16 CIR 221 (2009).  Appealed April 29, 2009.  Dismissed by Court of Appeals August 20, 2009.

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

  Entered March 30, 2009.

APPEARANCES:

Before:  Commissioners Blake, Burger and McGinn

BLAKE, C. 

NATURE OF THE PROCEEDINGS:

    Omaha School Psychologists Association (hereinafter, “Petitioner” or “Association”) filed a wage petition seeking resolution of an industrial dispute. The Association is a labor organization formed by psychologists employed by Omaha Public School District No. 1, (hereinafter, “Respondent” or “District”). The District is a political subdivision of the State of Nebraska.  This case was tried before the Commission beginning on Wednesday, August 13, 2008 and continued on Thursday, August 14, 2008. The trial was then recessed and resumed on Monday, September 29, 2008. The parties were ordered to submit briefs on October 13, 2008. The parties requested an extension to submit briefs. The extension was granted and the parties submitted their briefs on Friday, October 24, 2008. After the briefs were submitted, on October 28, 2008 the Respondent filed a Motion to Strike portions of the Petitioner’s brief. The Commission then scheduled a telephone conference for Friday October 31, 2008 to discuss the Respondent’s Motion to Strike. On November 6, 2008 the Commission entered an order overruling the Respondent’s Motion to Strike and gave both parties 10 additional days to submit further briefs. The Respondent filed its final brief on November 17, 2008 and the Petitioner filed its final brief on November 18, 2008. Except for the parties agreeing on the common array member of Lincoln, virtually every issue was contested in this case by both parties throughout these proceedings.

JURISDICTION: 

This case involves contract year’s 2006­2007, 2007-2008, and 2008-2009. This case was filed on or about May 12, 2008. The fiscal period ends on August 31 of each year. The Petitioner contends that there is a dispute before the Commission with respect to the 2008­ 2009 year. The Respondent disagrees. The evidence does not establish that there have been negotiations for the 2008­2009 school year, and certainly no evidence that either party has refused to enter into such negotiations. There is also no evidence of salary amounts or benefits, regarding the proposed array members of the Respondent for the 2008­2009 year.

The 2005-2006 contract is now being followed by the parties. The Commission is authorized to resolve industrial disputes as defined by Neb. Rev. Stat. §48- 801(7). Its authority is so limited. See University Police Officers Union v. University of Nebraska, 203 Neb. 4, 277 N.W.2d 529 (1979). This does not necessarily mean that an industrial dispute must be predicated upon impasse. As stated in International Brotherhood of Electrical Workers, Local Union 1536 v. McCook Public Power District, 3 CIR 117, 120 (1976):

...The record shows clearly that the parties are unable to agree on wages and conditions. Consequently, we have a “controversy concerning terms, tenure, or conditions of employment” and thus an industrial dispute, in accordance with Section 48-801(7), and the parties, therefore, may submit their dispute to this Court for determination....Defendant argues that the parties have not reached impasse and thus they should be allowed to continue to bargain without interference from this Court. This argument is without merit. The statute doesn’t specifically require an impasse in bargaining before this Court can entertain jurisdiction, and if it did, the condition precedent has been met.

However, in the instant case the evidence fails to show that either party requested a bargaining session. There is no evidence on the 2008-2009 contract year with respect to the Respondent’s array. With respect to 2008-2009 the lack of evidence fails to show that there is a dispute for resolution by the Commission. See also International Brotherhood of Electrical Workers, Local Union 1536 v. City of Fairbury, 9 CIR 317 (1988).

ISSUES: 

The primary issue before the Commission is salary to be paid to the school psychologists. This includes, of course, the school districts to be selected for the array, the manner of comparing the salary schedules for the array schools and any adjustments to be made to arrive at a more accurate means of comparison.

Determining the manner of how to compare school psychologists at Omaha to other array school districts and also how to compare their wages, is an issue of first impression in front of the Commission. It is agreed to by the parties that school psychologists are not teachers and should not be on the same salary schedule or compared to teachers in the Omaha Public School system. In evaluating these comparisons, a major point of contention is what to do with both the number of hours worked in a day and the days worked in a year between Omaha and the other comparable school districts.

The Petitioner asserts that to compare Omaha School psychologists with any lesser education attainment than Masters plus 30 hours would be “an injustice . . . and is just incorrect”. The Petitioner asserts that school psychologists do the same thing all around the country regardless of where they are located, the size of the school, or the minority makeup. The Petitioner claims the job duties are essentially the same, but the working conditions, and of course pay, vary. The Respondent argues that the school psychologists at the Petitioner’s proposed array schools do not perform similar job duties to the Omaha school psychologists.

