage decision, found that the language allowing the Respondent to deviate from the salary schedule was not prevalent. The Commission based this decision on Wayne.  The Respondent also argued in Yutan that the Commission did not have jurisdiction to order such a change to the contract due to a provision on contract continuation. The Commission found that it has in the past determined the prevalence of contract language.

As seen in Table 2 included at the end of this Opinion and Order on Remand, Yutan analyzed various deviation clauses for the index salary schedules. Based upon prevalence, the Commission found that seven of the eleven contracts at the various array schools did not contain deviation language. In deciding Yutan, the Commission indiscriminately placed all four clauses into a single deviation category, even though the deviation language in the other four contracts varies greatly. Those four were Arlington, Fort Calhoun, Mead and Valley.

Arlington’s deviation language included both new hires and currently employed teachers. The deviation was limited to a majority approval of a review committee. In Fort Calhoun,  the deviation could only exceed the salary schedule to secure desirable teachers and the provision also protected those teachers employed at the date of the agreement by not allowing the school district to move those newly-hired teachers into a lesser position on the salary schedule.  In Mead, the deviation allowed the school district to retain a teacher at the same step the following year for justifiable reasons, with these “reasons” notified to the teacher involved. Valley allowed deviation to the extent that the salary schedule may not be exceeded and the deviation was limited to the hiring of a new teacher.   Finally, Yutan’s clause was broad in that the school district could deviate from the schedule as conditions warrant. Seven of the schools in the Commission’s table – Ashland-Greenwood, Bennington, Cedar Bluffs, Raymond Central, Wahoo, Waterloo, and Weeping Water stated that no contract language authorized deviation.

Thorough analysis of the clauses in Yutan, however, reveals that all of the deviation clauses were markedly different and not sufficiently similar.  Arlington’s clause gave the impression of a performance based policy, rather than an actual deviation clause, which entirely abrogates the two-prong strength of a teacher salary schedule.  Mead’s clause was akin to a freeze policy. Fort Calhoun’s clause was vague and open-ended.

Yet, while all of these provisions were markedly different and clearly not “sufficiently similar,” there is an immense factual distinction between Yutan and Hyannis − seven clauses in Yutan did not contain deviation language.  These seven schools enabled the Commission to find the clause non-prevalent, rather than force the Commission into a discussion of the merits of each clause.  Furthermore, without the contract exhibits presented to the Commission in Yutan, it would be impossible to determine if any other “deviation-like” language was included in the seven schools found not to have any contractual language authorizing deviation.  Despite the unnecessary dicta examining the various clauses, the holding of Yutan was simply that deviation clauses were not prevalent.  It was not a holding that any deviation clause is treated as similar to any other, and is distinguishable from the analysis required of the Commission in this case.

  Wayne

The Supreme Court cited Wayne as a second example of a past decision where the Commission determined a case based upon prevalence. The Supreme Court indicated that this case, coupled with Yutan, was enough precedent for the Commission to decide the prevalence of the deviation clauses in Hyannis .

 In Wayne, the deviation clause was specific to salary schedule movement.  See Table 3.  It provided: “The board of education reserves the right to deviate from this schedule when the board considers it in the best interests of the school–either in withholding increases in case of unsatisfactory work or in granting a larger increase in case of meritorious work.” In Wayne, the respondent argued for the inclusion of the clause and the petitioner argued that the clause was non-prevalent as well as objectionable in that it contradicted the automatic advancement inherent in the index salary schedule. The Commission held the language was not prevalent and should be stricken from the terms and conditions of employment, finding, without determining the merits of the clause, that the contracts in the array did not contain any similar language restricting or accelerating advancement on the salary schedule. Seven of the nine array schools were found to have no restriction in their contract. The two contract restrictions were in Centennial and Central City. Those restrictions were both different from Wayne’s provision, yet both provisions dealt directly with the schools’ salary schedule movement.

In Wayne, it was clear that the Commission was both presented with an argument for prevalency and an argument against the general inclusion of such a clause since it abrogated the predictability of the salary schedule. In Wayne , the Commission did not go into a lengthy discussion about how deviation clauses can impact our wage decisions, but, instead simply found the clause not prevalent. Reliance on dicta in the Yutan and Wayne decisions, to decide this case, would not be appropriate. The parties in Hyannis have clearly put into question the entire framework of what constitutes a deviation clause and this must be answered in order to compare and determine whether sufficient similarities exist between the array clauses.

