14 CIR 203 (2004) Affirmed in part, in part Rev. and Remanded, 6-22-05 269 Neb.256, 698 N.W.2d 45
|HYANNIS EDUCATION ASSOCIATION,||)||CASE NO. 1046|
|an Unincorporated Association,||)|
|Petitioner,||)||FINDINGS AND ORDER|
|GRANT COUNTY SCHOOL DISTRICT||)|
|NO. 38-0011, A/K/A HYANNIS HIGH SCHOOL,||)|
|a Political Subdivision of the State of Nebraska,||)|
|For Petitioner:||Mark D. McGuire|
|McGuire and Norby|
|605 South 14th Street|
|Lincoln, NE 68508|
|For Respondent:||Rex. R. Schultze|
|Perry, Guthery, Haase,|
|& Gessford, P.C., L.L.O.|
|233 South 13th Street|
|Lincoln, NE 68508|
Before: Judges Lindahl, Orr, Blake, Burger, and Council (not participating) (EN BANC).
NATURE OF THE PROCEEDINGS:
Hyannis Education Association (hereinafter, "Petitioner" or "Association") filed a wage petition on March 5, 2003, seeking resolution of an industrial dispute for the 2002-2003 contract year. The Association is a labor organization formed by teachers employed by Grant County School District No. 38-0011, a/k/a Hyannis High School (hereinafter, "Respondent" or "District") for the purpose of representation in matters of employment relations. The District is a political subdivision of the State of Nebraska and a Class VI school district. The Respondent employed 14 staff members with an FTE of 13.1 for the 2002-2003 school year.
The Commission of Industrial Relations (hereinafter, "Commission") held a Trial on June 18, 2003. At Pre-trial and Trial the parties submitted the following issues for determination:
1. Petitioner’s Issues:
- Delete the sentence of the fifth paragraph under item E (Exhibit "A") which states: "The Board reserves the right to deviate from the Agreement if it becomes necessary to hire teachers for a particular position."
- Delete item B: Extra Duty, as it currently appears and orders that: "The Board has the right to make all teaching assignments and assign teachers to sponsor school activities/Compensation for extra duties shall be negotiated and set forth on the percentage based salary schedule attached to Negotiated Agreement as Exhibit "B.""
- Order that the dollar amount–based extra duty salary schedule attached to the Negotiated Agreement as Exhibit "C" be modified to reflect the base salary as determined by the Commission in this proceeding.
- Insurance, paragraph 1, change: "The School District reserves the right to …" to read "The School District may share health insurance costs …"
- Item D: Leave, paragraph 1, delete the current sentence which reads "Teachers may use days from the Sick Bank for extended illness(es)/injury(ies) of the teacher (family illness can be ruled an exception by the building administrator)." Insert: "Teachers may use days from the Sick Bank for extended illness(es)/injury(ies) of the teacher or immediate family."
- Item D: Leave, paragraph 2, delete "at the discretion of the administration…"
- Item D: Leave, paragraph 3.4, delete this paragraph.
- Item D: Leave, paragraph 4, delete the words "may be" and insert the words "shall be."
- Item D: Leave, paragraph 5, delete the words "may be" and insert the words "shall be."
(10) Item D: Leave, paragraph 5.1, delete the words "may be" and insert the words "shall be."
(11) Item D: Leave, paragraph 5.4(a), delete the words "may be" and insert the words "shall be."
(12) Item D: Leave, paragraph 5.5(a), delete the current language and insert "for travel time to be granted by the Board, a completed itinerary shall be provided."
(13) Item D: Leave, paragraph 9, delete "if possible."
(14) Item E: delete the first two paragraphs.
2. Respondent’s Issues:
- Insurance: Replace High Option Preferred Provider Option Zero Dollar Deductible Blue Cross/Blue Shield Health and 100 percent "A" and "B" dental: with a provision that provides for "health and accident insurance that provides coverage equal to Nebraska Educators Health Alliance Blue Preferred $100 Deductible Plan with individual 80 percent "a" and "b" dental.
- Item D: Leave: Sick Leave: Delete the provision that provides as follows: "A sick leave bank of 120 days shall be in effect at the start of each school year," and replace the same with a provision that provides for sick leave to accumulate to forty (40) days for each teacher.
- Item D: Leave: Maternity/Paternity Leave: Delete this entire provision as violative of the provisions of the American’s with Disabilities Act, the Nebraska Fair Employment Practice Act, and other applicable laws, as such leave is provided for under the Family Medical Leave Act.
- Item D: Leave: Academic Study: Delete all provisions relating to academic study.
- Item D: Leave: Travel Leave: Delete all provisions relating to travel leave.
l. Estoppel of Petitioner to argue mootness of issues identified by Petitioner’s Petition and Respondent’s Cross-Petition due to Petitioner’s delay in good faith negotiations process for the 2002-2003 contract year.
The Commission has jurisdiction over the parties and subject matter of this action pursuant to Neb. Rev. Stat. § 48-818 (Reissue 1998) 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…
The Association proposes seven school districts for their array. The District proposes that thirteen school districts, four of which are proposed by the Association, are appropriate for the array. The common array members are Garden County, Rushville, Gordon and Thedford. The contested array members proposed by the Association are Rock County, West Holt, and Burwell. The contested array members proposed by the Respondent are Hay Springs, Hemingford, Chappell, South Platte, Stapleton, Paxton, Mullen, Sandhills, and Cody-Kilgore. In determining a proper array, the parties agree that the work, skill, and working conditions of Hyannis High School’s teachers are sufficiently similar for comparison under Neb. Rev. Stat. § 48-818 (Reissue 1998) to the following array members: Rock County, Garden County, Rushville, West Holt, Gordon, Thedford, and Burwell.
