|RED CLOUD EDUCATION ASSOCIATION,|||||CASE NO. 736|
|An Unincorporated Association,||||
|v.|||||FINDINGS AND ORDER|
|THE SCHOOL DISTRICT OF RED CLOUD,||||
|IN THE COUNTY OF WEBSTER, IN THE||||
|STATE OF NEBRASKA,||||
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, NE 68508
Before: Judges Mullin, Cope, and Orr
NATURE OF PROCEEDINGS:
The Petitioner in this matter requests that we establish specific terms and conditions of employment for the l988-89 contract year at the School District of Red Cloud, Webster County, Nebraska. Red Cloud is a Class III school district employing 27 full-time teachers and with a student enrollment of 348 for the school year l987-88. By virtue of a pretrial stipulation, all terms and conditions established by the written contract for the 1987-1988 contract year shall remain in effect and binding upon the parties except those raised in this dispute. Petitioner has raised the following terms and conditions of employment:
2)grievance procedure (specifically the definition of a grievance T25:4-5); and
3)leave of absence policy.
Respondent has raised as issues a number of contract provisions from the 1987-1988 written agreement which are identified in the discussion below. We treat the parties' stipulation as a renegotiated contract on all terms from the 1987-1988 contract except those issues presented for our determination. We also treat the issues raised regarding contract language as whether each specific term is or is not prevalent in the written contracts presented in evidence regarding the compared to school districts. In resolving this dispute we do not attempt to draft a written agreement for the parties regarding the disputed terms (See Section 48-810.01). Our function in a section 48-818 case is to "...establish rates of pay and conditions of employment..." based upon a comparison to the employment in the array.
Originally, school district paid health insurance was at issue but at the pretrial conference the parties stipulated that the school district would pay full single and full dependent health insurance in the amounts of $82.l0 and $223.05 respectively. At trial, it was clarified that the school district is presently requiring the difference between the old and new premium rates to come out of the teachers' paychecks but that the school district should be ordered to reimburse the teachers retroactively for the premium difference they have paid. Consequently, our Order uses the new premium amounts in calculating fringe benefits and base salary.
The controlling statute is Section 48-8l8 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 maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions.
COMPARABLE SCHOOL DISTRICTS
The Petitioner and Respondent both presented comparisons with the following seven common school districts: Alma, Blue Hill, Doniphan, Franklin, Harvard, Hebron, and Sutton. In addition, the Petitioner proposed the school districts of Clay Center, Deshler, Kenesaw, Nelson, Sandy Creek, Schickley, Shelton, and Silver Lake while Respondent proposed the school districts of Axtell, Cambridge, and Elm Creek. The parties stipulated at pretrial that the work, skill and working conditions of the teachers employed at all the proposed array points are similar enough to those at Red Cloud to allow a comparison of terms and conditions of employment under Section 48-8l8. Table 1 sets forth information on each proposed array member.
When choosing an array of comparable employers under Section 48-8l8, we consider evidence of the relative size and proximity of proposed array members to the employer in question as well as other evidence indicating the employments selected for comparison are sufficiently similar and have enough like characteristics or qualities to make comparison appropriate in that situation. All of the schools proposed meet the Commission's criterion of relative size of one-half to twice as large and all are within a reasonable geographic proximity to Red Cloud. School Dist. of West Point v. West Point Education Ass'n , 8 CIR 3l5 (l986). Additionally, we prefer arrays balanced with school districts larger and smaller than the district in question. Diller Education Ass'n v. School Dist. l03 , 7 CIR l96, 200 (l984). We have also held that an array of six to eight employers is an appropriate array. State Code Agencies Education Ass'n v. Department of Correctional Services , 7 CIR 226, 232 (l984), aff'd on other grounds , 2l9 Neb. 555, 364 N.W.2d 44 (l985).
Based on these criteria, we find that the seven common school districts of Alma, Blue Hill, Doniphan, , Franklin, Harvard, Hebron and Sutton constitute a suitable array.
