2 CIR 119 (1975)



Unincorporated Association, |
Plaintiff, |
OF NEBRASKA, a Political |
Subdivision, |
Defendant. |

January 20, 1975


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

L. Bruce Wright of Cline, Williams, Wright, Johnson & Oldfather, for defendant.

Before Judges Wall, Rudolph and Green.


This case brings before us the Tecumseh Education Association (Union) which represents nearly all of the certificated teachers in the School District of Tecumseh (District). The Union seeks a determination from us under Section 48-818 of wages, fringe benefits, and certain working conditions for the academic year 1974-1975. The Union alleges and the District admits exhaustion of remedies provided by the Nebraska Teachers Professional Negotiation act.

Last year the teachers in the District were paid a base salary of $6,450.00 with a 5 x 5 index. Both parties concede that teachers as a group are entitled to increased compensation. However, the District contends that the 5 x 5 index compensates teachers with greater seniority or advanced education at a level above the prevalent for persons of their skill and experience. The District requests that the salary be designed with a 4 x 4 index factor. The Union seeks to retain the 5 x 5 index. In addition, the parties are in disagreement as to what total level of teacher compensation would be comparable to the prevalent. The Union seeks either $6,700, 5 x 5, or $7,250, 4 x 4, while the District argues for $6,950, 4 x 4, with guarantees against loss because of change of index and minimum assumed raise, or $7,000, 4 x 4 without such conditions.

The disagreement between the parties is embodied in their principal exhibit on levels of compensation. Plaintiff in its Exhibit 4 arrays a list of nine school districts claimed to be representative of the prevalent. The Districts are Auburn, Geneva, Hebron, Milford, Pawnee City, Southern (Wymore), Syracuse, Tri-County (DeWitt), and Wilbur. The defendant in its Exhibit 15 arrays eleven school districts, Adams, Humboldt, Johnson, Nemaha Valley, Palmyra, Pawnee City, southeast, Syracuse, Tri-County, Wilbur, and Wymore. Exhibit 4 as originally prepared would support a total compensation level under our approximate midpoint standard of $387,489.60. Exhibit 15, as originally prepared, produces a median of $404,052.00. However, Exhibit 15 includes social security and retirement contributions, while exhibit 4 does not. Thus, in net effect, Exhibit 15 would support a considerably lower level of compensation than would Exhibit 14.

The parties are, not surprisingly, in substantial disagreement as to which of the two exhibits better mirrors prevalent wage rates in comparable school districts. Thus, the District particularly objects to the inclusion on the Union's array of the Auburn School District. While Auburn is only 19 miles from Tecumseh, its enrollment is nearly twice that of the Tecumseh School District. In its brief, the Union concedes that Auburn should not have been arrayed. This concession is in harmony with our prior cases. While we have emphasized both geographic proximity and comparability of size as factors to be utilized in selection of compared to districts, we have indicated that the factor of comparability of size is more important than that of geographic proximity. A district twice the size of the litigating district is generally too large to form a proper member of a comparative array. District Eight Elementary Teachers Assn. v. School District No. 8 of Dodge County , Findings and Order of June 20, 1974; Sidney Education Assn. v. The School District of Sidney , Cases No. 81 and 88, Order of June 5, 1973.

The Union, however, having conceded that the exclusion of Auburn is proper, then wheels on the defendant and argues that under identical principles, Adams, which is only about half the size of Tecumseh should be excluded from defendant's array. The same authority which supports the exclusion of Auburn likewise supports the exclusion of Adams. While defendant attempts to retain Adams in the array by arguing that there has been a close association between that school district and Tecumseh, we do not believe that this fact is sufficient to overcome the size differential.

