3 CIR 385 (1978).


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


For Plaintiff: Theodore Kessner.

For Defendant: William A. Harding.

Before: Kratz, DeBacker, & McGinley, J.J. DeBacker concurring in part and dissenting in part.


The Columbus Education Association (Association) and the School District of Columbus (District), attempted to negotiate a collective bargaining contract and were unable to reach agreement. The bargaining items in dispute[1] were submitted to the fact finding procedures of the Teachers Professional Negotiation Act without resolution, and the Association then petitioned this Court to resolve the dispute.

The issues are as follows: (1) Should only the total premium figure paid for insurance be considered or should the type of insurance, individual or family coverage, be determined by the Court? (2) Are there economic dissimilarities between the selected compared to School Districts which should be considered in determining the compensation for Columbus teachers; (3) Should this wage determination take into consideration the dissimilarity in contract days between Columbus and the compared to School Districts; (4) Should extra duty pay be a consideration in determining "overall compensation", and has the Plaintiff, therefore, failed to meet its burden of proof by not introducing evidence of existing extra-duty pay in the districts it contends should be compared to Columbus; and (5) The array of schools which should be compared to Columbus in determining the teacher compensation for Plaintiff School District.


Defendant argues that since total teacher compensation is the factor looked at by the Court of Industrial Relations (CIR), it is not necessary for the Court to determine whether the Defendant pays a premium for employees only or for employees and dependents. We disagree.

The type of insurance plan used by School Districts is clearly a term or condition of employment and thus this Court should determine the insurance coverage at Columbus based on what is "comparable to the prevalent" and not on the sole basis of the total figure paid for insurance. The evidence presented herein shows the prevalent term and condition of employment in the cities determined comparable to Columbus (Footnote 4) is payment of a larger amount for health insurance for teachers with dependents.

Economic Dissimilarities

Defendant's contention that Plaintiff did not take into consideration the economic dissimilarity between Columbus and its suggested compared to school districts is based on the Nebraska Supreme Court decision in Lincoln Fire Fighters Assn., Local 664 v. City of Lincoln , 198 Neb. 174.

In Lincoln Fire Fighters , the Supreme Court said the CIR method of selecting comparable cities[2] met the statutory requirements, but the method of comparison did not. The eight cities selected had an average of twice as much manufacturing, more unionization and generally higher median income. Thus, the Court said the selected cities had an economic dissimilarity to Lincoln and, therefore, it was incorrect for the CIR to use the mean wage rate in determining the prevalent wage rate. Instead, it is

"required to weigh, compare, and adjust for any economic dissimilarities shown to exist which have a bearing on prevalent wage rates."

The Supreme Court remanded the case, with instructions that the CIR "make an appropriate adjustment for economic variables as described heretofore." The heretofore described economic variables were manufacturing, unionization and median income. The Supreme Court, however, gave no advice or instruction on a method or formula which might be used in making this adjustment, and the remanded case was never reconsidered by this Court, but instead was settled.

Defendant's evidence pertaining to the alleged economic dissimilarities in the Plaintiff's suggested array of cities is as follows: the percentage of manufacturing in the compared to cities is 18.4% and in Columbus 34.3%. 50% are white-collar workers in the compared to cities and 45% are white-collar workers in Columbus. There are 16.9% government employees in the compared to cities and 11.7% in Columbus. There is an unemployment rate in the compared to cities of 2.8% and 2.4% in Columbus. 6% of the residents in the compared to cities are below poverty level, and this figure is 6.4% in Columbus. 18.5% of the residents in the compared to cities are paid more than $15,000 per year, while in Columbus only 13.9% earn more than $15,000. Defendant presented no evidence on degree of unionization, nor median income, but did show the differences in hourly wages paid in various skills and occupations[3] in Columbus and the compared to cities.

Of the three variables specifically mentioned by the Supreme Court, then, Defendant has only presented evidence on one, the percentage of manufacturing. They offer no evidence on unionization, nor median income.

While at least some of Defendant's statistics show some economic dissimilarities in the various cities, we are not sure how they can be used, if at all. For instance, what do you do with the differences in manufacturing, white-collar workers, and government employees. Do these differences require that we "adjust" the Columbus teachers' salaries up, or down. Also, what follows from the fact there is a higher unemployment rate in Fremont than Columbus. Does that mean Columbus wages are generally higher or lower than in Fremont?

We can see the direction that would be applied to the percentage of residents with an income above $15,000 and the percentage of residents below poverty level, and we can understand what Defendant is attempting to say with regard to the comparison of various hourly wages, but this would seem to be a rather incomplete list of "economic variables". Furthermore, they do not show a very great difference when we apply them to the cities we would select to be compared to Columbus [4].

