6 CIR 416 (1983)


ASSOCIATION, An Unincorporated |
Association, |
Petitioner, |
RALSTON, In The County of |
Douglas, In The State of |
Nebraska, A Political |
Subdivision, |
Respondent. |


For Petitioner: Mr. Theodore L. Kessner

For Respondent: Mr. L. Bruce Wright

Before: Judges Kratz, Gradwohl, and Berkheimer


This case was heard on Petitioner's Petition for a determination of wages and terms and conditions of employment and Respondent's Amended Answer.

The Petitioner alleged that it sought to change only base salary. By its Amended Answer Respondent alleged other issues to be in dispute. The parties stipulated that the following issues are to be determined in this case.

Item 1: Base Salary

Item 2: The number of columns and steps in the salary schedule used to establish individual teacher compensation

Item 3: Increment for teachers on the 20th step of the schedule

Item 4: Paid sick leave

Item 5: Payment for physical and eye examinations

The parties further stipulated that except for the foregoing, terms and conditions of employment for the teachers employed by the school district for the 1982-83 contract year shall be as previously established by the agreements made by the parties.


Each party proposed an array of schools for comparison and agreed that the Commission may in selecting school districts for comparison apply its previously announced criteria.

In selecting an array of school districts for the purpose of comparison in arriving at comparable and prevalent wage rates and conditions of employment, the Commission has considered, among other factors, the following: similarity of student enrollment, geographic proximity, athletic conference membership, and community of interest demonstrated by athletic, scholastic and administrative contacts. Millard Education Association v. School District of Millard , 5 CIR 425, 427 (1982), Broken Bow Education Association v. School District of Broken Bow , 6 CIR 60, 62-63 (1982), Clarks Education Association v. School District No. 11 , 6 CIR 431 (1983). Since this is a factual determination, the use of a particular array in one case does not require that the same array be appropriate in a different case. Crete Education Association v. School District of Crete , 193 Neb. 245, 255, 226 N.W.2d 752, 758 (1975). In selecting employment units in reasonably similar labor markets for the purpose of comparison as to wage rates and other benefits, the question is whether, as a matter of fact, units selected for comparison are sufficiently similar to have enough like characteristics or qualities to make comparison appropriate. Fraternal Order of Police v. County of Adams , 205 Neb. 682, 685, 289 N.W.2d 535 (1980).

The Petitioner proposes for comparison the school districts of Bellevue, Millard, Omaha and Papillion. The Respondent proposes Bellevue, Millard, Papillion, Blair, Elkhorn and Fremont. Table 1 attached shows data regarding all proposed districts. The parties stipulated that the work skill and working conditions of the teachers employed by the Respondent and the teachers employed at those districts are similar, and satisfy the standards set forth in Section 48-818 to permit a comparison of terms and conditions of employment if included in the array of compared to school districts.

The Respondent points to the enrollment size of Omaha (approximately 12 times that of Ralston) as exceeding the Commission's often applied criteria of "not more than twice" the size of Ralston and to many other factors most of which are functions or results of size. Respondent also points to three-year junior high and high school programs at Omaha versus two-year and four-year junior high and high school programs at Ralston, to the fact that Omaha is under a federally mandated busing program transporting 65.9 times the number of students transported by Ralston and the fact that Omaha constitutes a single district educational service unit while Ralston participates in a multi-school district educational service unit.

Petitioner arguing for inclusion of Omaha points to facts such as a) a substantial geographic part of the Ralston school district if within the City of Omaha and some of Respondent's buildings are within the City of Omaha b) many of Ralston's teachers and administrators live within the City of Omaha c) boundaries of the two school districts are contiguous d) high school athletic contacts, factors often looked to by the Commission, are largely with Omaha schools and there are many other contacts among teachers and administrators of the Omaha and Ralston districts and e) while Omaha's total student enrollment is greater, the number of students and teachers in individual buildings is substantially the same as Ralston.

Upon consideration of similarities and differences between the Omaha and Ralston districts, the Commission finds that the Omaha school district should be included in the array of employments for comparison purposes.

Petitioner would exclude Blair, Elkhorn and Fremont because of lack of community of interest and contacts other than Ralston, Elkhorn and Blair being included in the same educational service unit. The Respondent argues for inclusion of these three schools based not only upon the close ties resulting from use of the same educational service unit as Blair and Elkhorn, but also junior high competition in athletics and at the high school level in band, speech and debate with Blair and Elkhorn and in the case of these two schools and in the case of fremont, significant administrative, athletic and scholastic contact. Fremont is the closet to Ralston of school districts proposed in terms of enrollment and all three are within usual Commission size guidelines. All are Class III school districts. There is also evidence of a history of administrative contact and the history of direct comparison of Ralston with Fremont, Blair and Elkhorn for collective bargaining purposes. There has been consultation among Ralston, Fremont, Blair and Elkhorn in planning personnel practices. The four district array proposed by Petitioner is inappropriately small where there are other districts in a relatively small geographic area with enrollments sufficiently similar and with significant contacts with Ralston. The Commission finds that Blair, Elkhorn and Fremont should be included in the array and that an appropriate array consists of the school districts of Bellevue, Blair, Elkhorn, Fremont, Millard, Omaha and Papillion.