The Association’s Proposed Array
The Association proposed an array of seven school districts: Rock County, Garden County, Rushville, Gordon, Thedford, West Holt and Burwell. The issue before the Commission is whether one or more of the Association’s three additional proposed array members should be included in the Commission’s array with the four common array members based on a highway mile calculation.
The District’s Proposed Array
The District proposes an array of thirteen school districts which includes Garden County, Rushville, Gordon, Thedford, Hay Springs, Hemingford, Chappell, South Platte, Stapleton, Paxton, Mullen, Sandhills, and Cody-Kilgore. The four common members used by both the District and the Association meet the Commission’s size and geographic proximity guidelines, but the Commission has also expressed that it would prefer arrays containing more than four (4) or five (5) members whenever possible. Grand Island Education Ass’n v. Hall County School District No. 0020, 11 CIR 237 (1992); Douglas County Health Department Employees Ass’n v. County of Douglas, 9 CIR 219 (1987). The Commission has held that arrays consisting of six to eight members are appropriate. O’Neill Education Ass’n v. Holt County School District No. 7, 11 CIR 11 (1990); Red Cloud Education Ass’n v. School District of Red Cloud, 10 CIR 120 (1989); Logan County Education Ass’n v. School District of Stapleton, 10 CIR 1 (1988); Trenton Education Ass’n v. School District of Trenton, 9 CIR 201 (1987).
The Commission’s Array
When choosing an array of comparable employers, the Commission applies a well-established size guideline of one-half to twice as large. See Scotts Bluff County School District No. 79-0064 v. Lake Minatare Education Ass’n, 13 CIR 256 (1999); Yutan Education Ass’n v. Saunders County School District No. 0009, 12 CIR 68 (1994); Crawford Teachers Ass’n v. Dawes County School District No. 0071, 11 CIR 254 (1991); Red Cloud Educ. Ass’n v. School Dist. of Red Cloud, 10 CIR 120 (1989). Employers falling outside this guideline are often excluded from arrays; however, the size criteria used by the Commission is a general guideline and not a rigid rule. Nebraska Public Employees Local Union 251 v. Sarpy County, 13 CIR 50 (1998); Nebraska Public Employees Local Union 251 v. County of York, 13 CIR 128 (1998); 13 CIR 157 (1998); 12 CIR 309 (1997); 12 CIR 248 (1997). Nonetheless, since the size guideline is based on objective criteria, it provides predictability and should not be lightly disregarded when a sufficient number of comparables, which meet the guidelines, exist. See School District of West Point v. West Point Education Ass’n, 8 CIR 315 (1986); Richland Teachers Education Ass’n v. Colfax County School District No. 0001, 11 CIR 286 (1992). The common array members are Garden County, Rushville, Gordon and Thedford. The contested array members proposed by the Association are Rock County, West Holt, and Burwell. The contested array members proposed by the Respondent are Hay Springs, Hemingford, Chappell, South Platte, Stapleton, Paxton, Mullen, Sandhills, and Cody-Kilgore. Even in such cases, the Commission does not disregard the size and geographic guidelines. See Id. The Commission need not consider every conceivable comparable, but only "a sufficient number in a representative array so that it can determine whether the wages paid or the benefits conferred are comparable." Nebraska Pub. Employees Local Union 251 v. County of York, 13 CIR 157 (1998).
Highway Miles v. Air Miles
The Respondent argues that the Commission should use only highway miles in determining geographical proximity, whereas Petitioner argues that the Commission usually uses air miles in its determinations of proximity. In Milligan Education Ass’n v. Filmore County School District No. 0071, a/k/a School District of Milligan, 11 CIR 89 (1991), the Respondent used air miles and the Petitioner used counted or highway miles. In Milligan, the Commission found that it had used both types of mileage in the past. The Commission further stated that using air miles usually tends to shorten the distance between array points. The Commission held that whether it used air or highway miles, in that particular case it would have made no difference in the Commission’s choice of an array. The Commission has used air and/or highway miles in numerous cases in the past. See Lynch Education Ass’n v. Boyd County School District No. 0036, a/k/a Lynch Public Schools, 11 CIR 25 (1990); Sterling Education Ass’n v. Johnson County School District No. 0033, a/k/a Sterling Public Schools, 11 CIR 108 (1991); Conestoga Education Ass’n v. Cass County School District No. 0056, a/k/a Conestoga Public Schools, 11 CIR 100 (1991); O’Neill Educ. Ass’n v. Holt County School Dist. 0007, 11 CIR 11 (1990); and International Brotherhood of Police Local No. 535 v. City of Scottsbluff, 3 CIR 632 (1979).
In the instant case, the proposed array school districts range from 39 highway miles to 195 highway miles and 51 air miles to 148 air miles. See Table I. Even though air miles reduced the number of miles, the Commission generally sees an overall increase in total highway miles. The Commission has used arrays with an average distance of more than 148 miles. See Educational Service Unit No. 13 Education Ass’n v. Educational Service Unit No. 13, 14 CIR 1 (2002). Therefore, the Commission declines to adopt a highway mile only comparison as suggested by the Respondent. The use of highway miles and/or air miles does not impact the Commission’s array. Instead, the Commission must determine if Hyannis should be compared to Non-Class VI school districts.
Class III and Class VI School Districts
The Petitioner maintains that the Commission should only use comparable Class VI school districts in its array. The Respondent, however, argues that the Commission should use other Class III school districts instead of Class VI school districts because the Class III school districts are relatively closer than other comparable Class VI school districts. The Commission has consistently found in the past, where there are considerable comparables in an array of Class III school districts, it will not consider other school districts outside of Class III for comparison. See Republican Valley Education Ass’n v. School District No. 109R, Red Willow County, Nebraska, a/k/a Republican Valley School, 7 CIR 58 (1983) and School District No. 125, Frontier County, Nebraska, a/k/a Medicine Valley Public Schools v. Curtis Education Ass’n, 7 CIR 96 (1983).