In our cases we have repeatedly made reference to community of interest as a factor to be utilized in selecting members of the array. Nevertheless, this factor has largely been utilized as a device of exclusion rather than one of inclusion. It has served in tandem with the geographic and size limitations to aid in the exclusion of districts which were too large or too small or too far away from the litigating district. It has not been independently determinative of inclusion, where gross size disparity or geographic dispersion counseled exclusion. To allow this ephemeral factor to dominate over the more objective tests of size and proximity would inject into our 48-818 determinations a battle of subjective judgment as to the degree of interest created by various contacts among school districts. This type of evidence would lengthen the proceedings, but, in our judgment, would not make any substantial contribution to the ultimate determination of prevalence and comparability. The whole thrust of our cases has been to make the standards in teacher pay cases under 48-818 as objective and easy of application as is consistent with the statutory mandate, to the end that we provide the parties with the plain, speedy, and expeditious remedy. We believe this course to be in conformity with the will of the Legislature and, therefore, decline District's invitation to retain Adams in the array because of its contacts with Tecumseh.

The Union also objects to the inclusion of Nemaha Valley in the array. Nemaha Valley and the teachers association in that district had not reached agreement on wages and conditions of employment at the time Exhibit 15 was prepared. Rather, at that time, litigation was pending in this Court between Nemaha Valley and its teachers. Nevertheless, the district arrayed the last offer of the Nemaha Valley District on Exhibit 15. this step was clearly improper. The statute requires us to utilize "The standard 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, Findings and Order of August 18, 1971. The last offer of the Nemaha Valley District may represent the standard set by the peers of District, but, since it was not agreed to by the Nemaha Valley teachers, it does not represent the standard set by the peers of the Tecumseh teachers. The last offer of the Nemaha Valley District is evidence of what that District thinks the prevalent is, but it does not itself evidence the prevalent. Thus, it cannot be used.

After these exclusions, we then face two arrays, the 8-district array that remains from Exhibit 4 when Auburn is excluded from plaintiff's Exhibit 4 and the 9-district array which results when Adams and Nemaha Valley are excluded from defendant's Exhibit 15. For comparison we set out these two arrays.


The figures on Table A and Table B are not directly comparable because of the utilization of different teacher placement in preparing the two exhibits. Since the difference in teacher placements would not disturb the ranks among school districts, it does not destroy the validity of either exhibit. However, it does make the task of comparison most difficult.

The median compensation level on Exhibit 4 with Auburn omitted is $384,817.68. The District's position of a $7,000.00[1] base, 4 x 4 index, with fringes costing $18,300.00 produces a total compensation of $372,640.00 which is substantially below the median of the Exhibit 4 schools. The median of the restated Exhibit 15 is $380,011.65. The last Tecumseh offer computed on the Exhibit 15 basis would cost the District $383,296.30, and is thus above the mean of the exhibit 15 districts. Therefore, the determination of the appropriate level of total compensation in this case largely turns on the selection between the two exhibits.

The schools arrayed on Exhibit 4 range in pupil population from a low of 480 to a high of 816 or a range of 336. The average size is 637. Plaintiff uses 601 as the enrollment of Tecumseh. Thus the smallest district is only 121 pupils smaller than Tecumseh, while the largest district is only 215 pupils larger. In addition, four of the districts arrayed on Exhibit 4 are larger than tecumseh and four are smaller. Thus, in terms of similarity of size, Exhibit 4 presents us with an array of roughly comparable districts evenly spread around the size of the litigating district.

However, three of the districts arrayed on Exhibit 4 are somewhat removed from Tecumseh. Geneva is 68 miles away; Hebron is 69 miles away; and Milford is 74 miles away. See Exhibit 5. These distances are somewhat greater than the limits which we have customarily utilized to assure geographic proximity. Fremont Education Assn. v. The School District of Fremont , Case No. 50, March 14, 1972 (50 miles close); Hastings Education Assn. v. The School District of Hastings , Case No. 42, Findings and Order of March 14, 1972 (50 miles); Banner County Education Assn. v. The School District of Harrisburg in the County of Banner , Case No. 72, Findings and Order of December 27, 1972 (50 miles). Countervailing against this geographic dispersion are two other factors. Firstly, the comparability of size, which we regard as a more important factor than geographic proximity, at least here where no city is more than 75 miles from the litigating district. In addition, each of these school districts is a member of the Southern Nebraska Conference to which the Tecumseh District now belongs. While this is the first year of membership by Tecumseh in the conference, the common conference membership is a strong evidence of comparability. Nebraska City Education Assn. v. The School District of Nebraska City , Case No. 116, Findings and Order of October 23, 1974. However, these three school districts are members of the western division of this conference. Tecumseh on the other hand is a member of the eastern division. Apparently, the conference operates roughly as if it were two separate conferences. This separation into divisions tends to lessen the arguments for inclusion of these districts from joint conference membership. On balance, however, if there were no other evidence of record, Exhibit 4 would form an adequate basis for determination under 48-818, Miligan Education Assn. v. School District No. 71 of Fillmore County , Case No. 85, Findings and Order of May 14, 1974.

