8 CIR 271 (1986)


An Unincorporated Association, |
Petitioner, |
SCHOOL, A Political Subdivision of the |
State of Nebraska, |
Respondent. |


For the Petitioner: Mark D. McGuire

Crosby, Guenzel, Davis,

Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska

For the Respondent: L. Bruce Wright

Cline, Williams, Wright,

Johnson & Oldfather

1900 First National Bank

Lincoln, Nebraska

Before: Judges Cope, Mullin, and Orr


This matter came on for a determination of wages and other conditions of employment for School District No. 6 (Valentine Rural High School) teachers for the 1985-1986 contract year pursuant to Section 48-818. School District No. 6, hereinafter referred to as Valentine, is a Class VI school district employing 22 teachers and has a student enrollment for the 1985-86 school year of 259 students.

The issues for resolution by the Commission are base salary, the appropriate index salary schedule, paid disability insurance, and extra duty compensation.


The Commission has 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.


To determine the prevalent wage rates and conditions of employment each party has submitted a number of Class VI and Class III school districts for comparison. Petitioner has included one Class I school district in its proposed array, Valentine Elementary. Both parties agree that the following five schools are comparable: Ainsworth, Atkinson, Chadron, Gordon and O'Neill. Petitioner offers five additional schools for comparison: Alliance, Broken Bow, Gothenburg, Ord and Valentine Elementary. Respondent argues for the inclusion of Bassett and Rushville in the Commission's array.

In a pretrial stipulation the parties agreed that the work, skill and working conditions as to teaching duties, at the high school level only, of the districts proposed for comparison, are similar, and satisfy the standards set forth in Section 48-818 to permit a comparison of terms and conditions of employment.

Factors the Commission frequently weighs when choosing an array of comparable employers include, but are not limited to: athletic conferences, geographic proximity, student enrollment and community of interests demonstrated by athletic and non-athletic contacts. Sherman County Teacher's Ass'n v. School District 15, Sherman County , 8 CIR 77 (1985).

Additionally, the Commission has often held that school districts used for the purpose of comparison should generally range from one-half to twice as large as the school district in question. Diller Education Ass'n v. School District 103 , 7 CIR 196 at 200 (1984).

Evidence of the similarities between the proposed school districts and the Valentine School District is set forth in Table No. 1. As noted previously, Class I, III and VI school districts were utilized by the parties in establishing proposed arrays. The Nebraska Department of Education classifies school districts as follows:

(1) Class I shall include any school district that maintains only elementary grades under the direction of a single schoolboard;

(3) Class III shall include any school district embracing territory having a population more than one thousand and less than one hundred thousand inhabitants that maintains both elementary and high school grades under the direction of a single school board;

(6) Class VI shall include any school district in this state that maintains only a high school. Statistics and Facts About Nebraska Schools , Nebraska Dept. of Education (1985-1986).

In making a comparison of student enrollment for the purpose of finding comparable employment we have chosen to compare total enrollment of both elementary and high school grades. This is done, in part, out of necessity, as Petitioner has failed to provide high school enrollment in several of its Class III school districts. However, the Commission also finds that total enrollment comparison is proper based on the evidence presented at trial. Of the five common array points offered by the parties as comparable, three are Class III school districts which include elementary and high school grades.

We have considered the evidence of comparability presented by the parties, including student enrollment, geographic proximity, athletic contacts and community of interests and have selected the following array of school districts for the purpose of comparison in this case: Ainsworth, Atkinson, Chadron, Gordon, O'Neill, Ord and Rushville. These school districts are sufficiently similar and have enough like characteristics or qualities to make comparison with Valentine appropriate. Using Valentine's total enrollment for comparison, elementary through high school (669), a reasonably balanced array results consisting of four school districts with combined total enrollment less than Valentine and three with combined grade school and high school enrollment greater than Valentine.

In excluding from our array certain Rangeland Conference Schools whose inclusion Respondent argued for, it is recognized that, "the mere fact that one set of school districts was deemed adequate in one case, does not mean that a different set of school districts would necessarily be inadequate in a different case." Crete Education Ass'n v. School Dist. of Crete , 193 Neb. 245, 226 N.W.2d 752 (1975).

While excluding Valentine Elementary from the array in this case, we will not rule out the future possibility of using a Class I school district in an array of predominately Class III and Class VI schools. Although there is no rule which necessarily precludes the use of Class I schools for comparison purposes with school districts which do have high schools, we decline to do so in this instance because of the availability of a sufficient number of more similar schools. This is consistent with past CIR holdings. See, School District No. 125 v. Curtis Education Ass'n , 7 CIR 96 (1983).


