7 CIR 263 (1984). Appeal dismissed June 21, 1985.


Unincorporated Association |
Petitioner, |
State of Nebraska, |
Respondent. |


For the Petitioner: Mark D. McGuire

Crosby, Guenzel, Davis

Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska

For the Respondent: Sharon M. Lindgren

Assistant Attorney General

2115 State Capitol

Lincoln, Nebraska

Before: Judges Orr, Gradwohl, and Kratz


This matter came on for a determination of employee wages for the 1983-84 contract year pursuant to Neb. Rev. Stat. 48-818 for the teachers represented by the State Code Agencies Education Association at the Department of Social Services (Formerly called "Department of Public Welfare"). The teachers represented by the Association teach at the Nebraska Center for Children and Youth (NCCY) in Lincoln, Nebraska. There were thirteen teachers at NCCY during the 1983-84 school year and twenty nine students, with some fluctuation through the year. The only issue for resolution as established by the Report Of Pretrial Conference is base salary.


The Commission has ruled previously that it has jurisdiction to establish wages and conditions of employment applicable to agencies of Nebraska state government pursuant to Section 48-818. See State Code Agencies Education Association v. Department of Public Welfare, 7 CIR 134 (1984); State Code Agencies Education Association v. Department of Public Institutions, 7 CIR 186 (1984); State Code Agencies Education Association v. Department of Correctional Services, 7 CIR 226 (1984); Nebraska Department of Education Teachers Association v. Department of Education, 7 CIR 236 (1984); State Code Agencies Education Association v. Department of Public Welfare, 7 CIR 217 (1984).

The Respondent offered no evidence of comparable school districts at trial nor does it disagree with the Petitioner's contention that its teachers are underpaid. Rather, the Respondent's position is that in the absence of a specific appropriation or specific authorization from the legislature, it has no authority to grant the pay increase requested by the Petitioner.

The Commission of Industrial Relations is statutorily created and has only that jurisdiction and authority provided in the statutes. To the extent the Legislature has made binding determinations by appropriations legislation or other statutes, the Commission and the parties are precluded from acting in a different manner. In State Code Agencies Education Association v. Department of Public Welfare, 7 CIR 134 (1984), we stated as follows with respect to the parties' obligations to bargain in good faith:

The Department is correct that where the Legislature specifies that a precise term or condition of employment shall exist, the parties to collective bargaining are not free to vary the statutory mandate through collective bargaining; it is equally true, however, that to the extent there is not such a statutory directive as to a term or condition of employment, the parties are obligated under the public employment bargaining statutes to negotiate in good faith on all mandatory subjects. Speaking to the issue of the relationships of the CIR statutes to the civil service act applicable to Lancaster County, the Supreme Court stated in American Federation of State, County and Municipal Employees v. Lancaster County, 200 Neb. 301, 304-305, 263 N.W. 2d. 471, 474 (1978), affirming 3 CIR 200 (1977):

'Among the topics included in the package bargaining agreement which was presented by the plaintiff to the defendant were the following: Hours of work, work breaks, holidays, vacations, sick leave, leaves of absence, unpaid leave of absence, insurance, wages, minimum time payments, overtime, transfers, lay-off and recall, uniforms and protective clothing, severance pay, work rules, and longevity pay. There is nothing in the civil service act which prohibited the county board from bargaining with its employees in regard to these topics. There were other topics included in the package bargaining agreement which were controlled by the civil service act to some extent, such as promotions, discipline, grievance procedure, non-discrimination, and termination. To the extent that the civil service act contains specific and mandatory provisions relating to such matters,,the county board is not free to bargain. As an example, the act provides all appointments and promotions shall be based on merit and fitness. The county board has no power or authority to bargain or agree that any appointment or promotion shall be based upon anything other than merit and fitness except as provided in the act.'