The basic controversy in this case is whether the Petitioner may rely upon school psychologists to “know better than anyone else what school psychologists do” and with this innate knowledge, be able to compare their work and working conditions with other schools better than anyone else. The Petitioner asserts the school psychologists “are pretty well educated” and should be able to testify about their job with firsthand knowledge. The Petitioner asserts that in assembling the data from other schools, expert testimony is not needed, as this is not truly an area for expertise, particularly when considering school psychologists know their job better than any supposed expert data gatherer. The Respondent asserts that this Commission has always required expert testimony to authenticate exhibits. See Plattsmouth Police Dept. v City of Plattsmouth, 205 Neb. 567 (1980). The Petitioner asserts that the psychologists, who are members of the bargaining unit, assembled the Petitioner’s data through great diligence and care in obtaining records from other school districts. The Petitioner argues that school psychologists do the same thing throughout the country, claiming it is “that simple.”  Petitioner also asserts that school psychologists are better able than anyone else to compare the duties of school psychologists through careful analysis. Yet even with all of these assertions, there is no indication in the evidence that the Petitioner’s members, who gathered the data, did so. This apparent inconsistency is at the heart of the problem the Commission faces in determining in this case.

Of course, school psychologists may provide relevant testimony within their firsthand knowledge. The problem here is that not all information falls in the realm of firsthand knowledge, and many of the rules of evidence are intended to sort the witness’s firsthand knowledge from their remaining information. We disagree with the Petitioner’s assertion of the extent of diligence. Further, their effort runs against the long established and accepted methods employed by the Commission and approved in our decisions. The Petitioner claims this is simply an arithmetic problem and that we should be willing to rely upon the information the psychologists obtained from the Internet. The Respondent correctly argues that the Petitioner’s evidence does not have sufficient foundation to be admissible.

School district websites may provide totally accurate information, but they may not. It is a classic example of hearsay, and it does not contain the authentication or reliability upon which the hearsay exceptions are based. There is no showing in the evidence that the Petitioner’s witnesses made the effort to verify the information they obtained, nor is there a showing that the witness contacted the school districts to determine that their decisions in making comparisons were reasonably accurate.

The Petitioner strongly opposes the “cottage industry” created by the use of supposed experts in gathering wage and benefits data and creating tables for comparisons. While the Petitioner’s members are certainly well-educated, they would have been better served by utilizing those with expertise in assembling data in conformance with the Rules of Evidence and the accepted practices of the Commission. Assembling a wage study is not just a math problem but is also a matter of gathering and applying accurate data. Such a study requires verification of the data collected. All Internet data is hearsay when the purpose is to rely upon on its accuracy (truth). Is such data reliable? The importance placed upon collecting accurate data is one of the reasons verification by a person with expertise in gathering such data for admissibility into evidence, is vital to provide a basis for this Commission to rely upon in reaching our decisions and including the evidence in our arrays. See Plattsmouth Police Department Collective Bargaining Committee v. City of Plattsmouth, 205 Neb. 567, 288 NW 2d 729 (1980); Omaha Police Union Local 101 v. City of Omaha, 11 CIR 114 (1991). The verification process deals with not just the accuracy of the numbers, but also the application of those numbers to the positions to which they are to be compared.

We are bound by the Rules of Evidence See Neb. Rev. Stat. §48-809. The Commission must base its decisions upon evidence of rates of pay and conditions of employment and evidence of the nature of the job and the skill required. See Local 1536 v. City of Fairbury, 10 CIR 10 (1988). In City of Fairbury, we found that our statutes require competent evidence of job description classifications entered into the record regarding each of the array sites in order for the Commission to set wages or determine conditions of employment in accordance with Section 48-818. Id at 12.

Using as an example of the Petitioner’s methodology and evidence in this case, we can look at Anoka-Hennepin, MN. The Petitioner included extensive information, all verified by affidavit received into evidence without objection, regarding the negotiated agreements between the district and the psychologists for three years, salary schedules for the psychologists for three years, and experience levels for the steps and other details relating to benefits and hours and days worked. However, nowhere in the record is there reliable evidence that the job requirements and duties of psychologists at Anoka- Hennepin (or at any of the other schools proposed for the array by the Petitioner) are comparable to the requirements and duties in Omaha. The evidence contains no job descriptions, and no job classifications for any of the Petitioner’s proposed schools.

