9 CIR 97 (1987)


Petitioner, |
NEBRASKA, A Political Subdivision, |
Respondent. |


For the Petitioner: Mark D. McGuire

Crosby, Guenzel, Davis, Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska 68508

For the Respondent: Thomas A. Danehey

Curtiss, Moravek, Danehey and

Curtiss, P.C.

416 Niobrara

P.O. Box 460

Alliance, Nebraska 69301

Before: Judges Cullan, Mullin and Orr


The Petitioner, hereinafter the Association, commenced this action seeking a determination of wages and terms and conditions of employment for bargaining unit members represented by the Association and in the employ of the Respondent, Educational Service Unit No. 12, hereafter ESU 12, during the 1986-87 contract year. The issues for determination by the Commission as set forth in the Report of Pretrial Conference are: base salary, index salary schedule, health insurance, disability insurance, sick leave, personal leave, professional leave, bereavement leave, family illness leave, grievance procedure, reduction-in-force provisions, and inclusion of nurses on the salary schedule.

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

The parties were encouraged by the Commission to negotiate after trial of the case. They were given preliminary findings to aid in their deliberations. It was hoped that the parties could mutually agree to a resolution of some of the many issues presented for determination. We are advised that although further negotiations were conducted they were ultimately not productive of any areas of agreement. As our Order in this case is only effective for the 1986-87 school year, and in some regards is general in its terms, the parties will be required to bargain collectively concerning details of the index salary schedule and other issues.

The collective bargaining process is a continuing process which the parties must learn to use to supplement or replace litigation before the Commission. It remains the Commission's position that good faith negotiation is the preferred method for resolution of differences concerning wages, hours and other terms and conditions of employment. Public employers and the bargaining agents for their employees have a duty to bargain in good faith in an attempt to resolve their differences both before, and after, they bring their disputes to the Commission. Successful collective bargaining is less expensive for the parties, less disruptive of public service, more flexible in terms of available solutions, and more likely to promote harmony between public employers and their employees. The public interest is not served by public officials and administrators or the agents of public employees who are unwilling or unable to pursue collective bargaining in good faith.


The controlling statute is 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...


To determine prevalent wage rates and conditions of employment each party submitted a proposed array of employers for comparison purposes. ESU 12 presented a mixed array consisting of two (2) Educational Service Units, two (2) Educational Cooperatives, and two (2) health care providers. It's proposed array includes: Educational Service Unit No. 17, Educational Service Unit No. 6, Dawes-Sioux County Cooperative, Rural Educational Services Cooperative, Box butte General Hospital and Good Samaritan Village. The Association presented an array consisting entirely of Educational Service Units. Their proposed array includes: Educational Service Unit No. 4, Educational service Unit No. 7, Educational Service Unit No. 8, Educational Service Unit No. 10 and Educational Service Unit No. 11.

Concerning the 2 health care providers proposed by ESU 12 the record lacks evidence which would allow the Commission to determine whether there is sufficient similarity of work, skill and working conditions to make comparison appropriate under Section 48-818. Therefore these employments will not be included in the Commission array.

Concerning ESU 6 the record lacks useful evidence relating to the economic issues to be determined. The record does reveal that the administration of ESU 6, without the knowledge or approval of its governing board, uses a salary index schedule as an informal guideline in negotiating individual employment contracts with its employees, however, the record does not contain evidence of the wages actually paid. Since the record lacks essential evidence concerning the major economic issue before the Commission, ESU 6 will not be included in the Commissions array for any purpose. See F.O.P. v. County of Dodge , 8 CIR 156 (1986).

ESU 12 argues most strenuously against the inclusion of ESU 4 in the Commission's array due to its geographic proximity. ESU 4 is located in the Southeast corner of the State. It should be noted however, that ESU 6 is included in the array sponsored by ESU 12. ESU 4 and ESU 6 share a common geographic border. Given the limited number of possible comparable employments for Nebraska ESU's and the lack of evidence of any substantial reason for excluding ESU 4 from the Commission's array, we are not persuaded by ESU 12's argument.

Based upon the evidence presented at trial, we find that the following educational service units are sufficiently similar and have enough like characteristics or qualities to make comparison with ESU 12 appropriate under the standards set forth in section 48-818: ESU 4, ESU 7, ESU 8, ESU 10, ESU 11, and ESU 17.


The burden of proof is on the moving party in a section 48-818 preceding to establish that existing wage rates, hours of employment, and other conditions of employment are not comparable to the prevalent. No single formula or method of determining prevalency is required. Historically, prevalency has been determined on a case by case basis. Our determination of the issues presented must be made strictly on the basis of the evidence introduced by the parties at trial. Retail and Professional Employee's Local 1015 v. Metropolitan Technical Community College , 4 CIR 167 (1980).

