17 CIR 439 (2013)


Unincorporated Association, )  
                                  Petitioner, )  
         v. )  
Subdivision of the State of Nebraska, )  
                                  Respondent. )


For Petitioner: Scott J. Norby
McGuire and Norby LLP
  605 South 14th Street, Ste 220
  Lincoln, NE   68508
For Respondent: Kelley Baker
  Harding & Shultz, P.C., L.L.O.
800 Lincoln Square
121 South 13th Street
  Lincoln, NE  68501

Entered January 10, 2013.

Before Commissioners Burger, McGinn, and Spray

BURGER,  Commissioner 


            On May 23, 2012, Neligh-Oakdale Teachers Association (“Association” or “Petitioner”) filed a petition seeking a determination of wages and terms and conditions of employment for the 2012-2013 contract year. The Association is a labor organization and the recognized bargaining agent for teachers employed by the Antelope County School District No. 02-0009 a/k/a Neligh –Oakdale Schools (“District” or “Respondent”). The District is a Class III school district and a political subdivision of the State of Nebraska.

The issues presented included the array of comparable schools, total teacher compensation consisting of base salary and benefits, the prevalence of the number of personal leave and emergency leave days, the practice of providing an emergency medical leave bank, and the applicability of the “98% Rule” enacted with the passage of LB 397 in the Nebraska Legislature in 2011. The parties submitted simultaneous post-trial briefs and the case was deemed submitted.



In order to determine the base salary, we must first determine the appropriate array of comparable schools. The parties proposed 12 common array members: O’Neill; Madison; Boone Central; Pierce; Battle Creek; Nebraska Unified District #1; Elkhorn Valley (Tilden); Plainview; Creighton; Osmond; Wausa; and Bloomfield. In addition to these common array members, Petitioner proposed Randolph and Respondent proposed Humphrey. In a joint pre-trial report, the parties stipulated that the work, skills, and working conditions of the bargaining unit employees of the common and non-common array schools are sufficiently similar to the bargaining unit employees of Neligh-Oakdale in satisfaction of the requirements of Neb. Rev. Stat. § 48-818.

When choosing an array of comparable employers, the Commission applies a well-established size guideline of one-half to twice as large. See Scotts Bluff County School District No. 79-0064 v. Lake Minatare Education Ass’n, 13 CIR 256 (1999); Yutan Education Ass’n v. Saunders County School District No. 0009, 12 CIR 68 (1994); Crawford Teachers Ass’n v. Dawes County School District No. 0071, 11 CIR 254 (1991); Red Cloud Educ. Ass’n v. School Dist. of Red Cloud, 10 CIR 120 (1989). Employers falling outside this guideline are often excluded from arrays; however, the size criteria used by the Commission is a general guideline and not a rigid rule. Nebraska Public Employees Local Union 251 v. Sarpy County, 13 CIR 50 (1998); Nebraska Public Employees Local Union 251 v. County of York, 13 CIR 128 (1998); 13 CIR 157 (1998); 12 CIR 309 (1997); 12 CIR 248 (1997). Nonetheless, since the size guideline is based on objective criteria, it provides predictability and should not be lightly disregarded when a sufficient number of comparables, which meet the guidelines, exist. See School District of West Point v. West Point Education Ass’n, 8 CIR 315 (1986); Richland Teachers Education Ass’n v. Colfax County School District No. 0001, 11 CIR 286 (1992).


Petitioner’s array, which includes Randolph, consists of schools within a 40-mile radius of Neligh-Oakdale that meet the established size guideline. Respondent argued during trial that Randolph was not included in its array because there was a significant difference in contract days between Randolph and Neligh-Oakdale. According to the evidence presented, Randolph has 172 contract days to Neligh-Oakdale’s 185 contract days.

As previously stated, the Commission will generally include all proposed array members where the parties have stipulated or proved similarity of work, skills and working conditions unless there is specific evidence that this is otherwise inappropriate or unless the array becomes unmanageable. Coleridge Education Association v. Cedar County School District No. 14-0541, A/K/A Coleridge Community Schools, 13 CIR 376 (2001). No evidence was presented to show that the difference in contract days between Randolph and Neligh-Oakdale was significant enough to warrant Randolph’s exclusion from the array. Therefore, Randolph shall be included in the array.


Respondent proposed the inclusion of Humphrey in the array based on the established size guideline and its distance from Neligh-Oakdale. Petitioner argued that Humphrey should not be included in the array because it is 41.5 miles from Neligh-Oakdale, which is 1.5 miles outside of the distance radius used by Petitioner to create its array, and that Petitioner’s array includes an adequate number of schools without having to include a school outside of the distance radius.

Testimony during trial suggests that the Association could have chosen any distance it wanted to create its array, but chose the 40 mile radius and excluded any schools outside the chosen radius. The Commission has used arrays with an average distance of more than 148 miles. See Educational Service Unit No. 13 Education Ass’n v. Educational Service Unit No. 13, 14 CIR 1 (2002). Humphrey is 41.5 miles from Neligh-Oakdale, and we do not believe that 1.5 miles is a significant enough distance to exclude Humphrey when the parties have stipulated that the work, skills, and working conditions between Humphrey and Neligh-Oakdale are sufficiently similar to each other. The addition of Humphrey would not create an unmanageable array. Therefore, the Commission finds that Humphrey shall be included in the array. 

