9 CIR 173 (1987)


An Unincorporated Association, |
Petitioner, |
Respondent. |


For the Petitioner: Mark D. McGuire

Crosby, Guenzel, Davis,

Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska 68508

For the Respondent: Les Seiler

Bruck, Seiler & Smith

726 East Side Blvd.

P.O. Box 188

Hastings, NE 68901

Before: Judges Mullin, Cullan and Cope



The Petitioner (Association) in this matter requests that we establish specific terms and conditions of employment for the 1986-87 contract year at School District No. 1, Adams County, Nebraska. District No. 1 is a Class I school district which employs eight teachers. It had an enrollment of 140 1


1Petitioner's Exhibit No. 4 shows District No. 1 student enrollment as 145 students. Respondent's Exhibit No. 11 shows District No. 1 student enrollment as 140. We have chosen to use 140 as the correct number. However, whether or not 140 or 145 is used would not change our findings in this case.

students for the 1986-87 school year. A pretrial conference was held on March

30, 1987 which determined the issues to be:

proper array

base salary

index salary structure

- post BA hours must be toward MA

- vertical and horizontal increments

The Commission takes jurisdiction under Section 48-818 to permit a comparison of terms and conditions of employment.


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.


The Association and the Respondent (District) both presented comparisons with the following five common school districts: Adams Co. #15, Adams Co. #60, Hall Co. #3, Hall Co. #501 and Wood River. In addition to the five common school districts, the Association included in its proposed array the school districts of Bellwood and North Bend. The District included Buffalo Co. #14 and St. Libory in its proposed array. By joint stipulation filed March 30, 1987 the parties agreed that the work, skill and working conditions at the proposed array points are similar enough to the District No. 1 employment to allow a comparison of terms and conditions of employment under Section 48-818.

When choosing an array of comparable employers under Section 48-818, we consider evidence of the relative size and proximity of proposed array members to the employer in question as well as other evidence indicating the employments selected for comparison are sufficiently similar and have enough like characteristics or qualities to make comparison appropriate in that situation. School District of West Point v. West Point Education Association , 8 CIR 315, 317 (1986). In the case of Class I school districts, a lack of sufficient employments within close geographic proximity warrants our use of districts of comparable size and class from a larger portion of Nebraska in which teachers exhibit like or similar skills under same or similar working conditions. Schuyler Education Association v. School District No. 5 , 5 CIR 92 (1980). We have often held that employers used for comparison should generally range from one-half to twice as large as the employer in question. Diller Education Ass'n v. School District 103 , 7 CIR 196, 200 (1984). Additionally, we prefer balanced arrays with school districts both larger and smaller than the district in question. See , Diller Education Ass'n at 200.

In the instant case, all of the common and proposed school districts meet the "one-half to twice" size requirement. The only exception is Adams Co. #15 which is slightly less than one-half the size of District No. 1 although it is included in the array because it is a common array point.

The factor of geographic proximity is determinative in this case, other factors being equal. The District argued that Bellwood and North Bend should be excluded from the array based on the fact they are over 100 miles away from District No. 1, twice the distance of the other proposed array members. At trial the Association argued for the inclusion of Bellwood and North Bend based solely on the factor of size, ignoring the distance issue. As stated above, we may select schools located a substantial distance from the school in question when no comparable employments are geographically proximate.

North Bend is the largest school district proposed by the parties and is also the district located the furthest from Juniata. Neither party presented evidence on the community of interest that currently exists between Juniata and any of the proposed array members. In State Code Agencies Education Ass'n v. Department of Correctional Services , 7 CIR 226, 232 (1984), aff'd, 219 Neb. 555, 364 N.W.2d 44 (1985), we held that an array of six to eight employers is an appropriate array. With the exclusion of North Bend and the inclusion of all other proposed array members, the result is a relatively balanced array comprised of eight employers. There are five smaller school districts and three larger districts. It should be noted however, that the student enrollment does not vary substantially between any of the schools in the array. To include North Bend in the array would serve no purpose other than to increase the geographic area covered by the array. Consequently, North Bend will not be included in the array. Bellwood is closer in size and geographic proximity to Juniata and adds adequate balance to the array.

Based on the evidence presented the Commission finds the appropriate array to include: Adams Co. #15, Adams Co. #60, Bellwood, Buffalo Co. #14, Hall Co. #3, Hall Co. #501, St. Libory and Wood River.