If you attempt to compare Omaha to North Platte, for example, there would be economic dissimilarities which are significant and which should, in my opinion, be considered in the determination of the prevalent rate under Sec. 48-818, but that is not the case here, nor is this case like the Lincoln Firefighters case where Lincoln was being compared to cities far away and in different states.

We are comparing cities here, all of whom are in the state of Nebraska, are of similar size, are within a reasonable close geographic proximity, and are in a similar economic environment. The Supreme Court says that we must "weigh, compare, and adjust for any economic dissimilarities shown to exist which have a bearing on prevalent wage rates ." We conclude that the economic dissimilarities between Columbus and our selected compared to cities are not sufficient to have a bearing on prevalent wage rates.

Furthermore, in Lincoln Firefighters , the Court said:

"Prevalent wage rates for firemen must of necessity be determined of comparisons with wages paid for comparable services in reasonably similar labor markets." (emphasis supplied)

We would conclude that the array of compared to school districts (Footnote 4), and Columbus, constitute a reasonably similar labor market area for teachers, and Defendant's list of hourly wage rates in six job classifications does not alter this.[5] If it did, there would be very few "reasonably similar labor markets", as the wages in all cities vary to some degree.

Contract School Days

Defendant argues that the wage determination herein should take into consideration the dissimilarity in contract days between Columbus and the compared to school districts. This would require that each teacher's salary be measured on a daily basis and Defendant's position might have some validity if each teacher's contract was based on a specific amount for each day worked. This, however, is not the case. The teachers enter into a contract for a school term, without particular regard to the number of days involved in that term. This term does not vary significantly because it is regulated by statute (R. R. S. section 79-101(6), 79-201) and what is involved in this argument, therefore, is not and cannot be very significant.

There was no evidence revealing what duties were expected of the teachers on the contract days. It would be necessary to know at least the number of teaching days and what was required on the nonteaching days before such an adjustment could be made.

We would not interpret Section 48-818 to require a wage adjustment for this slight dissimilarity in contract school days, but if such an adjustment had been indicated the correct approach would be to alter the number of contract days for Columbus rather than adjusting the compensation.

Extra Duty Pay

Defendant's argument, however, that extra-duty pay is a part of total teacher compensation and unless waived, or not argued, must be included in comparability determinations is valid. Plaintiff's arguments against this proposition are not entirely persuasive. Plaintiff argues that extra duty pay should not be considered because (1) it is not paid to all teachers, (2) it is paid for non-teaching assignments, (3) it hasn't been used previously by the CIR in determining total teacher compensation, and (4) it is not a part of the teacher's salary.

The statute (48-818) specifically states that in establishing wage rates, this Court must take into consideration "overall compensation", which includes all benefits received", and this Court has frequently interpreted this language ( Seward Educ. Assoc. v. School Dist. , 1 CIR 34-1 (1971); Milford Educ. Assoc. v. School Dist. , 1 CIR 43-1 (1971); Fremont Educ. Assoc. v. School Dist. , 1 CIR 50-1 (1972); Nehawka Educ. Assoc. v. School Dist. , 2 CIR 65-1 (1973); Valentine Educ. Assoc v. School Dist. , 2 CIR 66-1 (1973);

Scottsbluff Educ. Assoc. v. School Dist. , 2 CIR 70-1 (1973); Nebraska City Educ. Assoc. v. School Dist. , 2 CIR 116-1 (1974)). Nothing in those interpretations, or the specific statutory language, would require that an amount paid to a teacher be included in the "overall compensation" only if it was paid to all teachers. Nor would this statutory language or interpretation limit the overall compensation to teaching assignments so long as the assignment was related to school activity.[6] Furthermore, we would

consider most of the extra duty assignments (coaching, band director, choir director, etc.) as teaching assignments.

The CIR has previously referred to extra duty pay in considering what constitutes "overall compensation". See Crete Educ. Assoc. v. School Dist. , 2 ClR 64-1 (1974); Orchard Teachers Assoc. v. School Dist. , 2 CIR 84-1 (1973); Nebraska City Educ. Assoc. v. School Dist. , 3 CIR 189-1 (1977). The fact it has never been actually used in making a determination is simply because it has never been presented in such a manner as to be usable. Also, the fact it has not been used before does not mean that it shouldn't be. The fact of the matter is that the litigants have rarely made it an issue in most of the previous cases on teacher compensation.

It cannot be said, either, that it is not a part of the teachers salary, and again, even if it isn't a part of the teachers salary, it can still constitute a part of "overall compensation".

In this regard, Section 48-818 says as follows:

" . . . 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 for time not worked, including, vacation, holidays, and other excused time, and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees . . ."

Thus, "overall compensation" has regard to not only wages, but, inter alia, "all benefits received." We would include extra-duty pay among "all benefits received."

