9 CIR 78 (1987)


Petitioner, |
Respondent. |


For the Petitioner: Mark D. McGuire

Crosby, Guenzel, Davis,

Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska 68508

For the Respondent: Neal Stenberg

140 South 16th Street

Lincoln, Nebraska 68508

Before: Judges Orr, Cullan, and Cope



This matter came on for a Section 48-818 (R.R.S. 1943) determination for the teachers represented by the Tekamah-Herman Education Association, upon a Petition filed by Petitioner on July 31, 1986. The year in question is the 1985-86 contract year. The Tekamah-Herman School District, hereafter the District, employs 52 teachers and had a total student enrollment for the 1985-86 school year of 690 students.

The issues for determination by the Commission as set out in Report of Pretrial Conference are: base salary, extra-duty compensation, elimination of merit pay, salary schedule structure and constitutional argument.


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 District alleges in its Answer filed August 19, 1986 that Article III, 19, of the Nebraska Constitution applies to public school teachers, thereby prohibiting any additional compensation to the teachers of Tekamah-Herman for the 1985-86 school year. Article III, 19 reads, in part, as follows:

The Legislature shall never grant any extra compensation to any public officer, agent, or servant after services have been rendered... nor shall the compensation of any public officer, including any officer whose compensation is fixed by the Legislature, be increased or diminished during his term...

The Association contends that Article III, 19 applies only to public officers who serve "fixed terms." Since public school teachers do not serve "fixed terms" but enjoy a continuing employment status with their school districts pursuant to 79-12,107 et. seq., the Association concludes that Article III, 19 is not relevant to the case at bar.

Although the contention of the District is not without merit, we find Article III, Section 19, inapplicable in the present situation based upon the following rationale:

A careful examination of the legislative history of Article III, 19 does reveal that the intent of the provision was to prohibit the legislature from giving extra pay for past services rendered (Floor debate, L.B. 1414, 1972). There is a great deal of testimony relating directly to the employment status of teachers during the discussion of the 1972 amendment which permitted the legislature to adjust retirement benefits of public officers and employees periodically to reflect cost-of-living changes that occurred subsequent to retirement. Id . This testimony clearly indicates that teachers do fall under the purview of Article III, 19.

As set out above, the article prohibits " extra compensation after services have been rendered. " (emphasis added) First of all, the article refers to extra compensation. In the case at bar, we are considering compensation in the first instance. Secondly, it is not clear exactly what the legislature intended with the language "after services have been rendered." Arguably, the public school teacher services have not been completely rendered until either employment is terminated or the teacher retires. The end of the school year does not automatically indicate the end of the employment relationship between the employee and the district. During the committee hearing on the 1972 amendment to Article III, 19 the language "after services have been rendered" applied exclusively to retirement status (Committee Hearing, L.B. 1414, 1972). Pursuant to the current statutory guidelines for public school teacher employment (79-12,107 et. seq.), the employment of a teacher continues indefinitely unless terminated in accordance with statutory provisions. The teachers at Tekamah-Herman who completed the school year on or around June 1, 1986 are not constitutionally prohibited by Article III, 19 from having their wages adjusted to a level comparable to the prevalent.

Although Article III, 19 does not prohibit us from setting the teachers' salaries in the present case, we can understand the District's opposition to the untimeliness of the Association's filing. The situation affords us the opportunity to address a matter of public policy.

By statute the Nebraska Legislature has recognized the importance of the timely resolution by the Commission of industrial disputes in the public sector. Section 48-802 states in pertinent part:

The public policy of the State of Nebraska is hereby declared to be as follows: (1) The continuous, uninterrupted and proper functioning and operation of governmental service in a proprietary capacity...to the people of Nebraska are hereby declared to be essential to their welfare, health and safety. It is contrary to the public policy of the State to permit any substantial impairment or suspension of the operation of governmental service...It is the duty of the State of Nebraska to exercise all available means and every power at its command to prevent the same...governmental services...are clothed with a vital public interest and to protect same it is necessary that the relations between the employers and employees in such industries be regulated by the State of Nebraska.

Pursuant to Section 48-803 the Commission of Industrial Relations was created to carry out this public policy of the State.

Parties falling under the jurisdiction of the Commission have, by law, an obligation to bargain collectively with the purpose of arriving at a negotiated settlement (48-816). However, these negotiations cannot continue beyond a reasonable time period and still serve the interest of the general public in a timely resolution of disputes involving public employees.

To encourage timely resolutions of such disputes we have previously found that petitions for wage determinations must be filed within the year in question. In Fraternal Order of Police v. County of Dodge , Order entered July 11, 1986, the Commission addressed a similar issue:

Either party could have presented the issue of wages for fiscal year 1984-85 by filing a petition prior to the end of that fiscal year. Having failed to do so, we have no authority to make a determination regarding 1984-85.