The District contends that the current 4.5 x 4.5 index salary schedule in use at Juniata is not comparable to the prevalent. The Association argues for the continuance of the Juniata index salary schedule based on the contention that we prefer allowing current index salary schedules to stand. The Association also argues that a change in the salary schedule will have a negative impact on each Juniata teacher. Though we have held that index salary schedules are susceptible to Section 48-818 analysis, we have often relied on the collective bargaining process to effect such changes in the salary schedules. See , Valentine Education Association v. School District No. 6 , 8 CIR 271 (1986). This is due in part to the varying effects the change in schedules may have on the teachers within the bargaining unit in question. In the absence of a "substantial variance from the prevalent practice" we have been hesitant to disturb past practices of the parties. West Holt Faculty Association v. School District No. 25 , 5 CIR 301, 309 (1981). Whether there has been a "substantial variance from the prevalent practice" must be determined on a case by case basis.

In the present case, the parties bargained substantially over the salary schedule issue and were not successful in reaching an agreement. Pursuant to the mandate of Section 48-810, industrial disputes, such as this one, shall be settled by invoking the jurisdiction of the Commission.

The evidence indicates that a 4 x 4 salary schedule is the prevalent condition in the Commission's array. Five of the eight schools found to be comparable to Juniata have a 4 x 4 salary schedule. Of the remaining three, only one, Adams Co. 15, has the same vertical and horizontal increments that currently exist at Juniata.

The Association presented an exhibit illustrating the detrimental effects it believes a change in the current salary schedule indices would have on the teachers employed at Juniata. See, Petitioner's Exhibit 14.

Table 3 illustrates two sets of teaching salaries. Column 4 projects the salaries at Juniata for the 1986-87 school year using the present salary schedule (4.5 x 4.5) and the Commission's newly established base salary of $13,751. Column 5 projects the salaries at Juniata for the same school year using the District's proposed 4 x 4 salary schedule. This lower index produces a substantially higher base salary of $14,204. Presently the teaching staff at Juniata is governed by the negotiated agreement from the 1985-86 school year. The language of the agreement is such that the terms of the agreement continue until replaced by a successor agreement. Pursuant to this agreement, the base salary paid at Juniata for the 1986-87 school year has been $12,800.

Notwithstanding a change in the current salary schedule, the evidence indicates that a substantial increase in the teaching salaries at Juniata is warranted. If the schedule is changed to a 4 x 4, which is in fact prevalent in the Commission's array,three teachers will receive salaries slightly higher than they would receive under a 4.5 x 4.5 schedule, and five teachers will receive salaries slightly lower than they would receive under a 4.5 x 4.5 schedule. Column 6 of Table 3 sets forth the dollar amount differences in salaries between the two schedules. It should be noted that no teacher will suffer a cut in pay due to the District's proposed change in the salary schedule, rather, the increases received by five teachers will be slightly less than they would have received under the present salary schedule. All the teachers employed at Juniata will receive a substantial increase in salary over the previous school year. Moreover, under the District's proposal the salary offered recent graduates is raised to a level competitive with other school districts in the labor market. A 4 x 4 salary schedule is supported by the evidence and provides considerable benefit to both parties.

Based on the above considerations, we find that the current 4.5 x 4.5 salary schedule at Juniata should be modified to a 4 x 4 schedule for the remainder of the 1986-87 school year.

Another issue stated in the Pretrial Conference Report on March 30, 1987 was whether post-BA hours must go towards a MA degree to be credited toward movement on the salary schedule. As stated in the Association's brief, the District did not present any evidence on the post-BA hours. The only evidence on post-BA hours is in the Association's Exhibit 3 which is the 1984 two-year bargaining agreement between the parties. The bargaining agreement contains a Negotiated Addendum which states the following:

Teachers planning to earn credits for horizontal advancement on the salary schedule shall receive prior formal approval from the Superintendent before registering for the course. All such hours shall be graduate hours and related to the job assignment and must have been earned since the last degree was acquired.

(Association's Exhibit No. 3, Negotiated Addendum).

Without further evidence to the contrary, it appears that the Superintendent of District No. 1 has discretion on whether or not to approve credits going towards horizontal advancement on the salary schedule. Since this appears to be the agreement under which the parties are currently operating, the Commission will not disturb the policy. The evidence does not warrant a change from the prior practice set out in the 1984 agreement.


1. That the base salary amount for School District No. 1, Adams County, Nebraska shall be $14,204, effective for the 1985-86 school contract year.

2. That the structure of the index salary schedule shall be modified to a 4 x 4 index salary schedule for the remainder of the 1986-87 school year.

3. That except for base salary and structure of the index salary schedule, the conditions of employment for the teachers employed at District No. 1, Adams County for the 1986-87 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 June 1, 1987.