We turn then to Exhibit 15 to determine whether or not it provides a better basis for decision. At the start, we are faced again with the difficulty we had in comparing Exhibit 4 with Exhibit 15 with regard to compensation. The enrollments reported for the school districts which appear on both Exhibits 15 and 4 differ as between Exhibit 4, where the Union reports pupil population and Exhibit 12 where the District reports pupil population. The range of Exhibit 15 schools is from a low of 392 to a high of 927, or 535 pupils. The average size is 624, compared with a reported population for Tecumseh of 576. The largest district is 351 pupils larger than Tecumseh, while the smallest is 164 smaller. The overall selection of districts in Exhibit 15 compares favorably in terms of range and variation from the size of the Tecumseh District with Exhibit 4. However,of the nine districts on Exhibit 15, six have a smaller population than the Tecumseh District. The prevalence of smaller districts on Exhibit 15 makes it less acceptable in terms of comparability of size than Exhibit 4. On the other hand, every district on Exhibit 15 is within 40 miles of tecumseh, so that the geographic spread is closer.

Since we have indicated that we believe comparability of size is a more important factor than geographic proximity, we would give preference to Exhibit 4 over Exhibit 15, if that were our only choice. However, the advantage we give to Exhibit 4 is slight. Therefore, we believe it would be more appropriate to seek some compromise between the two exhibits, rather than to accept one and reject the other. Our decision in Wisner-Pilger Education Assn. v. The School District of Wisner-Pilger , Case No. 71, Findings and Order of August 21, 1973 suggests such a compromise. In that case, we utilized only the districts common to both parties' arrays in making our determination of comparability. The five common districts are Syracuse, Pawnee City, Tri-County (DeWitt), Wilbur, and Southern (Wymore). Since each party has used all of these five cities, both parties concede comparability. In addition, Pawnee City, Tri-County, Wilbur, and Southern are members of the same division of the Southern Nebraska Conference as is Tecumseh. The array formed by using these five districts is as shown on Table C.


The Tri-County total of $380,573.44 is the mid-point of this array. The mid-point of Exhibit 4 was $384,817.68. On the other hand, the District's offer computed on the Exhibit 4 basis produced a total compensation of $372,640.00. Since the District was near the approximate mid-point of Exhibit 15, if we treat the Exhibit 4 computation of total compensation under the district's offer as representative of the District's position on Exhibit 15, then the mid-point of Exhibit 15 on an Exhibit 4 basis would be $372,640.00. We recognize that this is but an approximation. Nevertheless, the comparison is indicative. Using the five schools produces a median about $4,000 below Exhibit 4 and about 48,000 above Exhibit 15. This would seem to represent a reasonable accommodation between the obvious bias in favor of smaller school districts contained in Exhibit 15, while at the same time giving weight to the District's criticism of Exhibit 4.

We have thus determined that $380,573.44 is the approximate mid-point of a proper array, and, thus, is comparable to the prevalent. The parties are agreed as to what fringe benefits the teachers should receive, and their costs, $18,300.00. Thus, our task is to design a salary scale which will produce total wage costs of approximately $362,273.44. The design of such a salary schedule requires us to determine the conflict between the parties with regard to index factor. Of the five common school districts, only one, Syracuse, uses a 5 x 5 index. Pawnee City, Wilbur, and Southern (Wymore) use a 4 x 4, while Tri-County (DeWitt) uses a 5 x 4. Thus, on the basis of the five common cities 4 x 4 is clearly the prevalent practice. Of the eight districts arrayed on Exhibit 4, two use a 5 x 5 index, three use a 4 x 4 index, and three use a 5 x 4 index. Among these districts, a majority are higher than 4 x 4, but at the same time 5 x 5 is also a minority practice. Of the nine districts arrayed on Exhibit 15, see Exhibit 17, six use a 4 x 4 index, one uses a 5 x 4, one uses a 4 x 5, and only one uses a 5 x 5.