Proper Methodology for Comparing the Deviation Clauses

In the majority of wage cases, the parties define the parameters of each disputed fringe benefit.   For example, parties might disagree over health insurance, but such a disagreement is not limited to the general idea of health insurance.  Instead, the disagreement is broken down into individual categories like deductible and percentage of contribution. The parties in the instant case, however, disagree on the categorization of the deviation clauses, which complicates the issue.

            In its Petition, the Petitioner requests the deviation clause be deleted from the contract. The clause reads: [“The Board reserves the right to deviate from the Agreement if it becomes necessary to hire teachers for a particular position.”] The Petitioner argues that our analysis must be based upon the terms of the deviation clause at issue. In its argument, the Petitioner maintains that the Gordon and Rushville contracts do not provide the Commission with any contract language pertaining to deviation. The Petitioner argues that Rock County is the base example of “defined deviation,” asserting that such language is actually only initial placement language. The Petitioner analyzes West Holt’s contract which does not contain any deviation language, but instead provides extra compensation for special assignments and requested services.   Furthermore, the Petitioner argues that Garden County’s language does not create a contractual relationship. See Table 1. The Petitioner also argues that since the Supreme Court agreed with our finding that no ‘right’ to deviate exists, the language presented in Thedford, Burwell, and Garden County is meaningless. See Table 1. The Petitioner also argues that the language in Garden County , Thedford and Burwell only allows deviation from the salary schedule, and not the entire agreement, as is in the case of Hyannis. Ultimately, the Petitioner states that we must consider the bigger picture – i.e. how will this impact the over-all plan of public sector collective bargaining.

            On the other hand, the Respondent maintains that four of the seven compared-to school districts have specific contract language authorizing the school to deviate from the salary schedule – Garden County, Thedford, Burwell, and Rock County High. The Respondent argues in its Answer that Hyannis ’ clause constitutes a prevalent practice among comparable employers to the School District . The Respondent also argues that the existence of a deviation clause in a contract does not adversely affect the comparability process established by the Commission. The Respondent feels that because the Association and the School District agreed to the placement of teachers on salary schedules, even though some of the schools had a deviation clause, that placement was made accurately and can continue to be made without speculation.

The standard of determining prevalence is one of general practice, occurrence, or acceptance, but the question of how general is general is left to the good judgment of the Commission.  A prevalence determination under Neb. Rev. Stat. § 48-818 cannot be made by any single formula or combination of formulas.   Rather the Commission must make pragmatic adjustments, which may be called for by particular circumstances. The facts presented in Hyannis will be our guide to make such a determination.

The Commission’s normal prevalence practice is to perform a modal analysis of all array members. However, in this case the Commission is evaluating and comparing language, and needs to establish a baseline comparison. Words are difficult to compare, since by their own nature, words often have multiple meanings, and coupled with other words can metamorphose into completely different interpretations.

In order to effectuate the policies under § 48-818, we must interpret each of the deviation clauses, but, first we must define deviation. Defining deviation will enable the Commission to accurately and effectively categorize the clauses in order to perform a modal analysis. Deviation must be defined in the context of a school wage case, utilizing a historical analysis of the teacher salary schedule.  

The teacher salary schedule has historically been the basic framework of teacher contracts. The virtually 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. See Coleridge I, 13 CIR at 385.

In Service Employees International Union, Local No. 226 v. Westside Community School Dist. No. 66, 11 CIR 75 (1991), the Commission found the total compensation model invaluable in determining the prevalent salary for school teachers but has rarely, if ever, used the total compensation model for other groups of employees. The Commission found, due to the nature of the two-dimensional index salary schedule used by almost all of the school districts in the state, the total compensation method provides the parties before the Commission exact results with virtually no independent assumptions. Id. The Commission reasoned that teachers in all districts are rewarded for longevity and education beyond their degree, which is reflected in their placement on the given salary schedule. Id. The Commission concluded that there was no similar corollary in other employee groups. Id.

The Commission has also stated that it can be truly said that among primary and secondary teachers, all teachers in the State of Nebraska and the United States are somewhat comparable and have somewhat similar working conditions. Wood River Educ. Ass’n v. School Dist. No. 83 of Hall County, 2 CIR 115 (1975).  The Commission also acknowledged that most teachers have the same professional qualifications, teach students in classes of similar sizes and in Nebraska, teach a somewhat similar curriculum. Id.

