3 CIR 298 (1977)


An Unincorporated Association, |
Plaintiff, |
NEBRASKA, A Political |
Subdivision of the State of |
Nebraska, |
Defendant. |

September 19, 1977


For the Plaintiff: Theodore L. Kessner

For the Defendant: Richard L. Huber and John R. Higgins, Jr.

Before: Wall, P.J.; Green & McGinley, J.J.


This case brings before us the question of the right of a minority of the certificated employees of a school district to be represented by a union. We find we have jurisdiction of the parties and of the subject matter.

On February 17, 1977, the Spencer Education Association, claiming to represent a majority of the teachers in the defendant district, requested recognition. Actually, at that time, it appears that the Association represented 11 of twenty-two certificated employees. By the time the petition was filed herein, the Association asked only to represent its members, and at the time of trial represented 7 or 8 of 22 certificated employees.

It is well settled that a public union in Nebraska may represent only its members. Orleans Education Association v. School Dist. , 2 CIR 83-1 Aff'd, 193 Neb. 675, 229 N.W. 2d 172 (1976). The only issue presented is, therefore, the proper compensation for the Association's members under §48-818, R.R.S. 1943. Spencer does not presently have a base salary or an index system as do most of the schools in Nebraska. It has previously paid its elementary teachers less for comparable skills than it has paid its secondary teachers, but has recognized that it is out of step with the rest of the state in this regard, and has begun moving toward equality of pay.

Plaintiff presents an array of eight schools, including one Class VI District. Since the testimony of the defendant concedes that it is the prevalent practice to compensate elementary and secondary teachers on the same basis, we can see no objection to using the Class VI data. Six of the districts are in the same athletic conference as defendant which is, at least, some evidence that defendant felt they were comparable for some purposes at some time. All are within 71 miles of each other.

Plaintiff's array is thus as follows:

NOTE: Array deleted

The median of this array is $221,704.00. The mean is $222,078.37.

Defendant would utilize only the schools in the athletic conference to which Spencer belongs. This would delete Chambers, Crofton, and Wheeler Central and add Butte, Stuart, Ewing and Naper. Naper's enrollment is less than half that of Spencer, and is thus not comparable under our previous decisions. Tecumseh Education Association v. School District , 2 CIR 119-1 (1975). Stuart and Ewing do not have index factors and their use would make computation difficult, if not impossible. We thus drop them as difficult of comparison, and find such dropping not to be a substantial distortion of the sample. Tecumseh , supra. It is apparent that the addition of Butte to the array will move the median down to $220,464.80 and reduce the mean to $219,970.98. If we adopt the approach of Tecumseh , supra, and utilize only the agreed-upon schools, we have an array of only four schools: Niobrara, Orchard, Lynch and Verdigre. This latter array has a median of $221,550.00 and a mean of $217.882.00. The approximate midpoint of the arrays ranges from about $220,500.00 to $221,700.00, or an average of the medians of $221,239.60. Since the deviation in the medians of all arrays is only in the range of $500.00 or 2/10ths of one percent, we are convinced that a total teacher compensation in that area will meet the criteria of §48-818.

The evidence establishes that a salary schedule with an index of 4 x 4 and a base figure is prevalent among the arrayed districts. The evidence establishes that a carryover of up to five years experience in another district is prevalent among the districts compared. It also establishes that fringe benefits in the nature of contribution of $25.80 per month for Blue Cross/Blue Shield health insurance coverage is prevalent, for a total cost to the district of $6,811.20. Subtracting this amount from $221,250.00 leaves $214,438.80 for salaries, or a base of $8,234.98 which we round to $8,235.00.

The evidence further establishes that extra duty pay for sponsorship of certain extra-curricular or overtime activities is the prevalent practice. Rounded averages of the actual payments closely approximate those found in Exhibit 8, and we thus adopt those figures for extra-duty pay to bring the total teacher compensation comparable to the prevalent as required by §48-818, R.R.S. 1943. Defendant states that it has a grievance procedure and, therefore, we order no change in this area. We thus order the dispute between the plaintiff and defendant settled on behalf of plaintiff's members as follows:

1. Establishment of a salary schedule with "BA," "BA+9," "BA+18," "BA+27" and "BA+36 or MA" columns; six, seven, nine, eleven and eleven steps in the respective columns, and an index of 4 x 4 with up to five years carry-over experience.

2. Establishment of monthly contributions for Blue Cross-BlueShield health insurance in the amount of $25.80 per month per member.

3. Establishment of extra-duty pay schedules for members in accord with Exhibit 8.

4. Payment of interest at 8% from the date of this decree until the date paid of any sums required by this Order.