The prevalent method for determining compensation in the Commission's array involves application of an index salary schedule. All ESU's in the Commission's array determine compensation by means of an index salary schedule with horizontal increments rewarding educational attainment and vertical increments compensating years of service. One half of the ESU's in the array use a so called 4 x 4 index, two use a 5 x 4 index, and one uses a 4 x 4.5 index. We find that a 4 x 4 index is comparable to the prevalent practice in the array.

A nine credit hour educational attainment increment is used by five of six ESUs in the Commission's array. The remaining ESU uses a twelve credit hour educational attainment increment. Of the three ESUs with a 4 x 4 index salary schedule, two use a nine credit hour increment. We find that a nine credit hour educational attainment increment is the prevalent practice in the Commission's array. In accordance with this evidence, the following educational attainment increments are adopted for bargaining unit members with Bachelor's and Master's Degrees: BA, BA + 9, BA + 18, BA + 27, BA + 36/MA, MA + 9, MA + 18, MA + 27, and MA + 36.

The bargaining unit at ESU 12 includes seven employees with Bachelor's Degrees, one with a Master's Degree and two RNs. The Bachelor's Degree of one employee, J. Stewart, is in Nursing. ESU 12 argues that neither RNs nor J. Stewart should be included on the salary schedule. We disagree. The record contains no evidence which would justify differentiating between an employee with a Bachelor's Degree in Nursing an employee with a Bachelor's Degree in another subject. We therefore decline to do so.

Evidence concerning the inclusion of RN's on the index salary schedule is rather sparse. Only one ESU in the array has columns on its salary schedule for employees with less than a Bachelor's Degree. The ESU 8 salary schedule contains four columns for employees with less than a Bachelor's Degree. As applied to ESU 12, that schedule contains the following additional educational attainment increments: RN, RN + 9, RN + 18, and RN + 27.

It is true that only 36 credit hours separate many RNs from earning Bachelor's Degrees but, the evidence does not disclose whether this circumstance is relevant to the RNs at ESU 12. While it is logical to provide 9 hour educational attainment increments below, as well as above, the Bachelor Degree level we cannot do so unless the evidence establishes that it is appropriate.

Under the evidence we are unable to expand the index salary schedule below the Bachelor's Degree level. However, borrowing from our key classification method of wage determination, we find no evidence which would allow us to disrupt the historical relationship between the salaries paid to RNs at ESU 12 and the employee with a Bachelor's Degree. This is an issue for further negotiations.

The years of service increments for ESUs in the array include allowances for both current and previous employment. Presently, ESU 12 gives credit for up to five years of previous employment. ESUs in the array give credit for years of service under varying circumstances with a limit ranging from 3 to 7 years. No particular combination of circumstances and maximum years of credit is shown by the evidence to be prevalent. Therefore, the existing policy which gives credit for previous employment at ESU 12 should not be disturbed.

The number of vertical yearly steps in columns under each horizontal educational attainment increment also vary considerably. However, even the minimum number of steps reflected in the evidence is adequate to accommodate the total credits of bargaining unit members relevant for the 1986-87 school year. Therefore, we find no need to assign a specific number of steps to each column.


ESu 12 currently provides health insurance coverage at the rate of $66.51 per month, per employee. The Association seeks additional coverage for employees with dependents. Of the six educational service units in the Commission's array, the evidence indicates that all but one offer their employees more extensive coverage than that offered at ESU 12. Table 2 sets out the relevant information on health and disability insurance in the Commission's array. The insurance coverage at ESU 12 fails to provide dependent coverage, or in the alternative, an increased lump sum payment to cover insurance and/or an annuity. Consequently, we find that the insurance benefits presently maintained at ESU 12 are not comparable to the insurance benefits prevalent among the array members.

In order to establish a health insurance package comparable to the prevalent, ESU 12 shall continue to provide single coverage at the rate of $66.51 per month and add dependent coverage at a rate of $180.48 per month for the remainder of the 1986-87 school contract year. All such insurance benefits shall be prorated as per the employees' employment FTE (full-time equivalency). Educational Service Units 7, 8, 10 and 11 each prorate the fringe benefits of their part-time employees employed at .5 FTE or greater. This information is also set out in Table 2.

It is clear from the evidence presented that payment of disability insurance is a prevalent condition in the Commission's array. Three of the educational service units pay disability insurance based on a percentage of gross salary. This is also the current policy at ESU 12; the teachers receive .0051 of their gross salary in disability insurance. We find ESU 12's present policy to be comparable to the prevalent. Therefore the ESU's practice of providing paid disability insurance benefits at the rate of .0051 of each employees gross salary should be continued for the remainder of the 1986-87 school year.


The information on the various leave provisions of the array members is displayed on Table 3.

Based on the evidence and testimony presented at trial we find that the sick leave policy at ESU 12 should provide 10 days of paid sick leave per year with a maximum accumulation of 60 days. This is the only leave provision which warrants a change from the present policy.