Looking at the Petitioner’s Exhibit 1, their own “variable rationale”, the Petitioner asserts that psychologists serve several roles in the Omaha Public Schools District, “. . . (their) main role are[sic] usually testing. . . .” (Emphasis added). Further, it states that there are two subsets of psychologists in Omaha Public Schools, and that this split is very “unique”. This example illustrates that the data needs to be verified, so we are comparing job descriptions and duties accurately. It is also inconsistent with Petitioner’s repeated assertion that school psychologists do the same thing everywhere.

We also note that Exhibit 13 is the handbook for OPS Psychologists. It contains 143 pages, and it is, in its entirety, basically a detailed school psychologist’s job description. It has, at page 7, a page specifically devoted to outlining job descriptions. There is no such job description of any sort contained in the documentation for any of the schools in the Petitioner’s proposed array, other than for the documentation provided by the Respondent for Lincoln Public Schools.

In sharp contrast is the Respondent’s effort, using Exhibit 133 as the example. Exhibit 133 explains the competency and licensure requirements for school psychologists at Oklahoma City Public Schools. It describes job qualifications and performance responsibilities, contains job description sheets, plus the essential functions checklist completed by the expert witness as a result of the on-site interviews.

The Respondent relied upon people trained in the management of personnel and the gathering, assembly and analysis of employment data for purposes of job comparisons. They developed reasonable and acceptable criteria for comparison, they considered, interviewed appropriate persons in those schools to assist them in making their comparisons and verifying the data, and applied acceptable criteria for determining the degree of comparability. They performed their work within the acceptable standards which have previously been approved by the Commission. We do not find that it would be appropriate to abandon this standard.

In short, the evidence of the Petitioner is simply inadequate to establish comparability of jobs skills and duties between Omaha Public Schools and the Petitioner’s proposed array schools.

The Petitioner argues that there should be additional pay for extra work, as it has been shown that other Omaha Public School employees receive an added percent of pay for additional duties. This may be true, but it is not the issue. It is agreed that psychologists are not teachers, and they are not in the same bargaining unit. The issue with respect to extra pay is whether it is a prevalent practice when comparing Omaha Public Schools to the array school districts. Similarly, while we may wonder why school psychologists might be paid less than teachers, that is not relevant to the determination we must make. Salaries must be determined based upon comparability in the array schools.

The Commission is not a personnel administrator, and does not make decisions regarding the administration of personnel. Rather, we determine wages and benefits for bargaining units based upon comparability with other employers. We do so based upon the Rules of Evidence and the well-established practice of the Commission in accordance with the statutes adopted by the Nebraska Legislature and the requirements approved by the Nebraska Supreme Court and Court of Appeals.

The problem with the Petitioner’s methodology is two-fold. First, there needs to be authentication that the information is what it purports to be and that the information was compiled by somebody with the responsibility and commitment to providing accurate information. While authentication might clear this hurdle, it cannot satisfy the requirement of materiality. Job titles may match, but the question is whether job responsibilities match. We question whether working conditions match at these proposed array schools and we also question whether a comparison can be made without reviewing the personnel system or at least talking to some responsible and knowledgeable party within the employer’s organization. Without verification conducted by someone with the skill to do so accurately, there are too many mistakes to be made.

As the Petitioner points out, surveys made with verification by trained experts do not have a guarantee of accuracy. However, they are prepared within the accepted Rules of Evidence, and they provide evidence which is more probative than any other evidence which can be procured through reasonable efforts. While undoubtedly imperfect, there is a substantial expectation of trustworthiness.

The Petitioner argues that the Commission should follow a relaxed rule regarding the admission of such evidence, as the Commission is an administrative agency. However, the Commission’s proceedings are not covered by the Nebraska Administrative Procedures Act, and Neb. Rev. Stat. §48- 809 specifically provides that in the taking of evidence, the Rules of Evidence prevailing in the trial of civil cases in Nebraska shall be observed by the Commission. Also, see Plattsmouth Police Department Collective Bargaining Committee v. City of Plattsmouth, 205 Neb. 56_, 288 N.W..2d 729 (1980).

