8 CIR 331 (1986)


Petitioner, |
Respondent. |


For the Petitioner: Mark D. McGuire

Crosby, Guenzel, Davis,

Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska 68508

For the Respondent: Kelley Baker

Nelson & Harding

1200 "N" Street, 500 The Atrium

P.O. Box 82028

Lincoln, Nebraska 68501

Before: Judges Mullin, Cullan, and Cope


The Petitioner commenced this action seeking a determination of wages and other terms and conditions of employment for teachers at School District No. 123, Colfax Co., hereafter known as Schuyler, for the 1985-86 contract year. The Respondent admitted in its Answer that an industrial dispute exists. The issues for determination as set forth in the Order of Pretrial Conference are base salary and structure of the salary schedule index.

The Commission has jurisdiction over the parties and the subject matter of this action.


The controlling statute is 48-818 R.R.S. 1943 (Reissue 1984), which provides in part:

...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...

To determine prevalent wage rates and conditions of employment, each party submitted a number of school districts for comparison at trial. Both parties presented the school districts of Aurora, Central City, Crete, Lakeview, Seward and York. The Petitioner also presented comparisons with the school districts of Adams Central and North Bend, while the Respondent presented additional comparisons with the school districts of David City, Fairbury and Logan View. The parties stipulated that the work skills and working conditions of the teachers employed by the School District and the teachers employed in all of the districts proposed for comparison are similar and satisfy the standards set forth in Section 48-818. The evidence of similarities between the districts presented for comparison with Schuyler is set forth in Table 1.

Class 6 (high school only) and Class 3 school districts (K - 12 grades) were offered for comparison. In calculating student enrollment, we used the secondary enrollment (high school) figures as listed in Petitioner's Exhibit 23 in conjunction with Petitioner's Exhibit 24. Schuyler is a Class 6 school district. Secondary enrollments can be organized on either a 7-12 or 9-12 grade basis. Schuyler's high school includes grades 9-12. In looking at the comparability of student enrollment, however, we feel it is best to look at secondary enrollment figures, regardless of whether they include grades 7-12 or 9-12. The important factor is that Schuyler is a secondary school and secondary enrollments should be compared to secondary enrollments. This is an objective criteria, easily discerned from official education publications. There was also a contention that perhaps the non-resident students listed in Petitioner's Exhibit No. 23 were in addition to the total enrollment numbers. After examining the evidence, we are persuaded that the non-residents were included in total enrollment numbers.

Unfortunately no precise formula can be established for mechanical application in selecting an array of comparable employments under Section 48-818. Because of its expertise, the Commission has been granted some discretion. AFSCME v. County of Douglas , 208 Neb. 511, 304 N.W.2d 368 (1981); IBEW v. City of Fremont , 216 Neb. 357, 345 N.W.2d 291 (1984). The Commission's determination must be made on the basis of the evidence introduced by the parties in the trial of the case and, therefore, may vary from case to case.

In every case, however, 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.

As stated in Fraternal Order of Police, Lodge No. 8 v. County of Douglas , 4 CIR 185, 190, 191:

it is important to emphasize, further, that the primary thrust of the statutory language is in terms of "the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions." Section 48-818 was amended by the Nebraska Legislature in 1969, eliminating references to labor market areas but retaining the language "like or similar skills performed under the same or similar working conditions." Crete Education Association v. School District of Crete , 193 Neb. 245, 253-258, 226 N.W.2d 752, 757-760 (1975). Although at times the abbreviated form of the language used to express the rule may appear to compare"employers", the essence of the statutory test established by Section 48-818 is one of work comparability. See Fremont Education Association v. School District of Fremont , 3 CIR 492, 498 (1978). See also Kramer Power Station Employees Committee v. Loup Public Power District , 1 CIR No. 16 (1963).

In Fraternal Order of Police v. County of Adams , 205 Neb. 682, 684-685, 289 N.W.2d 535 (1980), the Supreme Court approved the rejection by the Commission of Industrial Relations of evidence pertaining to other employments when the evidence did not establish a similarity of work skills under the same or similar working conditions. The Adams County opinion emphasizes that the Commission must make a factual determination after a consideration and comparison of all of the evidence "whether, as a matter of fact, the units selected for comparison are sufficiently similar and have enough like characteristics or qualities to make comparisons appropriate."