Id at 2.

The rationale of County of Dodge is applicable to the case at bar. However, in every teacher case there may be some confusion as to when the actual contract year ends. The completion of teaching days is different from district to district. It is important for all parties to have a general idea of a target date before which an action must be filed in the Commission.

In the instant case, the negotiated agreement between the parties for the 1984-85 school year, as received in evidence, does not have specific starting and ending dates. The agreement does, however, state that the school calendar shall be set to conclude before June 1 of each school year. Superintendent Doeschot testified that generally this agreement is used each year with slight modifications. The life of the agreement continues from year to year or until a new agreement is drawn. In a situation such as the present one at Tekamah-Herman, where the teachers have no current negotiated agreement, the terms and conditions of the prior negotiated agreement guide the parties in their employment relationship. Operating without a contract for a full school year creates an unnecessary burden on both the District and the teachers. All services for the 1985-86 contract year have been rendered and all budgetary matters, except salaries, have been resolved. We are now well into the 1986-87 school year and the parties continue to operate without the benefit of a negotiated agreement for the current contract year. This practice flies in the face of public policy which calls for timely resolution of public employment disputes. If a negotiated settlement is not possible between the parties, the Commission's jurisdiction should be invoked in a expeditious manner. Once impasse is reached we see no legitimate purpose in either party delaying the filing of a petition with the Commission.

If the jurisdiction of the Commission has not been invoked before the end of the school year in which the services are performed, then most likely there is no longer an industrial dispute for that period of time as contemplated by Section 48-810. Therefore, we hold that all Section 48-818 cases involving teachers must be filed before the end of the school year, which generally will be around June 1. This finding will encourage and facilitate the timely resolution of disputes either via negotiations or a Commission Order.

However, because this policy has not been clearly set out in the past and due to the continuing nature of the contract in question as well as the fact that the parties themselves treated the dispute as a pending dispute, we will set the wages, terms, and conditions of employment in the present case.


In order for the Commission to determine the prevalent wage rate and conditions of employment for the teachers at Tekamah-Herman, each party submitted a proposed array for comparison. The parties proposed five common school districts: Arlington, Bennington, Lyons-Decatur, West Point and Wisner-Pilger. The Association offered four additional schools for comparison: Ashland-Greenwood, Gretna, Wahoo, and North Bend. The District also offered four additional schools for comparison: Fort Calhoun, Oakland-Craig, Pender, and Scribner. Table 1 sets out comparability information about the school districts in the proposed arrays.

When choosing an array of comparable employers under Section 48-818, the Commission considers evidence of relative size and proximity, as well as other comparability factors to determine whether, as a matter of fact, the units selected for comparison are sufficiently similar and have enough like characteristics to make comparison appropriate. However, no precise formula has been established for mechanical application in array selection.

Traditionally, the Commission has used guidelines established through case precedent in determining work comparability. Employers used for the purpose of comparison generally range in size 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), and are relatively close in geographic proximity. See, School District of West Point, v. West Point Education Ass'n , 8 CIR 315 (1986). The Commission has also recognized that teachers in Nebraska are fungible, that all schools are somewhat comparable and all working conditions for teachers are somewhat similar. West Point , Supra. In considering an array sufficient for the purposes of Section 48-818 the Commission must, therefore, determine the most comparable schools and the most similar working conditions.

In establishing comparability, the Commission first considers evidence of geographic proximity and size, and then, if necessary, looks to other discretionary indications of comparability. Schuyler Education Ass'n v. School District No. 123 , 8 CIR 331 (1986). Discretionary indications of comparability include, but are not limited to, athletic conference membership and community of interest demonstrated by athletic and non-athletic contacts.

The five school districts agreed upon by the parties for inclusion in the Commission's array meet the comparability criteria set out above. All are located within an approximate 50 mile radius of Tekamah-Herman and all of the proposed districts meet the requisite size guidelines. Moreover, all of the proposed Districts are Class III School Districts. In addition to the common array points chosen by the parties, we would add Ashland-Greenwood, Gretna and Fort Calhoun.

These schools are each comparable in size to Tekamah-Herman and are in close geographic proximity, and there is a strong indication of same or similar work, skills and working conditions. West Point at 5. Ashland-Greenwood and Gretna also lend balance to the array due to their student enrollment numbers. Fort Calhoun is the most proximate school to Tekamah-Herman, outside the common array schools, of comparable size.

Based upon the comparability evidence presented at trial, we find that the following school districts are sufficiently similar and have enough like characteristics or qualities to make comparison appropriate: Ashland-Greenwood, Gretna, Arlington, Bennington, Lyons-Decatur, West Point, Wisner-Pilger and Fort Calhoun. This array selection achieves a relatively balanced array of five schools smaller than the district in dispute and three schools larger.