For example, in Valentine Education Ass’n v. School District No. 6, Cherry County, Nebraska, a/k/a Valentine Rural High School, 8 CIR 271 (1986), the Commission considered an array of comparable Class III school districts, Class VI school districts and one Class I school district. The Commission found that, while there was no rule which necessarily precluded the use of a Class I or Class VI schools for comparison purposes with Class III school districts, the Commission declined to do so because of the availability of a sufficient number of more similar schools.
In both Republican Valley Educ. Ass’n and Curtis Educ. Ass’n, the Commission declined to include Class VI schools for a comparison to the Class III Respondent school district. While there was no rule which necessarily precluded the use of Class VI schools for comparison purposes with Class III schools, the Commission declined to do so in Curtis Educ. Ass’n and Republican Valley Educ. Ass’n because of the availability of a sufficient number of similar Class III schools.
Respondent also argues that in both Valentine Educ. Ass’n v. School Dist. No. 6 of Cherry County, 8 CIR 271 (1986) and West Holt Faculty Ass’n v. School Dist. No. 25 of Holt County, 5 CIR 301 (1981), the Commission found arrays of both Class III and Class VI school district’s appropriate. In addition, the Respondent argues that because the Association uses Class VI, 7-12 enrollment and Class VI, 9-12 enrollment school districts, the K-12 distinction in Class III school districts is superficial. The Petitioner argues that making these comparisons causes confusion in the law regarding array selection for Class VI school districts. In Valentine Educ. Ass’n both parties presented arrays to the Commission that combined both Class VI’s and Class III’s. Accordingly, because of the parties stipulated common array members, the Commission created an array with both school district classes. Furthermore, the Commission also excluded Valentine Elementary (a Class I) from the array. The Commission concluded that while there was no rule that necessarily precludes the use of Class I schools for comparison purposes with school districts which do have high schools, the Commission declined to include Class I’s because of the availability of a sufficient number of more similar schools. This was consistent with past CIR holdings. See School Dist. No. 125 v. Curtis Educ. Ass’n, 7 CIR 96 (1983).
In the instant case, the parties have four common Class VI school districts and the Petitioner offers three additional Class VI school districts, that meet both the Commission’s proximity and geographical guidelines, as well as having common work, skills and working conditions stipulated to in the Pre-trial. The Petitioner does not stipulate or provide any other classes for inclusion in the array. The Respondent did not offer any additional non-common Class VI schools, but instead offered additional Class III schools. Furthermore, the Hyannis School District educates students in grades 7-12. Thedford and Burwell also educate students in grades 7-12. Whereas, the common array schools of Rushville, Gordon and Garden County educate students in grades 9-12; as do West Holt and Rock County proposed by the Association. All additional Class III schools proposed by the Respondent educate students in grades K-12.
The Commission in the past has held that arrays consisting of six to eight members are appropriate. Coleridge Education Ass’n v. Cedar County School District No. 14-0541 a/k/a Coleridge Community Schools,"Coleridge I," 13 CIR 376 (2001); O’Neill Educ. Ass’n v. School Dist. of Red Cloud, 10 CIR 120 (1989); Logan Co. Educ. Ass’n v. School Dist. of Stapleton, 10 CIR 1 (1988); Trenton Educ. Ass’n v. School Dist. of Trenton, 9 CIR 201 (1987). Therefore, because the Commission has seven array members that meet its general guidelines and they are Class VI school districts, it is unnecessary for the Commission to broaden its list of array members outside of the category of Class VI school districts. The Commission’s array shall consist of the four common array members of Garden County, Rushville, Gordon and Thedford and the contested array members of Rock County, West Holt, and Burwell.
The Association is asking the Commission to declare as a matter of law in public sector collective bargaining that open-ended deviation language in a negotiated agreement is unenforceable and should not be permitted. Petitioner also maintains that under open-ended deviation the School District at Hyannis could pay more or less than the negotiated/order schedule and base provided. The Petitioner further argues that it is not possible on one hand to set base-scheduled salaries and on the other hold that open-ended deviation is also a term and condition of employment. The Petitioner states that to do so does not result in an order that is "binding" as set forth in Neb. Rev. Stat. § 48-819 (Reissue 1998).
The Respondent maintains that it has the right to deviate and sees the Commission’s order as a minimum from which it is their choice to deviate upward. The Respondent urges the Commission to determine the issue of deviation based on prevalency. The Respondent argues that the inclusion of a deviation clause by a large majority of the compared-to districts recognizes the difficulty that school districts in the more sparsely populated areas of our state have in attracting qualified teachers in certain endorsement areas.
Both parties have requested that the Commission more thoroughly set forth the law of deviation. Since this case will have a great impact on collective bargaining for teachers in Nebraska, it is important to thoroughly review and analyze the past case law on the topic of deviation.
There are four past cases that have dealt with the issue of deviation. The first case the Commission decided was Wayne Education Ass’n v. School District of Wayne, 9 CIR 281 (1988). In Wayne, the Petitioner argued that the deviation language contained in the negotiated agreement must be deleted because not only was it non-prevalent, but it was also objectionable in that it contradicted the automatic advancement inherent on an index salary schedule. The Commission held that because the clause was not prevalent, it would not determine the merits of the clause. Therefore, the deviation language was stricken from the contract.
