3 CIR 57 (1975).


Plaintiff, |
NEBRASKA, a Political Subdivision, |
Defendant. |

Appearances: For plaintiff, Daniel G. Dolan

For defendant, John P. Kelly

Before: Wall, P.J., Kratz & Green, J.J.


This case brings before us the Building Service Employees, Local No. 226, seeking the establishment of terms and conditions of employment pursuant to Section 48-818 to govern the relationship between that Union, and its members, and the Papillion School District. The case arises in a difficult posture. The parties are in dispute as to the period of time to be covered by our order. The Union contends that both the school year 1974-1975 and the school year 1975-1976 are involved. The District takes the position that only the 1975-1976 school year is before us. Before we can resolve terms and conditions, this first issue must be resolved.

On April 21, 1974, the Union wrote to the superintendent of the Papillion District seeking to negotiate terms and conditions for the next academic year (Exhibit 1). The parties agreed that the District would bargain with the Union if, after an election to be held under the supervision of both parties, a majority of the service employees expressed a desire to be represented by the Union. Such an election was held, and the employees voted to be represented by the Union. However, the District then declined to bargain. At that point, the Union petitioned for certification, See, Building Service Employees, Local No. 226 v. Papillion School District No. 27 of Sarpy County, Nebraska , 2 CIR 123-1 (1974). We denied certification, since the election had not been conducted by this Court. However, we entered an order directing the parties to bargain. Bargaining took place, but there was no resolution. Thereafter, on June 2nd, 1975, the Union brought the case here, seeking a determination of the terms and conditions of employment for the academic years 1974-1975 and 1975-1976.

Under the positions of the parties, then, the Union is taking the position that we are dealing with a locked in year, the academic year 1974-1975 now ended and 1975-1976. The District is taking the position that we are dealing with the academic year 1975-1976. The Union is clearly correct in its position that there was no resolution of the controversy during the academic year 1974-1975. Its petition was filed in time to bring about a resolution of the controversy for that year. On the other hand, since the parties are at impasse over the academic year 1975-1976, that brings that academic year as well within the case. See Crete Education Association v. School District of Crete , 193 Neb. 245 (1976).

While the Union is correct in its view that the year 1974-1975 is before us, we doubt that an order backdated to the commencement of the academic year 1974-1975 would be appropriate. The near expiration of that academic year prior to suit, causes us to doubt whether such a lump sum payment would be equitable to the District. Rather, we believe that the appropriate course is to compute wages for the academic year 1974-1975 and 1975-1976, and to allow the total sum found due as wages for the academic year 1975-1976. We do not believe that it would be appropriate to compute and make allowance for fringe benefits for the academic year 1974-1975.

Dealing first with the matter of 1975-1976 compensation, the District presented information as to the change in salaries between the academic year 1974-1975 and 1975-1976 in the Blair, Plattsmouth, Ralston and Fremont School Districts. Blair gave all of its service employees a raise of approximately eight per cent; Plattsmouth ten per cent, Ralston eleven per cent, and Fremont ten per cent. That evidence indicates that districts claimed by the Papillion District to be comparable, though their 1974-1975 wages differed significantly, adopted a uniform pattern of approximately ten per cent increase in wages to service employees in the academic year 1975-1976. Thus, on the District's own evidence, for 1975-1976, a ten per cent increase would be in order.

When we turn back to the locked in year 1974-1975, comparison is extremely difficult. Nearly all of the Districts presented by either the Union or the District have pay scales based upon particular job assignments. So far as we can determine from the District's Exhibits, its salaries have no such pattern. We would deem the School Districts of Bellevue, Ralston, District 17 of Douglas County, Westside, and the Omaha School Districts, as reasonably comparable Districts. In those Districts, the salary range from the first step in the lowest grade to the first step in the highest grade were respectively:

Bellevue $2.83, $3.53

Ralston $3.25, $4.00

District 17 $3.20, $5.00

Westside $2.95, $4.90

Omaha $3.77, $5.26

On the other hand, the pay range which the District offered for 1974-1975 ran from approximately $2.60 to $4.05. If the District's proposed 1974-1975 salaries were increased by five per cent, that would make a range from $2.73 per hour to $4.25 per hour. That range would be reasonably comparable to the salaries scheduled in the comparable Districts during the academic year 1974-1975.

If we accept the District's salaries for the year 1974-1975, and direct raises only for the academic year 1975-1976, we can nevertheless assure that the employees are compensated for their loss during 1974-1975 by allowing a total increase of fifteen per cent per employee over the hourly wages in fact paid by the District during the academic year 1974-1975. That, therefore, will be our settlement of wages. If any employee, employed during the academic year 1974-1975 has in fact left the employ of the District, the District should make payment to him of a sum equal to 2.5 per cent of his actual wages during the academic year 1974-1975.

The plaintiff requests two more holidays, Christmas eve and New Years eve. There does not appear a uniform practice of granting these two days as holidays. Therefore, we will not change the holiday practice of the District.

The parties were in dispute with regard to vacations. Both parties agreed that an employee should be entitled to vacation with pay for two weeks, after one full year of employment. The Union sought the right to take some part of this vacation in the first year of employment. No uniform practice exists of allowing such early utilization of vacation. Therefore, the Union's request is denied. The District was agreeable to an additional week of vacation after ten years will be allowed. The Board seeks to retain control of the time when the employee will take his vacation. Since such control is not incompatible with existing practice, employees will be allowed to take vacations at time designated by the District.

The parties are in disagreement as to fringe benefits. In 1975, the District began to purchase full family health insurance for employees with more than three years service, which accounts for the additional compensation shown on the District's Exhibit 1 of $23.05 per month. It appears that most of other compared districts allowed such insurance benefits for all employees. Therefore, the District should extend such protection to all employees, rather than to those who have been employed for three years. As to other insurance benefits, there is no uniform practice. Therefore, no such additional benefits will be directed at this time.

The parties were in disagreement as to the computation of overtime. The Union sought the computation of overtime on a daily basis, while the District sought to have it computed on a weekly basis. We believe that the position of the Union is more appropriate. An employee should be paid overtime on any day in which he works more than his regular period of service, even though his total weekly hours would not justify overtime.

The parties were in dispute as to an appropriate grievance procedure. The Court had directed such a procedure in its pretrial order of August 12th, 1975. At hearing, the District indicated that it had not agreed to that process. After an examination of the comparable contracts, the Court adhered to its view that the grievance process directed in the pretrial order was appropriate.

As to the terms and conditions of employment not covered by this order, the existing practices and benefits in the District shall remain in effect.


The dispute between the parties be settled upon the terms and conditions set forth in the foregoing opinion.

Entered November 25, 1975.