7 CIR at 139-140.

The Commission takes judicial notice of the appropriation and salary bills applicable to the Department of Social Services for the 1983-84 fiscal year, LB 628, 772 and 772A and the limitations they place on spending for personal services. As in our previous decisions involving agencies of Nebraska government, we find that the Respondent is in no different position than any other public employer who is subject to budget limitations.

Even though the legislature places a total personal services limitation on the salaries the Respondent can pay its employees the Respondent may, nevertheless, adjust individual salaries independently within the personal services limitation appropriated by the legislature. In Department of Public Institutions we said:

While it may be true that state agencies do not have the ability to generate funds as many other governmental entities do, the Commission does not and cannot consider "ability to pay." See Nebraska City Education Assn. v. School Dist. of Nebraska City, 3 CIR 281 (1977), affirmed, 201 Neb. 303, 267 N.W. 2d 530 (1978); Hall Teachers Association v. School District No. 5, 4 CIR 114 (1979). See also Local No. 2088, American Federation of State, County and Municipal Employees v. County of Douglas, 208 Neb. 511, 304 N.W. 2d 268 (1981), decision following remand, 5 CIR 265 (1981); Board of Regents of the University of Nebraska v. American Association of University Professors, 7 CIR 1 (1983).

If the Commission sets wages based on the statutory comparability standard and the results of that decision could cause the agency to go over the personal services limitation using its present staffing numbers, as unpopular as the ramifications might be, it would be up to the agency to decide how it might best remain within the personal services limitation through layoffs or other personnel actions. Those layoffs could be from anywhere within the agency's program: teachers or nonteachers, classified or nonclassified employees, since there is not a separate personal services limitation for teachers only.

Id. at 5 (Typewritten Findings and Order).


The controlling statute is Section 48-818, which states in part:

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 or 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 continuity and stability of employment enjoyed by the employees.


The Association presented comparisons with the following fourteen school districts: Ashland-Greenwood, Centennial, Central Raymond, Crete, Lincoln, Malcolm, Milford, Murdock, Norris, Palmyra, Seward, Syracuse-Dunbar, Tri-County and Waverly. The Respondent did not present any school districts for comparison.

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. Dorchester Education Ass'n. v. School District of Dorchester, 6 CIR 408 (1983); Fraternal Order of Police v. County of Adams, 205 Neb. 682, 685, 289 N.W. 2d 535, 537 (1980); Omaha Ass'n. of Firefighters v. City of Omaha, 194 Neb. 436, 441, 231 N.W. 2d 710, 713 (1975); Crete Education Ass'n. v. School Dist. of Crete, 193 Neb. 245, 255, 226 N.W. 2d 752, 758 (1975).

In making this determination, the Commission has in the past considered the following factors, among others: student enrollment, geographic proximity, athletic conference membership, and community of interests demonstrated by athletic, scholastic and administrative contacts. School District No. 125, Frontier County v. Curtis Education Assn., 7 CIR 96 (1984).

The Association's expert witness, Mr. Richard Halama, testified that the criteria he used to compare school districts in arriving at the array proposed by the Petitioner were geographic proximity and student enrollment. He selected schools within a fifty-mile-radius of NCCY and testified that it was "difficult" to find schools within that geographic area with student enrollments approximating that of NCCY. Consequently, the Petitioner's proposed array includes schools with student enrollments which are larger than the student enrollment at NCCY. Mr. Halama testified that, in his opinion, the other factors the Commission often considers in selecting an array of comparable school districts, such as athletic conference membership or community of interest, did not apply. NCCY does not belong to an athletic conference, nor does it participate in athletic functions with other school districts in the State of Nebraska.

Table 1 sets forth a comparison of the factors the Petitioner used in selecting its proposed array.

The evidence shows that work skills and working conditions at NCCY are comparable to those at the school districts proposed in the Petitioner's array. Teachers at NCCY meet the Same basic educational and certification standards that teachers at other public schools must meet. They are hired from the same employment pool as other public school teachers and they are able to return to that pool should their employment with NCCY terminate. Despite some minor differences at NCCY, class times, months in session, the number of teaching and contract days, library facilities, and classroom facilities and equipment are all comparable in that they meet the same basic standards for certification of public school districts set by the Department of Education. We find that the Petitioner's proposed array meets the comparable work skills and working conditions requirement.