The present salary schedule at Tekamah-Herman is a hybrid structure. Rather than the typical 4 x 4 or 4 x 5 schedule, the schedule has increments that vary in percentages from column to column and step to step. Tekamah-Herman also has a unique merit pay plan incorporated into its present salary schedule. The Association seeks to keep this present salary schedule intact. The District, however, argues for elimination of the merit pay plan and adoption of a modified 4 x 5 salary schedule index.

Although the Commission has held that salary schedules are susceptible to analysis under Section 48-818, we have consistently favored the position that changes in salary schedules are best effected through the negotiation process. See , Valentine Education Association v. School District No. 6 , 8 CIR 271 (1986).

Testimony at trial indicated that the present salary schedule, which includes a merit pay system, is the end product of the 1974 contract negotiations at Tekamah-Herman. The schedule was adopted by the parties to this action and instituted during the Fall of 1975. The merit pay system has been in place continuously since 1975, over eleven years. (T46: 4-10)

It is clear from the evidence presented that the unique features of the Tekamah-Herman salary schedule have evolved through negotiations and mutual input of the parties. The schedule is obviously designed to meet the specific needs of the teachers and the school district. When studied, the schedule reveals a structure designed to motivate and encourage continuing education. The pay increments decrease vertically after 6 years in the first two columns, thus encouraging teachers to take additional classes and move horizontally on the schedule. Each teacher is motivated through this system to attain his master's degree and become eligible for additional compensation through merit pay.

The merit pay system has worked at Tekamah-Herman for over eleven years. It is the result of negotiations by the parties and has been previously approved by the administration. Furthermore, the evidence indicates that the system has not been abused. Teachers enter the merit system only on the approval of the principal and once within the system, are subject to yearly performance evaluations. Clearly, a great deal of discretion remains with the administration as to who will receive merit pay and who will not. Therefore, we find that any alteration of the present system is best achieved administratively and/or through the negotiation process.

The District also proposes a change in the structure of the current salary schedule index. The first five vertical increments in each column of the present structure represent an increase of 5%. The District argues to change these same increments to 4% while maintaining the 1% increments on the last 6 steps of each column. The District contends that such a modified 4 x 5 salary schedule structure is the prevalent in the array of comparable school districts.

Of the eight schools which comprise the Commission's array, five have basic 4 x 5 salary schedule indices. These schedules, however, all have 5% horizontal increments and 4% vertical increments which do not vary from step to step or column to column. The salary schedule index proposed by the District has both 4% and 1% vertical increments. Clearly this is not the prevalent practice in the Commission's array. We adhere to the policy that past practices will not be disturbed in the absence of proof of a prevalent practice. West Holt Education Ass'n v. School District No. 25 , 5 CIR 301 (1981). Moreover, a change in vertical increments would act to disrupt the internal balance of the present salary schedule index. Fifteen FTE would be adversely affected by a lowering of the vertical increments to 4%. In holding with Commission precedent, we decline to order a change in the salary schedule when such a change will result in a materially large disturbance of the internal balance of the salary schedule. See , Sherman County Teachers Ass'n v. School District No. 15 , 8 CIR 90 (1985).


The Association seeks an increase in compensation for extra duties performed by the teachers, such as ticket-taking and supervising at athletic events. Currently the Tekamah-Herman teachers receive $3.50 per hour for these extra duties and are guaranteed a minimum of two hours pay, regardless of the length of the event. The Association seeks an increase in pay to approximately $5.00 per hour.

Of the eight schools in the Commission's array, three pay their teachers a flat fee per event. There is no evidence in the record indicating the length of these events, thereby making determination of a prevalent hourly rate virtually impossible. Two schools in the array provided no information on their pay policies for extra duties. The remaining three schools have diverse policies ranging from the federal minimum hourly rate to a percentage of base salary. This information is set out in Table 2.

In conclusion, we find that there is not sufficient evidence in the record to indicate that a change in the Tekamah-Herman hourly rate is warranted. No prevalent rate of pay is available for comparison purposes. To set a new rate of pay for extra duty compensation would require speculation and conjecture on the part of the Commission, neither of which we engage in. Therefore, the present extra duty pay policy of $3.50 per hour with a two hour guarantee shall remain unchanged.


The final issue in dispute is base salary. Table 3 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 that the base salary for teachers at Tekamah-Herman for the 1985-86 school contract year should be $13,123.00.


1. That the base salary for the teachers of Tekamah-Herman School District shall be $13,123.00 for the 1985-86 school year.

2. That the amount due each teacher shall be paid promptly following the entry of this Order.

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

Entered January 21, 1987.