13 CIR 31 (1997). See also 13 CIR 47 (1997). Motion of appellee for summary dismissal sustained and appeal dismissed on November 18, 1998.

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Before: Judges Anderson, Moore, and Cullan

ANDERSON, J:

NATURE OF PROCEEDINGS

The Clarkson Education Association ("Petitioner") filed a Petition on May 30, 1996, seeking resolution of an industrial dispute pursuant to §48-818. Subsequently, the parties stipulated that the matter be held in abeyance until the parties could attempt a settlement through further bargaining. Having failed to reach an agreement, the Petitioner filed a Motion for Further Proceedings on February 3, 1997, which the Commission granted. A progression order was entered. Trial on the issues under §48-818 was held on March 24, 1997. The year in dispute is the 1996-1997 school year. Colfax County School District ("Respondent") is a Class III school district employing 19 teachers with an enrollment of 241 students.

At the beginning of trial, the parties stipulated that items #1 and #3 of the Report of Pretrial Conference, regarding health insurance and personal leave days, have been withdrawn and that they will continue the current practice without change. Petitioner's remaining issues are base salary, salary schedule and structure thereof, and a contract continuation provision. Issues raised by Respondent include the following:

1)The elimination of section II(B) regarding the dates for issuing and returning contracts and the date for releasing teachers from such contract. (Report of Pretrial Conference refers to this clause as II(G)(B) but it appears that clause II(B) in the current contract is the correct clause).

2)The elimination of section II(G)(1) and Exhibit C of the negotiated agreement which provide for a sick leave bank.

3)The elimination of section II(G)(2) of the negotiated agreement which provides for hospital leave.

4)The elimination of section II(G)(2) of the negotiated agreement which provides that "Upon leaving the system, the teacher shall receive up to one-half of the current substitute's daily pay for up to one-half of their unused sick leave days up to thirty (30) days. (1/2 x substitute's daily pay) x (1/2 x unused sick leave days) (no more than 30 unused sick leave days)."

5)The elimination of section II(G)(3) in the negotiated agreement regarding maternity leave, and

6)Salary schedule.

Respondent's post-trial brief states that its Answer and Counterclaim raised a contract language issue concerning the length of the work day. We can find no such mention of such an issue in the record and will not rule on it.

ARRAY

The Petitioner and Respondent offered the following common array members: Bancroft-Rosalie, Battle Creek, Beemer, Cedar Bluffs, Dodge, Howells, Humphrey, Leigh, Newman Grove, Pender, Prague, Scribner-Snyder, and Winside. Petitioner offers the additional array member of Oakland-Craig. Respondent's witness testified that prior to the current school year Oakland-Craig's student enrollment was larger than Clarkson's but since that time Oakland-Criag's enrollment has decreased and Clarkson's has increased. Oakland-Craig, with its current student enrollment of 481, is currently within the one-half to twice as large criteria as Clarkson and is only 35 miles away, no further than some of the other school districts to which the Respondent has agreed should be included. The parties stipulated at the pretrial conference that the work, skills, and working conditions of the teachers at all schools presented were sufficiently similar to satisfy the requirements of §48-818. Oakland-Craig meets all Commission criteria for inclusion in the array of school districts. Finding no meritorious reason to exclude Oakland-Craig, we include it in the comparison, along with all of the above in-common school districts. (See Table 1).

CONTRACT CLAUSES

Respondent has requested deletion of certain contract clauses based on lack of prevalence, but offered no summary exhibits in support of this request. Although this Commission has declined to rule on certain fringe benefit issues without sufficient evidence in the record to support the finding (Richland Teachers Education Association v. Colfax County School, 11 CIR 286 (1992)), sufficient evidence does exist in this record to rule upon these issues because we know which clauses are in dispute and the contracts are in evidence. The Commission has determined the prevalence of contract clauses in the past. Yutan Education Association v. Saunders County School District, 12 CIR 68 (1994); Nemaha Education Association v. Johnson County School District, 12 CIR 83 (1994); Red Cloud Education Association v. School District of Red Cloud, 10 CIR 120 (1989); Wayne Education Association v. School District of Wayne, 9 CIR 281 (1988). Table 2 herein clearly shows that none of the contract clauses in dispute, as raised by the Respondent, are prevalent. Therefore, the Commission finds that the following contract clauses should be eliminated: Section II(B) regarding the dates for issuing and returning contracts and the date for releasing teachers from such contract; section II(G)(1) and Exhibit C of the negotiated agreement which provide for a sick leave bank; section II(G)(2) of the negotiated agreement which provide for hospital leave; section II(G)(2) of the negotiated agreement which provides that "Upon leaving the system the teacher shall receive up to one-half of the current substitute's daily pay for up to one-half of their unused sick leave days up to thirty (30) days. (1/2 x substitute's daily pay) x (1/2 x unused sick leaves days) (no more than 30 unused sick leave days)"; and section II(G)(3) in the negotiated agreement regarding maternity leave.