ARRAY:

The parties agree that Lincoln, Nebraska Public Schools should be included in the array. This is the only common array member. The Petitioner originally proposed Aurora, CO, Boulder Valley, CO, Indian Prairie (suburban Chicago), IL, Shawnee Mission (suburban Kansas City), MO, Anoka-Hennepin (suburban Minneapolis/St. Paul), MN and Minneapolis, MN. The Respondent on the other hand proposed to include Colorado Springs, CO, Denver, CO, Des Moines, IA, Wichita, KS, St. Paul, MN, Kansas City, MO and Oklahoma City, OK.

The Petitioner concedes that Aurora, CO should not be included in the array, as there was no verification of the data. Aurora, CO will not be included in the array.

The parties agree that all of the proposed array school districts meet the basic criteria referred to as “gross screening” criteria of population of the school district, relative proximity (all of the school districts are within 500 miles from Omaha), the number of schools in the district and the number of students enrolled.

Both of the parties then applied “fine screen” criteria, but they do not entirely agree upon the fine screens. The Petitioner looks first at the percentage of students with IEPs (Individualized Education Plans). The Respondent agrees with the use of this fine screen. The Petitioner then seeks to include the ratio of school psychologists to special education students as a fine screen. It would seem that this criterion would be very directly related to the psychologists’ working conditions, but the Respondent would not include this screen. However, it is conceded by the Petitioner that all of the schools proposed by the Respondent would meet this criterion, and as a result of our ruling regarding the array as discussed below, we need not examine this criterion further.

The gross screens relate to the comparability of the employers, while the fine screens go to the comparability of skill, work, and working conditions. The Petitioner and the Respondent stipulated at pretrial (See Pretrial Order) that all of the Respondent’s schools are sufficiently similar in work, skill and working conditions to satisfy the comparability standards of Neb. Rev. Stat. §48-818.

The Respondent seeks to also look at the percentage of students receiving Free or Reduced Lunch, and the percentage of English Language Learner students (hereinafter, “FRL” and “ELL”). While the Respondent makes a strong case for consideration of ELL on the need for interpreters and therefore an important affect upon the working conditions of the school psychologists, it appears that FRL in itself has no direct relationship to the workload or working conditions of the psychologists. Further, if FRL has any relevant effect, it is already accounted for in the percentage of students with IEPs.

Looking at these fine screen criteria, and the efforts of the parties in obtaining the information and assembling the array schools, we find that each of the schools would meet the criteria, if properly presented and supported by competent evidence.

If we cannot use unverified transmission of data upon which a party’s tabulations rely, we cannot use the data in the tables. See International Brotherhood of Electrical Workers, Local Union No. 1521 v. Metropolitan Utilities Dist. 5 CIR 1 (1980); Plattsmouth, 205 Neb. 567; Alliance Educ. Ass’n v. The School Dist. of Alliance, 5 CIR 113 (1981); Omaha, 11 CIR 114. Also, if we cannot know the validity of comparisons made from that data, we cannot validly use it in the tables.

As to the issue of the inclusion of the Respondent’s proposed array schools, we find that with the exception of Colorado Springs, each of the schools proposed by the Respondent are appropriately included. However, with respect to Colorado Springs, the number of hours worked in a day and a year are so greatly different from those required in Omaha Public Schools that without further explanation of those differences, reasonable comparisons cannot be made. Further, there is an adequate array without the inclusion of Colorado Springs. Colorado Springs, CO will therefore not be included.

Because there is insufficient foundation regarding Petitioner’s offered evidence for gathering and analyzing the data from its proposed array schools, we cannot rely upon the information submitted for those schools by the Petitioner. Further, even if the Petitioner’s data had been properly submitted, St. Paul, Minnesota better meets the tests for comparability than would Minneapolis and Anoka-Hennepin, Minnesota. Kansas City better meets the criteria than would Shawnee Mission, KS. Denver and Boulder, CO are in such close proximity that they should not both be used, and Denver, under the evidence submitted in this case, would provide a better comparison.

Normally, the largest city/comparable employer in an MSA is used in the array. This is not always so, if other employers are shown to provide a better comparison. This is based upon the facts placed in evidence.

The array used by the Commission in this case will consist of the public schools in Lincoln, NE; Denver, CO; Des Moines, IA; Kansas City, MO; St, Paul, MN; Oklahoma City, OK; and Wichita, KS.

