3 CIR 492 (1978)



Plaintiff, |
Subdivision, |
Defendant. |

Filed September 6, 1978.


For the Plaintiff:Theodore M. Kessner

For the Defendant: Neil W. Schilke

Before: Wall, Kratz, DeBacker, Green and McGinley (EN BANC). Kratz dissenting.


A hearing was held in the above captioned case on May 26, 1978. The plaintiff, Fremont Education Association, seeks a Section 48-818 determination of base salary and insurance contribution for the 1977- 78 school year.

The defendant, Fremont School District, is a Class

III district. The parties have submitted their dispute to fact finding pursuant to the Teacher's Professional Negotiations Act, Section 79-1293, R.R.S. 1943. The fact finding procedures provided in that Act failed to resolve the dispute, and the Association brought the case to this Court. The Court finds that an industrial dispute exists between the parties, and that it has jurisdiction of the parties and subject matter.

The districts offered by the plaintiff are as set forth in Table I with relevant data:

The district offered the array set forth in Table II.


The evidence at trial revealed that the four districts offered by the Association are considered as part of the Metropolitan Omaha area. The defendant contends that these "urban" districts should not be used for comparison, because certain economic dissimilarities exist between them and Fremont.[1] In addition, the district urges that these urban districts be excluded since they lack mutual athletic conference membership or other substantial contact with Fremont.

In comparison to Fremont's student enrollment of 5,426, the Association's offered districts are within the Court's parameters of enrollment[2], and are extremely close geographically to the Fremont district. The defendant's offered districts, with the exception of Columbus, are all significantly more distant than the plaintiff's offered array. The fragmentation of the Omaha area is a special situation in school cases, and permits us to utilize the suburban districts if they otherwise meet our criteria.

The district's offered array contains only a single district larger than Fremont, and five districts significantly smaller.

Four of the defendant's six districts are members of the East Big Ten Athletic Conference with Fremont. The testimony revealed that this is, and has historically been, an active conference. Aside from athletics, the conference had regular administrators' meetings and scholastic contacts. The existence of these strong conference connections justifies the use of all of the East Big Ten districts[3].

The defendant has attempted to establish that it looks solely to the districts in its offered array in making wage comparisons. A look at the relevant wage data does not support this conclusion, as illustrated in Table III.

The compensation level at Fremont is significantly higher than at the other districts in the defendant's array, including the one larger district, Grand Island. It is apparent that other influences operate on the Fremont district's wage levels. These influences are accounted for in the selection of the array.

Addressing the matter from another approach, we turn to the question of whether the defendant has shown that we must exclude the urban schools from our determination despite their close proximity to Fremont and comparable enrollment size.

In Columbus Education Association v. School District , 3 CIR 203-1, 3 CIR Adv. 385 (1978) Judge Kratz stated:

"We consider the cities in the Omaha Metropolitan area to 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."[4]

Two factors are present in the instant case to distinguish it from the Columbus result. The first is that Fremont is considerably more proximate to the Metropolitan Omaha area than Columbus. All of the Association's offered districts are within 50 miles of Fremont. Fremont is also a much larger district than Columbus, which is ranked 15 in Class III districts, as compared to Fremont's rank of 8. If the urban districts were entirely excluded from consideration, the array would be severely skewed with only one larger district in the comparison. As stated in Tecumseh Education Association v. School District , 2 CIR 119-1 (1975), an array balanced between larger and smaller schools is preferred.

Economic Dissimilarities

The district offered statistical evidence and expert testimony to illustrate certain claimed economic dissimilarities between Fremont and the Metropolitan area.

The district's expert witness compared the hourly wage rates in effect in six job categories in Fremont to those existing in the cities encompassing defendant's compared-to districts, as well as to those existing in the Metropolitan Omaha area. The six categories compared were General Duty Nurse, Accountant, Automobile Mechanic, Electrician, Carpenter and Heavy Truck Driver. This type of comparison is of little value. It ignores our recent holdings that adjustments are required only when we must construct an hypothetical universe by going outside the relative homogeneity of Nebraska, and that where a disparity is claimed, it must be demonstrated in what manner it affects the result and by how much. Local 675, IAAF v. City of Hastings , 3 CIR 234-1 (1978)[5]. This type of evidence becomes relevant only if a pattern of disparity is shown - that is, that the occupations compared have the same disparity from one locale to another.

