2 CIR 116 (1974)



Unincorporated Association, |
Plaintiff, |
Defendant. |

October 23, 1974



Theodore L. Kessner, of Crosby, Guenzel, Davis, Kessner & Kuester, for plaintiff.

Verne Moore, Jr., of Moore & Moore, for defendant.

Heard before Judges Kratz, DeBacker, Wall, Rudolph, and Green.



This case brings before us the Nebraska City Education Association, (Union) a labor organization representing the teachers in the Nebraska City School District, (District) seeking a determination by this Court of wages and working conditions for the academic year 1974-1975 pursuant to Section 48-818 of the Court of Industrial Relations Act (CIRA). The Union alleges and the School District admits exhaustion of the remedies provided by the Nebraska Teachers Professional Negotiation act (TPNA). However, by way of cross-petition the District alleges that:

The Association refuses to continue negotiations for the sole and only reason that defendant will not agree to a minimum index increment of 5% for horizontal advancement and therefore has imposed an unreasonable and unfair condition precedent to bargaining.

On the basis of the factual allegation, the District seeks from us a direction to the parties to return to the bargaining table.

We first dispose of the cross-petition of the District. Under the proviso to Section 48-810 of the CIRA exhaustion of the TPNA is a condition precedent to our jurisdiction. No industrial dispute subject to our jurisdiction can exist between parties subject to the TPNA, until those parties have exhausted all the remedies that statute provides. Once the remedies under that statute have been exhausted without agreement, a dispute is ripe for adjudication and our jurisdiction attaches to it. Sidney Education Assn. v. The School District of Sidney , 189 Neb. 540, 203 N.W.2d 762, 766 (1973).

If this were a case where a school district had altogether refused to bargain with a teachers' organization, we would be without authority to order bargaining. Sidney Education Assn. v. The School District of Sidney, supra . The situation may differ once a school district has agreed to meet with an employee organization. At that point both parties are under a reciprocal obligation to negotiate in good faith concerning those matters as to which the school district has agreed to meet. In such a situation, the ambit of our powers may not be so circumscribed, see School District of Seward Education Assn. v. School District of Seward , 188 Neb. 772, 199 N.W.2d 752, 757-758 (1972). Further, independent of any power to order bargaining, exhaustion of the TPNA is a condition precedent to our jurisdiction. If either party has failed to negotiate in good faith, at least arguably, the remedy of negotiation has not been exhausted.

Fortunately, we need not plunge deeper into the murky relationship between the TPNA and the CIRA. No claim is made that either party failed to negotiate in good faith. More particularly, it was the District which took the position that deadlock had arisen despite honest bargaining effort. After the District took this position, the parties turned to the second remedy under Section 79-1293, independent fact-finding to "recommend a basis for settlement of the dispute." The fact finders made a recommendation. After the recommendation had been made, the Union accepted it. The District however, rejected the fact-finders' report, and made a new proposal of settlement. This proposal was rejected by the Union.

After the fact-finders make recommendations, the obligation of the parties is to give those recommendations "good faith consideration." Section 79-1293. The premise of the Act is the independent fact-finding offers the parties a chance to settle their dispute upon a basis set by independent third parties. Nothing in the Act suggests that the fact-finders' report, if not accepted, must serve as the basis of a new round of negotiations. An interpretation which would remit the parties to mandatory negotiations after fact-finding report, or in other words send them back to the first of the three remedies in Section 79-1293, would involve an infinite regress. If the parties deadlocked in their new round of negotiation resultant upon fact-finding, another fact-finding proceeding would be in order followed by another round of negotiation. The remedies under the TPNA are linear not circular.

When the fact-finders have made their recommendations, each party is required to give them "good faith consideration." Section 79-1293. Each party is required to honestly examine his last negotiating position in the light of the recommendations, and is required to determine whether or not the fact-finding report provides a reasonable basis for settlement. If both parties agree that it does, settlement will ensue. If the parties cannot agree, they may come to us.

