9 CIR 188 (1987)


Petitioner, |
Respondent. |

Appearances :

For the Petitioner: Mark D. McGuire

Crosby, Guenzel, Davis,

Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska 68508

For the Respondent: L. Bruce Wright

Cline, Williams, Wright,

Johnson & Oldfather

1900 FirsTier Bank Bldg.

Lincoln, Nebraska 68508

Before: Dean G. Kratz, Jeffrey L. Orr, Robert W. Mullin, Thom K. Cope, and David J. Cullan (EN BANC); Mullin & Cullan dissenting.



The Petitioner Association commenced this action on February 12, 1987 seeking a determination of wages and terms and conditions of employment for the 1986-87 school contract year. The Respondent District, Grand Island, is a Class III school district employing 472 teachers. Student enrollment for the 1986-87 school year at Grand Island was 7,124.

The issues for determination at trial as set forth in the Report of Pretrial Conference are the following: base salary; insured fringe benefits including health and life insurance; long term disability insurance; and index salary schedule.

On August 3, 1987, upon motion of Judge Jeffrey Orr, the Commission ordered that the pending case be decided by the entire Commission sitting En Banc.

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


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 and have enough like characteristics or qualities to make comparison appropriate. Schuyler Education Association v. School District No. 123, Colfax County, 8 CIR 331 (1986). When choosing an array of comparable employers, the Commission considers evidence of the relative size and proximity of proposed array members to the employer in question, as well as other evidence that indicates similarity of work, skills and working conditions.

The parties to this action presented considerable evidence in support of their respective arrays. Although the Petitioner and Respondent agree on the inclusion of three districts in the Commission's array, Fremont, Kearney and Norfolk, there is much disagreement as to the remaining seven schools: Beatrice, Bellevue, Columbus, Hastings, Lincoln, Millard and North Platte. Our Findings are not findings of law, but rather, findings of fact. In making these factual determinations concerning the appropriate array in a specific case, the Commission looks to the evidence introduced by the parties at trial. As this evidence varies from case to case, the Commission's determinations will also vary accordingly.

Several factors were essential in determining the present array. At the outset it must be noted that Grand Island is a unique school district. It is the largest Class III, AA accredited district outside the Omaha metropolitan area and the fifth largest school district in the state. As evident from the comparability data set forth on Table 1, none of the districts located in close geographic proximity to Grand Island are approximate in size. The district closest in size to Grand Island, Bellevue, is also the district located the farthest away. Furthermore, of the ten districts offered for comparison purposes, only five meet the size criteria the Commission has often used in determining comparability. The Commission has frequently found that employers used for the purpose of comparison should generally range in size from one-half to twice as large as the employer in question. School District of West Point v. West Point Education Association, 8 CIR 315 (1986). The School Districts of Beatrice, Columbus, Hastings, Lincoln and Millard do not fall within this size range. Geographic proximity also presents a problem in the present case. Six of the ten districts offered are located over 100 miles from Grand Island; they are Beatrice, Bellevue, Fremont, Millard, Norfolk and North Platte. Two of these districts, Bellevue and Millard, are also located in the immediate Omaha Metropolitan area. If the Commission were to strictly apply the criterian of size and geographic proximity often used in Section 48-818 cases to the ten districts offered here, only one district, Kearney, would fall within the established parameters of these objective guidelines. However, these criterian are only guidelines and the Commission has traditionally exercised a degree of flexibility when applying them.

An array comprised of one school district is clearly unsuitable for a Section 48-818 determination. Thus it is in a case such as this that we often turn to evidence of "more subjective indications of comparability" to aid us in determining the appropriate array. See, West Point at 317, 318. Discretionary indications of comparability include, but are not limited to athletic conference membership and community of interest demonstrated by athletic and non-athletic contacts. Tekamah-Herman Education Association v. School District of Tekamah-Herman, 9 CIR 78 (1987). Flexible application of the size and geographic proximity criterian coupled with a review of the more subjective indications of comparability provided the basis for our array selection in this case.