The second case regarding the issue of deviation is Yutan Educ. Ass’n, 12 CIR 68 (1994). The Petitioner argued that Yutan’s contract deviation language was not prevalent. In Yutan, the Commission, in the context of a wage decision, found that the language allowing the Respondent to deviate from the salary schedule was not prevalent. 12 CIR 68 (1994). The Commission based this decision on Wayne.
The third case involving the issue of deviation is Crete Education Ass’n v. Saline County School District No. 76-0002, a/k/a Crete Public Schools, 13 CIR 361 (2001). Appealed May 30, 2001. Affirmed in part, and in part reversed. 265 Neb. 8 (2002). In Crete, the Supreme Court held that if the gifts or the bonuses are so tied to the remuneration which employees received for their work that the gifts or bonuses were, in fact, a part of it, they are in reality wages and within the statute.
The case began in April of 2000, when the District needed to hire an industrial arts teacher. Of the two qualified applicants interviewed for the position, Mathew Hintz was offered the position on April 4, 2000. Hintz requested a starting salary of $24,000. At the time, the District was negotiating with the union to raise the pay for beginning teachers to $24,000 for the 2000-2001 school year, but after a series of unsuccessful negotiations to raise the base pay to $24,000, the parties settled on a base salary of $21,650 for all beginning teachers. After the conclusion of these negotiations, the school board agreed to pay Hintz $21,650 plus a $2,350 signing bonus paid in twelve monthly installments.
Accordingly, the Supreme Court found that because the bonus was paid in twelve monthly installments and was directly tied to Hintz’s wage, the bonus should have been bargained about at the bargaining table. Therefore, the Supreme Court concluded that the District had directly dealt with Mr. Hintz in August of 2001 and the bonus given to Mr. Hintz was indeed a subject of mandatory bargaining to be dealt with at the bargaining table. Crete also stated that under Neb. Rev. Stat. § 48-838 the certified exclusive collective bargaining agent shall represent ALL employees in the appropriate unit with respect to wages, hours and working conditions.
Finally, in Coleridge I, the deviation clause language presented an interesting question before the Commission as to whether such language is a mandatory, permissive, or prohibited topic of bargaining. In Coleridge I, the Petitioner sought the elimination of the following deviation language from the parties’ previous Negotiated Agreement: "The District retains the authority to deviate upward from that number [base salary] when, in its sole discretion, it is in the best interest of the District to do so. The District agrees to notify the Association each time this occurs." This discretionary deviation language had been in the contract approximately ten years prior to the year in question. The Respondent testified that sometime between June of 2000 and August of 2000, Mr. Schnoor, the Coleridge Superintendent, negotiated with the two teachers, Mike Bargen and Jeff Finley, who had no prior teaching experience, regarding their employment at Coleridge upon graduation from Wayne State College. Both teachers contracted with Mr. Schnoor for placement on Step 6 of the salary schedule. Both Mr. Bargen and Mr. Finley student-taught at Coleridge up until December 15, 2001 when they graduated from college. Starting December 16, 2001 they both became full-time teachers at Coleridge. On December 18, 2001 both teachers were placed on annualized payroll on Step 6 of the salary schedule. The Respondent argued that this placement was permissible under Article V Clause B "Initial Placement" of the September 9, 1999 Negotiated Agreement.
The Commission found that generally, the goal of labor law is to equalize the bargaining power between employer and employees. In order to equalize bargaining power, the Commission utilizes three categories of collective bargaining subjects: mandatory, permissive and prohibited. Mandatory collective bargaining subjects are those which relate to "wages, hours, and other terms and conditions of employment, or any question arising thereunder." Neb. Rev. Stat. § 48-816(1). Additional mandatory subjects of bargaining are those which "vitally affect" the terms and conditions of employment. Allied Chemical & Alkali Workers Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971). Fraternal Order of Police Lodge 41 v. County of Scotts Bluff, Nebraska, et. al., 13 CIR 270 (2000).
The Commission further found that the Industrial Relations Act only requires parties to bargain over mandatory bargaining subjects. Neb. Rev. Stat. § 48-816(1). In defining the various bargaining categories, the Commission states that permissive bargaining subjects are legal subjects of bargaining, which do not fit within the definition of mandatory subjects. See NLRB v. Borg-Warner Corp., Wooster Div., 356 U.S. 342 (1958). The Commission went on to state that either party may raise a permissive subject during bargaining, but the non-raising party is not required to bargain over permissive subjects. Id. Finally, the Commission commented that prohibited bargaining subjects are topics that the law forbids the parties from agreeing upon.
Additionally, the Commission stated that some subjects are considered management prerogatives and may generally be altered at the will of the employer. See Metropolitan Technical Community College Education Ass’n v. Metropolitan Technical Community College Area, 203 Neb. 832, 281 N.W.2d 201 (1979) (holding in a school case that the following subjects are management prerogatives: the right to hire; to maintain order and efficiency; to schedule work; to control transfers and assignments; to determine what extracurricular activities may be supported or sponsored; and to determine the curriculum, class size, and types of specialties to be employed).
Furthermore, in Coleridge I the Commission in an effort to establish working guidelines of what constitutes mandatory subjects of bargaining, cited the Nebraska Supreme Court in Metro Tech. Community College Educ. Ass’n, and set forth the following test:
A matter which is of fundamental, basic, or essential concern to an employee’s financial and personal concern may be considered though there may be some minor influence of educational policy or management prerogative. However those matters which involve foundational value judgments, which strike at the very heart of 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. The Commission in Service Employees International Union, Local No. 226 v. School District No. 66, 3 CIR 514 (1978), used a relationship test in determining bargaining issues.
