15 CIR 270, 278 (2006) 

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 Filed November 21, 2006

APPEARANCES:

NATURE OF THE PROCEEDINGS: 

Central City Education Association (hereinafter, “Petitioner” or “Association”) filed a wage petition on February 10, 2006, seeking resolution of an industrial dispute for the 2005-2006 contract year. The Association is a labor organization formed by teachers employed by Merrick County School District No. 61-0004, a/k/a Central City Public Schools (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 III school district.

JURISDICTION:

        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…

ARRAY: 

            The Association proposes an array of fourteen schools. These schools include Crete, Lakeview, York, Fillmore Central, David City, Aurora, Cross County, Milford, Twin River, Centura, Ravenna, Gibbon, St. Paul and Doniphan-Trumbull. The School District proposes an array of sixteen schools, twelve of which are common to the Association’s proposed array. The twelve common include Lakeview, York, Fillmore Central, David City, Aurora, Milford, Twin River, Centura, Ravenna, Gibbon, St. Paul, and Doniphan-Trumbull. In addition to the twelve common schools proposed by the Association, the School District also proposes Madison, Boone Central, Sutton, and Ord. In addition to the twelve common array schools, the Association proposes Crete and Cross County.

            The parties have stipulated that work, skill and working conditions of the bargaining unit employees of all of the array schools are sufficiently similar to the association’s bargaining unit employees to satisfy the requirements set forth in Neb. Rev. Stat. § 48-818.

When choosing an array of comparable employers, the Commission applies a well-established size guideline of one-half to twice as large. Allen Educ. Ass’n v. Dixon County School Dist. No. 26-0070, 14 CIR 101 (2002). 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. Hyannis Educ. Ass’n v. Grant County School Dist. No. 38-0011, 14 CIR 203 (2004),  aff’d in part, and in part rev’d and remanded for further proceedings, 269 Neb. 956 (2005). 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 Dist. of West Point v. West Point Education Ass’n, 8 CIR 315 (1986); Richland Teachers Educ. Ass’n v. Colfax County School Dist. No. 0001, 11 CIR 286 (1992). Even if potential array members share similar work, skills, and working conditions, the Commission does not disregard the size and geographic guidelines. South Sioux City Educ. Ass’n v. Dakota County School Dist. No. 22-011, 15 CIR 23 (2004). 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 128; 13 CIR 157 (1998).

Cross County

            Cross County is located 21 miles from Central City and is the second closest array school located next to Central City. Only the array school district of Aurora is closer, located at 17 miles. If the Commission were to skip over Cross County to arrive at a list of comparable array schools, in essence this would allow “cherry-picking” of the array. Furthermore, the District failed to present specific evidence as to why Cross County school district should be excluded from the array. As Cross County is extremely proximate to Central City, and there is no specific evidence to exclude Cross County, the Commission will include Cross County as part of its array.

Sutton 

            The current enrollment of Central City is 809 students; while the current enrollment of Sutton is 401 students. Even if potential array members share similar work, skills, and working conditions, the Commission does not disregard the size and geographic guidelines. South Sioux City Educ. Ass’n v. Dakota County School Dist. No. 22-011, 15 CIR 23 (2004). Sufficient comparable array districts to Central City exist already, as the parties have proposed an array of twelve comparable school districts. Sutton need not be considered since it falls outside the Commission’s guidelines and sufficient comparables exist. Therefore, the Commission shall not include Sutton in its array.

Crete

            Crete Public Schools is located 64 miles from Central City. Crete Public Schools is the least proximate school district proposed by the Association. The Commission has, in the past, declined to include in its array school districts that are not proximate. See Bellwood Faculty Ass’n v. School Dist. No. 3R, 6 CIR 3 (1983). Therefore, the Commission shall not include Crete Public Schools in the Central City array.

Madison, Boone Central, and Ord

            The Respondent argues for the Commission to include the districts of Madison, Boone Central, and Ord, since those districts are comparable. The Petitioner argues that Madison, Boone Central, and Ord should be excluded from the array due to the discretionary initial placement language in their contracts.

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 128; 13 CIR 157 (1998). The Commission has approved of thirteen-member arrays in the past. See Coleridge Educ. Ass’n v. Cedar County School Dist. No. 14-0541, 13 CIR 376 (2001). With the twelve common array members and Cross County in the array, the Commission has arrived at an array which has a sufficient number of array schools for comparison purposes. Therefore, the Commission need not consider Madison, Boone Central, or Ord or those districts implications on initial teacher placement.

In the instant case, the Commission finds that a suitable array for comparison purposes shall consist of Cross County, Lakeview, York, Fillmore Central, David City, Aurora, Milford, Twin River, Centura, Ravenna, Gibbon, St. Paul, and Doniphan-Trumbull.