The Union accepted the fact-finders' report. Which adopted a base salary of $7,350.00 with a 4 x 5 index. The School District rejected the fact-finding report and made a new offer with a base salary of $7,400.00 and 4 x 4 index. This the Union rejected, insisting upon a 4 x 5 index. While good faith consideration of the recommendations of the fact-finding board does not require the adoption of those findings, a party who accepts the findings cannot be accused of failing to consider them in good faith. Bargaining was at an end, and the Union's only obligation was to consider the recommendations in good faith. This it did. The TPNA has been exhausted, and the burden of decision is ours.

We turn then to the determination of the wages and terms of employment which should enter into our order. The central dispute between the parties is over the level of compensation to be provided for the teachers as a group. The focus of this dispute is the proper index factor to be applied. The Union opts for a 4 x 5 index, while the District submits that a 4 x 4 index is appropriate.

The standards we utilize in setting levels of compensation have been articulated by this Court on several occasions. The CIRA mandates that wages and conditions which we establish be "comparable to the prevalent." Our technique of meeting this statutory criterion proceeds in three stages. First, we find a representative sample of school districts, which we deem comparable to the litigating district. In establishing this array we consider such factors as "community of interest...geographic proximity...general cooperation among school districts...and athletic conference..." Valentine Education Assn. v. School District No. IV of Cherry County , Case No. 66, order of February 16, 1973. Having established the members of the sample, we then determine as to each member of the sample, the total level of compensation which the teachers in the litigating district would receive if they were paid according to the base salary, salary design, and fringe benefit schedule in each such district. Valentine Education Assn. v. School District No. IV of Cherry County, supra; milford Education Assn. v. School District of Milford , Case No. 43, order of July 5, 1971. Having established this array, we consider a total compensation package comparable when it is at the "approximate mid-point" of the array of total levels of compensation. Valentine Education Assn. v. School District No. IV of Cherry County, supra; Centennial Education Assn. v. School District No. 67-R of Seward County, Case No. 44, order of August 18, 1971.

The Union in Exhibit 4 utilizes the membership of the Twin Rivers Conference to which the District belongs as its sample to demonstrate comparability. The conference is composed of seven members in addition to Nebraska City: Auburn, Blair, Fairbury, Falls City, Syracuse, Tecumseh, and Plattsmouth. However, the Union does not display Tecumseh and Plattsmouth in its array, substituting for these two districts Seward and Waverly. Tecumseh is not arrayed because salaries in that district for the1974-1975 academic year are in dispute. Plattsmouth is not arrayed because it utilizes a twelve-year rather than a nine-year factor in computing its incremental grades for educational experience, and conversion to the nine-hour basis used by other districts would be difficult. The deletion of Tecumseh is inevitable. The deletion of Plattsmouth for ease of computation is acceptable if the representative character of the array is not destroyed. Since the District, as its exhibit 8 demonstrates, also considered Seward and Waverly to be comparable to Nebraska City, the deletions and insertions would not appear to disturb the representative character of the array.

In the absence of evidence that the athletic conference is not representative, on this see Valentine Education Association v. School District No. IV of Cherry County, supra; Hastings Education Association v. the School District of Hastings ; Case No. 42, Order of March 14, 1972, the school districts in the athletic conference to which the litigating district belongs have played a central role in our determinations of comparability. The fact that schools are able to engage in athletic competition together tends to indicate that they are in reasonable geographic proximity and of roughly comparable size. Similarity of athletic programs, evidenced by joint conference membership, is an indicator of a similarity of overall program. Mutual athletic competition provides contacts out of which community of interest and cooperation may be expected to spring. In addition, use of the athletic conference to which the litigating district belongs provides decisional advantages. The size of the conference is an assurance against an unmanageable array of school districts. Since the schools do not join athletic conferences with litigation before this Court in view, an array of the conference members avoid the danger of sampling bias inherent in arrays selected by the parties after they are in dispute.