"Whether an issue is one for bargaining under the Court of Industrial Relations Act depends upon whether it is primarily related to wages, hours and conditions of employment of the employees, or whether it is primarily related to formulation or management of public policy." Id. at 515. The Commission had also previously held that initial placement of employees on the pay line is not a management prerogative. See Lincoln Firefighters Ass’n Local 644 v. City of Lincoln, 12 CIR 211; 12 CIR 221 (1996); 12 CIR 248; 12 CIR 309 (1997).
In Coleridge I, the Commission in conclusion determined that the distinction between the different categories of bargaining subjects was important. The Commission therefore, used the prior NLRB and Commission case law to determine if deviation from salary schedules is primarily related to management functions or primarily related to wages or conditions of employment.
Using that law, the Commission held that the teacher salary schedule had historically been the basic framework of teacher contracts. The virtual universal use of salary schedules for teachers by local districts raised no basic legal question if there is reasonableness of classifications and uniformity of treatment of those performing similar service and having like training and experience. In sum, the Commission stated that salary schedules clearly constituted wages under Neb. Rev. Stat. § 48-818(1). School District of Seward Education Ass’n v. School District of Seward in the County of Seward, 1 CIR 34 (1971). Or put another way, deviation from the salary schedule affected wages. Therefore, the Commission held that the right to deviate from the salary schedule is a subject of mandatory bargaining.
In applying the holding, the Commission found the testimony indicated that Article V Clause B "Initial Placement" had been in the Bargaining Agreement for at least ten years. Neither party testified as to when Article V Clause B was placed in the contract, nor did the parties testify to the circumstances surrounding that placement. However, while the School District believed that it had the discretion in entry-level placement in the 1999-2000 contract, the 1999-2000 agreement expired in September of 2001. The contract expired over three months prior to the placement of Mr. Bargen and Mr. Finley on the salary schedule in December of 2001. The Commission found that the District did not have the right to deviate from the salary schedule because there was no evidence that they bargained for Article V Clause B in the contract. Therefore, for the purpose of calculating base salary, the Commission placed both Mr. Finley and Mr. Bargen on Step 1 in order to calculate total compensation for each array school and for Coleridge’s schedule.
In sum, Nebraska case law has developed the law regarding deviation into the realm of a mandatory subject of bargaining.
The Commission will now examine the parties’ issues with regard to the deviation clause.
"The Right to Deviate"
The Respondent maintains it has the right to deviate. The Petitioner argues that the District has no "right" to deviate from a collective bargaining agreement, citing that no Nebraska Statute reserves such a right. The Respondent argues that compensation driven by market forces, rather than based on longevity and education accumulated over years, is good public policy.
Coleridge I clearly states that deviation from the salary schedule for new hires is a mandatory topic of negotiations. 13 CIR 376 (2001). There are no Nebraska Statutes that provide the District with the right to deviate from a salary schedule. The only right granted to the Districts is the right to contract … for collective bargaining agreements with employee groups under Neb. Rev. Stat. § 79-515. Petitioner also cites Interim Study Resolution 138, 2003 Legislature, 1st Session, (which has been withdrawn/tabled by Senator Cunningham), which stated the following:
The purpose of this resolution is to study the collective bargaining process used by teachers’ unions and school boards when determining the negotiated agreement for teachers. With the present teacher shortage that is occurring in Nebraska as well as other states, it is becoming increasingly difficult to hire teachers, particularly in certain fields. This study shall focus on whether school boards should be given statutory authority to deviate above the standard contract when necessary to attract quality teachers.
In the instant case, the Commission can find no statute granting the Respondent a ‘right’ to deviate by the Legislature. The ruling in Coleridge I clearly states that deviation, because it is related to wages, does not allow the District any management prerogatives and such deviation language must be bargained over, for inclusion in a contract. Therefore, the Commission holds that the Respondent does not have the ‘right’ to deviate from the salary schedule because it is a mandatory subject of bargaining.
The Respondent maintains that the Commission should determine the issue of deviation based on prevalency. The Respondent argues that the inclusion of a deviation clause by a large majority of the compared-to districts recognizes the difficulty that school districts in the more sparsely populated areas of our state have in attracting qualified teachers in certain endorsement areas. The Petitioner asserts that marking the issue as one of prevalency would render the Commission a totally useless forum. Petitioner further argues that ordering deviation language, in combination with ordering a salary schedule and a base salary, would result in an order that is not binding.
Prevalency has traditionally been used by the Commission on a case-by-case basis with a great deal of discretion being granted to the judges’ determination. The CIR case law is reflective of this policy. The Commission, in several of its earliest cases, discussed the concept of "prevalence."
In Fremont Education Ass’n v. School District of Fremont, 1 CIR 50 (1972), the Commission consulted Webster’s New World Dictionary for authoritative comments on the word "prevalent" and found the following definition:
Prevalent, 1. [Rare], predominant. 2. Widely existing; generally practiced, occurring, or accepted. SYN. see prevailing.
Id. at 50-7.
The Commission reviewed its application of the prevalent standard, as set out in Fremont, and summarized its findings in Hastings Education Ass'n v. School District of Hastings, 1 CIR 42 (1972) as follows:
The Legislature originally intended as a standard of wage rates those which were predominate or at least widely existing throughout the whole state. Then it changed the standard to one of general practice, occurrence, or acceptance but in a very limited area... Thereafter, in 1969 the Legislature withdrew the mandatory limitation on area, but it did not re-express a mandatory consideration of either predominance or of existence throughout the whole state. The standard now is one of general practice, occurrence, or acceptance, but the question of how general is general is left to the good judgment or feeling of the judges. The requirement of similarity of working conditions helps the judges develop that judgment or a receptivity to the proper connotation of the word "prevalent". Similarity tends to decrease with increasing distance among what are to be compared and to become more pronounced with increasing proximity.