Table 2 compares the salary schedules of the schools in the array with Valentine by showing increments vertically for longevity and horizontally for educational attainment.

The Petitioner argues that Valentines increments should be changed from the present 4% to a 4.5% both horizontally and vertically. The Respondent contends that there should be no change in either vertical or horizontal increments. To do so, suggests the Respondent, would have a serious impact on the District's hiring power by lowering the base salary available to entry level faculty.

Though the Commission has held that index salary schedules are susceptible to analysis under Section 48-818, the Commission has favored the position that changes in salary schedules are best effected through the collective bargaining process. In West Holt Faculty Ass'n v. School District No. 25 , 5 CIR 301(1981), the Commission stated:

It is the Commission's experience that because of varying effects of different schedules upon 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 variance from prevalent practice...

Id , at 309, See also, Millard Education Ass'n v. School District of Millard , 5 CIR 425 (1982).

Notwithstanding the language in West Holt , it is the role of the Commission to resolve differences that arise during collective bargaining and take the parties beyond impasse. The Commission will order a change in the salary structure when the Petitioner meets the burden of proving the prevalent structure. Ralston Education Ass'n v. School District of Ralston , 6 CIR 416 (1983). Of the seven comparable school districts, three have 4.5% vertical increments and only two have 4.5% horizontal increments. (Table No. 2).

Prevalency has traditionally been determined by the Commission on a case by case basis with a great deal of discretion being granted to the judges' determination. The CIR case law is reflective of this policy. The concept of "prevalence" was discussed by the Commission in several of its earliest cases.

In Fremont Education Association v. School District of Fremont , 1 CIR No. 50 (1972), the Commission consulted Webster's New World Dictionary for authorative comments on the word "prevalent" and found the following definition:

Prevalent, 1. [Rare], predominant. 2. Widely existing; generally practiced, occurring, or accepted. SYN. see prevailing.

Id . at 50-7.

The Commission reviewed its application of the prevalent standard, as set out in Fremont, and summarized it's findings in Hastings Education Ass'n v. School District of Hastings , 1 CIR No. 42 (1972) as follows:

The Legislature originally intended as a standard of wage rates those which were predominate or at least widely existing throughout the whole state. Then it changed the standard to one of general practice, occurrence, or acceptance but in a very limited area... Thereafter, in 1969 the Legislature withdrew the mandatory limitation on area, but it did not reexpress a mandatory consideration of either predominance or of existence throughout the whole state. The standard now is one of general practice, occurrence, or acceptance, but the question of how general is general is left to the good judgment or feeling of the judges. The requirement of similarity of working conditions helps the judges develop that judgment or a receptivity to the proper connotation of the word "prevalent". Similarity tends to decrease with increasing distance among what are to be compared and to become more pronounced with increasing proximity.

Id . at 42-10.

From these cases it is clear that the standard inherent in the word "prevalent" is one of general practice, occurrence or acceptance [see, Webster's New World Dictionary], but the extent of such generality is left in each case to the judgment or feeling of the judges.

To emphasize the subjectivity of the "prevalent" standard, in Omaha Ass'n of Fire Fighters v. City of Omaha , 2 CIR No. 117 (1975) Aff'd 194 Neb. 436, 231 N.W.2d 710 (1975), the Commission stated that,

the ascertainment of the prevalent wage rate in a given case is a matter incapable of exact mathematical demonstration. It is one of reasonable approximation having its basis in a proper consideration of all relevant factors... Section 48-818 does not fix any single formula or combination of formulas whereby the prevalent wage rate is to be determined. Rather the court must make the pragmatic adjustments which may be called for by particular circumstances.

Id , at 117-5.

On appeal to the Nebraska Supreme Court, the Omaha Ass'n of Fire Fighters decision was affirmed. The Court stated that a prevalent wage rate "must almost invariably be determined after consideration of a combination of factors." Id, at 440. The Court specifically pointed out that the Commission had not determined the prevalent wage rates for fire fighters "by any direct computation or application of average or mean rates" from cities in the selected array. Id, at 441. Instead, according to the Court, the Commission "weighed, compared, and adjusted all the factors involved in each of the cities, which resulted in a determination of prevalent wages paid..." Id , at 441.

The Commission and the Nebraska Supreme Court have determined that the standard for prevalent wage rate is practice, occurrence or acceptance, not a predetermined percentage or formula. This standard, developed in early CIR case law grants a great deal of deference to the sound judgment of the judges.