FRINGE BENEFITS:

The Petitioner urges the Commission to determine all issues moot, other than the pregnancy leave clause, schedule advancement, contract continuation language and deviation clause. The Respondent maintains the issues raised by the Respondent are not moot simply because the school year is over. The Respondent also argues that the issues presented in the case fall under an exception to the mootness doctrine.

Mootness

This Commission has consistently refused to rule on certain fringe benefits when the contract year has passed. A determination as to a benefit that has no carryover into the next contract year would constitute an advisory opinion outside the Commission’s jurisdiction. See Papillion-LaVista Education Ass’n v. School District of Papillion-LaVista, l0 CIR l8, 22-23 (l988), Fraternal Order of Police Lodge No. 23 v. The City of Holdrege, Nebraska, 9 CIR 257, 262 (l988), Trenton Educ. Ass’n v. School Dist. of Trenton, 9 CIR 20l, 204-205 (l987), Winnebago Education Ass’n v. School District of Winnebago, 8 CIR l38, l46-l48 (l985).  

            In the instant case, the following issues are moot: health insurance coverage (deductible), sick leave, emergency absences, snow days, severance pay (sick-leave payout), and schedule advancement (administrative approval).

Continuation Language 

The Petitioner argues that the Commission should conduct a prevalancy analysis to determine that contract continuation language is prevalent. Since the current school year is completed, attempting to write continuation language into this agreement would appear to be advisory in nature, as well as moot.  The Commission, however, would have jurisdiction to resolve an industrial dispute should one arise over the present school year.

Deviation

With the school year being completed, and no evidence that the deviation clause was utilized, it would appear that this issue is also moot. The Commission declines to conduct a prevalency analysis of this clause.

Long-Term Disability Insurance

The Petitioner also urges the deletion of the existing contract provisions, establishing the Respondent’s ability to pay long term disability premiums as provided. Exhibit 22 analyzes the prevalency of these provisions, however, the evidence does not reveal whether the additional compensation to reimburse premium payments is included within total compensation. We decline to address this issue as rendered moot by the end of the contract year. We have previously held the issue of the provision of long term disability coverage to be rendered moot after the end of the contract year in dispute. See Lincoln Firefighters Ass’n Local 644 v. City of Lincoln, 12 CIR 248 (1997).  

Pregnancy Leave

This issue is also moot due to the contract year in dispute being over. Petitioner has noted that this provision may well violate several provisions of federal law. This particular provision is, however, moot and our opinion on its lawfulness would be merely advisory and beyond our jurisdiction.

Commuting Stipend

The Respondent argues that this stipend for teachers commuting between schools within the District, as opposed to mileage reimbursement, is not prevalent, and should be deleted. This provision is not rendered moot by the termination of the contract year, does not appear to be prevalent, and should be eliminated.

Work Day Duration 

The Respondent argues that the Commission should require the deletion of language in the negotiated agreement regarding the length of the school year and day. The Petitioner argues this benefit is moot.

The Respondent is correct, the Commission has held that the number of hours in a work day and the number of work days per year are subjects of management prerogative. Yutan Educ. Ass’n v. Saunders County School Dist. No. 0009, 12 CIR 68 (1994). Although this issue would appear to have been rendered moot by the termination of the contract year, the Commission has on several occasions directly addressed issues of management prerogative versus subjects of bargaining while finding, without comment, fringe benefits moot. As such, we hold that the four subparagraphs under Paragraph N, Exhibit D-1, as included in the Petition, should be deleted from the terms and conditions of employment for the school year 2005-2006. 

BASE SALARY:

Using the array proposed by the Commission, the midpoint of the total compensation $2,826,833 minus the cost of fringe benefits $564,814 equals $2,262,019, which, when divided by the total staff index factor of 91.2077, equals a base salary of $24,801 for the 2005-2006 school year. See Table 1.  

IT IS THEREFORE ORDERED THAT:

1.      Respondent shall pay the teachers a base salary of $24,801 for the school year.

2.      The commuting stipend should be eliminated from the contract year and used as an offset against any wages owed to the teachers who utilized the commuting stipend during the 2005-2006 contract year.

3.      The four subparagraphs under Paragraph N, Exhibit D-1,as included in the Petition, should be deleted from the terms and conditions of employment for the school year 2005-2006. 

4.      All other terms and conditions of employment for the school year shall be as previously established by the agreement of the parties and by the Opinion and Order of the Commission.  

5.      Adjustments in compensation resulting from this order shall be paid in a single lump sum payable within thirty (30) days of this final order, if possible. 

A copy of Table 1 may be obtained by calling the Commission of Industrial Relations, (402) 471-2934.