Id. at 42-10.
From these cases it is clear that the standard inherent in the word "prevalent" is one of general practice, occurrence or acceptance [see, Webster’s New World Dictionary], but the extent of such generality is left in each case to the judgment or feeling of the judges.
To emphasize the subjectivity of the "prevalent" standard, in Omaha Ass’n of Firefighters v. City of Omaha, 2 CIR 117 (1975), aff’d 194 Neb. 436, 231 N.W.2d 710 (1975), the Commission stated that:
The ascertainment of the prevalent wage rate in a given case is a matter incapable of exact mathematical demonstration. It is one of reasonable approximation having its basis in a proper consideration of all relevant factors... Section 48-818 does not fix any single formula or combination of formulas whereby the prevalent wage rate is to be determined. Rather the court must make the pragmatic adjustments which may be called for by particular circumstances.
Id. at 117-5.
On appeal to the Nebraska Supreme Court, the Omaha Ass’n of Firefighters decision was affirmed. The Court stated that a prevalent wage rate "must almost invariably be determined after consideration of a combination of factors." Id. at 440. The Court specifically pointed out that the Commission had not determined the prevalent wage rates for firefighters "by any direct computation or application of average or mean rates" from cities in the selected array. Id. at 441. Instead, according to the Court, the Commission "weighed, compared, and adjusted all the factors involved in each of the cities, which resulted in a determination of prevalent wages paid..." Id. The Commission and the Nebraska Supreme Court have determined that the standard for prevalent wage rate is practice, occurrence or acceptance, not a predetermined percentage or formula. This standard developed in early CIR case law grants a great deal of deference to the sound judgment of the judges.
In the instant case, the Commission must determine whether or not a prevalence determination is appropriate for deviation. Without a doubt, there is a significant amount of case law suggesting that prevalence is the appropriate method for the Commission to use to deal with wages, hours and conditions of employment. However, as the Association urges the Commission to consider, the deviation issue can be further defined into open-ended deviation and defined deviation. The Respondent argues that the Commission must follow its decisions in Yutan and Wayne. Unlike Wayne and Yutan, the Commission does not decline to determine the merit of the clause or the appropriate method to be used to decide this issue henceforth, since both parties have stipulated to have the issue decided by the Commission.
In the instant case, if the Commission uses the seven array members proposed above, the Commission has no evidence as to whether Burwell, Rock County or West Holt have deviation provisions. With respect to the four common array members, Gordon and Rushville have no deviation agreements and Garden County and Thedford have different deviation agreements. See Table II. If the Commission were to determine the issue of deviation based on prevalency, it would conclude the result is bi-modal and there is no clear prevalent. Nevertheless, this result does not look directly at each contract provision in its entirety, but instead compares multiple types of different deviation clauses without making an apples-to-apples comparison.
Furthermore, if the Commission starts comparing various contractual provisions to determine prevalent language, it creates a host of issues. The problem lies in the definition of deviation and the infinite scope in which it can canvas contract provisions. Deviation can be broad, it can be narrow, it can be definite, and it can be uncertain as seen in the example of Garden County, where their "deviation" language states:
The salary schedule shall not be construed as being contractual and no teacher employed by the district shall have claims, demands or course of action of reason of the provisions. Furthermore, the Board reserves the right to make necessary adjustments in order to meet emergencies which may arise. Questions over the interpretation of schedule will be resolved by the Superintendent and Board of Education, whose decision shall be final.
An appropriate use of prevalence to determine comparability could be illustrated by the method used by the Commission with regard to health insurance. In that situation, the Commission looks at the deductible amount, whether an election of single, family, or 2/4 party can be made, the percentage paid by the employer, the percentage paid by the employee, and whether or not employees can take cash in lieu of insurance. Rarely, does the Commission consider whether or not the compared-to array schools have health insurance at all. Instead the Commission examines the specific factors, within a generalized category. This tested process of determining prevalence for issues like health insurance allows the Commission to come up with a modal or midpoint result, which in turn allows the Commission to determine a particular part of a contract in relative unbiased certainty. This certainty can never occur in the process of determining prevalence for the issue of deviation, since all the provisions that the Commission would use in the comparison would need to be identical. For example, one array school district could give the board the right to deviate in their contract with the Association to find a math teacher; the second contract at another array school district could give the board the right to give two steps on the salary schedule; and finally the third array school district could give the board the right to deviate without any detailed specific scenarios listed in the contract. In this scenario, if the Commission was required to determine prevalency, it would be ignoring its underlying statutory purpose to create "comparable" wages, hours, and working conditions under Neb. Rev. Stat. § 48-818. Like the hypothetical, the instant case leaves the Commission with several fundamentally different contract provisions. See Table II. The Commission has also held previously that there can be no prevalent or modal practice where there is no clear majority of array members implementing the practice. Omaha Police Union Local 101 v. City of Omaha, 11 CIR 114 (1991). Likewise, where there is no clear majority of array members implementing the exact same deviation clause, the Commission is not able to make an apples-to-apples comparison under the prevalency argument. Therefore, unless the Commission is presented with a prevalent array of identical contract provisions, the Commission will not determine the issue of deviation as one of prevalency.
