2 CIR 84 (1973)



Unincorporated Association, |
Plaintiff, |
NEBRASKA, also known as |
Orchard Public Schools, |
a Political Subdivision. |
Defendant. |

August 24, 1973


Theodore L. Kessner of Crosby, Pansing & Guenzel, for plaintiff.

Robert E. Otte of Jewell, Otte, & Gatz, for defendant.

Before: Judges Baylor, Kratz and Grant


This is an action filed by Plaintiff, Orchard Teachers Association ("Association") asking this Court to render such orders as are necessary to resolve the industrial dispute existing between the Association and the Defendant School District Number 49 of Antelope County, Nebraska, also known as Orchard Public Schools (hereinafter referred to as the "District"). Defendant District, in its Answer, alleged that this Court is without jurisdiction over the parties since all the provisions of the Nebraska Teachers' Professional Negotiations Act (Section 79-1287 through 79-1295, R.R.S. Nebraska 1943) had not been exhausted as required by Section 48-810, R.R.S. Nebraska 1943; and further generally denied the allegations of the Petition.

With regard to Defendant's allegation of lack of jurisdiction in this Court for the reason that the requirements of the Teachers' Professional Negotiations Act have not been exhausted, the Court finds that the Defendant District is a Class II district - that is, as defined by Section 79-102, R.R.S. Nebraska 1943, a district "embracing territory having a population of one thousand inhabitants or less that maintains both elementary and high school grades under the direction of a single school board." Section 79-1287 states that the provisions of the Teachers' Professional Negotiations Act shall apply to Class III, IV and V school districts, and therefore the Court finds that Defendant District is not subject to the provisions of that Act, and there is here no jurisdictional infirmity because of failure to exhaust the provisions of that Act.

Plaintiff's Petition alleges that the industrial dispute between the parties includes the following issues: base salary; salary schedule structure; increments of the salary schedule; contributions to health insurance; and extra duty pay schedule.

The issue of base salary, salary schedule structure, and increments of the salary schedule are intertwined in this case, as it is presented to the Court. Previous holdings of this Court have indicated that the total teacher compensation should be compared in appropriate comparable school districts.

The first area of disagreement between the parties concerns the nature of the increment increase to be granted both for additional years of service in the district and for increased educational advances by the teachers. The District submitted evidence that the existing schedule, insofar as it provides for increments of $250 for each year of additional experience and $250 for each additional nine hours of education after the BA degree (up to the MA degree) would be appropriate. Using such $250 increment and a base salary of 46.650, the total teacher compensation for the Orchard teaching faculty would be $145.100. This total includes nothing for fringe benefits in the nature of health insurance and accident insurance, and the District's evidence did not include payment for any other fringe benefits.

Initially, Plaintiff contends that the dollar increment approach is different than the percentage increment which is used in comparable school districts. This precise point was presented to this Court in Scottsbluff Education Association vs. school District of Scottsbluff , Case No. 70, wherein we held:

But the Court of Industrial Relations under current statutes may not order rates of pay which are not comparable to the prevalent wage rates paid for similar work of workers exhibiting similar skills under similar working conditions. In this case, we as triers of fact find from the evidence in this case that an Index Schedule with the various increments expressed in terms of percentage of base is the prevalent form (as distinguished from the numbers constituting base and percent) of wage rate.

In the instant case, in the eight school districts presented on behalf of Plaintiff as being comparable, all have a form of percentage increment rather than a fixed dollar increment. Defendant presented evidence as to five schools, which it alleged to be comparable, and four of the five schools used a percentage increment rather than a fixed-dollar increment.

Accordingly, we find in the instant case that the increment in the salary schedule between Plaintiff and Defendant should be expressed in a percentage figure of the base salary.

With regard to the question whether health and accident insurance benefits should be made available to the teachers and included in the teachers' total compensation, the Association presented evidence as the same eight schools used in connection with the increment issue above. Each of such eight schools furnished health and accident insurance ranging from $11.00 per month single coverage to $31.65 per month full family coverage. Defendant submitted evidence as to five schools furnished insurance protection ranging from $11.00 per month single coverage to $150.00 per year.

We find, therefore, that Defendant should furnish to Plaintiff's members, health and accident insurance at the rate of $11.00 per month. Defendant employs nineteen teachers and the amount to be used in making the total teacher compensation would then be $2,508 (11 x 12 x 19).

We turn then to the question of the extra duty pay schedule. Plaintiff seeks an increase in the compensation of the head coach in football and basketball from 7% of the salary base to 8%; an increase in the compensation of the assistant football coach from 4 1/2% of the salary base to 5%; and an increase in the compensation of the volley ball coach from 4% to 6%. We are asked to determine the appropriateness of increasing the extra-curricular pay of three positions by 1/2% to 2%. There is no evidence before the Court which includes the total dollar amount of extra-curricular payments in the "overall compensation presently received by the employees" (Section 48-818, R.R.S. Nebraska 1943), and there is no testimony setting out the comparison of the extra-duty pay scale of Plaintiff's members as compared with other teachers doing similar extra-curricular work. There is no evidence concerning the similarity, or lack thereof, of working conditions with regard to the extra-curricular activities.

We find, therefore, that there is no evidence before the Court on which the Court could properly base any change in the existing schedule for existing extra-curricular duties.

The Court then must consider what school districts are comparable for the determination of an appropriate total teacher compensation that will satisfy the statutory requirements of Section 48-818, R.R.S. Nebraska 1943.

Defendant contends and adduced evidence to support the contention that the school districts of Verdigre, Elgin, Lynch, Ewing, and Niobrara are comparable. In its presentation, Plaintiff adduced testimony that comparable school districts include Lynch, Niobrara, and Verdigre (used also by Defendant), plus Elkhorn Valley (Tilden), Neligh, Osmond, Rock County High School and West Holt High School are schools having only grades 7 through 12, and that the prevalent wage rates paid and conditions of employment in such schools are thus not comparable to wages and conditions herein. Defendant and the other schools mentioned above have grades K-12. Accordingly, on the basis of community of interest, geographic proximity (all the schools we use are within approximately 35 miles from defendant), size (the schools vary in their rank in size from a ranking of 89th in the state to 195th-while Defendant is ranked 204th in the state), and the fact that all available members of Defendant's athletic conference are used by both parties, we find the comparable schools to be used for the purpose of comparing total teacher compensation are Lynch, Verdigre, Ewing, Niobrara, Elgin, Elkhorn Valley, Neligh and Osmond.

Placing the Plaintiff's faculty on the various schedules of these comparable school districts, we find that the total teacher compensation, including insurance benefits, would range from $143,820 to $154,911. Calculating Plaintiff's faculty on a base salary of $6,600, with a 4% vertical and a 4% horizontal increment, and plus insurance benefits of $11.00 per month or $2,508, would result in total teacher compensation of $148,236. We find that in our judgment this is the approximate mid-point of the comparable schools and that this schedule should be adopted. We further find that the existing vertical step in each horizontal lane shall remain the same.


That 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 $6,600; Index Increments of 4% vertically and 4% horizontally, with the existing vertical steps in each horizontal lane remaining the same; plus $11.00 per month single insurance coverage for health and accident insurance. Other aspects of the compensation in terms of conditions and employment shall remain unchanged by this Order.