9 CIR 201 (1987)


Petitioner, |
Respondent. |


For the Petitioner: Mark D. McGuire

Crosby, Guenzel, Davis,

Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska 68508

For the Respondent: Kenneth J. Fossen

Mousel Law Firm, P.C.

Three Hundred Norris Avenue

P.O. Box 130

McCook, Nebraska 69001

Before: Judges Cope, Mullin, and Cullan



The Trenton Education Association (Petitioner), in its Petition, requests the Commission to establish terms and conditions of employment for the 1986-87 contract year at Trenton School District, Hitchcock County, Nebraska. The specific term of employment the Petitioner seeks the Commission to establish is base salary. Trenton School District (Respondent), in its Answer, requests the Commission to address the following additional terms and conditions of employment: salary schedule, overload pay, health and income protection insurance, sick leave exchange and sick leave bank.

Trenton School District is a Class III School District with a student enrollment for the 1986-87 school year of 204 students. 1


1Nebraska Education Directory, Eighty-Ninth Edition 1986-87, Nebraska Department of Education.

The District employed twenty three teachers during the contract year in question.

A Pre-Trial Conference was held on June 1, 1987. At the Conference, Petitioner requested the Commission to determine whether the issues raised by the Respondent in its Answer are, in fact, moot. Accordingly, the mootness of the Respondent's issues is an additional controversy to be determined by the Commission.


The Commission has jurisdiction over the parties and the subject matter of this action. The controlling statute is Section 48-818, R.R.S. 1943 (Reissue 1984), which provides 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.


The Petitioner has submitted an array of eight school districts for consideration by the Commission. The districts included in the Petitioner's array are: Cambridge, Culbertson, Curtis, Hayes Center, Maywood, Palisade, Stratton and Wauneta. The Respondent has submitted an array of eleven school districts. The districts included in the Respondent's array are: Arapahoe, Beaver Valley, Cambridge, Culbertson, Hayes Center, Maywood, Medicine Valley, Stratton, Wallace, Wauneta, and Wheatland. The six common array points provided by the parties are: Cambridge, Culbertson, Hayes Center, Maywood, Stratton and Wauneta. Relevant information on each proposed array members is set forth on Table 1.

These common array points all meet the Commission's criterion of geographical proximity and relative size. See, Schuyler Education Ass'n v. School District No. 123, 8 CIR 331 (1986) and School District of West Point v. West Point Education Ass'n, 8 CIR 315 (1986). By using the common array points, there are three smaller and three larger and this provides an appropriate basis for comparison. An array of six school districts is an array of appropriate size for purposes of a Section 48-818 case. The Commission has frequently found that six to eight employers provide an adequate array for comparison purposes. State Code Agency Education Ass'n v. Department of Correctional Services, 7 CIR 226 (1984), affirmed, 219 Neb. 555, 364 N.W. 2d 44 (1985). After considering all the evidence of comparability provided by the parties, we find that the following school districts are sufficiently similar and have enough like characteristics and qualities to make comparison appropriate in this case: Cambridge, Culbertson, Hayes Center, Maywood, Stratton and Wauneta.


The parties have obtained the enrollment figures of their respective array points from different sources. The Petitioner has relied upon the Nebraska Educational Directory for its enrollment figures for the 1986-87 school year. This publication has been used by both the Commission and numerous parties in previous CIR litigation. It is a reference source whose accuracy has repeatedly been recognized by the Commission. The Respondent's data was derived from survey responses received by the Respondent from each proposed school district during the 1986-87 school year. Whether Respondent's or Petitioner's enrollment figures were used in our Findings, the outcome of the case would remain the same. Although it is true that the Commission has frequently found that districts used for comparison purposes should range in size from one-half to twice as large as the district in question, this criteria is only a guideline and we have traditionally exercised a degree of flexibility when applying it. Grand Island Education Association v. School District of Grand Island, Findings and Order issued September 1, 1987. Regardless of whose figures are used, the six common districts all have student enrollments that fall well within the parameters of this size guideline. The slight variances in the enrollment figures of the present parties are not detrimental to comparability. However, due to the controversy surrounding the different sources of enrollment data, we will briefly address the issue in the present case.

The Nebraska Education Directory is an annual publication published by the Nebraska Department of Education. The information provided in the directory is obtained from the Fall Personnel Curriculum System and is revised yearly to reflect accurate information on enrollment and staff for the relevant academic year. The various teacher associations affiliated with the Nebraska State Education Association have consistently relied upon the information in this directory when preparing their cases for the Commission, as have a number of school districts. Moreover, the Commission itself has relied upon information received from this directory when there is inadequate or inconsistent evidence presented by the parties. See, Schuyler Education Ass'n v. School District No. 123, 8 CIR 331 (1986). The directory provides objective, accurate information on enrollment figures for the year in question and is a source equally accessible to both parties. Furthermore, exhibits, whose data is derived from this source are easily verified by the Commission in cases where conflicting evidence is presented by the parties. Survey information, although presumably accurate at the time of polling, may vary substantially depending on the date of the survey and the period it covers. Parties polling the same district may receive different information in their individual surveys if the surveys are not conducted at the exact same time and do not cover the same time frame. All the uncertainty present in the survey procedure is easily avoidable if the enrollment figures from the Directory are utilized by the parties. For all the above-stated reasons we will use the enrollment figures presented by the Petitioner in the present case.