The personal, professional, family illness, and bereavement leave provisions currently in effect at ESU 12 are comparable to the prevalent conditions of employment within the array and shall remain unchanged for the 1986-87 school contract year.


ESU 12 contends that its Reduction In Force policy currently in place is a non-negotiable issue and management prerogative. The Association argues that because the economic impact of the RIF policy is negotiable, the question of which employees will be laid off is the major issue at bar. The Association's proposed RIF policy uses length of service as the primary factor in determining which employees shall be terminated, and which retained.

In Metro. Tech. Community College Education Association v. Metro Tech. Community College Area , 203 Neb. 832, 281 N.W.2d 201 (1979) the Supreme Court held,

A matter which is of fundamental, basic, or essential concern to an employee's financial and personal concern may be considered as involving working conditions and is mandatorily bargainable even though there may be some minor influence on educational policy or management prerogative. However, those matters which involve foundational value judgments which strike at the very heart of the educational philosophy of the particular institution, are management prerogatives and are not a proper subject for negotiation even though such decisions may have some impact on working conditions. However, the impact of whatever decision management may make in this or any other case on the economic welfare of employees is a proper subject of mandatory bargaining.

Id at 842,843.

Abiding by this Supreme Court holding we found in Hastings Education Association v. school District of Hastings , 4 CIR 226 (1980) that,

...the structuring of a reduction in force policy is a management prerogative and not bargainable, but that the impact of such policy on the economic welfare of the employees is mandatorily bargainable.

Id at 228.

The Association presented no evidence to the Commission on the economic impact of the current RIF policy on the ESU 12 teachers. Without such evidence we cannot determine nor adjust the economic impact of the present policy. All the educational service units in the Commission's array are compelled to provide RIF procedure pursuant to 79-2216-2221 (R.S. Supp., 1986). We find that the present RIF policy at ESU 12 is comparable to the terms and conditions of employment prevalent in the selected array. Therefore, the RIF policy presently in effect at ESU 12 shall remain in effect throughout the remainder of the 1986-87 contract year.

The Association has met its burden of proof in establishing that without a grievance procedure the existing conditions of employment at ESU 12 are not comparable to the prevalent conditions in the array. In order to provide the ESU 12 employees with conditions of employment that are comparable to the prevalent conditions, the unit would implement a grievance procedure for the 1986-1987 contract year.

The evidence does not, however, afford us the opportunity to provide the specific terms and provisions of the grievance procedure. As we have held previously, we cannot order a specific condition of employment unless there is evidence in some detail defining the prevalent condition. City of Omaha v. Omaha Police Union Local 101 , 5 CIR 171 (1981). Section 48-818 does not authorize us to enter a detailed order from a composite of generalized statements. Id . Therefore, the parties must reach mutual agreement on the terms of the grievance procedure to be implemented at ESU 12.


Table 4 is a composite of the parties' overall compensation information. The total salary compensation figures in the second column are adjusted, when necessary, to reflect the total salary compensation for 185 contract days. The evidence substantiates that the teachers at ESU 12 are obligated for 185 contract days in the 1986-87 school year.

The staff index factor assigned to the ESU 12 degreed staff for purposes of calculating the 1986-87 base salary was 7.30. This number is the result of placing the degreed staff on a 4 x 4 salary schedule. The staff index factor does not include those two individuals employed at ESU 12 who hold less than bachelor's degrees.

Applying the statutory criteria of Section 48-818 to the evidence in this case, we find that the base salary for degreed staff at Educational Service Unit No. 12 for the 1986-87 school year should be $14,469.00.


1. That the base salary amount for Educational Service Unit No. 12 degreed staff shall be $14,469.00 for the 1986-87 contract year.

2. That the compensation for the degreed staff shall be determined according to a salary schedule having index increments of four percent (4%) horizontally and four percent (4%) vertically and columns for educational attainments of BA, BA + 9, Ba + 18, BA + 27, BA + 36, MA + 9, MA + 18, MA + 27 and MA + 36.

3. That any adjustment of the two non-degreed nurses' salaries shall be worked out by mutual agreement of the parties.

4. That health insurance coverage shall be provided at the rate of $66.51 per month for single coverage and $180.48 per month for dependent coverage. All insurance benefits shall be pro-rated as per employment full time equivalency.

5. That the sick leave policy shall provide ten days (10) of sick leave per year with a maximum accumulation of sixty days (60).

6. That a grievance procedure shall be implemented for the 1986-87 contract year. The specific language of said grievance procedure shall be worked out by mutual agreement of the parties.

7. That the disability insurance coverage remain at .0051 of gross salary.

8. That the personal, professional, family illness and bereavement leave policies currently in effect shall remain unchanged for the 1986-87 contract year.

9. That the reduction in force policy currently in effect shall remain unchanged for the 1986-87 contract year.

10. That the amount due for the school contract year already elapsed shall be paid as soon as possible following the entry of this Findings and Order.

Entered February 18, 1987