8 CIR 298 (1986)


An Unincorporated Association, |
Petitioner, |
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: John F. Recknor

Barlow, Johnson, DeMars & Flodman

1227 Lincoln Mall

P.O.Box 81686

Lincoln, Nebraska

Before: Judges Kratz, Orr, and Cope


Petitioner asks this Commission to establish wages, terms, and conditions of employment for the teachers employed by the Farnam Education Association (hereinafter referred to as the "Association") for the 1985-86 school year. The teachers represented by the Association are employed by School District 51 of Dawson County (hereinafter referred to as the "District"), a Class II school district which employs 17 teachers and has a student enrollment for the 1985-1986 school year of 108 students.

The only issue for resolution is base salary. The Commission of Industrial Relations (hereinafter referred to as CIR or Commission) has jurisdiction of the parties and of the subject matter of this action.


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 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.


The arrays presented by the Association and the District have the following seven school districts in common: Bartley, Beaver Valley, Haigler, Holbrook, Orleans, Palisade, and Stratton. The Association's array also includes the two districts of Beaver City and Maywood. The parties orally stipulated that the work, skills and working conditions of the teachers employed by the District, and the teachers employed by each of the nine districts presented for comparison by the parties, are similar and satisfy the standards set forth in Section 48-818.

The parties offered evidence comparing student enrollment, county, proximity in miles to the District, athletic conferences, and community of interest as demonstrated by athletic and scholastic contacts with the District. Table 1 reflects the comparability data on each school district.

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 to have enough like characteristics or qualities to make comparison appropriate in that situation. Lincoln County Sheriff's Employees Association v. County of Lincoln , 216 Neb. 274, 343 N.W.2d 735 (1984); IAFF Local 831 v. City of North Platte , 215 Neb. 89, 337 N.W.2d 716 (1983); Fraternal Order of Police v. County of Adams , 205 Neb. 602, 289 N.W.2d 535, (1980); Omaha Association of Firefighters v. City of Omaha , 194 Neb. 436, 231 N.W.2d 710, (1975); Crete Education Association v. School District of Crete , 193 Neb. 245, 226 N.W.2d 752, (1975); Benkelman Education Assn. v. School District of Benkelman , 8 CIR 119, 121 (1985).

In selecting an array of school districts for comparison purposes, the Commission has considered, among other factors, the following: student enrollment, geographic proximity, athletic conference membership, and community of interest demonstrated by athletic, scholastic and administrative contacts. Sherman County Teachers Ass'n v. School District No. 15 , 8 CIR 77, 80 (1985). In considering the evidence in this case as to these factors, the Commission determines that a suitable array for the purposes of Section 48-818 consists of the following school districts: Bartley, Beaver Valley, Haigler, Holbrook, Maywood, Orleans, Palisade, and Stratton. All of these districts are within the one-half to twice as large guideline frequently used by the Commission in determining comparable employments. See, Diller Education Ass'n v. School District No. 103 , 7 CIR 196, 200 (1984). A reasonably balanced array results, consisting of three school districts with enrollment less than, or equal to, Farnam and five school districts with enrollment greater than Farnam.


Before the base salary issue can be fully resolved, the Commission must consider the issue of adjusting salaries for contract days, a common practice of the Commission since its decision in West Holt Faculty Assn. v. School District No. 25 , 5 CIR 301 (1981). The District argues that because of the enactment of LB 994 in the last session of the Legislature, the CIR can no longer make salary adjustments based on the number of contract days in the applicable array, but instead, must use instructional hours as the basis for the school year adjustment. LB 994, codified as part of 79-101, reads, in pertinent part, as follows:

(6)School year shall mean (a) for elementary grades, the time equivalent to at least one thousand thirty-two [1,032] instructional hours and (b) for high school grades, the time equivalent to at least one thousand eighty [1,080] instructional hours;

(7)Instructional hour shall mean a period of time, at least sixty minutes, which is actually used for the instruction of students...

According to the Legislature's Education Committee Statement of Intent, LB 994 was recommended by the 1984 Task Force on Excellence in Education. 88th Legis., 2nd Sess. (January 23, 1984). This Task Force, appointed by Governor Kerrey, was assigned to study the quality of education in Nebraska. Id. at 1-17. The Legislature's Education Committee Mission Statement regarding LB 994 indicates that, in order to provide comprehensive reform in Nebraska school law and the education profession, a change should be made in the definition of the school year from a required number of days to a required number of instructional hours (Summary of Purpose and Introducer's Statement of Intent). The District takes the position that the import of LB 994 is to provide flexibility to the school districts.

Since LB 994 requires only that a minimum number of hours be allocated to the school year in an appropriate manner, the school districts now have the option of selecting longer or shorter days. The District argues that if the Commission continues its practice of adjusting base salary for differences in contract days, as opposed to instructional hours, the legislative purpose of LB 994 has been, in part, "thwarted." Adjusting for contract days, the District argues, renders the number of hours actually worked in a school year irrelevant and provides an "artificial, arbitrary, and no longer statutorily defined unit of time" as the basis for such adjustment.