In Wood River,  the Commission further noted that one of the purposes of the Neb. Rev. Stat. § 48-818 was to protect teachers that were teaching in school districts where the salaries offered were not comparable to other schools where wages were freely negotiated. The Commission summarized that this protection was granted in lieu of the basic right of employees to strike if they were not satisfied with the salaries offered.

Since all schools are somewhat comparable and all working conditions for teachers are somewhat similar, we must define deviation in light of the purposes behind § 48-818. If an agreement reached through collective bargaining can be materially altered by one party without the consent of the other,  then there can be no real meaning to the collective bargaining process or the rights granted to the parties under the Industrial Relations Act. Ewing Educ. Ass’n v. Holt County School Dist. No. 29, 12 CIR 242, 245-246 (1996). Although the Commission has held that salary schedules are susceptible to analysis under § 48-818, the Commission has consistently favored the position that changes in salary schedules are best affected through the negotiation process. See Valentine Educ. Ass’n v. School Dist. No. 6, 8 CIR 271 (1986); Tekamah-Herman Educ. Ass’n v. School Dist. of Tekamah-Herman, 9 CIR 78 (1987).

Deviation from the salary schedule in the context of a school wage case must be clearly defined.  If the school board is able to depart from the salary schedule at its sole discretion,  then the contract for a salary schedule becomes meaningless. This is not deviation in the context of a school wage case, but instead the nullification of a contract and of our order under § 48-818. If, on the other hand, the parties have clearly bargained for specific instances where specific actions can be taken and clearly applied, then both sides agree to and understand the potential results.  This result, as the Petitioner aptly terms it, is known as “defined deviation” and is a perfectly acceptable result of careful bargaining between the parties. Defined deviation provides all parties with stability and is the logical result of the bargaining process.

For our purposes, the Commission defines a deviation clause as one permitting a departure from the bargained for and agreed upon contract, upon defined criteria and/or specific standards, that have been bargained for and agreed upon by the parties.

 Using this definition, the Commission finds that only Rock County allows deviation in the context of a school wage case. With only one school district providing deviation out of the seven school districts in the array, deviation is clearly not prevalent. Therefore, Hyannis ’ clause which states: “The Board reserves the right to deviate from the Agreement if it becomes necessary to hire teachers for a particular position,” should be eliminated from the 2002-2003 contract. See Table 1.

Analysis of Array Clauses

In addition to our method of defining deviation under the guise of § 48-818, we can also find generally that Hyannis ’ clause should be eliminated. The ultimate question is whether, as a matter of fact, the “deviation” clauses selected for comparison are sufficiently similar, not just “similar”. See Crete Educ. Ass’n v. School Dist. of Crete, 193 Neb. 245, 255 (1975). The standard of determining prevalence is one of general practice, occurrence, or acceptance, but the question of how general is general is left to the good judgment of the Commission. In reviewing the rest of the clauses, it is clearly apparent that these clauses are not enough alike to be found to be sufficiently similar.

Gordon, Rushville and West Holt

Both parties agree that both Gordon and Rushville do not have deviation language in their contracts. Petitioner also argues that West Holt’s contract does not contain deviation language and the Respondent does not include West Holt in the four array schools that contain deviation language. West Holt’s deviation language states: “The district retains the authority to provide extra compensation for special assigned work and requested services.” It is clear from this provision that the deviation at question in West Holt is more akin to providing extra compensation for extra work as seen commonly in a multitude of teacher contracts. Such language does not allow varying placement on the salary schedule. Without the parties being in great disagreement, and the fact that West Holt’s contract does not contain any deviation language remotely comparable to any of the other “deviation” clauses, we find that West Holt’s contract is not comparable, and not even a deviation clause. Therefore, the contracts of Burwell, Garden County , Rock County and Thedford are the only contractual provisions at issue.

Burwell

Burwell’s clause states:

In the event that a new teacher cannot be hired on the basis of the adopted schedule and it is necessary to raise the base, all the teachers in the system shall be placed on the new schedule and salaries adjusted accordingly. If a position has not been filled by August 1, however, the Board reserves the right to exceed the schedule for the new teacher only if it is necessary to do so to fill the position.