Petitioner's Array

In addition to the three common array members, Petitioner offered the following schools for comparison purposes: North Platte, Lincoln, Millard and Bellevue. Lincoln, Millard and Bellevue are respectively, the second, third and fourth largest school districts in the state. Omaha is the largest and Grand Island, as previously stated, ranks fifth in size.

In an attempt to achieve a "balanced" array, (relying on size only), Petitioner argued extensively for the inclusion of Lincoln, Millard and Bellevue in the Commission's array. They presented persuasive evidence for inclusion of these districts traditionally not used by Grand Island for comparison purposes. Assuming the Commission were to use an array of six districts, the Petitioner is correct; the ideal composition would be three districts smaller than Grand Island and three larger. To achieve that end we would have no choice but to use these larger districts in our comparison, in spite of their considerable size differences and larger urban locations.

Based on all the evidence presented however, we find that the characteristics and qualities of Lincoln, Millard and Bellevue differ so substantially from Grand Island as to make comparison inappropriate in this case. To include these districts for the sole purpose of achieving an array with the same number of larger and smaller schools in not warranted. While it is true that whenever possible the Commission strives to achieve an array reasonably balanced with school districts both larger and smaller than the district at issue, Diller Education Association v. School District 103, 7 CIR 196, 200 (1984), balance does not outweigh comparability. The mandate of Section 48-818 directs the Commission to establish wages and terms and conditions of employment based on same or similar work, skills and working conditions.

From the Petitioner's proposed array members we exclude Lincoln, Millard and Bellevue. No single factor or criteria was essential in this determination. We have, however, given careful consideration to the evidence presented on student enrollment and geographic proximity as these factors provide a strong indication of same or similar work, skills and working conditions. See, West Point at 319. Evidence on the more subjective indications of comparability has also been considered in our decision. The weight of all this evidence overwhelmingly supports eliminating Millard and Lincoln from our array. The exclusion of Bellevue from the array however, was not as easy, due in part to the unique facts of this case. Bellevue is the only school district in the State with a student enrollment similar to Grand Island. With a limited number of comparables available, a through review of the evidence preceeded our decision to exclude this district which fit the size criteria so closely. After finding that size alone is the only similarity these two districts share, Bellevue was excluded from the Commission's array.

All three of the excluded districts are located a considerable distance from Grand Island. Bellevue is the least proximate district, located almost 150 miles from the Respondent. Millard, located 140 miles northeast from Grand Island, is the second furthest district among the proposed array members and Lincoln is nearly one hundred miles from Grand Island. Moreover, each of these districts is located in an urban setting in the eastern most portion of the state, as opposed to the more rural location of Grand Island and the Greater Nebraska school districts.

Application of the Commission's size criteria was also instrumental in our decision to exclude certain schools from the Petitioner's array. Student enrollment in Lincoln is substantially greater than the enrollment in Grand Island. In fact, the student population at Lincoln is well over three times that of Grand Island. Not only does Lincoln have a greater total student population, but to accomodate the secondary student body Lincoln maintains four high schools while Grand Island has only one. The Millard district is also well outside the parameters of the Commission's size criteria. Its student enrollment is over two times the enrollment at Grand Island. Consequently, Millard maintains twice the number of high schools (2) that Grand Island maintains. While Bellevue's student enrollment does fall within the size guidelines of the Commission, it also operates two high schools, compared to Grand Island's one.

Turning now toward evidence of the subjective indications of comparability, Respondent introduced evidence at trial of the various contacts, administrative, extracurricular and athletic, that each school district has with Grand Island (Respondent's Exhibit No. 13). Millard and Bellevue have far fewer contacts with Grand Island than any of the other proposed school districts. The Superintendent of Grand Island Schools, Larry Dlugosh, testified at length as to the extent of the scheduled contacts Grand Island has with each of the proposed school districts. In particular, Dlugosh testified that the Superintendents of the Greater Nebraska Athletic Conference meet quarterly to discuss issues important to their various districts and regularly share ideas on a less formal basis. Common topics of discussion include school board policies, negotiations, curriculum development and general educational issues. Neither Millard nor Bellevue administrators are members of this group. Although Lincoln is technically eligible to participate in these meetings, Dlugosh testified that they have never, to his knowledge, done so. These same school districts, the Greater Nebraska districts with the exception of Lincoln, also meet regularly to discuss business matters and curriculum development and planning at the Conference's Business Officers Meetings and Curriculum Officers Meetings.