Open-ended Deviation/Defined Deviation and Mutuality of Obligation
While the Respondent is requesting the Commission to determine the issue of deviation as one of prevalency, the Petitioner on the other hand is asking the Commission to declare as a matter of law in public sector collective bargaining that open-ended deviation language in a negotiated agreement is unenforceable and should not be permitted. Petitioner also maintains that under open-ended deviation the school district at Hyannis could pay more or less than the negotiated/order schedule and base provided. Whereas, the Respondent maintains that it has the right to deviate and sees the Commission’s order as a minimum, from which it is their choice to deviate upward. The Petitioner also argues that it is not possible on one hand to set base-scheduled salaries and on the other, hold that open-ended deviation is also a term and condition of employment, creating a situation that lacks mutuality of obligation. The Petitioner states that to do so does not result in an order that is "binding" as set forth in Neb. Rev. Stat. § 48-819 (Reissue 1998). The Respondent argues that the Commission does not have jurisdiction to determine if mutuality of obligation exists in a contract.
Neb. Rev. Stat. § 48-819 provides: "Orders, temporary or final, entered by the Commission of Industrial Relations shall be binding on all parties involved therein and shall be deemed to be of the same force and effect as like orders entered by a district court and shall be enforceable in appropriate proceedings in the courts of the state."
In the prohibited practice case Ewing Educ. Ass’n v. Holt County School Dist. No. 029 a/k/a Ewing Public Schools, 12 CIR 242 (1996), the Commission determined whether the District’s action interfered with, restrained or coerced employees in the exercise of their rights under the Industrial Relations Act or denied them those rights altogether. Neb. Rev. Stat. § 48-824(2)(a) and (f). The Commission stated that in order to secure the continuous, uninterrupted and proper functioning of governmental services the Legislature passed the Industrial Relations Act prohibiting public employees from striking and giving instead the right to collectively bargain the terms and conditions of their employment and to come to the Commission of Industrial Relations when such bargaining fails. The Commission further stated that while the Act does not require the making of an agreement, there could be no doubt its purpose is to encourage and foster such agreement in which parties felt that coming to the Commission is a last resort. In sum, the Commission held that if an agreement reached through collective bargaining can be materially altered by one party without the consent of the other, then there can be no real meaning to the collective bargaining process or the rights granted to the parties under the Industrial Relations Act.
In Ewing, the health insurance provision was a focal point of negotiations between the Association and the District. Continuation of the High Option Coverage at the District’s expense was a priority for the Association. For the District to agree to this provision in the contract one month and take it away the next is a repudiation of the collective bargaining process altogether. The Commission held that Neb. Rev. Stat. § 48-824 et seq. was promulgated to protect the integrity of the collective bargaining process. In Ewing, the District’s action subverted the Act’s principle objective–the establishment of terms and conditions of employment through the collective bargaining process. As such, it is a prohibited practice under Neb. Rev. Stat. § 48-824(a) and (f).
The Commission has also found that it does not have the power to order the parties to enter into a contract, which is expressly forbidden by Neb. Rev. Stat. § 48-810.01. See Grand Island Education Ass’n v. Hall County School District. No. 0002 a/k/a School District of Grand Island, 11 CIR 237 (1992). The Supreme Court has affirmed the notion that the Commission’s orders are not designed to force a school district to enter into a contract but rather are a way for the Commission to exercise its power to settle an industrial dispute. School Dist. of Seward Educ. Ass’n v. School Dist. of Seward, 188 Neb. 772, 199 N.W.2d 752 (1972).
In the instant case, the Commission cannot create a contract for the parties to follow. While Ewing expressly prohibits employers from deviating from contractual provisions, this case is not in the context of a prohibited practice because there has been no triggering event. Hyannis has not yet used the provision placed in the 2001-2002 contract, for the 2002-2003 school year, which has expired. Instead, the Respondent argues in its brief that our order should be prospective for further years. However, we have consistently stated in the past that, "If there is no dispute pending before the Commission, we will not issue an advisory opinion or an opinion intended to provide future guidance to the parties." See City of Omaha v. Nebraska Public Employees Local No. 251, 10 CIR 233 (1990). Furthermore, lacking the authority to create a contract, the Commission is unable to remedy the current predicament of the parties. Without guidance from the Legislature or the Nebraska Supreme Court, the Commission is left with no alternatives to resolve this issue regarding collective bargaining because the only available method of resolution, namely prevalency, clearly cannot be applied to deviation. Therefore, the Commission holds that, because it also lacks authority to decide the contractual issue of deviation, it will leave the parties without a remedy. This holding also applies to the Petitioner’s issues, Items 2-14, in the above said Nature of the Proceedings section.
The Petitioner argues that several of the fringe benefits in dispute are moot. Respondent maintains that if any of the benefits are moot, then all benefits are moot as well as the base salary. The Respondent also suggests that the Petitioner has been dilatory in its filing of the Petition causing unnecessary delay, resulting in moot fringe benefits. In sum, Respondent requests the Petitioner be estopped from using this argument.
The Commission has consistently held that where, as here, the school year has ended and any ruling on the benefits would be advisory, we will decline to make such rulings. See Fraternal Order of Police Lodge No. 23 v. The City of Holdrege, Nebraska, 9 CIR 257, 262 (1988), Trenton Educ. Ass’n v. School Dist. of Trenton, 9 CIR 201, 204-205 (1987) (held sick leave and sick leave bank were moot issues), Winnebago Education Ass’n v. School District of Winnebago, 8 CIR 138, 146-148 (1985), see also, District No. 8 Elementary Teachers Ass’n v. School District No. 8, Dodge County, 8 CIR 126 (1985). School District No. 125 v. Curtis Educ. Ass’n, 7 CIR 96 (1983).