CONTRACT CONTINUATION CLAUSE

Currently the contract between the parties does not have a contract continuation clause. The Petitioner argues that it is prevalent to have such a clause and it, therefore, should be added to the contract. Petitioner's Exhibit 37, as summarized on Table 3, supports the prevalence of such language. Of the 14 school districts in the array, 9 have negotiated agreements with the teachers containing a contract continuation clause. It is therefore prevalent. Specifically, it is prevalent to state that the contract continues beyond its designated term until changed by negotiations.

However, Respondent argues that such a clause is a management prerogative and should not be added. To add such a clause, Respondent argues, deprives management of a right to implement its last final offer after impasse. It is true that generally this Commission has ruled that management's implementation of a final offer is permissible as long as a case involving the parties is not on file at the time of implementation. Geneva Educ. Ass'n v. Fillmore County School Dist. 0075, 10 CIR 238 (1989); Lincoln County Sheriff's Employment Association v. County of Lincoln, 5 CIR 441 (1982). However, the Commission has never been asked to recognize these holdings as establishing an unlimited management prerogative and we decline to do so in this case. Respondent also argues that such a clause is beyond the authority of the Commission because it affects the terms of the next year and not the year in dispute. Petitioner counters that it is a current term and condition of employment and offered the testimony of Mr. Robert Owen, a teacher and head negotiator for Petitioner, who testified that "the teacher can look at the contract that he is signing or she is signing and knows that if there indeed is no settlement at least we can still depend on X amount coming in until such time that a new contract is established, which creates stability in your budget building and your actions throughout the community and everything else." (T 57: 6-13).

The Commission has previously addressed the issue of contract continuation language in Yutan Education Association v. Saunders County School District, 12 CIR 68 (1994), and Red Cloud Education Association v. School District of Red Cloud, 10 CIR 120 (1989). In each case the Commission found that the contract continuation clause was not prevalent among the school districts in the array. Yutan 12 CIR at 71-72; Red Cloud, 10 CIR at 124. In neither case did the Commission question its authority to order inclusion of such a clause if prevalent.

The Nebraska Supreme Court recognized in AFSCME v. Nebraska, 200 Neb. 171 (1978) that decisions of the National Labor Relations Board (NLRB) under the National Labor Relations Act (NLRA) may be relied upon to offer guidance in labor relation issues. The Supreme Court in University Police Officers Union v. University of Nebraska, 203 Neb. 4, 277 NW 2d 529 (1979) recognized the helpfulness of NLRB Opinion while limiting their use:

"We have heretofore said that decisions under the National Labor Relations Act were helpful but not controlling upon either the CIR or this Court. American Fed. Of S., C. & M. Emp. V. State, 200 Neb. 171, 263 N.W. 2d 643. That declaration must be carefully understood to mean that decisions under the NLRB are helpful where there are similar provisions under the Nebraska statutes. Decisions under the NLRB are of no help or benefit in attempting to determine actions absent similar provisions under the Nebraska statutes. Nor can common practices under other statutes in other jurisdictions enlarge the statutory power granted to the CIR by the Legislature."

University Police Officers Union 203 Neb. at 12, 277 N.W.2d at 535.

Certain similarities between the Nebraska Industrial Relations Act (IRA) (NRS §48-801 et seq.) and the NLRA (29 USC §158) exist. The IRA at Neb. Rev. Stat. §48-816(1) (1993) sets out the requirement for good faith bargaining, defining it as follows:

"To bargain in good faith shall mean the performance of the mutual obligation of the employer and the labor organization to meet at reasonable times and to confer in good faith with respect to wages, hours, and other terms and conditions of employment or other questions arising thereunder and the execution of the written contract incorporating any agreement reached if requested by either party . . . ."

The NLRA at 29 USC §158(d) (1994) reads in pertinent part:

"For the purposes of this section,to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party. . . ."

The similarity between the Nebraska Industrial Relations Act and the NLRA are sufficient to enable this Commission to rely upon decisions under the NLRA for guidance in this area.

The NLRB has determined that contract duration is a mandatory topic of bargaining under the National Labor Relations Act. In NLRB v. Yutana Barge Lines, 315 Fed. 2d 524 (9^th Cir. 1963), it was held that:

"It is mandatory upon an employer to bargain with respect to the duration of a contract. . . ."