The many unique qualities of Bellevue, as testified to by Gary Krahlman, Administrative Assistant to the Superintendent, provide additional reasons for excluding it from our array. Bellevue is an anomoly in the State and may, in fact, not even be comparable to other Omaha metropolitan school districts. Sixty-five percent of its student body is federally connected due to the presence of Strategic Air Command in the area. Furthermore, a sizeable percentage of the student population is "foreign born" and represents "many nationalities" (T162:16-22). To meet the varied needs and expectations of this unusual student body, the Bellevue teaching staff is itself quite diverse and fluid.

Although Bellevue appears to be the only school district in the state comparable to Grand Island in size, a review of the evidence substantiates our exclusion of this district from the array. The emphasis in a section 48-818 case must be on overall comparability and one factor alone cannot verify comparability. The evidence presented by the Respondent advocating the exclusion of Bellevue from the array far outweighs Petitioner's evidence in support of Bellevue.

Respondent identified the following areas of dissimilarities between Grand Island and Bellevue: few scholastic, extra-curricular and administrative contacts exist between the two districts; Bellevue is located in the Omaha metropolitan area and has historically used the Omaha metro schools for comparison purposes (T157:24-25, T158:1-4), while Grand Island is located in a more rural setting and has traditionally used many of the Greater Nebraska schools for comparison (T214:23-25, T215:1-11); Bellevue salaries are competitive with the Omaha metro schools' salaries, not the Greater Nebraska schools' salaries, as Omaha is the job market in which Bellevue competes for its teachers (T158:9-25); Bellevue offers unique programs due to its diverse student body (T162:16-22); Grand Island does no recruiting of teachers out-of-state (T212:22-24) while thirty to forty percent of the teaching staff at Bellevue received their teaching degrees outside of Nebraska and the remainder are hired primarily from the two University of Nebraska campuses (T159:22-25, T160:1-3); and Bellevue is the least geographically proximate district of all the school districts offered for comparison to Grand Island. Because of these dissimilarities we find that Bellevue is inappropriate for inclusion in our array.

North Platte, although located a substantial distance from Grand Island falls well within the Commission's size criteria, participates actively in the Greater Nebraska Conference, has historically been used by Grand Island for comparability purposes, and according to the testimony of the Grand Island superintendent, shares a community of interest with the Grand Island School District (T227:5-9). For all these reasons we find North Platte is sufficiently similar and has enough like characteristics to make comparison to Grand Island appropriate in this case.

Respondent's Array

Respondent's proposed array, in addition to the common schools of Fremont, Kearney and Norfolk, includes Beatrice, Columbus and Hastings. All of Respondent's array members are considerably smaller than Grand Island. In fact, Beatrice, Columbus and Hastings all have student enrollments less than one half of the enrollment of Grand Island.

Respondent argues that a balanced array is irrelevant in this case. However, as stated above, Grand Island presents a unique case. Without a selection of schools larger in size, we must give very careful consideration to those schools which we do include that are smaller in size. Based on the evidence presented at trial we find that the characteristics and qualities of Beatrice and Columbus are not similar enough to Grand Island to warrant inclusion in the Commission's array.

Like the larger school districts, the substantial size difference between Grand Island and Beatrice and Columbus was instrumental in our decision to exclude these districts from the array. Beatrice has less than one third the student population that Grand Island has and Columbus has well under one


In excluding Beatrice from the Commission's array we also considered the fact that the district is located nearly 140 miles from Grand Island. This fact, together with the disparate size of Beatrice, provides adequate support for the removal of this district from the Commission's array. A brief review of the contacts between Beatrice and Grand Island further substantiates our decision to exclude it from the array. The evidence indicates that Beatrice has fewer contacts with Grand Island than any of the other proposed school districts, exclusive of Bellevue and Millard.