In presenting an array of comparable schools, the Petitioner presented schools which were all larger than the subject school, NCCY. The evidence establishes that each of the proposed schools is sufficiently similar to NCCY and has enough like characterizations or qualities to be used for comparison. We find that an array of the following schools with the smallest enrollments, all of which are geographically proximate to the Respondent's facilities, is appropriate: Centiennial, Malcolm, Milford, Murdock, Palmyra, Syracuse-Dunbar, and Tri-County.


Section 48-818 provides that "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 pension, and the continuity and stability of employment enjoyed by the employees." This rule of overall compensation does not require an identity of benefits, but does require overall compensation to be "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." These determinations must be made on the basis of the evidence introduced by the parties at the trial of the case. The determinations under Section 48-818, R.R.S. 1943, may, therefore, vary from case to case, depending upon the evidence introduced by the parties.

At trial, the Respondent's witness, Mr. Bill Oberg, Compensation Analyst for the Department of Personnel, testified that under past contracts, base salary for teachers employed by NCCY was determined by taking the amount of money expended for teachers' salaries in the previous year, adding the percentage salary increase appropriated by the legislature for the year to that and hen distributing the total amount over an agreed upon index salary schedule. Since fiscal year 81-82, however, the parties have been unable to come to an agreement on the terms and conditions of employment for teachers at NCCY. As a result, index salary schedules were not used in fiscal years 82-83, and 83-84. Salary determinations during those years were made by increasing each teacher's salary by the same percentage salary increase that the legislature gave to other state employees.

At the Pretrial Conference in this case, the parties stipulated that the only issue for determination by the Commission was base salary. Generally, a determination of base salary presupposes the existence of an index salary schedule or some other mechanism for compensating teachers who have advanced education or experience beyond the "base salary" given to teachers with no credit hours in excess of a bachelor's degree and no experience. It is not completely clear from the evidence whether the parties have agreed to an index salary schedule in this case since neither party introduced evidence at trial specifically indicating that they had done so.

The only evidence submitted at trial which addressed the structure of the salary schedule for NCCY for fiscal year 1983-84 were Petitioner's exhibits 2A and 3A purporting to show where teachers at NCCY during the 1983-84 contract year would be placed on the salary schedule that was in effect during the 1981-82 fiscal year (exhibit 1). These exhibits were received without objection by the Respondent.

The rule in Nebraska is that "stipulations voluntarily entered into between the parties to a cause or their attorneys, for government of their conduct and the control of their rights during the trial or progress of the cause, will be respected and enforced by the courts, where such stipulations are not contrary to good morals or sound public policy. Courts will enforce valid stipulations unless some good cause is shown for declining to do so. . . ." Martin v. Martin, 188 Neb. 393, 398, 197 N.W. 2d 388, 391 (1972); Kuhlmann v. Platte Valley Irr. Dist., 166 Neb. 493, 519, 89 N.W. 2d 768, 783 (1958).

In light of the stipulation of the parties, the fact that exhibits 2A and 3A were the only evidence submitted by the parties indicating the structure of the index salary schedule for teachers at NCCY for fiscal year 1983-84 and the fact that the introduction of this evidence went unchallenged by the Respondent, we must presume that exhibit 3A is the schedule upon which our decision is to be based.

The compensation paid to teachers in the selected array is shown in Table 2.

Applying the statutory criteria for Section 48-818 to the evidence in this case, we find that the base salary for teachers at NCCY for the 1983-84 fiscal year should be $12,530.00.


1. That the base salary for teachers at NCCY for the 1983-84 fiscal year shall be $12,530.00.

2. This Order shall be effective for wages and conditions of employment with respect to the 1983-84 fiscal year. The adjustments resulting from this Order 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 these Findings and Order.

Filed September 26, 1984.