The Association argues that the Commission, in Snyder Education Association v. School District No. 39, Dodge County , 8 CIR 100, 108 (1985), previously rejected the proposal to make contract hour adjustments. In Snyder , the School District's position was that even though the Snyder teachers had contracted to work 190 days, they actually worked only 183 or 184 days during the school year in question. The teachers were never scheduled or called to work on the extra days. Consequently, these teachers worked fewer hours annually than other teachers in the comparable school districts and, according to the School District, the proper unit of measure, therefore, was the number of annual hours, rather than the number of contract days. Id.

The Commission held as follows:

The parties in this case have voluntarily contracted for 190 days of teacher service for the 1984-85 school year. In so doing, each party became legally obligated to the terms and conditions of the agreement. The teachers, for their part, are legally bound to perform 190 days of service, if required by the school district; similarly, the district is legally bound to compensate its teachers for the 190 days of teaching services for which it contracted. Based upon the evidence in the record in this case, the proper standard of measurement for the base salary amount for comparisons under Section 48-818 is 190 contract days.

Id , at 110.

The issue of adjusting for contract days is particularly significant in the instant case due to the inclusion of the Palisade School District in the Commission's array. The teachers at Palisade have only a four-day work week and, therefore, have only 157 contract days during the school year. The days they do teach, however, are longer than those in the other compared to school districts. As a result of this unique situation, the Commission is asked by the District to evaluate its current practice of adjusting base salary for differences in contract days, taking into consideration Section 79-101 (LB 994) which became effective August 1, 1985. Consistent with prior CIR holdings, we find that the contract day remains the proper unit of measure for adjusting base salary of compared to school districts.

The Commission acknowledges that the intent of the legislature behind Section 79-101 was to allow each school's Superintendent the greatest degree of flexibility in scheduling the school year while establishing a minimum number of instructional hours. However, the responsibility is on the school district to comply with legislative requirements regarding the actual number of instructional hours served. Furthermore, until teachers bargain and contract for hours of service, the appropriate unit of measure for adjustment remains the contract day.

In Snyder Education Assn . the Commission stated:

The individual Teacher's Contracts plainly state that the District hereby agrees to employ the Teacher above named in the schools of the District for a school year which...shall consist of 190 days of service.... The Teacher is obligated to perform 190 days of service for the District in accordance with the provisions of the Teacher's Contract (or such different arrangements as may be mutually agreed to through collective bargaining).

In determining that the proper unit of comparison is the contract day, notwithstanding the fact that the Snyder teachers may have actually worked less hours annually than teachers in comparable school districts, the Commission looked to the legal obligation of the teachers to perform 190 days of service:

The School District's position is that since Snyder teachers will actually work only 183 or 184 days during the 1984-1985 school year and since, in fact, they are free to leave school at 3:15 p.m. each day, they will work fewer hours annually than teachers in other comparable schools. The District contends that the proper unit of measurement in this case is the number of annual hours, rather than the number of contract days... The teachers, for their part, are legally bound to perform 190 days of service, if required by the school district; similarly, the district is legally bound to compensate its teachers for the 190 days of teaching services for which it contracted.

Id , at 108-109.

In the instant case, the District offered testimony to establish that contract days are irrelevant to an assessment of essentially comparable duties of teachers in public schools. (T63: 6-11, T69-70: 25-3). However, this testimony directly contradicts the position taken by the Palisade School District during salary negotiations for the 1985-86 school year. Richard Finley, Superintendent of Palisade School, testified under cross examination that it was the position of the school board at Palisade that because the teachers were working fewer days than the previous school year, they should not get raises. The teachers were also made aware of the fact that if they came to the CIR, the school district would argue, to the detriment of the teachers, that there should be contract day adjustments based on 157 contract days. (T80-81: 1-7). It is evident that the school board of Palisade, and presumably school districts state-wide, do not find contract day adjustments irrelevant in assessing the comparability of teaching duties and obligations, nor do the Nebraska public school teachers.

Since the CIR first adjusted for contract days in West Holt , teachers and administrators have relied upon this holding in their negotiations. As in West Holt , the evidence and testimony here indicate that teachers should expect additional compensation if additional contract days are required. Furthermore, there is sufficient evidence as to the number of teaching days to allow the Commission to adjust for contract days. We will continue to adhere to this long-standing practice of adjusting for contract days as long as the parties themselves negotiate on these terms. Issues which have a direct economic impact on employees are best resolved through collective bargaining. Having declined to alter our policy of adjusting for contract days, the Commission must now establish the prevalent base salary from the evidence presented.

The parties failed to stipulate to the figures from common array points and some discrepancies exist in the data from Bartley and Beaver Valley. Therefore, where the Petitioner's figures differ significantly from those of the Respondent, both figures will be indicated. However, because the burden of proof in a Section 48-818 case is on the party who is arguing that the present wages and conditions are not comparable to the prevalent, the figures of the Respondent will be used in the Commission's computations. See City of Omaha v. Omaha Police Union Local 101 , 5 CIR 171, 175 (1981). The figures presented by both parties are shown in Table 2.

Applying the statutory criteria of Section 48-818 to the evidence in this case, we find that the 1985-1986 school contract year base salary for Farnam teachers should be $13,555.00.


1. That the base salary for School District No. 51 teachers shall be $13,555.00 effective for the 1985-1986 school year. The amount due for the school contract year already elapsed shall be paid as soon as possible following the entry of this Order.

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

Entered July 1, 1986