Having so determined, we must now decide how this determination should be applied to the facts and circumstances of this particular case. Since, in order to determine wages and conditions, the CIR must first determine that the wages and conditions at Columbus are not comparable to the prevalent for the same work of workers exhibiting similar skills under the same working conditions, Defendant argues that because Plaintiff has not presented evidence on extra-duty pay, it has not met the necessary burden of proving a lack of comparability and the case should be dismissed. We think this matter can be resolved, and the purpose of the CIR Act accommodated, without such a severe remedy.

At the close of Plaintiff's evidence, Defendant moved for dismissal on the ground that Plaintiff had presented no evidence on all aspects of compensation received, including fringe benefits. The hearing officer reserved ruling on this motion and advised Defendant's counsel there would be "no waiver involved" with regard to his presentation of evidence.

Whle we have now determined that extra-duty pay is a part of overall compensation, we conclude that to dismiss the case on the ground that Plaintiff did not present evidence on this issue would constitute too severe a result. Rather than grant the motion to dismiss, we would likely reopen the hearing for the sole purpose of receiving evidence on the extra-duty pay schedule in the compared to school districts. That evidence, however, is already in this record, admittedly presented by Defendant after being assured his presentation of evidence would not constitute a "waiver".

Our alternatives, thus, are to (1) reopen the hearing and receive additional evidence only on the extra-duty pay schedule at the compared to school districts, or (2) use the extra-duty pay schedules of these school districts contained in Defendant's Exhibit No. 19.

The choice is obvious. This case has been pending long enough.The result would be the same if the hearing was reopened. Thus, in light of the particular facts and circumstances of this case, we

deny Defendant's motion to dismiss.

Plaintiff's burden of proof can be met by actual proof of the facts, regardless of which party introduces the evidence. Lincoln Firefighters v. City of Lincoln , supra , at p. 178. Defendant's Exhibit No. 19 shows the extra duty pay at the eight schools selected in our array, and provides the following total teacher compensation at the selected schools:


The mid-point of the array for total teacher compensation (including extra-duty pay here) is $2,289,508. Thus, an increase of $7,249 is necessary to raise the Columbus total teacher compensation (including extra-duty pay) to the level of prevalence. Since the category of fringe benefits is the only category that is below the comparability level, the amount of increase will be added to fringe benefits. The Plaintiff had specifically sought provision for payment of family health insurance for those teachers with dependents. According to Plaintiff's Exhibit 3, three-fourths of the districts in the Court's array provide in whole or in part payment for family health insurance coverage. We therefore find that payment for family health insurance is prevalent.

Utilizing Plaintiff's figure and dividing the $7,249 increase among the teachers with dependants, yields a monthly premium contribution towards family health insurance coverage of $30.77 per teacher.


1. That the Defendant shall provide a family health insurance contribution of $30.77 per month per teacher for teachers with dependants.

2. That all other aspects of compensation and terms and conditions of employment remain unchanged; and

3. That these rates of pay and terms and conditions of employment be effective from the first day of the 1976-1977 school year.

Entered February 2, 1978.

[1]Base salary, health insurance premium contribution, and salary schedule administration.

[2]Geographic proximity, similarities in population, population density, force size, and weather conditions.

[3]General duty nurse, accountant, auto mechanic, electrician, carpenter, and truck driver.

[4]Our array of comparable school districts would be the following: Fremont, Blair, York, Grand Island, Hastings, Kearney, Norfolk, So. Sioux City. This array is based on a combination of similarity of student enrollment, geographic proximity, athletic conference, other contacts, and community of interest.

Bellevue & Millard were rejected because their student enrollment is too large (10,214 and 8,154 compared to 3,207 at Columbus), they are not members of the Big Ten Conference, have no other scholastic contacts and are part of the Omaha metropolitan area. Alliance, McCook, North Platte and Scottsbluff were excluded because of lack of geographic proximity, and Papillion & Ralston were excluded because they are not members of the Big Ten Conference, have no other scholastic contacts, and because they are a part of the Omaha metropolitan area. We consider that cities in the Omaha metropolitan area have a substantial economic dissimilarity to Columbus, such as was discussed by the Supreme Court in the Lincoln Firefighters case, and rather than "adjust" for these economic dissimilarities, we will simply exclude these cities from the array.

[5]This exhibit is not only incomplete (though it is difficult to say what would constitute a complete exhibit in this regard), but rather incredible in some respects. For example, it would be difficult for a person familiar with Nebraska geography and economics to believe that a truck driver in York makes more than twice as much per hour as a truck driver in a larger city (Columbus) 50 miles away.

[6]We wouldn't, for example, include operation of the swimming pool during the summer months, private violin lessons, or managing a summer Little League baseball program.