This issue is reached first because a resolution of the issue in favor of Respondent would affect the total salary schedule computation necessary to resolution of the base salary issue. Respondent pays $25.00 towards reimbursement for a teacher's annual physical examination and $20.00 for an eye examination each two years. No other district among those used for comparison pays these benefits; and therefore, it is clearly not a prevalent benefit. However, Respondent requires annual physical examinations and it does not appear that any of the other districts impose this requirement. The Commission finds that in view of the physical examination requirement, $25.00 reimbursement is in effect a balancing factor against this requirement which would otherwise require a cash outlay by teachers, and therefore, should not be disturbed.

It does not appear that eye examinations are required by Respondent. However, the evidence presents only a single amount for the annual cost to Respondent of both the eye examinations and the physical examinations; therefore, if the Commission were to eliminate the eye examination as not being a prevalent benefit the Commission could not under the evidence determine the amount which would thereby be deleted from fringe benefit payments and become available for salaries in making up the prevalent total compensation amount. This lack of data prompts the Commission to not disturb the eye examination reimbursement for the 1982-1983 year.



Table 2 shows standard salary schedule amounts, fringe benefit costs, and total teacher compensation which would be received by Ralston teachers if they were employed at the districts used for comparison during the 1982-1983 year, together with the mean and median amounts. The Commission finds from the data shown in Table 2 that a total teacher compensation of $5,418,470.00 to be prevalent total teacher compensation among the districts used for comparison. Respondent's fringe benefit package currently has a total cost of $366,058.98 which is not changed by the Commission in this case resulting in a total salary schedule amount of $5,052,411.00 for Ralston teachers for the 1981-1982 contract year.




Respondent and all other schools in the array have salary schedules portrayed in grid form in which annual longevity steps are shown vertically and academic achievement columns are shown horizontally by degree and educational hours. Table 3 shows the educational obtainment columns used by Ralston and the other districts and the number of longevity steps in each column. Respondent urges that the Commission change Ralston's salary schedule by adding two vertical longevity steps to the BA column, eliminating the MA plus 27 hour column and limiting the number of vertical longevity steps in the BA plus 36, MA plus 9, and MA plus 18 columns to a maximum of 16 steps.

The Commission has been reluctant to change salary schedules. In West Holt Faculty Association v. School District , 5 CIR 301, 309 (1981) the Commission said, "it is the Commission's experience that because of the varying effects of different schedules on teachers within the bargaining group, changes in the structure of the schedule are best achieved through collective bargaining and that past practice should not be disturbed in the absence of substantial variances from prevalent practice...."

This principal was followed in Millard Education Association v. School District of Millard , 5 CIR 425, 432 (1982) in which the Commission did make a quite minimal change.

This case involves some of the same schools as were involved in Millard, supra and similar issues in comparing schedules. As stated in Millard: "Not shown on the table [here Table 3] is a lack of a prevalent pattern of percentage increments in salary resulting from a teacher's movement from column to column and from step to step within columns." 5 CIR at 434. Here too, it is not sufficient merely to compare columns, and numbers of steps in columns because of the difference in percentage increments among the schools. Table 4, however, shows minimum and maximum salaries for the columns used at each school in the array and the mean minimum and mean maximum salaries for each column together with minimums and maximums at Ralston and the amounts by which each mean minimum and each mean maximum exceeds or is less than each salary minimum and maximum at Ralston. It is apparent from this table that Ralston's maximum in the BA column substantially varies from the prevalent maximum and that substantial variances exist in the MA plus 9, MA plus 18, MA plus 27 and MA plus 36 columns. Further, Table 3 shows that elimination of the MA plus 27 column and elimination of steps 17 and 18 from the MA plus 9 column, and elimination of steps 17, 18, 19 and 20 from the MA plus 18, MA plus 27, and MA plus 36 columns are necessary to achieve prevalency. It follows from the Commission's reasoning in the cases above cited that where a school district's salary schedule and resulting salary levels vary substantially from prevalent schedules and levels, and where the salary schedule is an issue in the industrial dispute, the Commission may make changes in the salary schedule consistent with Section 48-818 standards.


Inasmuch as the Ralston teachers are now being paid according to their 1982-1983 placement on the current schedule, the elimination of such column and steps for the 1982-1983 year could result in major salary decreases for many teachers with the implementation problems discussed in IBEW Local 1521 v. MUD , 6 CIR 246 (1982). Respondent does not suggest how a change in the schedule should be implemented for the 1982-1983 year for teachers already in the columns and steps eliminated. The Commission finds that the schedule change for the 1982-1983 school year should be implemented by continuing to compute salaries of teachers who are in the eliminated steps and column on the base salary for the 1981-1982 school year of $11,650.00 (at their 1982-1983 placement), computing the salaries of remaining teachers according to the new base salary determined from the increased total salary schedule of $5,052,411.00 found prevalent above and according to the revised schedule by which two steps are added to the BA column. The computation is as follows: Total salary schedule amount of $5,052,411.00 will be reduced by compensation of teachers in eliminated column and steps computed on a base of $11,650.00 which amounts to $774,142.50 leaving a total salary schedule amount for remaining teachers of $4,276,268.50. The staff index factor for these remaining teachers is 365.664 resulting in a base salary of $11,700.00 for salary computation purposes applicable to the remaining teachers using the revised schedule.