The use of an index salary represents a recognition by teachers and school districts that teachers with greater experience or advanced education possess skill levels different from teachers who lack the added experience or education. The selection of an appropriate index is an important part of our overall responsibility under 48-818. Since the utilization of an index is evidence of difference in skills, when we select the index we do so in compliance with the statutory mandate that rates of pay be comparable for "workers exhibiting like or similar skills." If we select an index that is too low, even though our overall level of compensation for teachers as a group is appropriate, we have not satisfied the statute's mandate, since more experienced or better educated teachers are not being paid wages comparable to those with similar skills. On the other hand, if we adopt an index which is too high, we work a discrimination in favor of the more experienced and better educated teachers at the expense of other teachers, who then do not receive rates of compensation comparable to teachers with skills similar to their own.

On the evidence before us, if we adopted the 5 x 5 index which the Union desires, our index factor would not be comparable to the prevalent, and we would be discriminating against more junior members of the Tecumseh faculty and in favor of the more senior members.

Having determined that the appropriate index is 4 x 4, we must then establish a base salary. We have determined on $7,150.00 as the base. Multiplying this base by the index figure of 50.62 shown for a 4 x 4 index on plaintiff's Exhibit 4 produces a total wage cost of $361,933.00 When the fringe cost of $18,300.00 is added to this, this produces a total compensation to teachers of $380,233.00, which is only $340.44 less than the median of $380,233.00, which is only $340.44 less than the median of $380,573.44 for the five common districts shown in Table C.

The only issue between the parties that remains to be resolved is that of sick leave. The District currently allows paid sick leave at the rate of ten days per year with an accrual to sixty days. The Union supports the existing practice, while the District seeks to reduce the number of days to eight per year with a maximum accrual of 45 days. The sick leave practices of the nine districts from Exhibit 15 are shown on Exhibit 17. Four of these districts allow ten or more days, while five allow less than ten. This split is not sufficient to persuade us that the District has borne the burden of showing that its current practice of allowing ten days of paid sick leave is not comparable. With regard to accumulation, the nine districts from Exhibit 15 split as follows: Four districts allow between 40 and 45 days, two allow 45 days, one allows 50 days, and one allows 60 days. Of the Exhibit 4 districts, with the information reported on Exhibit 5, one allows accumulation of 50 days, one allows accumulation of 49 days, two allow accumulation of 45 days, and one allows accumulation of 40 days. We believe that 60 days of accumulation might be out of line. On the other hand, the pattern of accumulation is such a crazy quilt as to raise doubts as to whether there is a prevalent practice on this issue. Since the District seeks change, we allocate the burden of persuasion to it. We do not believe the District has shown a prevalent practice with regard to accumulation, and, therefore, leave current practice unchanged.


1. The scale of wages for certified teachers employed by the defendant School District shall be computed in accordance with the salary schedule having a base salary of $7,150.00, index increments of 4% vertically and 4% horizontally, with vertical columns and horizontal columns as displayed upon plaintiff's Exhibit 3 at trial, a copy of which is appended hereto;

2. The fully paid health insurance premium, $11.70 for single teachers, $34.75 for teachers with dependents shall continue, and the school district shall provide long-term income protection insurance which provides income continuation in the event of a disabling accident or sickness after a 60-day elimination period;

3. The current sick leave policy of the District providing ten days annual paid sick leave with a maximum accumulation of 60 days shall continue in force;

4. 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.


1 The District argues for $6,950.00, 4 x 4 index, with certain protective conditions. The added cost of the protective conditions approximates at $7,000.00, 4 x 4 index as the District concedes in its brief.

NOTE: Exhibit 3, salary schedule, omitted.