The Commission Array

            The Commission finds that the array shall consist of Battle Creek; Bloomfield; Boone Central; Creighton; Elkhorn Valley (Tilden); Humphrey; Madison; Nebraska Unified District #1; O’Neill; Osmond; Pierce; Plainview; Randolph; and Wausa.

Application of the “98% Rule”

            Respondent raised the issue as to whether § 48-818.03 passed by the Nebraska Legislature in LB 397 in 2011 was applicable to the present case. Section 48-818.03, which contains the “98% Rule,” establishes guidelines for how the Commission should establish wage rates for school districts depending on whether total compensation for bargaining unit members falls below, above, or within a range of 98% to 102% of the array’s midpoint. Respondent argues that the “98% Rule” applies to this case because the trial on this matter was heard after July 1, 2012, and that the “date of occurrence” applicable to the statute is the date of trial. Petitioner disagrees, and argues that the 98% Rule is not applicable because the Petition was filed before July 1, 2012.

In 2011, the Nebraska Legislature enacted LB 397, which made changes to the Industrial Relations Act (“Act”). Under Neb. Rev. Stat. § 48-839 (Supp.2011), any changes made to the Act under LB 397 applied to petitions filed on or after October 1, 2011, “except for petitions filed involving school districts…for which such changes shall apply on or after July 1, 2012.”

Statutory language is given its plain and ordinary meaning when the language is unambiguous. See Kuhl v. Skinner et al., 245 Neb. 794, 515 N.W.2d 641 (Neb. 1994); Regina Davis et al. v. F.O.P. Lodge No. 8 of Douglas County, 15 Neb.App. 470, 731 N.W.2d 901 (Neb.App. 2007). The plain language of § 48-839 clearly shows that any changes to the Industrial Relations Act under LB 397 were to be applicable to petitions involving school districts that were filed on or after July 1, 2012, just as changes regarding other petitions before this Commission were to be effective on or after October 1, 2011. No further interpretation on our part is necessary when the language of the statute is plain and unambiguous. Petitioner in this case filed its petition on May 23, 2012, well before LB 397’s effective date of July 1, 2012. Therefore, any changes such as the 98% Rule under § 48-818.03 are not applicable to this case.

 Base Salary

            Table 1 sets forth the overall compensation for the compared school districts. The figures have been adjusted where necessary to account for contract day differences. We find that the base salary for the 2012-2013 school year at Neligh-Oakdale shall be $31,412.00. 

Fringe Benefits

            In its Answer and Counterclaim, Respondent requested the deletion of two contract clauses because of lack of prevalence. However, Respondent did not provide any summary exhibits to support its contention. Sufficient evidence is found in the record because the parties have submitted the contracts into evidence and we know which contract clauses are in dispute. The Commission has determined the prevalence of contract clauses in the past. See Clarkson Education Association v. Colfax County School District, 13 CIR 31 (1997); Yutan Education Association v. Saunders County School District, 12 CIR 68 (1994); Nemaha Education Association v. Johnson County School District, 12 CIR 83 (1994).

Personal Leave

            Currently, Neligh-Oakdale provides teachers with two days of personal leave per year, and allows teachers to accumulate up to five personal days that the teachers can use consecutively. Respondent argues that the personal leave accumulation benefit in Neligh-Oakdale is not prevalent within the array, and that paragraph 8(3) of the collective bargaining agreement that deals with the benefit should be deleted. Petitioner argues that personal leave accumulation is prevalent within the array.

            An examination of the negotiated agreements of the array members shows that it is prevalent for teachers to be provided two days of personal leave per year but not prevalent to allow accumulation of personal leave days. Therefore, Neligh-Oakdale shall continue to provide its teachers with two days of personal leave and shall discontinue the practice of allowing accumulation of personal leave days. See Table 2.

 Emergency Medical Leave Bank

            Respondent argues for the deletion of proposed Paragraph 16 entitled “Emergency Medical Leave Bank,” as Respondent states the practice of providing an emergency medical leave bank is not prevalent within the array. Petitioner asserts that it is prevalent in the array to provide an emergency medical leave bank.

            Two array members have an emergency medical leave bank, six array members have a sick leave bank, and six array members do not have either an emergency medical leave bank or a sick leave bank. We are unable to ascertain the similarities or differences between the emergency medical leave bank proposed for inclusion in the Neligh-Oakdale negotiated agreement and the banks established in the eight array member schools based on the negotiated agreements alone. Therefore, we decline to make a determination regarding the prevalence of an emergency medical leave bank in the array and order no change to the current practice at Neligh-Oakdale. 


1.      The base salary for the teachers of Neligh-Oakdale Schools shall be $31,412.00.

2.      Accumulation of personal leave days shall be eliminated.

3.      All other terms and conditions of employment shall be as previously established by the agreement of the parties.

4.      Adjustments in compensation resulting from the final order rendered in this matter shall be made by payment of a single sum with a payroll check issued next following the final order entered herein.

All panel Commissioners join in the entry of this Order.