The basic inquiry in an 818 determination is similarity in "work, skills and working conditions." In order to limit the scope of the inquiry to manageable proportions, the Court has established certain criteria such as student enrollment, geographic proximity, athletic, scholastic or administrative contacts, and community of interest. While at times the Court may have appeared to compare employer to employer, that is not the essence to the Section 48-818 inquiry. The test is one of work comparability. In effect, we have adjusted within the State of Nebraska by adapting the guidelines in showing the array of size, geographic proximity, inter-school contests, and balanced array.

In the instant case, the district has asked us to compare localities . It is true that the Court is required to make such comparisons when it constructs a statistical universe using data from outside Nebraska under the Supreme Court's holding in Lincoln Fire Fighters Association v. City of Lincoln , 198 Neb. 174 (1977). That decision requires this Court to "weigh, compare and adjust for any economic dissimilarities shown to exist which have a bearing on prevalent wage rates"[6] (Emphasis Added). This requirement does not apply here.

We find that the defendant has not demonstrated any material economic dissimilarities between Fremont and the four districts in plaintiff's array, or that its' analysis shows any bearing on prevalent wage rates, particularly the wage rates of teachers within the geographic area before the Court.

A large metropolitan area may bring certain economic forces to bear on adjacent localities in certain classes of employment. The Court should not refuse to use comparables within the market area of the metropolitan center without proof of economic dissimilarities and their effect on the prevalent wage rates of the employees concerned.[7] We conclude that by using both the suburban districts and the East Big Ten in constructing an array, we may offset the possible upward bias caused by the metropolitan area, with the downward bias of the defendant's skewed array of predominantly smaller districts.

The district has also maintained that the Bellevue and Papillion districts should be excluded from our array because these districts are the recipients of federal impact funds. These funds are payments to the districts on account of their substantial enrollment of children of federal employees (i.e., Offutt Air Base Personnel). This issue is foreclosed by Nebraska City Ed. Assn. v. School District , 3 CIR 189-1, 3 CIR Adv. 181 (1977), affirmed 201 Neb. 303, 267 N. W. 2d 530 (1978). Its use would require the assumption on our part of unproved profligacy on the part of responsible officials in the districts concerned.

The defendant has asserted an additional reason for excluding the Bellevue district from consideration. In that district, the teachers are given the option to take either health insurance contribution or cash payments of equivalent amounts. The defendant points out that this option changes the federal income tax character of the benefit, and that it is treated as taxable income to the teacher. Thus, the district argues the value of the benefit to the teacher is correspondingly less. This approach ignores any value of the option itself to the teacher. Even if we accepted the district's argument, the tax impact would not have an effect upon the location of the "approximate midpoint" under the facts of this case.

Extra Duty Pay

The Association has asked the Court to re-examine its holding in the Columbus case, supra , regarding the consideration of extra duty pay in the establishment of teacher wage rates under Section 48-818. That case held that extra duty pay was part of "overall compensation" within the meaning of Section 48-818, R. R. S. 1943, and must necessarily be included in our determination.

The present case has presented to the Court a more detailed record on extra duty pay, and the parties have extensively briefed this issue. The Court, on further consideration en banc , now finds that the panel discussion of Columbus on extra duty pay should not be followed.

The conceptual difficulties of the extra duty pay comparison have been previously discussed by the Court in Nebraska City Education Association v. School District, supra , and need not be repeated here. Basically what is involved is compensation for particular individual duties, which may take into account the experience and ability of the individual teacher holding the assignment. It is not necessary for our inquiry to determine whether these are "teaching" or "non-teaching" duties or whether certain "certification" requirements are present or absent. The controlling factor upon which our determination is based is the individuality of the compensation level involved.

The basic salary for virtually all Nebraska public school teachers is determined on a standard salary schedule which allows for both experience and educational attainment. Milford Education Association v. School District , 1 CIR 43-1 (1971). The Court has used the total standard salary schedule compensation level with the total fringe benefit cost to arrive at "total teacher compensation." The total teacher compensation concept has provided the Court and the parties with a relatively simple and efficient manner to compare the compensation levels of teachers and to arrive at the prevalent wage rate given the assumption of fungibility of certificated teachers.

