15 CIR 117 (2006) Reversed and Remanded with directions. 274 Neb.103 (2007) 736 N.W.2d 726 (2007)
|HYANNIS EDUCATION ASSOCIATION,||)||CASE NO. 1046|
|An Unincorporated Association,||)|
|Petitioner,||)||OPINION AND ORDER ON REMAND|
|GRANT COUNTY SCHOOL DISTRICT, NO. 38-0011,||)|
|a/k/a HYANNIS HIGH SCHOOL, a Political Subdivision||)|
|of the State of Nebraska,||)|
Filed January 25, 2006
|For Petitioner:||Mark D. McGuire|
|McGuire and Norby|
|605 South 14th Street|
|Lincoln, NE 68508|
|For Respondent:||Rex R. Schultze|
|Perry, Guthery, Haase, & Gessford, P.C., L.L.O.|
|233 South 13th Street|
|Lincoln, NE 68508|
Lindahl, Orr, Blake, Burger, and Cullan (EN BANC).
NATURE OF THE PROCEEDINGS:
This matter comes on for consideration following the Nebraska Supreme Court’s
opinion rendered on
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.”
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.
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
PREVALENCE OF DEVIATION:
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.
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
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
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.
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.
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
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.
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...”
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)
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
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.
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
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
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
analysis of the clauses in Yutan,
however, reveals that all of the deviation clauses were markedly different and
not sufficiently similar.
while all of these provisions were markedly different and clearly not
“sufficiently similar,” there is an immense factual distinction between Yutan and
Supreme Court cited
Proper Methodology for Comparing the Deviation Clauses
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.
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
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 –
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
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.
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.
The Commission has also stated that
it can be truly said that among primary and secondary teachers, all teachers in
the State of
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.
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
Analysis of Array
addition to our method of defining deviation under the guise of § 48-818, we
can also find generally that
Gordon, Rushville and
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,
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.
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.
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.
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.”
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.
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
IT IS THEREFORE ORDERED THAT:
The Respondent shall remove the deviation clause from the parties’ 2002-2003
All judges join in the entry of this
Entered January 25, 2006.
Judge Jeffrey L. Orr, Concurring:
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.
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.
raises the question, is this then an illusory contract without mutuality of
obligation and thus void under
deviation provisions in
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
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.
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?
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
Looking first at the
Two of the seven array schools do not have any deviation clause.
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
While it may provide for interesting debate to look at each of those
three clauses to determine if they are similar enough to the
For these reasons I agree with the Order that the Respondents shall
remove the deviation clause from the parties’ 2002-2003 contract.
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.
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.
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.