| GENOA EDUCATION ASSOCIATION, | | | CASE NO. 757 |
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| Petitioner, | | | |
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| v. | | | FINDINGS AND ORDER |
| | | ||
| NANCE COUNTY SCHOOL DISTRICT NO. | | | |
| 0003, A Political Subdivision | | | |
| of the State of Nebraska, | | | |
| | | ||
| Respondent. | | |
Appearances:
For the Petitioner: Mark D. McGuire
Crosby, Guenzel, Davis,
Kessner & Kuester
400 Lincoln Benefit Building
Lincoln, Nebraska 68508
For the Respondents:William H. Grant
Leininger, Grant, Rogers & Maul
1464 - 27th Avenue
P.O. Box 455
Columbus, Nebraska 68601
Rex R. Schultze
Perry, Guthery, Haase & Gessford, P.C.
1400 FirsTier Bank Building
Lincoln, Nebraska 68508
COPE, J:
Before: Judges Cope, Peetz, and Orr
NATURE OF THE PROCEEDINGS
The Genoa Education Association filed a petition on May 9, 1989 seeking an order establishing wages and other terms, tenure and conditions of employment for the teacher-members of the Association. The year at issue is the 1988-1989 contract year. The Respondent, Nance County School District No. 0003, is a Class III school district organized and existing by virtue of the laws of the State of Nebraska. The district employs 31 teachers and had an 1988-1989 enrollment of 385 students.
A pretrial conference was held June 27, 1989, at which time the parties entered the following stipulations:
1. The unresolved issues are base salary, and structure of the index salary schedule including the indexing of the MA+9 column.
2. Foundation for School District's exhibits 101 through 122 is hereby waived; foundation for the Association's exhibits 1 through 18 is hereby waived. Objections as to relevancy are reserved.
3. The number of teachers employed by the School District for the 1988-89 contract year and their placement on the 1988-89 index salary schedule, including the number of years teachers (if any) are frozen on the last step of a column, are shown on Association Exhibit No. 3.
4. Except for base salary and structure of the index salary schedule (and total teacher compensation) the conditions of employment for the teachers employed by the School District for the 1988-89 contract year shall be as previously established by the agreements made by the parties.
5. The work, skill, and working conditions of the teachers employed by the School District and the teachers employed at the following compared to School Districts on Association's Exhibit No. 7 and School District's Exhibit No. 117 are similar, and satisfy the standards set forth in Section 48-818 to permit a comparison of terms and conditions of employment if included in the array of compared to School Districts by the CIR. The CIR can, in selecting the School Districts to which comparisons will be made for the purpose of determining prevalency in terms and conditions of employment, apply its previously announced criteria for limiting the number of comparisons to be made.
6. If adjustments in compensation result from the final order rendered in this matter, the adjustment shall be made ratably over the twelve months of the contract pay period. 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.
Following the pretrial but before the trial the parties further stipulated as follows:
1. That the cost of health and accident insurance and dental insurance for the respondent school district, and each of the compared to districts in the arrays proposed by the petitioner at Exhibit 7 and the respondent at Exhibit 117 should be omitted from the calculation of total teacher compensation due to differences in the cost of such benefits to each district for the same or similar insurance coverage.
2. That the respondent school district shall pay to each certificated employee listed on the "Teacher List", Exhibit 1, the sum listed next to each teacher's name, which payment is in lieu of the respondent school district providing to said teacher either single or dependent dental insurance coverage, as the case may be, for the 1988-89 school year; it is further stipulated and agreed that the respondent school district shall provide single or dependent dental insurance coverage, as determined by the circumstances of the individual teacher, for the 1989-90 school year, which provides the same or similar insurance coverage as provided under the Blue Cross/Blue Shield of Nebraska, Nebraska State Education Health Care program, which coverage may be obtained from any insurance carrier determined appropriate by the board of education of the respondent school district.
