9 CIR 13 (1986)


Unincorporated Association, |
Petitioner, |
Subdivision, |
Respondent. |


For the Petitioner: Mark D. McGuire

Crosby, Guenzel, Davis,

Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska 68508

For the Respondent: John F. Recknor

Barlow, Johnson, DeMars & Flodman

1227 Lincoln Mall

Post Office Box 81686

Lincoln, Nebraska 68501

Before: Judges Orr, Cope, and Mullin



On January 27, 1986, Educational Service Unit No. 9 Education Association, hereafter called Association, filed a Petition with the Commission of Industrial Relations alleging that an industrial dispute over terms, tenure and conditions of employment existed between the Association and Educational Service Unit No. 9, hereafter ESU 9. On February 4, 1986 the Association moved the Commission for an order requiring the parties to submit to fact finding. The Commission denied the motion and set the matter for pretrial and trial. On May 8, 1986 the parties jointly stipulated to resume good faith negotiations over certain terms and conditions of employment, holding in abeyance any further action by the Commission. Resumed negotiations apparently failed and on July 14, 1986 the Association requested the Commission to set the matter for Trial. A Trial was held on September 4, 1986. The issues for resolution by the Commission are expense reimbursement for professional workshops and base salary for the 1985-86 school contract year.

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....


The issue of whether Educational Service Units (ESUs) should be compared to ESUs or to Nebraska school districts was recently addressed in Educational Service Unit No. 15 Educational Association v. Educational Service Unit No. 15 , 9 CIR 1 (1986).

In that case the Commission found:

We conclude that the work, skills, and working conditions of ESU teachers are peculiar to their statutory employment arrangement and differ in several aspects from the work, skill and working conditions of teachers in the Nebraska school districts. Therefore, the other ESUs and not the school districts, "are sufficiently similar and have enough like characteristics or qualities to make comparison appropriate" ( Fraternal Order of Police v. County of Adams , supra), and we find that an array comprised solely of ESU's is the appropriate array for comparison herein.

Id at 5.

Recognizing that each case must be decided on the basis of its own evidence, we find that based upon the facts in the record, the following ESUs selected for comparison are sufficiently similar and have enough like characteristics or qualities to make such comparison appropriate: ESU 2, ESU 4, ESU 7, ESU 8, ESU 10, ESU 11, and ESU 16. Table 1 presents a comparability summary of the evidence presented.


The Association seeks an expense reimbursement policy which would entail reimbursement for all expenses incurred while attending workshops pre-approved by the Administration at ESU 9. Although the Association's Exhibit No. 8 provides us with evidence that, in fact, six of the seven ESUs polled do have some type of reimbursement policy, there is not a defined prevalent policy among these array members. As we have stated previously:

The Commission of Industrial Relations cannot order a specific condition of employment unless there is evidence in some detail defining the prevalent condition. Section 48-818 does not authorize the Commission to enter an order from a composite of generalized statements.

City of Omaha v. Omaha Police Union Local 101 , 5 CIR 171 (1981).

The Association has met its burden of proof in establishing that without a reimbursement policy, the conditions of employment at ESU 9 are not comparable to the prevalent. Therefore, an expense reimbursement policy must be implemented at ESU 9; however, the specific content of said policy shall be worked out by mutual agreement of the parties.


The remaining issue for resolution by the Commission is a determination of base salary. ESU 9 poses a unique problem in that it has three separate salary schedules for a single bargaining unit. The instructional staff schedule provides the base for the other two schedules. The nursing staff salary schedule is 84% of the BA minimum. The Assessment Center Teaching Consultant salary schedule, hereafter the AC/TC schedule, is 110% of the BA minimum.

In order to compare the three-schedule arrangement at ESU 9 to other single-schedule ESUs, the Association has determined a total staff index factor which includes all members of the bargaining unit. The nurses' faculty index values were converted to a percentage of the instructional staff factor however, no similar adjustments were made when the AC/TC faculty index values were transferred to the instructional staff schedule. The Association argues that the index factors of the AC/TC staff should not be adjusted by 10% when transferred to the instructional schedule, rather that the 10% adjustment be made after the AC/TC index factor is multiplied by the instructional staff base salary to achieve the AC/TC salary. By using the latter method, the resulting total staff index factor is lower than if the AC/TC index factor values are converted to a percentage of the instructional base.

The Association's position is that an increase in the AC/TC staffs' index factor will adversely impact certain individuals by reducing the amount of money available for the instructional base. (The higher the total staff index factor, the lower the instructional base salary). Furthermore, the Association contends that the additional 10% compensation received by the AC/TC staff represents payment for extra duties and responsibilities and therefore, should not be taken from the instructional salary "pool."

The Unit argues that all faculty index factors of the bargaining unit members should be converted to an instructional schedule faculty index value. Additionally, the Unit provided testimony that none of the AC/TC staff members in the bargaining unit have supervisory obligations. All AC/TC staff members with such supervisory responsibilities were excluded from the unit at the time of its formulation. Furthermore, the Director of Special Education/Special Services at ESU 9 testified that the individuals placed on the AC/TC schedule were placed there due to their "high tech" skills and services, the uniqueness of their duties. The additional 10% salary adjustment is incentive to attract individuals with certain educational qualifications, individuals the Unit would normally have trouble recruiting.

In determining the total staff index factor for ESU 9 we have converted both the nurses' and the AC/TC staffs' index factor values to a percentage of the instructional staff factor. Table 2 summarizes the conversion of the AC/TC staff index factors to instructional staff index factors. Exhibit No. 18 was used to correct previous errors in staff index factors.

The weight of the evidence presented supports the use of converted index factors for the AC/TC staff. Subsequently, we find that the total staff index factor of 135.976 is the proper factor to use in our base salary determination.

Applying the statutory criteria of 48-818 to the evidence in this case, we find that the instructional base salary for teachers at Educational Service Unit No. 9 should be $13,786 for the 1985-86 school year.


1. That an expense reimbursement policy for professional workshops be implemented by ESU 9. The specific content of such policy to be worked out by mutual agreement of the parties.

2. That the instructional base salary amount for Educational Service Unit No. 9 shall be $13,786, effective for the 1985-86 school contract year.

3. That the nursing staff base salary amount for Educational Service Unit No. 9 shall be $11,580, effective for the 1985-86 school contract year.

4. That the AC/TC staff base salary amount for Educational Service Unit No. 9 shall be $15,985, effective for the 1985-86 school contract year.

5. That the amount due for the 1985-86 school contract year 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 October 24, 1986.