Id. At 528.

However, in that case, the employer's refusal to negotiate a contract having a duration beyond its operating season was held not to be bad faith bargaining. Id. at 529. In U.S. Pipe and Foundry Co. v. NLRB, 298 Fed. 2d 873,(5th Cir. 1962) the Court held that a common expiration date bargained by the certified representatives of three separate plant bargaining units with the same employer was a mandatory topic of bargaining. Id. at 877.

In light of the Commission's previous recognition that a contract continuation clause is within its jurisdiction (Yutan and Red Cloud) and recognition by the NLRB that duration of a contract is a topic of mandatory bargaining, the Commission finds that a contract continuation clause is within its jurisdiction.

Since a contract continuation clause is prevalent among the array of school districts, a contract continuation clause similar to those found in Table 3 should be included in the contract between Petitioner and Respondent herein.

SALARY SCHEDULE AND STRUCTURE

Petitioner's teachers are presently paid on a 4 x 4 salary schedule, except for some 2% variations further down on the salary schedule beginning at step 10. This schedule has the following columns: BA, BA+9, BA+18, BA+27, BA+36/MA, MA+9, and MA+18. Petitioner's proposed schedule is found on Exhibit 6. Petitioner wishes to change the salary schedule by adding one additional step to all columns except for BA+9 and MA+9 and wishes to shorten the MA+18 column by two steps. Further, Petitioner wishes to adopt a 4.3 horizontal x 4 vertical schedule.

Petitioner in regard to the type of columns to which it would give educational award, proposes a schedule with a BA+36 separate from a MA column with both columns paying the same amount. In reality, therefore, no request to change the type or number of columns is shown.

The salary schedule has been changed only once in approximately the last ten years and that was done unilaterally by the Respondent in December 1995, when it implemented the pay schedule shown on Exhibit 8, page 2A as part of its final offer. Respondent testified that it would have implemented a different salary schedule for fiscal year 1996-1997 except for the fact that Petitioner filed this action before it could act. (T84:18-24).

Respondent's main objection to a change in schedule is its desire to lower the total salary schedule index to make the base salary as high as possible to attract new teachers (T 92:3-16). Testimony revealed that Petitioner's members are aware that adjusting the structure of the schedule has an impact on base salary (T54:22-25), that it has a differing effect on teachers within the bargaining unit (T55:5-9), and that it is not a tension -creating issue between the newer and more experienced teachers (T66:15-19).

Respondent performed a modal analysis to arrive at a comparable schedule of 4X4 which is the schedule they are now using. Petitioner performed a mean analysis resulting in a 4% vertical and 4.3% horizontal schedule.

The Commission's responsibility as set forth in Neb. Rev. Stat. §48-818 (1993) states:

". . . 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 Commission has traditionally used a modal analysis in determining salary schedule indices. No authority can be found for using a different analysis although there is no specific preclusion of the mean approach. No good or sufficient reason was given to reject the modal approach in favor of the mean analysis in this case. The Commission chooses to adhere to its practice of using the modal analysis in reaching the comparable salary schedule in this case.

Commission finds that a consistent 4 x 4 schedule (without modifications at the higher steps)is comparable (See Table 4), along with the following: 1)adding one step to all columns except to the BA+9 and MA+9 columns; 2)shortening the MA+18 column by 2 steps; and 3) having two separate columns for BA+36 and MA which will have the same indices at each step, however.

BASE SALARY

Table 5 sets forth the total compensation figures for the school district in the Commission's array. The parties have adjusted for difference in contract days. The midpoint of the total compensation minus the cost of fringe benefits equals $502,952 which , when divided by the new staff index factor of 26.76, equals a base salary of $18,795 for the 1996-97 school year.

IT IS THEREFORE ORDERED THAT:

1.Respondent shall eliminate all of the contractual language numbered as 1 through 5 under the Nature of Proceedings section of this Findings and Order.

2.Respondent shall add a contract continuation clause comparable to the clauses in Table 3.

3.Respondent shall adopt a consistent 4x4 salary schedule but modify the salary schedule by adding an additional step to each column (except the BA+9 and MA+9 columns), shorten the MA+18 column by 2 steps, and create two separate columns for BA+36 and MA.

4.Respondent shall pay the teachers a base salary of $18,795 for the 1996-97 school year.

5.All other terms and conditions of employment for the 1996-97 school year shall be as previously established by the agreement of the parties.

6.Adjustments in compensation resulting from the final order shall be paid in a single lump sum with the payroll check issues next following this final order.

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

Entered this 30^th day of May, 1997.