We now conclude that the inclusion of extra duty pay in this total would undermine the integrity of this approach, and consequently impair the evaluation of prevalent wage rates. For example, certain districts may desire either to keep or obtain a winning football coach, or a particularly gifted music director. In order to accomplish this goal, a very large compensation offer may be made to this one particularly accomplished individual. While this might reflect the prevalent wage rate for outstanding football coaches or music directors, if we add that amount into the total teacher compensation, the value of the comparison regarding the other teachers on the standard salary schedule is destroyed, because we have pro tanto reduced the total available for distribution to the balance of the teaching staff.

If we were to adopt an approach which would mandate that in every teacher compensation case that we must determine "overall compensation" which would include extra-duty pay, we would elevate the "overall compensation" requirement to a level not warranted by the full text of Section 48-818. Additionally, such an approach would unduly diminish the effect of the other requirements of the section, namely:

"In making such findings ... the Court ... 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 working conditions." (Emphasis Added.)

This Court is required to establish the prevalent wage levels for employees. When examining "overall compensation" we believe that the relevant inquiry is "overall compensation" for what and for whom.

The compensation for basic teaching duties as determined by the standard salary schedule should not be altered by the "extra duty" compensation of certain individual teachers. The inclusion of extra duty pay of certain individuals, and the determination of compensation levels for all teachers, could result in establishing nonprevalent rates for the group as a whole.

For the foregoing reasons, the Court has decided to return to its former approach concerning extra duty pay[8]. In the future, we will consider such pay as an additional wage for additional work by those performed to whom it is assigned[9], and will determine the extra duty compensation levels as a separate consideration if it is brought before the Court.

Table IV is the array of the relevant total teacher compensation figures.

NOTE: TABLE IV DELETED - But the chosen array consisted of Ralston, Papillion, Bellevue, Millard, Grand Island, Hastings, Columbus, Norfolk, and South Sioux City (this last one I'm not sure of).

The median of the array is $3,984,323.91, excluding

the South Sioux City district, and $3,928,960.00 including the South Sioux City district. The mean compensation level is$4,037,552.04 with South Sioux City, and $4,001,465.82 without. This establishes a compensation of $4,037,552.04 at the maximum

and $3,928,960.00 at the minimum. In the informed exercise of our legislative judgment and expertise, we find the "approximate midpoint" of total teacher compensation under the facts of this case to be $3,988,349.72. We also find the district's insurance contribution offer to be within the range of prevalence; and, therefore, will order no change in this aspect of compensation.


1. That the scale of wages for the Fremont teachers for the 1977-1978 school year shall be computed with a base salary of $8,690.00 in accordance with the salary schedule then in effect, including merit and longevity pay.

2. That the district shall provide an insurance contribution of $20.21 per teacher per month single coverage health and accident insurance, one-half family coverage health and accident insurance during the 3rd and 4th year of employment, where applicable, and Full Family coverage beginning with the 5th year of employment; $2.20 per teacher per month for $10,000.00 term life insurance; Long Term Disability coverage, and $1.00 per month additional maternity coverage where applicable.

3. That these wages and terms of employment shall be effective for the 1977-78 school year.

Judge Kratz dissents. Judge DeBacker participated in the decision, but did not have the opportunity to review the final language of the Opinion.

Kratz, J., Dissenting:

I would exclude the Omaha suburban school districts on the ground that they are a part of the Omaha labor market and there are economic dissimilarities between Omaha and Fremont. I would not, however, use the Defendant's recommended array because of the extraordinary imbalance this would produce, contrary to the guidelines established in Tecumseh. Recognizing that a comparison of only four districts is hardly enough, I would, nevertheless, under the facts and circumstances of this case, determine an array of the East Big Ten Conference schools, Grand Island, Hastings, Norfolk, and Columbus.

I would furthermore dissent from that part of this

Opinion which involves extra duty pay, suggesting instead that the Court follow its Opinion in Columbus Education Association v. School District, supra.