It has been recognized that all schools are somewhat comparable and all working conditions for teachers are somewhat similar. Wood River Education Ass'n v. School District No. 83 , 2 CIR No. 115 (1975). Therefore, in choosing comparable school districts, the Commission considers evidence of geographic proximity and relative size and then, if necessary, looks to other discretionary indications of comparability. School District of West Point v. West Point Education Ass'n , Findings and Order entered July 31, 1986. Discretionary indications of comparability such as athletic conference membership and community of interest demonstrated by athletic and non-athletic contacts will be considered to the extent they are related in the evidence to work, skills or working conditions. The weight to be given to such discretionary indications of comparability must rest within the sound discretion of the Commission in applying its expertise to the evidence before it.

Having considered the evidence on comparability, the Commission finds that an array consisting of Aurora, Central City, Crete, David City, Lakeview, North Bend, Seward and York is an appropriate array. These school districts all fall within the objective guidelines of student enrollment and geographic proximity. We find that these schools also have a community of interest as shown by a course of interaction among them, through both academic and extra curricular activities. This selection also achieves a balanced array of four smaller and four larger than the district in dispute, Diller Education Ass'n v. School District 103 , 7 CIR 196, 200 (1984).


The Association requests that one additional lane be added to the MA, MA + 9 and MA + 18 columns. The District wants the salary schedule structure to remain unchanged, arguing that to add steps would affect the distribution of salaries, making the base salary lower and therefore harder to attract newly hired teachers. There was testimony from the Association that it was the desire of the teachers to add the steps, having full knowledge of the effect of additional steps on the base salary step and those closest to it. In West Holt Faculty Association v. School District No. 25 , 5 CIR 30l (198l), the Commission stated as follows:

"it is the Commission's experience that because of varying effects of different schedules on teachers within a bargaining group, changes in structure are best achieved through collective bargaining and that past practice should not be disturbed in the absence of substantial variances from prevalent practice..."

Id . at 309. See also, Diller Educ. Ass'n v. School Dist. No. l03, Jefferson County , 7 CIR l96 (l984); School Dist. No. l25, Frontier County v. Curtis Educ. Ass'n ., 7 CIR 96 (l983). Moreover, any change by the CIR should not result in a materially large disturbance of the internal balance of the salary schedule. See Sherman County Teachers Ass'n. v. School Dist. #l5 , 8 CIR 90 (l985); Ralston Educ. Ass'n v. School Dist. of Ralston , 6 CIR 4l6, 42l (l983); Millard Educ. Ass'n v. School Dist. of Millard , 5 CIR 425, 434 (l982).

In Respondent's brief, it is argued that Schuyler has a higher than average maximum salary on the last step of the first columns in the schedule and that the Association doesn't take into consideration the number of years it takes to reach the last step in a column. While this appears to be true, it is because of two factors: Schuyler's index is above the prevalent and their number of steps on the later columns is below the prevalent. See Table 2.

Increasing the number of steps on these columns would have the effect of moving 9 teachers downward in the last three columns, giving them a higher index factor. The placement of the other 22 teachers would remain the same. We have calculated what effect adding the steps would have on the base salary. With such a change, the base salary would be $l3,339 and without the change, base salary would be $l3,480, a difference of $l4l.00. An addition of steps would cause 22 of the 3l teachers to receive less of a salary increase than if no steps were added.

The Commission has found that it is not enough to look at steps in columns alone when the index factors differ among schools. Ralston Education Ass'n , at 420. While the teachers are below comparable in the number of steps on the MA columns, the index of 5 x 5 selected by Schuyler is above the prevalent and enables the teachers to increase their salary at a faster rate than if their index factors were lower. We have ruled that such variations may balance each other. School Dist. No. l25, a/k/a Medicine Valley Public Schools v. Curtis Education Ass'n , 7 CIR 96 (l983). To leave the index factor of 5 x 5 as it is and to add the steps requested would put Schuyler above the prevalent.

Looking at the salary schedule on the whole, we find that the variations balance each other and that, while an increase in steps might fit the criteria of prevalency, such a change would result in a material disturbance of the internal balance of the salary schedule. Therefore, we decline to adjust the salary schedule index.


Section 48-8l8 requires that we take into consideration all wages and fringe benefits received when determining wage rates.

Table 3 sets forth the compensation figures at the compared to school districts. These figures have been adjusted, where necessary, for differences in contract days. Applying the statutory criteria of Section 48-8l8 to the evidence in this case, we find that the base salary for teachers at Schuyler for the 1985-86 school year should be $l3,480.


l. That the base salary amount for School District No. l23, Colfax County shall be $l3,480, effective for the 1985-86 school contract year.

2. That the structure of the index salary schedule shall remain unchanged.

3. That except for base salary and structure of the index salary schedule, the conditions of employment for the teachers employed by School District No, l23, Colfax County for the 1985-86 contract year shall be as previously established by agreement of the parties.

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

Entered August 19, 1986.