Adjustment of Days and Hours

The Petitioner requests that we calculate wages on the basis of hourly pay rather than strictly annual salary. This is due to the range of differences among the various school districts as to the number of hours worked in a day and number of days worked per year. We decline to do this. While school psychologists are not teachers, they are recognized (as stated elsewhere in this opinion) to be educational professionals directly involved in the education of the students. We have also in the past declined to calculate the wages of teachers on the basis of hours worked per day, as they are paid a salary to complete a job, and completion of the job by such salaried people is not accurately reflected by looking at the number of required hours per day. Rather, they tend to put in the necessary hours to get the job done. Further, we do not really know how many hours per day any person with any one of the school districts may actually work.

We can adjust for the number of days worked per year. This method has been applied by the Commission to make more accurate comparisons in teacher-wage cases, and we will do the same for school psychologists. Therefore, adjustments will be made in the salary schedules for the number of days worked per year.

In two of the array schools, Denver, CO and Des Moines, IA, the psychologists receive pay in addition to what the Respondent shows as regular salary. The Petitioner argues that the psychologists receive Pro-Comp payments at the minimum of an additional 3% of their base salary per year, which is added on to their salary. (Pro-Comp is Denver’s Professional Compensation System for Teachers; a results-based pay program that uses multiple criteria to assess teachers’ performance.) The Petitioner asserts it is the total pay with which we should be concerned. We agree. The Pro-Comp payments will be included in the salary schedules for Denver Public Schools.

As to Des Moines, IA, the evidence shows that all school psychologists in the State of Iowa receive a stipend of $3,700 per year, paid by the State of Iowa. The State of Iowa began funding awards to teachers achieving National Board Certification and to receive the stipend, recipients must continue to teach in Iowa schools. While the dollars are not paid by the local public school districts, they are part of the overall pay received by the school psychologists, and it cannot be doubted that the stipend is a relevant factor in employment decisions. The salary schedules will include the stipends paid to the psychologists in the Des Moines Public School District.

The Petitioner argues persuasively that stipends and signing bonus payments must be included in the salary schedules, as a source of pay or the manner of accounting really does not matter to the employee. Rather, it is the size of the paycheck that makes the difference. The problem in this case is, once again, the manner of collecting the data. With the exceptions discussed above, there is simply insufficient evidence regarding stipends and bonus payments in the array schools to support including those payments in the salary schedules; accordingly, the stipends and bonus payments will not be included in the base salaries.

2007-2008 Contract Year

There is also a question raised by the Petitioner as to whether the 2007-2008 year’s summary documents are supported with the proper foundation. The Respondent argues that the testimony of their expert witness gives proper foundation. Carla Noerrlinger, testified as an expert witness for the Respondent. Ms. Noerrlinger is Director of Research at Omaha Public Schools. Her duties include collecting, interpreting and analyzing data, including comparability data for OPS labor negotiations (258:5-22). This includes data regarding compensation and fringe benefits related to different bargaining groups, and include setting up the spreadsheets and tables used by the Respondent (259:25-260:17).

Ms. Noerrlinger testified to how the research team verified the information for each of the schools in their proposed array, to determine the degree of job match and to verify the accuracy of the job description, working skills and conditions and pay. The Respondent did verify all of this, and provided reasonably reliable information in the testimony and exhibits, in the manner we have long followed.

For 2006-2007, we have the contracts and wage benefit surveys from the Respondent and the tables presented to us were prepared from that information. The data, as well as the summary information, was entered into the record for the 2006-2007 school year. This was done in an appropriate manner, as a summary of the underlying data. 

An expert’s realm is to properly analyze the schools to determine comparability, and to analyze the data obtained, determining how to place that data in tables. This is a realm for expertise in the gathering and analysis of data and it is appropriate for the expert to indicate that they relied upon the type of data experts in their field would normally rely upon in forming their opinions.

While we have the contracts for the Respondent’s array schools for the 2006-2007 school year, and the tables have been prepared from them, together with foundation to establish comparability, this is lacking for the 2007-2008 school year. The data taken from the records in evidence, plus the evidence as to comparability, provide the authenticity/reliability we typically refer to as foundation, thereby assuring that proper data is entered into the record.

The method the Respondent’s employed for determining and proving their evidence for 2006-2007 is not the same as summarily entering an analysis of data into the record under the guise of an expert opinion. However, this is what the Respondent has attempted to do with respect to the data for array schools for the 2007-2008 school year. Exhibit 58 lists the pay structure for the OPS array schools for 2007-2008, and compared it with OPS.  This is derived from the type of data experts may rely on in forming their opinions. However, the Petitioner did object to the foundation for this data, and while such information can supply the basis for an expert opinion, that expert’s use of the data does not provide the necessary foundation for the data itself. 

