9 CIR 281 (1988)


Petitioner, |
NEBRASKA, A Political Subdivision |
of the State of Nebraska, |
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 68508

Before: Judges Peetz, Mullin, and Orr



The Petitioner Association commenced this action on October 8, 1987, seeking a determination of wages, terms and conditions of employment for the 1987-1988 school contract year. The Respondent District, Wayne, is a Class III School District employing 60 classroom teachers. The total enrollment for the 1987-88 school year at Wayne is 835 students. The parties attempted to resolve this dispute through fact finding but were unsuccessful.

The issues for determination at Trial, as set out in the Report of Pretrial Conference Report, are: base salary, health insurance including dental insurance, paid personal leave, mandatory advancement on the index salary schedule and total accumulation of sick days.

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:

...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. Grand Island Ed. Ass'n v. School Dist. of Grand Island, 9 CIR 188 (1987). In choosing an array the Commission has considered evidence of size and geographic proximity, as well as other evidence that indicates similarity of work, skills, and working conditions. The Commission also attempts to establish a balanced array.

If necessary the Commission will look to discretionary indications of comparability to the extent they are related in evidence to work, skills, and working conditions. The weight to be given such discretionary indications of comparability rests within the sound discretion of the Commission. See Schuyler Education Ass'n v. School District No. 123 Colfax County, 8 CIR 331, (1986). The ultimate question, regardless of what criteria are applied, is which array is most comparable in terms of similar work, skills, and working conditions.

The Petitioner in this case presented evidence showing every school district within a 100 mile radius of Wayne, that fit within the Commission's general one half to twice as large size criteria. From this list the Petitioner chose nine school districts it contends are comparable; Ashland-Greenwood, Centennial, Central City, Gretna, Raymond Central, Seward, South Sarpy, Tekamah Herman and Wahoo. The Respondent presented ten school districts it contends are comparable; Albion, Laurel-Concord, Madison, O'Neill, Pierce, Randolph, Schuyler H.S., Tekamah-Herman, West Point and Wisner-Pilger. Relevant information on the proposed school districts is set forth on Table 1.

The Petitioner presented 26 columns of factual information on its proposed array members, e.g., average tenure of certificated staff and 1985-86 expenditures for support pupils and staff. While the Petitioner's expert witness testified extensively as to how this factual information was relevant and how these factors influence working conditions, he failed to convince the Commission that it is more advantageous to compare proposed school districts in such often repetitive detail than to rely on the firmly established criteria previously set out by the Commission. He did testify that all of the Petitioner's proposed array members were similar as to work, skills, and working conditions and that the nine array members chosen were most comparable to the School District of Wayne.

The Respondent's expert witness testified that the Wayne School District had contacts with the schools listed on Respondent's array at one time or another (T196:1-4) but he was never able to state that in his opinion the Respondent's array exhibited similar work, skills, and working conditions so as to make comparison appropriate. There is no further evidence concerning similarity of work, skills, and working conditions for Respondent's array.

The Respondent then argued that the Petitioner's expert had in fact testified that each school on his entire list of 26 schools, which included all but one of Respondent's proposed array members, was appropriate for comparison purposes. However, if we rely on Petitioners' expert's testimony, we reach the conclusion that the Petitioner's array presents the most similar school districts for comparison purposes.

Based on the evidence presented we find that the school districts on Petitioner's array all meet our objective criteria and are, as a matter of fact, sufficiently similar and have enough like characteristics to make comparison appropriate. Furthermore Petitioner's array provides an appropriate balance between larger and smaller districts. We are unable to include any of the Respondent's proposed array members, other than the one common district, because there is insufficient evidence to support a finding that those districts are similar in terms of work, skill, and working conditions. The array will thus include: Ashland-Greenwood, Centennial, Central City, Gretna, Raymond-Central, Seward, South Sarpy, Tekamah-Herman and Wahoo.


The Petitioner contends that certain language in the 1986-87 negotiated agreement entered into by the parties under the title "Leave Policies" is too restrictive, is not prevalent, and must be stricken. The provision in dispute provides:

Personal leave, as used in Section A, must be applied for through the office of the Superintendent, and the consideration of the reasons for the request for personal leave is at the discretion of the Superintendent.

