15 CIR 389 (2007) Appealed December 4, 2007.  Appeal dismissed April 7, 2008.


an Unincorporated Association, )
                                  Petitioner, )
         v. ) FINDINGS AND ORDER
Subdivision of the State of Nebraska, )
                                  Respondent. )


For Petitioner: Mark D. McGuire
McGuire and Norby
605 South 14th Street
  Suite 100
Lincoln, NE  68508
For Respondent: John F. Recknor and
Randall L. Wertz
  Recknor, Williams, & Wertz
2525 "N" Street
P. O. Box 30246
Lincoln, NE  68503

Entered November 7, 2007

Before: Commissioners Blake, Orr, and Lindahl



Dodge Education Association (hereinafter, “Petitioner” or “Association”) filed a wage petition on March 23, 2007, seeking resolution of an industrial dispute for the 2006-2007 contract year. The Association is a labor organization formed by teachers employed by Dodge County School District No. 27-0046, a/k/a Dodge Public 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.


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 fifteen school districts for its array. The District proposes that fourteen school districts be used in its array. The common array members are Osmond, Elkhorn Valley (Tilden), St. Edward, Osceola, Allen, Newman Grove, Mead, Humphrey, Cedar Bluffs, Leigh, Clarkson, Howells, Prague, and Coleridge. The contested array member proposed by the Petitioner is Rising City.

In determining a proper array, the parties agree that the work, skills, and working conditions of Dodge Public Schools’ teachers are sufficiently similar for comparison under Neb. Rev. Stat. §48-818 (Reissue 1998) to all array members. 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. Fillmore County School Dist. No 0075, 11 CIR 38 (1990); Lynch Educ. Ass’n v. Boyd County School Dist. No. 0036, 11 CIR 25 (1990). 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).

Both the Petitioner and the Respondent agreed to the fourteen common array schools. All fourteen are in very close proximity and within the size comparison to Dodge. All fourteen schools will be included in the array. While the common fourteen array schools are certainly sufficient, the Respondent has only cited a “truncated” school year as the reason to exclude Rising City. All indicia generally used by the Commission point toward including Rising City in the array. For example, Rising City is only 42 miles from Dodge and six other array schools have been agreed upon to be included that are farther away geographically. Rising City is also nearly identical in population to Dodge. The mathematical calculations can adequately make the adjustments. Therefore, the Commission’s array will consist of the fifteen array members of: Osmond, Elkhorn Valley (Tilden), St. Edward, Osceola, Allen, Newman Grove, Mead, Humphrey, Cedar Bluffs, Leigh, Clarkson, Howells, Prague, Coleridge, and Rising City.


Health Insurance

The Petitioner argues that for the 2006-2007 school year health insurance should continue to be distributed as it was under the 2005-2006 negotiated agreement. Whereas, the Respondent asserts that all certificated employees should receive identical fringe benefits according to the Fourteenth Amendment of the United States Constitution, the Nebraska State Constitution, Neb. Rev. Stat. §48-1104, and Neb. Rev. Stat. §48-1107. The Respondent argues that married employees receive a greater financial benefit than single employees.

Under the current 2005-2006 negotiated agreement, the Dodge County School District provides full payment of either dependent or individual health insurance, depending on the employee’s eligibility. The facts presented at trial also show that contrary to the argument of Respondent, married employees do not receive more than single employees. The employer does spend more dollars for benefits for married employees than for single employees. Even though the single employee is not able to take full advantage of the available benefit, that in no way injures the single employee nor does it enrich the married employee. For example, this situation can easily be compared to a situation where an extremely healthy and careful employee does not take full advantage of the health insurance plan itself as compared to an unhealthy, accident prone employee who utilizes the value of the health insurance more often. All employees at Dodge equally receive the benefit of health insurance.

Furthermore, the Respondent’s argument would affect the overall distribution of dollars used for employee wages and benefits. If total benefit dollars were to be distributed on a per capita basis, then accordingly the new total dollars affects the base salary by increasing or reducing the amount of total compensation, through requiring that married and unmarried employees receive the same number of dollars for fringe benefits.

The arguments at trial were couched generally in terms of married and single employees, which is not entirely correct. It is clear from the evidence presented that the distinction lies between those with legal dependents and those without. While the Respondent offers the Commission several rather intriguing arguments, the Respondent does not cite any Nebraska Commission or general Nebraska case law in support of its Constitutional argument, nor does the Respondent cite any case law from other jurisdictions to support the Constitutional argument.

Typically, the Commission would determine the amount of benefits provided by conducting a prevalancy analysis. The Respondent does not request such an analysis and even if the Commission were to perform such analysis, the evidence presented by the Petitioner clearly shows the method currently in place is the prevalent practice. The Respondent’s argument challenges a longstanding, widespread practice. However, we do not have the appropriate statutory authority to change the present practice.

While the Respondent argues that we are only being asked to apply the Constitutional and statutory laws, and not to enter declaratory relief, the Commission is an administrative agency, not a court of general jurisdiction. See Central Neb. Educ. Ass’n v. Central Tech. Community College Area, 6 CIR 237 (1982); State Code Agencies v. Department of Public Welfare, 7 CIR 217 (1984). Aff’d. 219 Neb. 555, 364 N.W.2d 44 (1985). This is not the correct forum in which to seek an initial decision. The Commission could not purport to rearrange the distribution health care benefit without first declaring the current widespread method unlawful. The Commission has no such authority. While we have briefly outlined the arguments above, we do so only for sake of discussion of the issue. Our discussion above is merely for the purpose of adequately setting forth the facts, recognizing our lack of jurisdiction. Therefore, because of the above expressed reasons, health insurance for the 2006-2007 school year shall continue in the same manner as has been paid.


Table 1* sets forth the relevant information for determining the appropriate base salary. The midpoint of the total compensation $816,929 minus the cost of fringe benefits of $168,205  equals $648,724 which, when divided by the new total staff index factor of 25.4913, equals a base salary of $25,449 for the 2006-2007 school year.


1.      The Respondent shall pay the teachers a base salary of $25,449 for the 2006-2007 school year.

2.      Health insurance for the 2006-2007 school year shall continue in the same manner as has been paid.

3.      All other terms and conditions of employment for the 2006-2007 school year shall be as previously established by the agreement of the parties and by the Opinion and Order of the Commission.

4.      Adjustments in compensation resulting from this order shall be paid in a single lump sum payable within thirty (30) days of this final order, if possible.

All commissioners join in the entry of this order.