After careful review of the evidence, we decline to alter the salary schedule of Valentine School District. We do not find a 4.5% by 4.5% salary schedule index to be the prevalent schedule in the comparable school districts. The current 4% by 4% schedule at Valentine does not substantially vary from the prevalent practice,and therefore, should not be disturbed.


The District currently contributes $4.00 per month per FTE employee towards long-term disability insurance (LTD). The Petitioner is asking for an increase to $9.30 per month. It is clear from looking at Table 3 that long-term disability is a prevalent condition of employment. In determining the prevalent, the Commission used total dollar amounts that would be paid to Valentine teachers at each of the comparable schools based on their policy. The Commission then calculated the contribution by dividing by 20.79 FTE teachers at Valentine to come up with a per FTE amount of $6.81 per month.


Another issue for resolution is extra-duty compensation. Petitioner seeks to limit the extra-duty compensation issue strictly to coaching duties. Petitioner further proposes that the Commission establish an extra-duty salary schedule for coaching responsibilities which provides additional compensation for experience.

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 have on teachers within the bargaining group. Diller Education Ass'n v. School District 103 , 7 CIR 196 (1981), 8 CIR 12 (1985). To increase the amount of extra-duty compensation available to the coaches at Valentine, would inevitably result in a reduction of the monies available for the other extra duty positions compensated. We find that such salary restructuring is best achieved through the collective bargaining process.

Furthermore, the Commission does not have the authority to determine which extra curricular programs should be emphasized at the individual schools and we will not invade the province of the school district and determine where such emphasis should be placed in terms of actual dollars. The unique needs of each school district necessitate that questions of educational policy, such as which extracurricular programs to emphasize, remain under the control of the school district. The school district is most knowledgeable of the priorities and needs of the community it serves.

Additionally, the Petitioner has provided no evidence of comparability between the coaching duties at the various school districts. It is also not clear from the evidence whether any or all of the extra duty jobs are mandatory in the comparable districts and whether some are compensated at one district and not at others. As in Diller, we are not convinced, "that each extra curricular program serves the same function or has the same priority in different communities." Id at 203.

When taken as a whole, we recognize that the various extra duty assignments at each school district are similar enough to allow a comparison of the total extra duty compensation of the schools. Id . However, there is not enough evidence before us to determine the prevalent total extra duty compensation for the arrayed schools. Therefore, we hold that Valentine's overall compensation for extra duty assignments shall remain the same as in the previous school year and shall also be distributed among the positions in the same proportions that each position received in the 1984-85 school year. No evidence points to the contrary.


The only remaining issue for resolution by the Commission is the determination of base salary. The standard salary schedule figures provided by the parties have been adjusted for differences in contract days between Valentine and the compared to school districts. See, Nebraska Dept. of Education Teacher's Ass'n v. Dept. of Education , 7 CIR 236 (1984), aff'd on other grounds , 219 Neb. 555, 64 N.W.2d 44 (1985).

Where there are discrepancies between the figure provided by the Petitioner and Respondent for common array points, and neither figure can be verified after examination of the evidence, we have held in the past that the Respondent's figure will be used, as the burden of proof is on the Petitioner. See, Lincoln Fire Fighters Ass'n v. City of Lincoln , 8 CIR 31 (1985).

The Commission spent a great deal of time and effort in deciphering the standard salary schedules presented by the parties at trial. Figures from some of the common array points were not compatible due to each parties unique placement of the Valentine teachers on the salary schedules of comparable school districts. These small inconsistencies subsequently caused discrepancies in the standard salary schedule figures and fringe benefit figures. After a thorough review of all the evidence presented by both parties, the Commission has reached a determination on which figures to use for each common array point. (See Table 4).

In order to enable the Commission to comply with the ordinary time standards for settling industrial disputes as set out in Section 48-818, it is in the best interest of the parties to provide us with compatible data on common array points which does not require speculation or conjecture to interpret.

Applying the statutory criteria of Section 48-818 to the evidence in this case, we find that the base salary for the Valentine teachers should be $l4,060 for the 1985-86 school year.


1. That the base salary amount for School District 6, Valentine Rural High School teachers shall be $l4,060, effective for the 1985-86 school contract year.

That the long term disability benefits provided by the District for the 1985-86 school contract year shall be $6.8l per month per FTE.

3. That all other terms and conditions of employment for the 1985-86 school contract year remain unchanged.

All judges assigned to the panel in this case join in the entry of these Findings and Order.

Entered June 13, 1986.