3. That the "report of pretrial conference" entered by the Honorable Thom K. Cope, Judge of the Nebraska Commission of Industrial Relations on June 27, 1989, should be modified at paragraph 5 to read as follows:
The work, skill, and working conditions of the teachers employed by the school district and the teachers employed at the following compared to school districts on association's Exhibit No. 7 and the school district's No. 117, except the school district appearing on the association's Exhibit No. 7 denoted as "Henderson", are similar and satisfy the standards set forth in Section 48-818 to permit comparison of terms and conditions of employment if included in the array of compared to school districts by the CIR. The CIR can, in selecting the school districts to which comparisons will be made for the purposes of determining prevalency in terms and conditions of employment, apply its previously announced criteria for limiting the number of comparisons to be made.
STATUTE
The Commission has jurisdiction over the parties and the subject matter of this action. The controlling statute is Section 48-818 which provides:
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 working conditions. In establishing wage rates the commission shall take into consideration the overall compensation presently received by the employees, having regard not only to wages for time actually worked but also to wages for time not worked, including vacations, holidays, and other excused time, and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees. Any order or orders entered may be modified on the commission's own motion or on application by any of the parties affected, but only upon a showing of a change in the conditions from those prevailing at the time the original order was entered.
ARRAY
The Petitioner proposed an array consisting of Elkhorn Valley, David City, Henderson, Fullerton, Stanton, Stromsberg, Shelby, East Butler, Battle Creek, and Osceola. The Respondent also presented a ten member array with five schools common to both Petitioner's and Respondent's arrays. Respondent presented the following schools as comparables; Neligh, Albion, Madison, Elkhorn Valley, Fullerton, Stromsberg, Shelby, Newman Grove, Osceola, and St. Edward. All of the schools presented by the parties are Class III districts. All of the proposed comparables are located within a 50 mile radius of Genoa. The student enrollment for the proposed array members ranges from a high of 576 to a low of 227.
There is sharp disagreement between the parties as to the appropriate methodology the Commission should use in choosing its array. Petitioner contends that the Commission can and should only use objective factors such as enrollment and geographical proximity in determining an array. The Respondent, however, contends that in a situation such as this where there are a large number of objectively similar school districts the Commission must use subjective factors such as community or commonality of interest in order to choose the most appropriate array.
The Petitioner presented an exhibit listing 21 K-12 school districts within a 50 mile radius of Genoa whose student enrollment is at least half but not more than twice as large as Genoa's. The list contains 10 districts larger than Genoa and 11 districts smaller than Genoa. The Petitioner's expert testified that his methodology for choosing the 10 schools he did was to use the schools closest in size to Genoa. The Petitioner did not include Newman Grove in its array because they did not respond to Petitioner's survey. The Petitioner instead included Osceola which would balance the proposed array at 5 larger school districts and 5 smaller school districts.
The Respondent's proposed array also consists of 10 school districts. The superintendent for the school district chose the array based on size and geographical proximity but also took into account commonality of interest. (T82:18). Although he was never directly asked as to what, in his opinion, characterizes commonality of interest he often mentioned athletic contact and administrative contact by way of telephone calls. The superintendent also testified that the Genoa School District normally did not have contact with schools east or south of Highway 81 but instead traditionally 'contacted' school districts on or north and west of Highway 81.
When the Commission was first faced with choosing a comparable array in order to set wages, terms and conditions of employment for teachers, we looked to athletic conference as an indication of similarity of work, skills and working conditions. Seward Education Ass'n v. School Dist. , 1 CIR 34-1 (1971), Affirmed 188 Neb. 772 (1972). As the issue evolved the Commission considered other criteria such as general cooperation among school districts, Hastings Education Ass'n v. School Dist. , 1 CIR 42-1 (1971), and community of interest and geographic proximity Fremont Education Ass'n v. School Dist. , 1 CIR 50-1 (1971). In Sidney which was issued in March, 1974 the Commission stated that "geographical proximity and size of school as measured by number of resident pupils enrolled appear to be the most persuasive factors in reaching the ultimate conclusion as to where the prevalent is to be found." Sidney Education Ass'n v. School District of Sidney , 2 CIR 81/88-4 (1974). This analysis was further refined in Tecumseh Education Ass'n v. School District , 2 CIR 119-1 (1975), wherein the CIR stated:
In our cases we have repeatedly made reference to community of interest as a factor to be utilized in selecting members of the array. Nevertheless, this factor has largely been utilized as a device of exclusion rather than one of inclusion. It has served in tandem with the geographic and size limitations to aid in the exclusion of districts which were too large or too small or too far away from the litigating district. It has not been independently determinative of inclusion, where gross size disparity or geographic dispersion counseled exclusion. To allow this ephemeral factor to dominate over the more objective tests of size and proximity would inject into our 48-818 determinations a battle of subjective judgment as to the degree of interest created by various contacts among school districts. This type of evidence would lengthen the proceedings, but, in our judgment, would not make any substantial contribution to the ultimate determination of prevalence and comparability.