Burwell’s clause strays from the contract differently before and after August 1.  Before August 1, if a teacher must be hired at a higher rate, all teachers in the system must receive a higher rate as well.  However, after August 1, the Board is limited to “exceed” the schedule for a new teacher in order to fill a position for the start of school.  The Board’s ability to stray is limited to a certain time period in Burwell unlike the other array schools’ “deviation” clauses.  Therefore, Burwell’s clause is not sufficiently similar to any of the other array schools’ deviation clauses.  

Garden County

Garden County’s clause states:

The salary schedule shall not be construed as being contractual and no teacher employed by the district shall have claims, demands, or course of action of reason of the provisions. Furthermore the Board reserves the right to make necessary adjustments in order to meet emergencies, which may arise. Questions over the interpretation of the schedule will be resolved by the Superintendent and Board of Education, whose decision shall be final.

         Garden County's clause strays far away from the agreement, to a point beyond construing the salary schedule as being contractual.  This clause is a clear nullification of the salary schedule and is remarkably unlike any of the other array clauses.  While the ability to stray is limited to making adjustments to meet emergencies, the entire procedure is controlled by the Superintendent and Board of Education with no consideration given to the local teachers’ association.  None of the other clauses have a provision remotely similar to Garden County. Therefore, Garden County’s clause is not sufficiently similar to any of the other array clauses.

Rock County

Rock County’s clause states: “New Graduates may be placed on Step Two if the number of applicants is one.”

Rock County strays from the salary schedule only for new graduates to be placed on Step Two and only if the number of applicants is one. Rock County’s deviation is not sufficiently similar to any of the array clauses. Rock County’s clause strays from the salary schedule in an ultra-limited circumstance, with a clear definition as to when such a departure should occur.  No other array clause provides for deviation in a similar way to Rock County.  The rest of the clauses are significantly broader in scope and application.  Therefore, Rock County ’s deviation clause is clearly not sufficiently similar to any of the other array clauses.

Thedford

Thedford’s clause states: “Although the Board of Education will endeavor to abide by the Salary Schedule in every instance in employing and reemploying teachers, it does reserve the right to depart from the schedule when it deems the best interest of the school may be reserved by doing so.”

Thedford’s clause allows the Board to depart from the schedule in both new hires and retaining current hires. No other array clause is sufficiently similar in allowing the clause to be used specifically for both currently employed teachers and newly hired teachers. Therefore, Thedford’s clause is not sufficiently similar to any of the array clauses.

CONCLUSION:

Deviation should be defined in the context of a school wage case.   Deviation, as defined by the Commission, provides all parties with stability and is the logical result of the bargaining process.   Using the Commission’s definition, the Commission finds that only Rock County allows deviation in the context of a school wage case.   With only one school district providing deviation out of the seven school districts in the array, deviation is clearly not prevalent. Therefore, Hyannis’ clause which states: “The Board reserves the right to deviate from the Agreement if it becomes necessary to hire teachers for a particular position,” should be eliminated from the 2002-2003 contract.   Furthermore, if the Commission were to determine the issue of deviation based upon a general comparison of the clauses, it would conclude there is no clear prevalent.   Each clause clearly provides for a very different triggering circumstance.   Therefore, Hyannis’ clause should also be stricken from the 2002-2003 contract under a general comparison analysis.

IT IS THEREFORE ORDERED THAT:

1. The Respondent shall remove the deviation clause from the parties’ 2002-2003 contract.

All judges join in the entry of this order.

Entered January 25, 2006.  

Judge Jeffrey L. Orr, Concurring:

Given the limited scope of remand (to determine the “prevalency” of deviation) from the mandate of the Supreme Court, I concur with the majority’s analysis of the current law and decision drawn therefrom.  However, the process of determining prevalency of deviation clauses is of little value given the wide variance of clauses as evidenced in this case.

We clearly understand the rationale behind the school districts’ desire to be able to adjust salaries in order to meet their needs for teacher recruitment.  However, the salary schedule is the heart and soul of the negotiated teacher contract. Completely open-ended deviation totally undermines the collective bargaining agreement, leaving one party not bound to the labor agreement.   This raises the question, is this then an illusory contract without mutuality of obligation and thus void under Nebraska law.   That is a question for others to answer.

The deviation provisions in Garden County and Thedford provide no limitations upon the school district, as they “reserve the right” to deviate from the salary schedules as they see fit.  The lack of mutuality of obligation exists in both of these contracts.   While we could say that the majority of the array members have some form of deviation (in the broadest sense) that is of no value in determining comparability.  The deviation clauses vary so greatly and the effect of such clauses on the parties is so different, it is impossible to find commonality for the purpose of comparison and prevalency. 