Prima facie then the Union's Exhibit 4 provides us with an adequate basis for decision. However, the District offers an alternative array of school districts in its Exhibit 8. Exhibit 8 consists of an array of the following school districts: Arlington, Ashland, Auburn, Blair, Crete, Fairbury, Falls City, Gretna, Plattsmouth, Seward, and Syracuse together with the base pay and vertical and horizontal factors utilized by each such district. The exhibit also contains a listing of selected levels of experience and education together with the base pay and vertical and horizontal factors utilized by each such district. The exhibit also contains a listing of selected levels of experience and education together with the high, low, and arithmetic average of salaries paid at such level in the eleven districts compared with what teachers at such levels would receive under the District's offer of $7,400.00 base pay with a 4 x 4 index. As a backup for this basic information, the exhibit also contained a listing of each of the 91 teachers in the District, the compensation each teacher would receive under the District's offer, and the compensation which he would receive if he was paid under the pay scale of each of the eleven districts in array. (Exhibit 8 contains certain other information not germane to our current discussion).

The utilization of Exhibit 8 to determine proper compensation levels under our existing methods would be most difficult. The exhibit does not report total levels of compensation for the arrayed school districts. Nor does it report total wage costs which would result to the Nebraska City district on the utilization on the eleven arrayed districts' compensation schemes. While total wage costs could be computed for each of the eleven districts by adding eleven columns of 91 figures, we decline to accept the district's invitation to adventure in school mathematics.

Exhibit 8 is designed to demonstrate that District's offer of a $7,400.00 base with a 4 x 4 index factor is comparable to the prevalent. Comparison, as we have noted, is difficult. However, we have explored certain aspects of the exhibit. This exploration convinces us that the exhibit does not demonstrate comparability. We utilize one level reported by the District in its selected group of averages, 10-MA. The District's exhibit shows that the average compensation in the sampled districts at this level is $11,630.00. The District's proposed schedule would pay $11,248.00 or $382.00 less than the average. The District's exhibit shows three teachers at this level of preparation (Teachers, 42, 88, and 90). However, 10-MA is apparently the highest step in the MA level under District's plan. Thus this level also affects compensation of nine other teachers (Teacher, 87 at the 11-MA level and Teachers No. 13, 19, 41, 49, 55, 65, 71, and 91 at the 12-MA level). The result is that District is paying twelve teachers $382.00 a piece less than what it reports as the average compensation at their level of preparation, or $4,584.00 less than the level of total compensation which would be paid to the twelve teachers at the average pay level. This figure understates the actual impact, since five districts in the array, Blair, Crete, Syracuse, Gretna and Seward have an additional 11-MA step, and Blair also has a 12-MA step.[1]

We conclude that Exhibit 8 does not provide a suitable vehicle for the determination of appropriate compensation levels to Nebraska City teachers, and, that in any event, it does not demonstrate that a $7,400.00 base pay with a 4 x 4 index would represent the prevalent wage level. We, therefore, will determine the appropriate base pay and index factors and the resultant appropriate level of total compensation by utilizing the Union's Exhibit 4.

Exhibit 4 was prepared in support of a base salary of $7,350.00 with an index factor of 4 x 5 utilizing the steps set forth on exhibit 2 of the Union. This produces a standard salary schedule of $867,880.00. This figure may be compared with the figure of $850,852.00 produced by applying the index factor of 114.98 for a 4 x 4 index to the base salary of $7,400.00 offered by the District.[2] A $7,400.00 base with a 4 x 4 index would produce a standard salary schedule lower than that prevalent in six of the seven districts arrayed on Exhibit 4. Further, the third district from the bottom in the array, Fairbury, has a standard salary schedule of $863,902.00 or slightly more than $13,000.00 higher than the standard salary schedule produced by a $7,400.00 base 4 x 4 index salary schedule. On the other hand,the $7,350.00 base 4 x 5 index salary schedule produces a standard salary schedule of $867,888.00, a figure which lies between the $863,902.00 figure paid by the third school district from the bottom, Fairbury, and the $874,975.50 figure paid by the fourth school district from the bottom, Syracuse. Thus, in terms of a standard salary schedule alone, a $7,350.00 base 4 x 5 index is somewhat lower than the approximate median position.