The three school districts mutually agreed upon by the parties will be used by the Commission in our array. In addition to Fremont, Kearney and Norfolk, Petitioner's evidence indicates North Platte is appropriate for inclusion in our array. Respondent's offer of Hastings as a comparable district is also accepted. The evidence fully supports the inclusion of Hastings in the Commission's array. Hastings is the most geographically proximate district to Grand Island and shares the most administrative, athletic and extra curricular contacts with Grand Island. Although it falls slightly outside the Commission's size criteria, the variance is not substantial and as previously stated, the Commission is somewhat flexible in the application of this objective criteria.

The following array of school districts shall be used for the purposes of comparison in this case: Hastings, Fremont,Kearney, Norfolk and North Platte. These school districts are sufficiently similar and have enough like characteristics or qualities to make comparison with Grand Island appropriate.


Respondent argues that the current salary schedule structure at Grand Island is not comparable to the prevalent structure in the Commission's array and, therefore, should be modified.

A review of the evidence presented at trial indicates that Respondent is, in fact, correct in its contention that the schedule at Grand Island is an anomoly among the Greater Nebraska school districts. The majority of these schools maintain salary schedules with nine hour horizontal increments and indices considerably smaller than Grand Island's 9% horizontal index.

Although the Commission has found that index salary schedules are susceptible to analysis under Section 48-818, we have frequently favored the position that modification or changes are best effected through the collective bargaining process. Valentine Education Association v. School District No. 6, 8 CIR 271 (1986). This is due in part to the varying effects of different schedules upon teachers within the bargaining group. See, Valentine Education Association v. School District No. 6, 8 CIR 271 (1986). Notwithstanding this position, where the evidence indicates that parties have bargained over the salary schedule issue and have been unsuccessful in reaching an agreement, the Commission has settled the dispute based on the prevalent practice in the array. See, Juniata Education Association v. School District No. 1, Findings and Order, June 1, 1987. The facts of the Juniata case are however, easily distinguishable from the present case.

The uncontroverted testimony of Gerald Persinger, President of the Grand Island Education Association, is that a change in the index salary schedule was never an issue during the 1986-87 contract negotiations (T155:4-8). In fact, the issue of changing the current salary schedule was not raised until after an impasse was reached. To the contrary, in Juniata the evidence established that the parties bargained over the issue of a salary schedule modification but were unable to reach an agreement. The Commission subsequently held, "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.", Juniata at 4.

Where the parties have either not had or not taken the opportunity to bargain over an issue of such paramount importance, we will not order a change from the current condition. This finding is consistent with previous Commission findings in which we have found that changes in salary schedules are best achieved through negotiations. See, Tekamah-Herman Education Ass'n v. School District of Tekamah-Herman, 9 CIR 78 (1987).

For the above stated reasons, we decline to alter the current salary schedule at Grand Island. The present schedule shall remain intact for the remainder of the 1986-87 contract year.


A summation of the fringe benefits at issue is provided in Table 3. In establishing wage rates Section 48-818 states that:

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 employees.

(emphasis added)

Taken in their totality, we determine that the fringe benefits at Grand Island, as set out in Table 3, are comparable to the prevalent benefits offered at the districts in our array. In making this determination, we have considered all the benefits reflected in the evidence. We, therefore, decline to alter the long term disability, life insurance and health insurance policies currently in place at Grand Island for the 1986-87 contract year.


1. That the base salary for the teachers of Grand Island School District shall be $13,683.00 for the 1986-87 contract year.

2. That all other terms and conditions of employment for the 1986-87 contract year shall remain as previously established by agreement of the parties.

Entered September 1, 1987.

Robert W. Mullin, Dissenting:

Based on the size and proximity guidelines frequently used by the Commission in establishing an array for comparison purposes under Section 48-818, I would include Bellevue School District in the Commission's array. Bellevue is within reasonable geographic proximity to Grand Island and also has a student enrollment figure very similar to Grand Island.

David J. Cullan concurs with this dissent.

Tables in this case were of LTD, life insurance, health insurance.