Tecumseh at 119-5.
Early in the progression of teacher wage cases the Commission recognized that all teachers are somewhat comparable and have somewhat similar working conditions. Wood River Ed Ass'n v. School District, 2 CIR 115-3 (1975). The Commission also acknowledged that athletic conference membership was, in actuality, merely a reflection of comparable size and reasonable geographic proximity, Nebraska City Educ. Ass'n v. School District , 2 CIR 116-7 (1974).
More recently the Commission has held that in choosing comparable school districts the Commission will consider size and geographic proximity and then if necessary look to other discretionary indications of comparability, School District of West Point v. West Point Education Ass'n , 8 CIR 315 (1986). Following this analysis further the Commission, in Schuyler Education Ass'n v. School District No. 123 , 8 CIR 331 (1986), held that:
Discretionary indications of comparability such as athletic conference membership and community of interest demonstrated by athletic and non-athletic contacts will be considered to the extent they are related in the evidence to work, skills or working conditions. The weight to be given to such discretionary indications of comparability must rest within the sound descretion of the Commission in applying its expertise to the evidence before it.
Schuyler at 334.
Thus, the Commission reiterated that array determination under Section 48-818 is a factual question that depends entirely on the evidence presented. If there is substantial evidence that work, skills and working conditions are related to or similar because of some discretionary comparability factor then the Commission will consider that evidence. Where, however, there is no relation between work, skills and working conditions and the subjective, discretionary factors presented as to comparability the Commission will base its array determination on the objective facts presented such as size and proximity.
In the present case the Respondent's expert often used the terms contact and commonality of interest. When asked on cross examination to further explain why comparisons were made only to schools west and north of Genoa, the Superintendent stated that "perhaps its a historical thing" (137:17). "It just happens to work out that way" (137:21). He further stated that it was an arbitrary thing to not look east of Highway 81 (137:18). When asked whether teachers at Genoa do anything substantially different than the teachers at the schools east or south of Highway 81 the Superintendent replied no (138:3). The parties stipulated that all of the proposed comparables, except Henderson, are similar as far as work, skills and working conditions and the Commission can find no evidence in the record to show that the similarity of work, skills and working conditions is affected by the location of the proposed school district in relation to highways in or around Nance County.
Table 1 sets out the relevant data on the comparables proposed by the parties. All of the districts offered fit the Commissions objective criteria of size and proximity and all are Class 3 districts, as is Genoa. The record does not contain any evidence which supports exclusion of any of the proposed comparables, except Henderson. The Commission thus finds that an array consisting of Albion, Battle Creek, David City, East Butler, Elkhorn Valley, Fullerton, Madison, Neligh, Newman Grove, Osceola, Shelby, St. Edward, Stanton and Stromsburg is manageable and appropriate for purposes of Section 48-818. Henderson is excluded from the Commission's array because the parties did not stipulate that it is similar and because there is no evidence in the record supporting a finding of similarity of work, skills and working conditions.
PLACEMENT OF GENOA TEACHERS
The Respondent asks that the placement of Genoa teachers on the salary schedules of the compared to districts be 'adjusted' to reflect the one year experience "freeze" of the Genoa teachers on the Genoa salary schedule for the 1986-87 contract year. The Respondent argues that the contract between the parties for the 1986-87 contract year which froze vertical advancement of the teachers not otherwise at the bottom of a column made that year of experience cease to exist. The Petitioner contends that the freeze applicable in Genoa is irrelevant to the placement of the Genoa teachers on the array members salary schedules.