For example, in Nebraska Public Employees Local Union 251 v. Otoe County, 12 CIR 177 (1996), the Commission found that two basic reasons have been advanced for considering an issue moot. One such instance is where it is impossible or impractical to retroactively change a benefit. See Lincoln Firefighters Ass’n Local 644 v. City of Lincoln, 12 CIR 248, 258, affirmed 253 Neb. 837, 845 (1998). Another is where a decision would, for all practical purposes, be merely advisory and have no carryover value. In past cases we have found the following benefits to be moot: amount of life insurance coverage; bereavement leave (funeral leave); dues check off; employee assistance program; number of paid holidays; sick leave and vacation leave days earned per year; conversion of sick leave to vacation days; availability of sick leave to care for family members; conversion of sick and vacation leave to cash upon resignation, dismissal, retirement, and death; bankable compensatory time; number of personal leave days; prescription card; optical exam; work hours; overtime; and insurance benefits for retirees. Lincoln Firefighters, 12 CIR at 266.
In the instant case, all of the benefit issues in this case, such as health insurance, sick leave, sick leave bank, maternity/paternity leave, academic study leave, and travel leave before the Commission, are moot because it would be impossible or impractical to retroactively change a benefit and such a change would, for all practical purposes, be merely advisory and have no carryover value. The issue of the structure of the salary schedule will not be moot. Therefore, to the extent that disputed issues ceased to exist at the conclusion of that contract year, they are moot.
Salary StructureThe Petitioner asserts that the District failed to present the evidence necessary to justify the alteration of the current index salary schedule. The Respondent argues that it is prevalent practice among the compared-to school districts to change the salary schedule. In West Holt Faculty Ass’n, the Commission found that variations in the salary schedule affect the distribution of compensation among teachers within the group, but it did not affect total compensation. Some teachers may have received less and others more depending upon the schedule, e.g. higher increments result in the lower base salary. Because four of the seven schools had vertical increments of 4.25 or higher and four out of the seven schools had horizontal increments of 4%, it could have be argued that a 4.25 x 4 schedule is roughly comparable to prevalent schedules. Such a schedule in West Holt Educ. Ass’n produced a result sought by neither party with a redistribution of total compensation not envisioned by either. In sum, the Commission held that because of varying effects of different schedules upon teachers within the bargaining group, changes in the structure of the schedule were best achieved through collective bargaining. The Commission concluded that the past practice was not to be disturbed, in the absence of substantial variances from prevalent practice. Therefore, the Commission found that no change in the salary schedule structure of West Holt was required.
In the instant case, three of the seven schools (Garden County, Gordon, and Rushville), have a 4.5 x 4.5 salary schedule, two of the seven schools (Burwell and Thedford) have a 5 x 4 salary schedule and two of the seven schools (Rock County and West Holt) have a 4.25 x 4.25 salary schedule. See Table III. There is no clear prevalent in the comparison to Hyannis because there is a bi-modal result. Without a substantial variance from the prevalent practice of a 4 x 4 salary schedule, and a non-prevalent response, the Commission will not change the salary schedule at Hyannis. Therefore, Hyannis will retain its 4 x 4 salary schedule.
Table IV sets forth the relevant information for determining the appropriate base salary. The midpoint of the total compensation $552,627 minus the cost of fringe benefits of $113,573 equals $439,054, which, when divided by the new total staff index factor of 18.588, equals a base salary of $23,620 for the 2002-2003 school year.
The Commission declines to adopt a highway-mile-only comparison as suggested by the Respondent. Whether the Commission uses highway miles and/or air miles, the Commission’s array is not impacted. Based on the evidence presented at trial and past case law, the Commission will only use the proposed seven Class VI schools. Therefore, the Commission’s array shall consist of the four common Class VI array members of Garden County, Rushville, Gordon and Thedford and the contested Class VI array members of Rock County, West Holt, and Burwell.
Without guidance from the Legislature or the Nebraska Supreme Court, the Commission is left without alternatives to resolve the deviation issue since the only available method of resolution, namely prevalency, clearly cannot be applied to deviation. Therefore, the Commission holds that because it lacks authority to decide the contractual issue of deviation, it will leave the parties without a remedy. This holding also applies to the Petitioner’s issues, Items 2-14, in the above Nature of the Proceedings section.
All of the benefits’ issues in this case, such as health insurance including deductible amount and employer premium contribution, sick leave, sick leave bank, maternity/paternity leave, academic study leave, and travel leave before the Commission, are moot because it would be impossible or impractical to retroactively change a benefit and such a change would, for all practical purposes, be merely advisory and have no carryover value. The issue of the structure of the salary schedule will not be moot. However, without a substantial variance from the prevalent practice of a 4 x 4 salary schedule, and a non-prevalent response, the Commission will not change the salary schedule at Hyannis. Therefore, Hyannis will retain its 4 x 4 salary schedule.
IT IS THEREFORE ORDERED THAT:
All judges join in the entry of this order.
Entered January 6, 2004
Jeffrey L. Orr, Concurring:
I concur with the majority’s analysis of the current law and decision drawn therefrom. However, I believe that open-ended deviation totally undermines collective bargaining agreements, leaving one party not bound to the labor agreement. The heart and soul of a labor agreement is the negotiated agreement on wages, hours, and working conditions and if one party
can deviate from the agreement as they choose without any parameters, then the parties actually do not have an agreement. As a mandatory subject of bargaining, defined deviation provides the parties with parameters and transforms a useless one-sided document into a more meaningful, and certainly more enforceable, document. The parties can negotiate a deviation clause that is very specific and both sides know the allowed leeway the parties have bargained for. But a deviation clause that is specific enough to meet the needs of the parties, will be unique to these parties and will not support a prevalency argument in another case.
Without a change in the current law, the Commission, in cases where the parties cannot agree, will never be able to determine prevalency due to the lack of conformity of defined deviation clauses. Without the ability to have a meaningful agreement or the ability to determine prevalency, the law of deviation is a stalled issue, leaving one party with little redress in front of the Commission.