(Based on Exhibit 4)

Standard Salary Schedule

District or Proposal

Blair .....................$887,148.00

Waverly ....................880,660.80

Seward .....................880,344.00

Syracuse ...................874,975.50

$7,350, 4 x 5 ..............867,888.00

Fairbury ...................863,902.00

Auburn .....................856,920.00

$7,400, 4 x 4 ..............850,852.00

Falls City .................833,690.00

If our sole concern was wages, the $7,350.00 base 4 x 5 index with the Exhibit 2 schedule would clearly be an appropriate level of compensation. However, Section 48-818 mandates that we consider "the overall compensation...including insurance and pensions..." The parties had tentatively agreed on a benefit package which would cost the District $35,630.10. This cost is higher than that in any of the districts arrayed on Exhibit 4. The Union is desirous of keeping the benefit package, and apparently the District regards the package as appropriate. However, its high cost destroys the comparability of the proposed $7,350.00 base 4 x 5 index salary schedule. When benefits are added to standard salary schedule, this produces a total compensation to teachers of $903,518.10. This total is higher than that provided in five of the seven arrayed school districts. It is approximately $5,400.00 higher than the Seward total, Seward being the third highest district in terms of total faculty costs. It is approximately $8,000.00 higher than the total compensation of Fairbury, the 4th high district. Thus, in terms of total compensation provided, the proposed $7,350.00 base with a 4 x 5 index and $35,630.10 fringe package would produce a total level of compensation higher than the approximate mid-point. However, adding the fringe package to the $850,852.00 salary cost under the District's proposal produces a total of $886,482.10, which is approximately $8,000.00 less than the total compensation level in the Waverly District, the 3rd district from the bottom in terms of total compensation, and is only $7,000.00 higher than the total compensation level in the Auburn District, the 2nd district from the bottom on the array.


(Based on Exhibit 4)

District or Proposal Total Compensation

Blair ............................$917,621.70

Syracuse ..........................905,502.90

$7,350, 4 x 5 .....................903,518.10

Seward ............................898,129.44

$7,300, 4 x 5 .....................897,614.10

Fairbury ..........................895,234.90

Waverly ...........................894,577.70

$7,400, 4 x 4 .....................886,482.10

Auburn ............................879,974.40

Falls City ........................862,799.72

It is clear that neither the $7,350.00 4 x 5 index nor a $7,350.00, 4 x 4 index with a $35,630.10 fringe cost is within an acceptable range of the approximate mid-point. Counsel for the Union in his brief suggests that a $7,300.00 base salary 4 x 5 index utilizing the Exhibit 2 salary scale would be appropriate. This index would produce a standard salary schedule of $861,984.00, which when combined with the fringe package would produce total compensation of $897,614.10. In terms of the total array, this level of compensation is higher than four of the districts on the array, but lower than three. However, it is only about $2,000.00 higher than the total in the 4th or middle district. Fairbury, and only $3,000.00 higher than the 3rd district from the bottom in the array, Waverly. Thus, this level of compensation is very close to the mid-point of the array, and would satisfy the standard of approximate mid-point, which we have heretofore enunciated. We therefore, adopted the $7,300.00 base with the 4 x 5 index and the compensation steps shown on Exhibit 2 as the appropriate level of compensation for teachers in the Nebraska City School District in the 1974-19 academic year.

