3 CIR 261 (1977)


ASSOCIATION, An Unincorporated |
Association, |
Plaintiff, |
WAVERLY, County of Lancaster, |
State of Nebraska, A Political |
Subdivision of the State of |
Nebraska, |
Defendant. |

July 1, 1977

Appearances: For Plaintiff, Theodore L. Kessner

For Defendant, Edwin Perry

Before: DeBacker, Green, and McGinley, J.J.


This case brings before us the Waverly Education Association ("Association") and the School District of Waverly ("Waverly"), which are in dispute as to the terms and conditions of employment for teachers in Waverly for the contract year 1976-1977. A number of matters are in dispute between the parties. However, the central issues are index design and base salary. In its brief, the Association seeks an index of 5 times 4, the current index, with a starting salary of $8,074.00. Waverly argues for a 4 times 5 index with a starting salary of $8,200.00.

The Association offers Exhibit 4 in support of its position. Exhibit 4 is a list of sixteen school districts. However, in its brief, the Association relies upon only eight of these districts: Aurora, Blair, Crete, Fairbury, Holdrege, Lexington, Seward and York. If this array was selected, a total teacher compensation of $1,072,500.00 would be required. Exhibit 4 shows fringe costs of $65,667.00. With a 5 times 4 index this array would support a starting salary of $8,074.00, or with a 4 times 5 index a starting salary of $8,227.00.

Waverly's principal attack on the Association's selection is that the school districts selected are more distant from Waverly than districts, which we have usually treated as appropriate. See, Tecumseh Education Association v. school District of Tecumseh , 2 CIR 119 (1975). Of the eight districts, however, the only two which are more than 100 miles from Waverly are Lexington, 185 miles, and Holdrege, 160 miles. The omission of these two districts from the Association's array would raise the median total teacher compensation from $1,072,500.00 to $1,083,572.00 with a corresponding increase in base salary. The districts of Lexington and Holdrege are very close to Waverly in size, though both are smaller than Waverly. Given the fact that all of the Association's eight districts are very comparable in size to Waverly, and given the fact that the two very distant districts do not significantly distort the array, we do not regard the distance factor as a significant demerit. As we noted in Tecumseh , supra, "The comparability of size...we regard as a more important factor than geographic proximity...."

We believe, however, that it would be appropriate to add the Norris district to plaintiff's list of eight districts. Norris is in Lancaster County and is only 25 miles from Waverly. Of the districts on Exhibit 4, it is the only district upon which the Association does not rely, that is larger than the smallest district upon which it does rely. Addition of Norris to the eight districts upon which the Association relies would make the median figure for total teacher compensation $1,071,226.00 leaving $1,004,588.00 for salary after fringe costs of $65,667.72 were subtracted. At a 5 times 4 index this would support a starting salary of $8,055.00 or $8,208.00, if a 4 times 5 index was utilized.

We believe that the use of the eight districts suggested by the Association with the addition of Norris would be appropriate. With a 4 times 5 index, the $8,208.00 starting salary is nearly identical with the $8,200.00 starting salary, which Waverly concedes in its brief would be appropriate. That conceded figure would convert to a starting salary of $8,047.00 on a 5 times 4 index.

In choosing to use the eight districts selected by the Association plus Norris, we necessarily decide that we will not utilize Waverly's Exhibit 25. We do this for several reasons. Exhibit 25 is composed of the members of the Conference to which Waverly belongs and a group of other school districts. In arraying the Conference, Waverly places great reliance upon our decision in Nebraska City Education Association v. School District of Nebraska City , 2 CIR 116 (1974). However, in this case the athletic conference standard of Nebraska City is brought into direct conflict with our traditional limits on size. Waverly is the largest school district in the Conference. The next largest district in the Conference, Norris, is 326 pupils smaller. Four members of the Conference, Norris, is 326 pupils smaller. Four members of the Conference, Arlington, Utica-Centennial, Raymond Central and Wahoo are less than half the size of Waverly. With such a size distortion in the athletic conference, a choice must be made between Conference membership and size comparability. With a distortion this great, we choose size comparability. We note that Waverly apparently concedes as much, since it does not seek to rely solely on the conference members, but also includes a group of districts comparable in size to Waverly and composites the two groups. Waverly's composite is in terms of averages. We restate these figures as medians. They illustrate the distortion caused by the Conference members. The median total compensation of the Conference members is $1,052,339.00. The median of the seven districts, other than Conference members, for which data is displayed on Exhibit 25 is $1,077,913.00. The composite figure is $1,057,818.00. In terms of teacher salaries at 5 times 4, the Conference members would support a starting salary of $7,936.00, the non-Conference members $8,141.00, and the composite, $7,980.00. If Exhibit 25 is adjusted by removal of the four smallest Conference members and also Syracuse, which has 768 students, and is, therefore, less than half the size of Waverly, Exhibit 25 would be an array of ten districts. Blair, Springfield-Platteview, Seward, Fairbury, York, Falls City, Norris, Elkhorn, Ashland and Crete. The median total teacher compensation would fall between York with a total of $1,077,913.48 and Falls City with a total teacher compensation of $1,073,359.10. This would produce a median of $1,075,639.29. Subtracting the fringe cost shown on Exhibit 25 of $62,682.72 would leave $1,012,676.38 for teachers salaries. With a 5 times 4 index, this would support a salary of $8,120.00 or with a 4 times 5 index $8,274.00. These figures are larger than the figures which the Association seeks in its brief. However, they could be produced with reasonable and acceptable adjustments to Exhibit 25. We believe, therefore, that in utilizing the Association's eight districts plus Norris, and in rejecting Exhibit 25, we are taking a conservative and appropriate approach to salary setting in this case.

Of the nine districts which we utilized, four, Aurora, York, Lexington and Seward have either 5 times 4 or 5 times 5 indexes. Blair, Fairbury and Norris have 4 times 5 indexes. Holdrege has a 4 times 4.5 and Crete has a 4 times 4 index. The Association seeks to continue the 5 times 4 index which has prevailed. If the Association sought change, the evidence of the nine districts would be inadequate to support it, since there is no clearly prevalent practice. However, since the Association seeks continuity, the lack of evidence that the current practice varies significantly from the practice of other districts supports its continuation.

There is no dispute between the parties as to the number of columns and steps on the index. Thus, our Order will be that the existing pattern of steps and columns and the existing index 5 times 4 shall be continued with a starting salary of $8,055.00. Since the starting salary in Waverly last year was 47,600.00, this will represent an approximately 6% increase in salary.

Two small issues with regard to fringe are in dispute. The District seeks to change from a 50 day waiting period 66 2/3% of salary income guarantee plan to a 60 day waiting period 60% of salary plan. The Association's Exhibit 7 indicates that the change would be in line with the practice of other school districts. It is, therefore, an appropriate one. The Association seeks an adjustment in sick leave. Currently the District provides eight days annually cumulative to 35. The Association seeks ten days annually cumulative to 60. The change to 10 days annually cumulative to 60 is supported by the practice in the nine districts we have utilized. Three of them, York, Seward and Aurora allow unlimited accumulation. Holdrege allows accumulation of 185 days, while Norris, Crete and Fairbury allow 60 day accumulation. Only Blair and Lexington allow an accumulation of less than 60 days. Annual sick leave is apparently not limited in York, is 60 days in Seward and is 10 days in all other districts except Aurora and Norris. Thus, the change in sick leave sought by the Association should be allowed.

NOTE: I think the first fringe referred to in the proceeding paragraph refers to long-term disability insurance though they don't call it that.