DE BACKER, J., concurring in part and dissenting in part:

I concur in Judge Kratz' resolution of the defendant's contention conceming economic dissimilarities, and particularly, in the conclusion that the alleged dissimilarities sought to be shown by the defendant's evidence of economic conditions in certain cities are not sufficiently great to have a bearing on the outcome of this case. I also concur with the majority decisions regarding insurance and contract school days.

I do wish to stress, however, the statute (48-818, R.

R. S. 1943) commands not that we compare employers, but in teachers' compensation cases that we compare the work, skill and working conditions of the teachers before us in a particular case, with the work, skill and working conditions of similarly situated teachers. In response to that command of the statute, we have in each teacher case determined what the teacher before us would receive in wages and other benefits if they were employed in other school districts in which teachers utilize similar skills to do similar work under similar working conditions. In discovering those similarities, or the lack of them, we have found useful such evidence as geographic proximity, similarity of enrollment size,

athletic conference membership or other like contacts among "compared to" school districts.

Although it is not our task to compare cities, school districts or other employers, it sometimes becomes necessary to consider community economic dissimilarities. That evidence, in my view, is relevant to show the working of extraneous factors on the compensation being received by certain employees (teachers, firefighters, etc.) which renders unreliable a comparison between the compensation of certain employees in one location and that of certain like employees in another location.

I must disagree with the majority's conclusion that the pay received by some teachers for nonteaching duties, such as athletic coaching, class sponsorship and other extracurricular activities, is relevant in this case. As the majority points out in Footnote 1, the matters in dispute between these parties in the negotiation process and before the fact finders did not include those items which are known as "extra-duty pay." Apparently, that issue first arises in the allegations of defendant's Answer before this Court.

In its Reply Brief, the defendant relies in part on Crete Education Association v. The School District of Crete , 2 C.I.R. 64, Affirmed 193 Neb. 245. The commencement of Crete before this Court was not preceded by either negotiation or fact finding. Rather, the School District declined to recognize the plaintiff association and the plaintiff thereupon brought the dispute to this Court. The Crete Education Association, in its Petition, sought an adjustment in the extra-duty pay schedule. The Crete extra-duty pay schedule provided longevity increments for athletic coaches, but did not provide such increments for other extracurricular services, such as play sponsors, class sponsors, yearbook sponsors and other non-coaching assignments. The plaintiff asked that all such positions receive longevity increments. Our holding there, in denying the plaintiff's request for modification, was simply that the evidence failed to show any other extracurricularly employed teachers receiving longevity increments. No effort was made in that case by either party to have the amount expended by the Crete School District in its extra-duty pay schedule considered in determining the amount which should be received by the teachers under the standard salary schedule for teaching duties or as a part of the fringe benefit package.

The clause in 48-818, which requires us to consider "all benefits received, including insurance and pensions," clearly refers to fringe benefits as opposed to wages. The fringe benefits we traditionally have considered, insurance packages, sick leave, personal leave and similar items, have been received in each case by all teachers at the litigating school district on the same basis. In contrast, extra-duty pay is granted to only a portion of a particular faculty; those who peform extra-curricular work. Such pay is, therefore, not a fringe benefit, but is an additional wage for additional work performed by those to whom it is assigned. (cf. Banner County Education Association v. School District , 2 C.I.R. 72).

There is no suggestion by either evidence or argument that the parties to this case in their past dealings have attempted to establish or have established some relationship between the amounts paid the teachers under the standard salary schedule and the amounts expended by the district under the extra duty pay schedule. There is likewise, no suggestion of any such relationship having been established between those items at any of the other school districts concerning which evidence has been offered.

Even granting the defendant's position that the evidence of extra-duty pay must be considered as a part of "all benefits received," the manner in which the defendant has presented such evidence here renders it useless. Although as indicated above, defendant relies upon Crete in this respect, it has ignored the teaching of Judge Baylor's opinion in that case. When considering extra-duty pay, that opinion would require us to compare the coaching salary of the football coach at Columbus with that of the football coach at each of the schools in the relevant array and to do likewise for each other position on the extra-duty pay schedule. The defendant has not provided us with that evidence. It has instead provided us with only the total amount expended for extra-duty services at Columbus and at each of the arrayed school districts. That figure, to me, is meaningless. It tells me nothing about the experience, the skills and the expertise of the football coach, the band director, the drama coach or anybody else at Columbus in comparison with those attributes of his or her counterpart at the arrayed districts and nothing about their respective salaries.

(cf. Malcolm Education Assn. v. School District , 3 CIR 140).

I would reject the evidence concerning extra-duty pay schedules and would proceed to make the indicated adjustments on the relevant evidence before us, which indicates a variation of slightly over $17,000.00 in total teacher compensation, in contrast to the slightly over $7,000.00 discrepancy resolved by the majority.