Looking at the 2007-2008 fringe benefits, Ms. Noerrlinger testified that the 2006-2007 documents for the OPS array were in the record. The tables for many of the benefit areas, such as long service increment, at Exhibit 38, and special compensation practices, Exhibit 40, were included by the Respondent. In fact, Exhibits 37 to 54 provide the details for a wide range of benefits. When we move to 2007-2008 benefits, we do not find the same. Exhibit 49 provides the 2006-2007 dental insurance benefit survey. Ms. Noerrlinger testified that in her opinion we can trust the information for 2006-2007 to remain the same in 2007-2008 for those areas of benefits for which tables were not provided by Respondent.  But looking at Exhibit 49 for the 2006-2007 year, and comparing it with the survey for 2007-2008, at Exhibit 62, we find that the benefits were not the same in one of the array schools. A similar example is health insurance costs, where the information for 2006-2007 and 2007-2008 is different for three of the array schools. (See Exhibit 45 and Exhibit 60).  For some of the benefits for 2007-2008, we have only Ms. Noerrlinger’s opinion that we can rely upon the 2006-2007 information to be the same for the 2007-2008 benefits. There is no foundation for this, there was no testimony that she verified the information or had any other basis for her opinion, and it is not consistent with the evidence submitted for other benefits.

We are not required to follow the reasoning and conclusion of an expert witness, and here we do not do so with respect to the 2007-2008 benefits. As to the areas for which there was not even a summary exhibit for 2007-2008, we will not assume benefits at the array schools are identical to 2006-2007.

The Petitioner objected to the offer of Exhibit 164 for lack of foundation ( Transcript of Proceedings page 463, and Statement of Objection at page 426). It was represented by the Respondent’s counsel as being wage sheets from other documents in the record. With the exception of Denver, at Exhibit 89, those documents are not in the record. Exhibit 164 is a group of excerpts from other documents not in the record. Those documents are presumed to be the collective bargaining agreements for the array schools. No witness testified that these are true and accurate copies from those documents, and there is no other exhibit to provide the foundation for those pages.  The objection to the offer of Exhibit 164 was overruled upon the representation by the Respondent’s counsel that the contracts were in the record, receiving them as summaries for the purpose of convenience.

Therefore, for the 2007-2008 school year, the record is left with a dearth of information regarding the 2007-2008 school year for the array schools, with the exception of Denver and Lincoln. The Denver contract is in the record, at Exhibit 89, and Lincoln being common to both arrays, is in the record at Exhibit 25 and 125. Lacking the necessary information, we have no basis to make any finding for the 2007-2008 school year other than to deny relief requested by both parties and to leave the wages and benefits the same for 2007-2008 as they were for 2005-2006. We recognize the oddity of this result, but given the evidence presented by the parties, we are left with little choice.

SALARY SCHEDULES:

Utilizing the array provided for 2006-2007, annual step increases are prevalent, based upon the psychologist's actual years of service, see Tables 4-6. The Respondent will change its current practices accordingly to the new prevalency stated in these Tables.  

FRINGE BENEFITS:

Health Insurance Percentage of Contribution

            The Respondent argues that it pays more than the prevalent rates at the comparable school districts for health insurance. The Petitioner argues that the Commission usually does not engage in assigning monetary values of fringe benefits for past contract years. Should we determine fringe benefits are an appropriate area for review, the Petitioner argues that assigning an arbitrary dollar amount is unreasonable and impossible.

The Commission regularly includes health insurance costs in total fringe benefits costs under teacher cases.  See Douglas Education Association v. Dodge County School Dist., 15 CIR 389 (2007); Louisville Educ. Ass’n v. Cass County School Dist., 15 CIR 368 (2007), or Winside Educ. Ass’n v. Wayne County School Dist., 15 CIR 362 (2007). In this case, the psychologists are education professionals, dealing directly with students in making decisions regarding education and meeting educational needs. Both parties have stipulated as stated above, that the psychologists shall not be treated as teachers. Without determining total compensation like we do in a teacher wage case, we must still consider the monetary benefits at issue, including health insurance and any other fringe benefits which can be converted to a dollar amount in order to calculate an offset. Accordingly, we will separately consider health insurance premiums paid by the employer as offered in Exhibit 60 and 61. We find in 2006-2007 that it is prevalent to pay 94% for individual PPO coverage, 46% for family PPO coverage and 52% coverage for two-party PPO coverage. See Table 7.

