2 CIR 98 (1974)



Incorporated Association |
Plaintiff, |
Subdivision, |
Defendant. |

May 7, 1974


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

John R. Higgins of Higgins, Higgins & Huber, for defendant.

Before: Judges Baylor, DeBacker, Grant, and Kratz.


Plaintiff, a Class III school district, has attempted to negotiate with Defendant concerning terms, tenure and conditions of employment. Unable to resolve all negotiable items, the parties, pursuant to Section 79-1293, R.R.S. Neb., submitted the unresolved items to a Fact Finding Board. The recommendation of the Fact Finding Board was rejected by Defendant, and Plaintiff then filed a petition in this Court, alleging an industrial dispute and requesting this Court to resolve the dispute by establishing wages, and other terms, tenure and conditions of employment for the members of Plaintiff for the 1973-74 school year.

According to Plaintiff's petition, the industrial dispute involved the following terms and conditions of employment:

1. Salary schedule

2. Contribution to health insurance

3. Provision for teacher aids

4. Compensation for sixth period duties

At the hearing, however, the issues were reduced to two, base salary and extra compensation for seventh period study hall or teaching assignments, and apparently the issue of base salary has now been resolved. Defendant's brief asks for approval of a $6830, 4 x 4, salary schedule, which is the same as that requested by Plaintiff. Consequently, the only issue remaining in this case for our consideration is whether or not the Defendant should pay extra compensation for seventh period assignments.

Defendant's school program commences at 8:40 A.M. and finishes at 3:50 P.M. The school day consists of six fifty minute periods, one sixty minute period, and a thirty minute lunch period. All teachers are allowed one of these periods for planning or free time,[1] and they all teach for five periods. The dispute involves the seventh period which is used by some teachers for classroom teaching, others for study hall supervision, and others for free time.

For many years, Defendant has paid extra compensation, 8% of base salary, to those teachers who either teach a class or supervise a study hall during this seventh period. The Plaintiff argues that this 8% extra compensation should be retained, and the Defendant requests that it be eliminated.

This disputed item is clearly a rate of pay or condition of employment, so the issue must be resolved by our application of Section 48-818 to the facts of the case. Section 48-818 says as follows:

The findings and order or orders may establish or alter the scale of wages, hours of labor, or conditions of employment, or any one or more of the same. In making such findings and order or orders, the Court of Industrial Relations shall establish rates of pay and conditions of employment which are comparable to the prevalent wage rates paid and conditions of employment maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar conditions. In establishing wage rates the Court shall take into consideration the overall compensation presently received by the employees, having regard not only to wages for time actually worked but also to wages for time not worked, including vacations, holidays, and other excused time, and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees...

For purposes of determining the prevalent wages and conditions for similar work for workers with similar skills under similar working conditions, the Defendant argues that its teachers should be compared to the teachers in the schools associated with it in the Southern Nebraska Athletic Conference. The Court has used the athletic conference criteria for determining comparable schools in several instances. School District of Seward Education Association v. The School District of Seward , Case No. 34, aff'd , 188 Neb. 772, 199 N.W.2nd 752 (1972); Falls City Education Association v. School District of Falls City , Case No. 45; Nehawka Education Association v. School District No. 103 of Cass County , Case No. 65; and Valentine Education Association v. School District No. IV , Case No. 66; cf Fremont Education Association v. School District of Fremont , Case No. 50. Defendant maintains that the schools in the Southern Nebraska Athletic Conference demonstrate such criteria, namely a geographic proximity to Defendant, a community of interest, and a similarity of enrollment.

Plaintiff argues for a different list of comparable schools, based primarily on an even closer geographic proximity, and it argues that all of its compared-to school districts, though not in the same athletic conference, are geographically closer to Defendant than at least one of the schools, Pawnee City, which competes athletically with Defendant in the Southern Nebraska Conference. All of its listed schools, Plaintiff claims, fit the various criteria used by this Court to determine comparable schools.

Plaintiff offered no evidence regarding the seventh period extra pay practice in its recommended list of comparable schools. Witness Halama said he didn't know whether or not these schools paid extra for seventh period assignments. Plaintiff argues, however, that this Court can order the continuation of the overtime pay on the basis of a declaration of total teacher compensation comparable to the prevalent.[2] This record, however, contains specific evidence regarding the condition in dispute, and inasmuch as all elements of total teacher compensation in the schools listed by both parties,[3] other than the extra duty pay element, are comparable to the prevalent, we will decide the issue on the basis of the prevalent condition regarding pay for extra duty assignments among teachers in the comparable school districts.

