7 CIR 196 (1984).


An Unincorporated Association, |
Petitioner, |
Respondent. |


For the Petitioner: Mark D. McGuire

Crosby, Guenzel, Davis,

Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska 68508

For the Respondent: Rex R. Schultze

Perry, Perry, Witthoff, Guthery,

Haase & Gessford, P.C.

1806 First National Bank Building

Lincoln, Nebraska 68508

Before: Judges Mullin, Gradwohl and Orr


The Association asks us to define the dispute and determine the terms and conditions of employment including wages for contract year 1983-84. The District denies a dispute exists and asks that the petition be dismissed or, in the alternative, that the terms and conditions of employment be determined. The parties agree that the District is a Class II School district employing 17 teachers with an enrollment of 156 students for the 1983-83 school year.

The Report of Pretrial Conference shows the parties' stipulations included:

(3) Except for base salary and pay for extra duty/extra curricular assignments, the terms and conditions of employment for the teachers employed by the School District for the 1983-84 contract year shall be as previously established by the agreements made by the parties.

1. Statute

We have jurisdiction over the parties and the subject matter of this action. The controlling statute is Section 48-818 which provides:

The findings and order or orders may establish or alter the scale of wages, hours of labor, or conditions of employment, or any one or more of the same. In making such findings and order or orders, the Commission of Industrial Relations 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. In establishing wage rates the commission shall take into consideration the overall compensation presently received by the employees, having regard not only to wages for time actually worked but also to wages for time not worked, including vacations, holidays, and other excused time, and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees. Any order or orders entered may be modified on the commission's own motion or on application by any of the parties affected, but only upon a showing of a change in the conditions from those prevailing at the time the original order was entered.

2. Comparable School Districts.

The District is a member of the Western Division Homesteader Conference. The Association presented in its array all of the schools of that athletic conference except Douglas and also included all of the schools in the Eastern Division Homesteader Conference, as well as Meridian, a member of the South Central Athletic Conference. The District's array included only the members of the Western Division Homesteader Conference. The parties stipulated that the work skills and working conditions of the teachers employed by District and by each of the districts proposed for comparison are similar and satisfy the standards set forth in Section 48-818.

The parties offered evidence comparing rank, enrollment, county, proximity in miles to the District, full-time equivalency, number of teachers, and community of interest between the District and each of the districts proposed for comparison. Table 1 sets forth the statistical portion of those comparisons.

In selecting employments for the purpose of comparison in arriving at comparable and prevalent wage rates and conditions of employment, the question is whether, as a matter of fact, the employments selected for comparison are sufficiently similar and have enough like characteristics or qualities to make comparison appropriate in that situation. Fraternal Order of Police v. County of Adams, 205 Neb. 682, 685, 289 N.W.2d 535, 537 (1980); Omaha Assn. of Firefighters v. City of Omaha, 194 Neb. 436, 441, 231 N.W.2d 710, 713-14 (1975); Crete Education Association v. School District of Crete, 193 Neb. 245, 255, 226 N.W.2d 752, 759 (1975). In selecting an appropriate array of school districts we have given weight to:

... student enrollment, geographic proximity, athletic conference membership, and community of interest demonstrated by athletic, scholastic and administrative contacts.

Broken Bow Education Association v. School District of Broken Bow, 6 CIR 60, 63 (1982).

On enrollment comparisons, we have frequently held that districts used for comparison should generally range from one-half as large to twice as large as the district in question. See District 15 Education Association v. School District Number l5 of Adams County, Nebraska, 5 CIR 347, 351 (1982); Coleridge Teachers Association v. School District of Coleridge, 5 CIR 416, 420 (1982); Alliance Education Association v. School District of Alliance, 5 CIR 113,121 (1981). While there are often instances when this standard cannot be strictly applied, such as cases involving very small or very large schools, here none of the districts proposed is too large or too small to use.

Likewise, each of the proposed districts is relatively proximate to the District. Murdock is the most distant at 87 miles but, under the circumstances, we do not eliminate any of the proposed districts as being too distant.

We have also held that the balance of an array is important. South Sioux City Education Association v. School District of South Sioux City, 3 CIR 90,92 (1976). Were we to select the Association's proposed array of twelve districts, we would be faced with a larger than necessary array overloaded with larger districts. Of the Association's proposed districts, ten are larger and two are smaller than the District. At the same time, while the District's proposal of six districts is a more workable number for an array, it, too, is top-heavy with four larger and two smaller than the District.

From the standpoint of community of interest, the districts proposed by the District provide us with a much better comparison. First of all, they are all members of the same athletic conference which we have often accepted as a basis of comparability based on the facts of each case. See Broken Bow Education Association v.School District of Broken Bow, 6 CIR 60, 68 (1982); Clarks Education Association v. School District Number 11, 6 CIR 431, 433 (1983); Coleridge Teachers Association v. School District of Coleridge, 5 CIR 416, 419 (1982). Secondly, under the facts of this case, the District's contacts, both extra curricular and scholastic, are primarily with the schools in its conference. Notably, only three of the Eastern Division districts proposed by the Association compete with the District, i.e., Nemaha Valley, Dawson-Verdon and Table Rock.

We select the conference schools proposed by the District and Table Rock, which is smaller than the District. This provides a more balanced array with four districts larger and three smaller than the District. The remaining Eastern Division schools are not chosen because the evidence shows little or no actual contact with the District, except for Nemaha Valley and Dawson-Verdon, both of which are larger than the District. Although Meridian, which is in a separate conference, appears to fit all other categories of comparison, it also is larger than the District and would cause an overloading with larger schools.