Furthermore, the Commission will not use the most frequently occurring methodology as suggested by the Petitioner, but instead use the method it has employed consistently in wage cases in the past to determine the mean, median and midpoint. See International Ass’n of Firefighters, Local Union No. 647 v. City of Grand Island, 15 CIR 324 (2007).

In 2006-2007, Omaha did not provide HMO health insurance. While it would have been prevalent to provide HMO health insurance paid by the employer, the issue is now moot. All the remaining issues with regard to health insurance are moot because the contract years have passed.

Sick Leave

This Commission has consistently refused to rule on certain fringe benefits when the contract year has passed. A determination as to a benefit that has no carryover into the next contract year would constitute an advisory opinion outside the Commission’s jurisdiction. See Papillion-LaVista Education Ass’n v. School District of Papillion-LaVista, l0 CIR l8, 22-23 (l988), Fraternal Order of Police Lodge No. 23 v. The City of Holdrege, Nebraska, 9 CIR 257, 262 (l988), Trenton Educ. Ass’n v. School Dist. of Trenton, 9 CIR 20l, 204-205 (l987), Winnebago Education Ass’n v. School District of Winnebago, 8 CIR l38, l46-l48 (l985). The issue of sick leave is moot in this case for the 2006-2007 contract year.

Longevity

The Respondent states that it currently provides a top step supplement and a long service increment. The Respondent argues the top step supplement is not prevalent and requests an offset against wages for those Petitioners’ that received such payments. Using the array selected it is not prevalent to provide a top step supplement for 2006-2007. The Respondent will discontinue the practice of providing a top step supplement for 2006-2007. See Table 9.

With regard to the long service increment, it is a prevalent practice to offer a long service increment for 20, 25 and 30 years but not after 15 years for the 2006-2007 contract year. The Respondent will increase the long service increments provided for 20, 25, and 30 year and no longer provide a long service increment after 15 years. See Table 8.

Life Insurance

            In the Pretrial Order the parties listed life insurance as an issue to be decided at trial. In the Respondent’s Brief the Respondent asserts that the issue presented to the Commission relating to Life Insurance appears to be Moot. The Petitioner argues that the Respondent only provides $25,000 in life insurance coverage rather than $50,000. While the issue of the percentage paid by the employer is not moot, the amounts of coverage, coverage provided and supplement insurance available are moot. See International Brotherhood of Elec. Workers, Local 1597 v. City of Gering, 15 CIR 161 (2005). We have evidence with regard to the percentages paid by the employer 2006-2007 in Exhibit 53; however, since both parties seem to indicate the only issue was with regard to the amount of coverage, we will make no change with regard to life insurance because it is moot.

Perfect Attendance

            The Respondent argues that it is not prevalent to provide $40.00 per quarter for perfect attendance for 2006-2007. It is not a prevalent practice and the practice will be discontinued. See Table 9.

Premium Pay Practices

After reviewing additional pay for additional time worked, noting that we are not comparing Omaha Public Schools within the school district, but are comparing the practice at OPS with the schools in the array, we find the premium pay practices prevalent and not prevalent as seen on Table 10 for 2006-2007.

Educational Reimbursement

            The Respondent currently does not provide education assistance. According to the evidence provided for 2006-2007 contract year, it is also not prevalent to provide educational assistance. The Respondent will continue to not provide educational assistance for 2006-2007.  See Table 11.

Dental Insurance

Pursuant to the selected array, it is prevalent to provide PPO coverage for dental insurance as Omaha has done in 2006-2007. In 2006-2007, the PPO dental insurance prevalent rate will be decreased from 100% to 92% for the individual, increased from 28.2% to 33% for family, and increased from 28.2% 34% for two-party. See Table 12. The Respondent will not provide HMO dental in 2006-2007 because it is not prevalent to offer HMO dental coverage. All the remaining issues with regard to dental insurance are moot because the contract years have passed.

Long Term Disability

            We have evidence with regard to the 2006-2007 long term disability amount of employer contribution. Using the array presented with the percent of employer contributions, the Respondent will maintain paying 100% of the employer contribution to long term disability for the 2006-2007 contract year. See Table 13. The coverage amount provided for long term disability is moot for 2006-2007. See Lincoln Firefighters Ass’n Local 644 v. City of Lincoln, 12 CIR 248 (1997).  