Under current practice, a teacher in the twenty-first year or longer of service receives an increase of $50.00 per year to a maximum of $250.00 over the salary schedule amount. Table 5 shows compensation arrangements at the other schools for teachers who have reached the top of salary schedules as well as the Ralston arrangement. The parties agreed on Ralston's current staff index factor and current fringe benefits. The evidence does not establish whether the amount paid under this extra compensation arrangement is included in these computations. It being a minimal amount it has been disregarded in computing the new base salary as well as in computing total salaries for teachers in the eliminated steps and column. Three of the seven schools in the array have some sort of arrangement of this type. A majority of the schools do not have this arrangement, but in view of the minimal amount paid for this extra longevity at Ralston, the Commission does not find that Ralston varies so substantially from prevalent practice to warrant ordering a change in this particular compensation arrangement.


Table 6 shows the paid sick leave days allowed by districts in the array as well as sick leave allowed by Respondent. Table 6 shows Ralston as having unlimited paid sick leave. This is not strictly true inasmuch as Respondent's paid sick leave ceases after 90 days which is the waiting period for Respondent's long-term disability insurance benefits. However, the leave is unlimited in a sense that there is no limitation on the number of periods of less than 90 consecutive days of sickness, and a teacher again becomes eligible for a full sick leave after returning from any absence covered by disability insurance. Because sick leave is related to long-term disability insurance benefits, the disability insurance provided by the other districts and Ralston should be considered, and disability insurance coverage at the schools used for comparison and at Ralston as shown on Table 7.

It is Respondent's position stated in written argument that there is "no predominate practice demonstrated among compared to districts on accumulation of annual sick leave or, for that matter, placement of unused sick leave in a sick leave bank." However Respondent does contend that Ralston's practice "of providing unlimited immediate sick leave, without any accrual based on years and months of service, is not comparable to the prevalent and should be revised." Respondent suggests that the Commission establish a sick leave policy for the 1982-1983 contract year which provides that sick leave must be earned or accrued at a rate no greater than 10 days per year or one day per month, whichever is greater, and which leaves the balance of the sick leave policy unchanged.

The Commission finds that Respondent's current sick leave policy is materially more favorable than prevalent policies among the schools used for comparison and that earning sick leave based on a limited number of days per year or per month with some type of accumulation is the prevalent practice. The earning of sick leave at ten days per year or one day per month, whichever is greater, is found to be within the range of prevalency, and in view of Respondent's position we need not consider the accumulation feature from the prevalency standpoint. Accordingly, the Commission finds that to meet prevalency standards of Section 48-818 Respondent's sick leave policy should be revised to provide that paid sick leave benefits be earned at the rate of ten days per year or one day per month of service, whichever is greater. This policy should apply to absences for sickness commenced after the date of this Order. Implementing this policy for the 1982-1983 contract year, the number of sick leave days to which a teacher is entitled during the remainder of the contract year should be determined by the earning of days at the above rate based on past service and reduced by sick leave days used in the past as well as those used after the date of this Order, but in implementing this policy, if a teacher prior to the date of this Order has been paid for sick leave for days during the 1982-1983 contract year in excess of the number of days of entitlement under the new policy, such teacher should not be required to refund such payments.


1. Teachers employed by Respondent and represented by Petitioner who during the 1982-1983 contract year are in the BA plus 27 column, step 17 or 18 in the MA plus 9 column, or in step 17, 18, 19, or 20 in the MA plus 18, MA plus 27, or MA plus 36 columns according to Respondent's existing salary schedule shall receive annual salary for the 1982-1983 contract year in amounts computed according to Respondent's existing salary schedule using a base salary in amount of $11,650.00.

2. All teachers employed by Respondent and represented by Petitioner not described in paragraph 1 above shall be paid annual salaries computed according to Respondent's existing salary schedule with the addition of two annual longevity steps in the BA column using a base salary of $11,700.00.

3. Teachers employed by Respondent and represented by Petitioner shall be allowed paid sick leave for absences because of sickness commenced after the date of this Order computed upon the basis of ten sick leave days per year of service or one such sick leave day per month of service, whichever is greater, reduced by paid days of sick leave received either before or after the date of this Order, and Respondent's current sick leave policies shall remain otherwise unchanged.

4. All of the terms and conditions of employment of teachers employed by Respondent and represented by Petitioner shall remain unchanged for the 1982-1983 contract year.

Except as stated in paragraph 3 above, this Order shall be effective for wages and conditions of employment with respect to the 1982-1983 contract year. Salary adjustments resulting from this Order shall be made ratably over the months of the contract year. The amounts due for the portion of such contract year already elapsed shall be paid as soon as feasible following the entry of this Order.

All Judges assigned to the panel in this case join in the entry of this Opinion and Order.

Filed March 30, 1983