Initially it is important to note that the year in dispute is the 1988-1989 contract year. Agreements or concessions made as to the 1986-87 contract year may have continuing effect or may still be applicable when determining the appropriate placement for Genoa teachers on the Genoa schedule but those agreements are irrelevant when placing Genoa teachers on the salary schedules of the chosen comparables. The purpose of placing the disputing district's teachers on the salary schedules of the comparables is to determine the total compensation that would be paid by the comparable district for a staff of teachers exactly the same as the staff at Genoa. Since teachers are most often paid according to a salary schedule which encourages and rewards longevity and additional education, it is imperative in order to determine an accurate compensation figure that the Commission take into account the actual experience each teacher has accumulated and the correct educational attainment and place that teacher according to the policies and practices (i.e. freezes and rollbacks) of the array member district. If the placement of any one teacher is inaccurate, the total staff index factor is inaccurate and the total compensation figure is accordingly incorrect. To 'adjust' the placement of all of the Genoa teachers, who were frozen on the Genoa schedule, on the salary schedules for the chosen array members would result in an inaccurate total compensation figure. The teachers in Genoa gained a year of experience for teaching during the 1986-87 contract year even if it was not reflected by advancement on the salary schedule. The year does not cease to exist for purposes of determining total compensation. The Commission will thus use the Petitioner's placement for determining the staff index factors at the array member districts.
SALARY SCHEDULE
The structure of the salary schedule at Genoa is at issue in the present case. "The CIR will change a salary schedule when appropriate to achieve comparability to prevalency." Sherman County Teachers Ass'n v. School District No. 15, Sherman County a/k/a Litchfield Public Schools , 8 CIR 77 (1985). However, the Commission has also been hesitant to adjust or alter a salary schedule in the absence of a substantial variance from the prevalent practice, Juniata Education Ass'n v. School District No. 1 of Adams County, Nebraska , 9 CIR 173 (1987). This hesitancy is due to the varying and often disruptive effects the change in a schedule may have on the teachers within the subject bargaining unit. The Commission prefers to let the parties effect changes in the schedules through the collective bargaining process. Where, however, the parties cannot reach agreement the Commission will on a case by case basis determine if there is a substantial variance from the prevalent and alter the disputed salary schedule accordingly.
Table 2 sets out the relevant information on the salary schedules for the chosen array members. In comparing the current salary schedule index at Genoa to the array members, the Commission finds that there is no substantial variance as to the index. The Commission has also determined from looking at Petitioners Exhibit 19 and Respondents survey data that it is prevalent to have the MA+9 column indexed to the rest of the salary schedule. Currently, in order to determine the salary for a teacher in the MA+9 column Genoa adds a set dollar amount to the corresponding step in the MA column. This is not the prevalent practice and the Commission finds that the MA+9 column on the Genoa salary schedule shall be indexed according to the applicable 4.5 x 5 indexing system.
BASE SALARY
The sole remaining issue for resolution by the Commission is the base salary for the 1988-89 contract year in the Nance County School District. Table 3 sets forth the compensation figures for the compared to school districts. These figures have been adjusted where necessary for differences in contract days. Applying the statutory criteria of Section 48-818 and the stipulations entered into between the parties concerning fringe benefits, the Commission finds that the base salary for the 1988-89 contract year in the Nance County School District shall be $14,949.20. This salary was derived after adjusting the staff index factor for the change in the salary structure. The total staff index factor used was 40.741.
IT IS THEREFORE ORDERED THAT:
1. The base salary for the teachers of the Nance County School District for the 1988-89 school year shall be $14,949.20.
2. All amounts due shall be paid in a single sum with the payroll check issued next following the final order entered herein.
3. The MA+9 column on the salary schedule shall be indexed according to the 4.5 x 5 index applied to the rest of the schedule.
4. Except for base salary and indexing the MA+9 column on the salary schedule, the conditions of employment for the teachers employed by the School District for the l988-89 contract year shall be as previously established by the agreements made by the parties.
All judges assigned to the panel in this case join in the entry of these Findings and Order.
Entered September 26, 1989.
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