The Petitioner argues that all of the schools on the array except Tekamah-Herman, provide that there is no administrative discretion as to the reasons for personal leave, thus, the provision requiring the superintendents approval in the Wayne agreement must be deleted.

Table 2 sets out the Petitioner's summary of the relevant portions of the array member's contracts. A thorough review of the contracts provided by the Petitioner indicates that in fact, most contracts contain language requiring administrative approval before personal leave can be taken. It appears that administrative approval implies administrative discretion as to whether or not to grant the leave. The Petitioner has failed to prove there is any distinction between the clause in Wayne's negotiated agreement and the prevalent practice of requiring administrative approval. Thus, the prevalent practice is to require administrative approval of personal leave and we will not order any change in the current practice at the Wayne School District.


The Petitioner further contends that certain language contained in the negotiated agreement pertaining to the index salary schedule must be deleted. The clause in dispute provides:

6. the Board of Education reserves the right to deviate from this schedule when the Board considers it in the best interests of the School - either in withholding increases in case of unsatisfactory work or in granting a larger increase in case of meritorious work.

Table 3 shows the Petitioner's comparison of the relevant provisions of the contracts of the array members.

The Petitioner argues that this clause is not only non-prevalent but is also objectionable in that it contradicts the automatic advancement inherent on an index salary schedule. Without determining the merits of the clause we find that the contracts of the array members do not contain any similar language restricting or accelerating advancement on the salary schedule. Such language is thus not prevalent and should be stricken from the terms and conditions of employment.



The Petitioner seeks to have the District include single dental insurance coverage in the health insurance paid for by the District. Table 4 sets out the relevant coverages provided by the districts in the array.

It is clearly the prevalent practice for single dental coverage to be included in the insurance package provided by the Districts. To the extent the Wayne School District does not provide such single dental coverage it is not comparable to the prevalent among the array chosen.

The Petitioner did not provide specific evidence of the cost of such dental coverage but did use the figure of $184.07 as the amount it determined the District should pay for dependent health including dental and $65.07 for single health including dental when computing total fringe benefits. The Respondent used the same figures when determining the total cost of the fringe benefit package at Wayne. It appears that the parties do not agree on the figure the District is currently paying towards dependent health coverage but do agree that the District is currently paying $65.07 per month per eligible employee for single health coverage.

In order to establish a health insurance package comparable to the prevalent the Wayne School District shall continue to provide both single and dependent health insurance but should add dental coverage. We will use the figures of $184.07 for dependent coverage including single dental and $65.07 for single coverage including dental based on both the Petitioner's and the Respondent's use of these figures in determining overall compensation.

To the extent the district has paid less than $184.07 for dependent health coverage including dental and $65.07 for single health coverage including dental for the portion of the year already past, the eligible employees should be reimbursed.


The Respondent seeks an adjustment in the allowable accumulation of sick leave. The parties differ as to the total number of sick leave days which may be accumulated in Wayne.

Table 5 sets out a comparison of sick leave provisions for each of the compared to schools.

In reviewing the evidence presented we find the accumulation of up to 45 days to be comparable to the prevalent among the districts in the array.


The sole remaining issue before the Commission is base salary. Table 6 sets out the overall compensation data on the Commission's array. The total staff index for the Wayne District is 91.282. Applying the statutory criteria of Section 48-818 we find that the base salary for the teachers at Wayne for the 1987-88 school contract year should be $14,904.00 (total compensation of $1,469,248.47 - total fringe benefits of $108,781.54 = $1,360,466.93 total salary).


1. That the base salary for the teachers of the Wayne School District shall be $14,904 for the 1987-88 school year.

2. That the clause in the negotiated agreement between the parties giving the school board the authority to restrict or accelerate vertical advancement on the index salary schedule be stricken.

3. That health and dental insurance coverage shall be provided at the rate of $184.07 per month for dependent coverage including single dental coverage and $65.07 per month for single coverage including dental, for eligible employees.

4. That the maximum accumulation of sick days shall be 45 days.

5. That all other terms and conditions of employment for the staff employed at the Wayne School District for the 1987-88 contract year shall be as previously established by agreement of the parties.

6. That the amounts due for the differences in salary and health insurance for the portion of the year already elapsed shall be made by payment of a single sum with a payroll check issued next following the final order entered herein.

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

Entered February 9, 1988.