In utilizing a 4 x 5 index, we are not unmindful of the argument of the School District that such an index is not prevalent. The argument against the prevalence of this index is refuted by the evidence before us. First of all, of the seven districts within the athletic conference three utilize a 4 x 5 index and one uses a 5 x 5 index. Additionally, one other district uses a 5 x 4 index. Thus, the 4 x 5 index is the model index, and 4 x 4 is utilized by only two of the seven districts. Even among the districts arrayed on Exhibit 8, while 4 x 4 is the model index, it is used by only four of the eleven districts. Three districts use the 4 x 5 index and one uses a 5 x 5 index, so that 5 as a second index factor is at least as prevalent among the eleven districts arrayed on Exhibit 8 as is 4.[3]

In addition, the Union asks us to determine appropriate noon-duty schedules for elementary teachers, appropriate sick leave and personal leave of absence policies, and extra duty pay schedules. The statutory standard of "comparable to the prevalent' applies to conditions of employment. In fixing conditions of employment we are required to utilize "the standards set by the 'peers' of the parties before the Court." Centennial Education Assn. v. School District No. 67-R of Seward County , Case No. 44, Opinion of August 18, 1971. If the norm in the trade is not proved by the party seeking an order, we are not positioned to grant him relief. Here, the Union has not presented us with a pool of comparable practice. Hence, a finding for the defendant is appropriate on the issues.[4]


1. The scale of wages for certificated teachers employed by the defendant School District shall be computed in accordance with a salary schedule having a base salary of $7,300.00, index increments of 4% vertically and 5% horizontally, with vertical columns and horizontal columns as displayed upon plaintiff's Exhibit 2 at trial;

2. The defendant District shall pay monthly health and accident insurance premiums for each certificated teacher in the sum of $17.30 for each single teacher and $40.00 per month for those teachers qualifying for family benefits, and provide each certificated teacher with $10,000.00 of accidental death and death insurance coverage and the defendant District will provide each such certificated teacher with long-term disability insurance;

3. Except as specified in this order all other aspects of compensation and terms and conditions of employment presently set or agreed upon by the parties shall remain unchanged by this order;

4. The cross-petition of the defendant is dismissed.


1 At the 12-MA level, the range is from $11,154.00 as a low to $12,768.00 as a high. Of the ten districts which report compensation at this level (Arlington negotiates compensation) only two pay a sum less than or equal that which would be paid under the District's proposal. The fifth district in terms of level of compensation. Crete, pays $11,520.00, while the sixth, Fairbury, pays $11,920.00, so that the approximate median salary is about $11,720.00 or $472.00 more than Nebraska City's proposal.

Gretna provides an interesting comparison, since it uses a 4 x 4 index with a $7,400.00 base. However, the insertion of the additional 11-MA level results in compensation for teachers at this level of $11,448.00 versus the $11,248.00 which Nebraska City would pay.

2 Totaling the Nebraska City column on Exhibit 8 produces a total standard salary schedule cost of $857,364.00; the difference is apparently accounted for by the fact that Exhibit 8 shows 1.5 more teachers than were utilized on Exhibit 1 to compute the staff index factor for a 4 x 4 index; in addition the number of teachers at various steps on Exhibit 1 and Exhibit 8 do not entirely square. However, the difference is not significant and we use the $850,852.00 figure to assure comparability of base.

3 Exhibit 8 also contains a sheet captioned Other Salary Information designed to show that 4 x 4 is the prevalent index factor among all Nebraska school districts. However, no evidence was introduced that the total group of Nebraska's school districts was comparable to District. We have previously refused to utilize all districts, or a sample of all districts, in the absence of an evidentiary showing of comparability. Valentine Education Association v. School District No. IV of Cherry County, supra . In the absence of evidence that such a broadly based group as all school districts is comparable to the particular district before us, we decline again to utilize such a presentation, see ICC v. Mechling , 330 U.S. 567, 582 (1947); Baltimore & Ohio RR Co. v. Aberdeen & Rockfish R. Co ., 393 U.S. 87, 91 (1968); United Mineral Products Co. v. Nebraska Railroads , 175 Neb. 285, 121 N.W.2d 492 (1963).

4 Union relies on the fact-finders' report to support its position on these questions. This report, however, was admitted at trial solely to prove exhaustion. While the Union claims agreement on these issues, the District contends, and the evidence shows, that the agreement was contingent on a negotiated settlement. While Exhibit 4 contains some information on these issues, it is scattered and inconclusive.