3. Base Salary

Because of irreconcilable differences in the statistical evidence offered by the parties with regard to the placement of specific teachers on the District's salary schedule, the number of contract days at the various districts, the placement of District teachers on the salary schedule of other districts, and other differences, we entered an Order on the 26th day of March, 1984, reopening the hearing to take additional evidence on those points. The parties have now filed a stipulation, Exhibit 35, agreeing on the fringe benefits and total teacher compensation for each compared to school district.

The compensation figures as agreed upon by the parties are shown in Table 2.

Applying the statutory criteria of Section 48-818 to the evidence of this case, we find that the base salary of the teachers in School District Number 103, Jefferson County, Nebraska, also known as Diller Community School, shall be $11,470.00 for the 1983-84 school contract year. This represents a standard salary schedule of $253,372.30 (base salary amount of $11,470.00 multiplied by a staff index factor of 22.09), plus fringe benefits of $25,320.48, which makes the total teacher compensation $278,692.78.

4. Extra Duty/Extra Curricular Pay.

The Association contends the principle concern here is the structure used by the District in arriving at the stipends for these extra assignments. It further contends that the prevalent practice is for a school district to establish a schedule of extra assignments with a corresponding pay schedule using a percentage of base salary as the basis for extra pay. For instance, head football coach - 8% of base; head boys basketball coach - 8% of base; senior class sponsor -1% of base; and so on, for each extra job.

The District presently sets a dollar figure per unit each year and assigns so many units to each extra job. For instance, $60 per unit; head football coach - 12 units; senior class sponsor - 5 units; and so on, for each extra job. In addition, the District pays an athletic coach $50 per year for each consecutive year he remains as coach.

From the standpoint of future negotiations, it would be easier if each of these jobs was compensated on a percentage of base salary. In addition, each of the school districts compared to, except one, uses some form of schedule applying a percentage of base. However, the District points out that we have declined in the past to change the structure of payment schedules, choosing to leave that for collective bargaining because of the varying effect the different schedules can have on teachers within the bargaining group. See School District No. 125, Frontier County, Nebraska v. Curtis Education Association, 7 CIR 96, 103 (1983); West Holt Faculty Association v. School District Number 25 of Holt County Nebraska, 5 CIR 301, 309 (1981); and Millard Education Association v. School District of Millard, 5 CIR 425, 432 (1982).

There is no evidence before us to determine whether any of these extra jobs are mandatory at some districts and voluntary at others, or whether some are compensated at one district and not at others. For example, Lewiston and Sterling do not provide pay for the senior class sponsor while all of the other districts do. Does this mean they have none or that the senior class sponsor is uncompensated there? We also note that the District pays compensation for several more extra duty jobs than do any of the other districts. It argues that if we determine which jobs are prevalently compensated we must order that several positions now compensated by District should cease to be compensated. This is a prime example of the varying effect the different schedules can have on teachers within the bargaining group.

We are not inclined to change the extra duty/extra curricular compensation schedule to a percentage of base salary on the proof before us in this case. Nor are we convinced that each extra curricular program services the same function or has the same priority in different communities. Some may prefer to emphasize one program while others might prefer another. On the other hand, the various extra job assignments, when taken as a whole, at each school district, are similar enough to allow a comparison of the total extra duty compensation of the schools. Table 3 sets forth the total extra duty compensation of the school districts in the array. The mean overall figure is $11,260.61 and the median overall figure is $11,270.63. We hold that the District's overall compensation for extra duty/extra curricular jobs should be $11,266.00 and that it should be distributed among the positions in the same proportions that each position received from the 1982-83 extra duty/extra curricular pay schedule.

The District proposes to include in its present schedule of extra duty pay a $1,500.00 stipend to an elementary teacher who teaches a split class of two elementary grades. Since this is clearly a teaching assignment and the others are clearly categorized as "extra curricular" to the teaching assignment, we feel it is improper to include this assignment in the extra duty schedule. While the evidence discloses that two of the compared to schools also compensate split class teachers with extra compensation, we note that such additional compensation is not included in the extra duty calculations we have made for either district.

Lastly, the District asks in its Brief that we rule that extra duty pay for teaching a combination classroom is not the prevalent condition of employment and, therefore, asks us to eliminate the $1,500.00 payment it presently makes. We do not feel the evidence before us is sufficient for us to decide that issue. Adding the District to our chosen array, we would have five districts which have combination classrooms, Diller, Douglas, Filley, Table Rock and Lewiston. Three of those five provide extra compensation and two do not. Furthermore, we did not understand that to be an issue at the pretrial conference. The Association offered no evidence on this specific point which may well indicate it, too, was surprised by the request contained in Respondent's Brief. The parties agreed that base salary and pay for extra duty assignments would be in issue and All other terms of employment remain as previously established.


1. That the base salary amount of School District No. 103, Jefferson County, Nebraska, a/k/a Diller Community School, shall be $11,470.00 effective at the beginning of the 1983-1984 school contract year.

2. The overall compensation for extra duty/extra curricular jobs for School District No. 103, Jefferson County, Nebraska, a/k/a Diller Community School, shall be $11,266.00 effective at the beginning of the 1983-1984 school contract year and that amount shall be divided among the extra duty/extra curricular positions set forth on the 1982-1983 schedule in the same proportions that each position received from the total extra duty pay for the year 1982-1983.

3. The position of extra pay to the elementary teacher teaching a split class shall not be included on the extra duty/extra curricular payment schedule for the school district for the contract year 1983-1984.

4. That other conditions of employment shall remain unchanged for the 1983-1984 school contract year.

This Order shall be effective for wages and conditions of employment with respect to the 1983-1984 school contract year. The adjustments resulting from this Order shall be made ratably over the twelve months of the school contract year. The amount due for the proportion of the school 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 joint in the entry of this Opinion and Order.

Filed May 29, 1984.