Table 2 sets out the overall compensation data on the Commission's array. Applying the statutory criteria of Section 48-8l8 to the evidence in this case, we find the l988-89 school contract year base salary for Red Cloud teachers to be $l4,727.
GRIEVANCE PROCEDURE (ARTICLE X, SECTION IA)
This issue was apparently withdrawn when each party argued that the contract language defining a grievance should not be changed. Table 3 shows that the prevalent practice among the array members is to provide a definition of grievance. The definitions are very similar and the parties shall use the same definition for 1988-1989 as was set forth in the contract for 1987-1988.
LEAVE OF ABSENCE
Petitioner asks that we establish a leave of absence term of employment. We find, as Table 4 shows, that such a term is not prevalent.
ARTICLE I, SECTION I
Respondent asks that we resolve whether the prevalent practice requires the following terms:
Every teacher has the right to fair and equitable treatment. (Article I, Section I)
Every teacher has the right to fair and equitable treatment and accordingly shall not be acted against except for just cause. (Article V).
While Table 5 shows that no other contract in the array contains a term regarding "fair and equitable treatment" or "just cause", either concept may be implied by law or provided by statute depending on what contractual issue may develop. Neither shall be a part of this order for contract year 1988-1989; however, we do not intend that our ruling affect any otherwise applicable rules regarding good faith and fairness.
Respondent asks that we delete the language regarding statutes governing negotiations, which have now been repealed. Petitioner agrees in its brief. It hardly seems necessary that we be required to make a finding, but, the reference to repealed statutes on negotiations shall not be a term of employment for contract year 1988-1989.
ARTICLE IV, SECTION 1
Respondent asks that we rule that a reference in the written contract to the maximum number of days in the work year (Article IV, Section 1) is not prevalent. We find, as Table 6 shows, that such a term is not prevalent.
ARTICLE IV, SECTION 2
Respondent asks that we rule that it is not a prevalent term of the written contracts to release teachers with pay for fact finding activities involving negotiations, grievances or impasse situations and to pay for the necessary substitute teacher. We find, as Table 7 shows, that such a term is not prevalent.
Respondent asks that we rule that it is not a prevalent term of the written contracts to define professional growth requirements. We find, as Table 8 shows, that such a term is not prevalent.
Respondent asks that we rule that the reduction in force policy described in Article IX of their prior agreement is not a prevalent term of the written contracts. We find, as Table 9 shows, that such a term is not prevalent.
ARTICLE I, SECTION 5
Respondent asks that we rule that the provisions in their prior agreement under Article I, Section 5 and Article XV which extend some of the terms of the agreement beyond the contract year are not prevalent terms of the written contracts. We find, as Table 10 shows, that such a term is not prevalent.
ARTICLE X, SECTION 3(C)
Respondent asks that we rule that the right of an aggrieved employee to a fact-finding appeal of a decision of the Board is not a prevalent term of the written contracts. We find, as Table 11 shows, that such a term is not prevalent.
Respondent asks that we rule that the provisions in Appendix C specifying the name of the health insurance carrier and requiring an approval of any change in the insurance carrier by a majority vote of both the Association and the Board are not prevalent terms of the written contracts. We find, as Table 12 shows, that such terms are not prevalent.
IT IS THEREFORE ORDERED:
l. That the base salary for the teachers of Red Cloud School District shall be $l4,727 for the l988-89 school year.
2. That the school district shall reimburse the teachers retroactively for the health insurance premium differences the teachers have paid.
3. That the amount due for that portion of the contract pay period already elapsed shall be paid in a single sum with the payroll check issued next following the final order herein.
4. That all other conditions of employment for the 1988-1989 contract year shall be as previously established by the agreements made by the parties except those terms identified in this FINDINGS AND ORDER as not prevalent.
All judges assigned to the panel in this case join in the entry of these Findings and Order.
Entered April 21, l989.
NOTE: We took judicial notice of enrollment figures.