The respondent has raised a number of issues for resolution by the Commission, which the petitioner claims are moot because the 1986-87 school year was over at the time of trial on June 22, 1987. These issues include: naming the insurance carrier, sick leave bank, sick leave exchange, and overload pay. Table 2 sets forth information on each of these issues relative to the array.

The problem we typically have with issues of this type is when the matter is finally submitted to us for decision, the dispute has passed. Once the school year is completed, many of the issues raised in the dispute no longer exist. If we were to rule on those issues, the ruling would clearly only have application in the future. We have previously declined to make such advisory type rulings for contract years not yet in dispute. District No. 8 Elementary Teachers Association v. School District No. 8, Dodge County, 8 CIR 126 (1985); School District No. 125 v. Curtis Education Association, 7 CIR 96 (1983); Winnebago Education Association v. School District of Winnebago, 8 CIR 138 (1985).

The dispute here, as defined by the pleadings, is limited to the contract year 1986-87. To the extent that disputed issues ceased to exist at the conclusion of that contract year, they are moot. Respondent argues that the issue of wages should likewise then be declared moot. That argument is without merit. We have the authority to alter wages and to do so does have impact on the parties even though the contract year has expired. For instance, the employer may have to pay additional salary, in lump sum, to the employee. But to rule that an employer does not have to use a specific vendor for its health insurance package for a contract year which has passed and which term has been fully performed is an empty ruling.


This term of employment provides for additional pay to a teacher teaching more than a standard load of classes. The additional pay is based upon a percentage of the teachers' salary (100:14). While Trenton's practice of providing overload pay is clearly more than the prevalent practice (Table 2), no Trenton teachers qualified for overload pay during the contract year in dispute (109:15). There is no dispute to resolve for contract year 1986-87. Whether overload pay ought to be paid for contract year 1987-88 is a matter for negotiation.


These issues expired with the expiration of the contract.


This issue is slightly different. Under this term of the contract (E2, paragraph 17) if a teacher has accumulated more than forty days of unused sick leave over previous years of service, he or she can trade three of those days for one additional day of personal leave. This process of exchange spans beyond any given contract year. Consequently, a Trenton teacher may have earned the right to such an exchange during contract year 1986-87 enabling that teacher to take the additional day of personal leave during contract year 1987-88 (12:11). It is then a benefit earned in the school year which is in dispute and is not rendered moot by the expiration of that school or contract year. Table 2 clearly shows that the prevalent practice is to not provide for such an exchange.


Respondent argues that the current salary schedule of 5 x 5 at Trenton is not comparable to the prevalent structure in the Commission's array and, therefore, should be modified.

The evidence summarized on Table 3 does not substantiate this claim. There are several variations of salary schedules present in the Commission's array. No one schedule is prevalent although all the indices range between 4 and 5. Without some clear indication that the existing schedule at Trenton is not comparable to the prevalent, we will not order a modification of the schedule.


In arriving at the base salary, we must first determine whose figures we will use in regard to the placement of two Trenton teachers, Janelle Johnson and Jean Taylor, on the comparable school districts' salary schedules. The Petitioner attempted to submit Johnson's University of Nebraska - Omaha and Kearney State College grade transcripts into evidence to show she had obtained 9 graduate hours beyond her BA degree. The transcript, however, was not received into evidence. (T40: 4-8).

Jean Taylor's grade transcripts from Kearney State College and Wayne State College were received into evidence (T34: 20-25) but, as Respondent's brief points out, there is no indication in the grade transcripts that the hours earned by Taylor were graduate hours. Petitioner's expert witness did not specifically state during trial that Taylor's hours were graduate hours. At T33: 6-24, it appears he assumed they were graduate hours but the evidence and record are not clear on that point. The Commission must know whether or not Taylor's hours were graduate hours because the schools used as array points all require hours past BA to be graduate hours or master degree hours with the following exceptions: l) Culbertson appears to allow non-graduate hours up until BA + 9 and anything past BA + 9 must be in a masters degree program and 2) Stratton appears to allow undergraduate credit to advance an employee in the schedule up until BA + 18. Table 4 shows the criteria for each schools' salary schedule placement.

Furthermore, as stated in Farnam Education Ass'n v. School District No. 51, Dawson County, 8 CIR 298 (1986) in a Section 48-818 determination the burden is on the party arguing that wages and conditions are not comparable to the prevalent. We hold Petitioner did not meet it's burden since Petitioner did not have the evidence concerning Johnson's placement admitted into evidence and the evidence concerning Taylor did not specify whether it was graduate credit; the Respondent's data for placement on the comparable school districts' schedules will be used.

Table 5 sets out the overall compensation data on the Commission's array. Applying the statutory criteria of Section 48-818 to the evidence in this case, we find the 1986-87 school contract year base salary for Trenton teachers to be $13,655, down from the last contractual obligation of $13,700. In Douglas County Health Dept. Employees Ass'n v. County of Douglas, 8 CIR 208 (1986), appealed September 10, 1986, the Commission lowered wages to a level comparable to the prevalent. However, in Douglas County the Commission declined to decrease wages retroactively. At Trenton, the contract year has lapsed and the Commission does not order any retroactive payback by the employees.


1. The base salary amount for the School District of Trenton shall be $13,655 for the 1986-1987 contract year, however no paybacks shall be required.

2. The sick leave exchange policy be eliminated.

3. All other conditions are not effected by this Order.

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

Entered September 29, l987.