Defendant offered testimony to show that none of the Southern Nebraska Conference schools provide extra pay for seventh period duty (Document II of Exhibit #7).[4] Plaintiff claims, however, that Defendant's evidence regarding extra pay for seventh period duty is incorrect, and it cites the interrogation of Superintendent Finley by Judge Baylor as a basis for claiming that at least two, and probably four, of the compared-to school districts would pay for extra duty assignments if the need arose. This interrogation does show some error in Defendant's exhibit, but it is not as substantial as Plaintiff claims.

Superintendent Finley's questioning by Judge Baylor shows (1) that Finley mailed a questionnaire to all schools in the Nebraska Southern Conference which described the normal workload at Sutton as five assignments in a seven-period day, and then asked: "Do your teachers receive extra pay for teaching a class or having a study hall above the normal load?"; (2) that six schools (Milford, Henderson, Wymore, Wilber, Harvard, and Tri-City) answered this question in the negative; (3) that Hebron and Geneva didn't answer "yes" or "no", but respectively said "we have none, but would consider it" (Hebron), and we "do not have this situation at the present time" (Geneva); (4) that Sandy Creek said they pay 10% above the base, but are not paying anyone this extra compensation at the present time;[5] and (5) that Pawnee City answered "yes", and explained that their teachers are assigned six periods for a seven period day, with one period for preparation, but one teacher who has been assigned all seven periods receives an additional $1500.

Though this evidence seems somewhat incomplete, we can nevertheless conclude from it that only one school pays extra for teaching or study hall assignments above the normal load (Sandy Creek), six do not, two have no policy, rule or practice regarding this condition of employment, and one (Pawnee City) has a practice of compensation for extra duty assignments which is not applicable because it involves teaching or study hall assignments for all seven periods, rather than six.[6]

Even if we use Plaintiff's recommended comparable schools, we have three who do not pay for assignments beyond the normal load (Wilber, Harvard, and Tri-City), one that does (Sandy Creek), one that has no specific policy regarding this condition of employment(Hebron), one whose policy is not applicable (Pawnee City), and six whose policy or practice, if any, is unknown (Aurora, Grand Island Northwest, Stromsburg, Adams Central, Clay Center, and Geneva).

We conclude, therefore, under the evidence adduced in this case, that extra pay for seventh period duty is not the prevalent condition of employment for similar work of teachers exhibiting like or similar skills under similar working conditions.


1. The scale of wages for certificated teachers employed by the Defendant School District for the 1973-74 school year shall be computed in accordance with a salary schedule having a base salary of $6830, index increments of 4% vertically and 4% horizontally, with ten vertical columns and five horizontal columns, and $11 single, $31.65 family, per month for health insurance.

2. Teachers who are given teaching or study hall assignments for six periods of a seven period school day, and have one period for planning, shall not receive additional compensation.

3. Except as specified in the immediately preceding paragraphs numbered 1 and 2, the other aspects of compensation and terms and conditions of employment presently set or agreed upon for 1973-74 shall remain unchanged by this order.

1Plaintiff says "planning" and Defendant says "free time", but the difference is not significant. The evidence is clear that teachers ordinarily spend such period in duties such as preparing future classroom presentations, grading tests, and individual pupil counseling.

2The basic premise for this theory is the claim that Defendant is understaffed and should hire two new teachers to accommodate the one extra period assignment of fifteen teachers. (Ten teachers have a seventh period study hall and five have classroom teaching duties. Since there are seven periods of work each day, two new teachers could take care of fourteen periods, leaving only one period unassigned, and then all teachers would have the same load; five periods of classroom teaching, one period of planning, and one period free, and there would be no need for extra period pay.) The addition of the two teachers would not affect the total teacher compensation of Plaintiff's compared-to schools (Exhibit #6) because the adjustments at the compared-to-schools would be proportionate. Thus, the total teacher compensation would be about the same in the comparison, and Plaintiff would remain in the middle of the compared-to schools, making their total teacher compensation "comparable to the prevalent."

3This includes, but is not limited to, the dollars resulting from the use of the index schedule agreed upon by the parties.

4Six of the ten schools on Defendant's list (Sandy Creek, Pawnee City, Hebron, Harvard, Wilber, and Tri-City (DeWitt)) are also on Plaintiff's list.

5Since each teacher at Sandy Creek is required to spend 275 minutes in class or study hall, it appears that the 10% would apply for any teaching or study hall assignments above the 275minutes.

6The Pawnee City School Board policy might actually favor the Defendant's position since it appears that their policy and practice with regard to all but one of their teachers is exactly what Defendant is requesting from this Court: six periods assigned, one period for preparation, and no extra pay.