Deviation clauses that meet the definition set out in the majority opinion, will allow for comparison and a determination of prevalency. Will the compared to deviation clauses be exactly the same − NO. Can they be close enough for comparison − YES, but as in the definition set out in the majority opinion, the defined deviation must have been “bargained for and agreed upon by the parties.”

Judge William G. Blake, Concurring:

            I concur in the result reached by the majority in the Opinion and Order on Remand and with the majority’s reasoning. However, the majority bases its conclusion on an exact definition of “deviation”, without discussing alternative methods of analysis.

Under any analysis of the matter other than adoption of a rule that would treat all deviation clauses equal regardless of their dissimilarities, I do not believe we could find deviation to be prevalent among the arrayed schools. 

            Another way to analyze the clauses in the array would be to ask:

1.  Under what circumstances is deviation allowed?

2.  Who has the authority to enact deviation?

3.  What is the result of the decision to deviate?

Similar to the majority approach, this analysis need not concern itself with whether a clause would seem to nullify the contract, and it does not ignore real differences between clauses.  It also avoids deciding whether an array school has deviation which conforms with any particular definition. The Supreme Court, in remanding the matter to the Commission, did not provide a definition of deviation. 

            Looking first at the Hyannis clause, it allows the school board to enact deviation when there is a necessity related to a particular position. The result is not stated, but from the context it is clear that the result would be to pay more than provided in the salary schedule. 

            Two of the seven array schools do not have any deviation clause.   West Holt has an extra pay for extra work clause, but this is not a deviation clause even under the respondent’s broad interpretation.

            The majority concludes that Rock County and only Rock County,  has a deviation clause meeting the Commission’s definition. However, it is easily argued that Rock County has no salary schedule deviation clause at all.  Rather, it has a specific, carefully delineated modification of the application of salary schedule.  In any analysis it is so far different from the Hyannis clause that it cannot be said to be significantly similar.  That being the case, only three of the seven array schools are left for analysis.

            While it may provide for interesting debate to look at each of those three clauses to determine if they are similar enough to the Hyannis clause under the method I have outlined above, we need not do so, as it cannot affect the result in this case. Even if the three clauses (Thedford, Garden County and Burwell) could all be said to be significantly similar to the Hyannis clause, deviation could still not be found to be prevalent in this case.

            For these reasons I agree with the Order that the Respondents shall remove the deviation clause from the parties’ 2002-2003 contract. 

Judge David J. Cullan, Concurring:

The contract provisions contained in the record which we are asked to consider in determining the issue before the Commission are all set forth in Table 1 attached to the majority opinion of Judge Lindahl. I concur with the finding in the majority opinion that “deviation is clearly not prevalent.”

Comparison of the contract provisions set forth in Table 1 demonstrates that when the schools in the array dealt with the so-called deviation issue they each did so in distinctly different ways.

Garden County declared the salary schedule in its contract not to be “contractual.” Thedford reserved the right to “depart” from the salary schedule when the Board of Education deemed such departure served the best interest of the school. Thus for Garden County and Thedford, the question of teacher compensation was not governed solely by clearly binding terms of the labor agreements.

In Burwell, the salary schedule set forth in the collective bargaining agreement was subject to unilateral modification by the Board when a new teacher could not be hired. This provision allows unilateral modification of bargaining until salaries for all teachers before August 1 and for only the new hires thereafter. No collective bargaining is required to modify the Burwell labor agreement. Such modification is left entirely in the discretion of the Board.

In Rock County, the Board can advance a new graduate normally placed on Step 1 to Step 2 if they are only able to attract one applicant.

Gordon, Rushville, and West Holt have no deviation language in their collective bargaining agreements. Some may argue that the provision in the West Holt agreement allowing “extra compensation” for extra work should be considered a “deviation” clause. However, such extra compensation is allowed for extra work or extra services not otherwise contemplated or compensated pursuant to the agreement and not as additional pay for the usual duties of a covered employee.

The above brief analysis of the contract provisions set forth in Table 1 reveals a lack of sufficient similarity for all or any portion of such contract provisions to be considered prevalent. Consequently I agree with the result reached in the majority opinion of Judge Lindahl.

To request copies of the Tables, please contact the Clerk of the Commission at (402) 471-2934.