BASE SALARY:

Neb. Rev. Stat. §48-818 authorizes the Commission to set wages regardless of whether that requires an increase or decrease in wages. The Nebraska Supreme Court has affirmed our authority in this regard. See Douglas County Health Dep’t Employees Ass’n v. County of Douglas, 8 CIR 208 (1986), aff’d, 229 Neb. 301, 427 N.W.2d 28 (1988). Analyzing the wage tables created for this opinion, the table shows there should have been significant reduction in fringe benefits and wages paid already by the Respondent to the school psychologists. Having been overpaid by the Respondent in 2006-2007, we could order the school psychologists to repay wages owed to the Respondent. That type of order would result in retroactively taking money from people because it has already been paid and spent. 

Furthermore, as stated above, we do not have the requisite evidence to make a determination as to 2007-2008, which provides no relief to either party. Without this evidence, we can only hold that there is no basis for ordering base salaries or benefits other than going back to the 2005-2006 school year. This oddity is rather obvious, but the parties and their method of presenting the evidence or lack of presenting evidence gives us little choice, unless we are to guess and fashion wage and benefit plans from thin air. This we cannot do.

In past case law, the Commission has pointed out the complexity of practical problems and public policy considerations in requiring employees to repay back wages. See Nebraska Public Employees Local Union 251 v. Otoe County, 12 CIR 177 (1996). In Otoe County, the Commission stated that it has found in the past that for employees to be required to repay excessive wages or to require future wages to be still further reduced by the already paid excess would create severe hardships on employees and place severe strain on the employer-employee relationship. The Commission also cautioned that the lowering of wages should not be lightly undertaken. Furthermore, the NLRB clearly does not decrease wages unless asked to do so, and does not require rescission of the beneficial change unless the Union seeks such rescission.

No evidence was offered during the time of trial by the Respondent, in this case, of any compelling reason or appropriate method to determine and implement a retroactive repayment plan of wages or fringe benefits in excess of prevalent. We have found that any excess of fringe benefits or wages paid by the Respondent to the employees during the contract term may be offset on an individual basis against any lump sum found due and payable for said contract term by the Respondent to such employees. This offset will likely result in a net loss for the individual bargaining unit members. Without a compelling reason to implement a retroactive repayment plan, the Commission will not require the school psychologists to pay OPS back for their fringe benefit and wage decreases for the 2006-2007 contract year for money that has already been paid and spent.

IT IS THEREFORE ORDERED THAT: 

1.      The Respondent shall pay the psychologists according to Tables 1, 2 and 3 for the 2006-2007 school year and the Respondent shall place the school psychologists according to the salary schedules set for on Tables 4, 5 and 6; however no paybacks shall be required by the bargaining unit members of the Petitioner.

2.      The Respondent shall maintain a PPO health insurance plan for the 2006-2007 school year, changing the percentages paid by decreasing individual coverage from 100% to 94%, decreasing family coverage from 74.2% to 46%, and decreasing two-party from 74.2% to 52%, offsetting any amounts due to the employee.

3.      The issue of sick leave is moot in this case for the 2006-2007 contract year.

4.      The Respondent shall discontinue the practice of providing a top step supplement for 2006-2007.

             5.      The Respondent shall not change its current life insurance policy.

6.      The Respondent shall discontinue the practice of pay quarterly for perfect attendance for the 2006-2007 contract year, offsetting in wages, if any, due to the Petitioner.

7.      The Respondent shall maintain and change its current premium pay practices according to Table for the 2006-2007 contract year. 

8.      The Respondent shall continue to not provide educational assistance for 2006-2007.  

9.      The Respondent shall decrease its PPO dental insurance from 100% to 92% for the individual, increase from 28.2% to 33% for family, and increase from 28.2% 34% for two-party.

10.  The Respondent shall maintain paying 100% of the employer contribution to long term disability for the 2006-2007 contract year. 

11.  All other terms and conditions of employment for the 2006-2007 and 2007-2008 school years shall be as previously established by the agreement of the parties and by the Opinion and Order of the Commission. 

12.  Adjustments in compensation resulting from this order shall be paid in a single lump sum payable within forty-five (45) days of this final order, if possible.

        All commissioners join in the entry of this order.

To obtain copies of Tables, please contact the Commission at (402) 471-2934 or industrial.relations@nebraska.gov