15 CIR 46 (2004) Appealed January 3, 2005. Appeal dismissed March 22, 2005.
|BEATRICE EDUCATION ASSOCIATION, an||)||CASE NO. 1077|
|Petitioner,||)||FINDINGS AND ORDER|
|GAGE COUNTY SCHOOL DISTRICT NO. 34-0015,||)|
|a/k/a BEATRICE PUBLIC SCHOOL DISTRICT, 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|
|233 South 13th Street|
|Lincoln, NE 68508|
Before: Judges Orr, Blake, and Burger
NATURE OF THE PROCEEDINGS:
Beatrice Education Association (hereinafter, "Petitioner" or "Association") filed a wage petition on May 20, 2004, seeking resolution of an industrial dispute for the 2003-2004 contract year. The Association is a labor organization formed by teachers employed by Gage County School District No. 34-0015, a/k/a Beatrice 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. The Respondent employed 167 staff members with an FTE of 165.575 for the 2003-2004 school year.
The Commission of Industrial Relations (hereinafter, "Commission") held a Trial on October 7, 2004. The issues presented at Trial are contained within the Commission’s Report of Pretrial filed on September 3, 2004.
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 fifteen school districts for their array. The District proposes eight school districts, seven of which are proposed by the Association. The common array members are Hastings, Columbus, Blair, Elkhorn, Crete, Ralston and Plattsmouth. The contested array members proposed by the Association are Norris, Waverly, Seward, Nebraska City, York, Gretna, South Central Nebraska Unified School District No. 5, and Aurora. The contested array member proposed by the District is Norfolk. In determining a proper array, the parties agree that the work, skill, and working conditions of Beatrice Public School’s teachers are sufficiently similar for comparison under Neb. Rev. Stat. § 48-818 (Reissue 1998) to the following array members: Hastings, Columbus, Blair, Elkhorn, Crete, Ralston, and Columbus. With regard to Norris, Waverly, Seward, Nebraska City, York, Gretna, South Central Nebraska Unified School District No. 5, and Aurora, the Respondent argues that these schools’ health benefits are not comparable with Beatrice’s health benefits and therefore the schools are not sufficiently comparable under § 48-818. The issue before the Commission is whether Norris, Waverly, Seward, Nebraska City, York, Gretna, South Central Nebraska Unified School District No. 5 and Aurora should be included in the Commission’s array with the other seven common array members and whether Norfolk should be included in the 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 Education Ass’n v. School District 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). Norris, Waverly, Seward, Nebraska City, York, Gretna, South Central Nebraska Unified School District No. 5, Aurora, and Norfolk are all geographically proximate to Beatrice and are all clearly within the Commission’s one-half to twice the size criteria. See Table 1. Furthermore, the Commission has in the past approved arrays of sixteen schools. See Lynch Education Ass’n v. Boyd County School District No. 0036, 11 CIR 25 (1990).
The District suggests that the array schools of Norris, Waverly, Seward, Nebraska City, York, Gretna, South Central Nebraska Unified School District No. 5, and Aurora are not sufficiently similar under Neb. Rev. Stat. § 48-818 because those array schools do not provide any cash-in-lieu of insurance. The Respondent relies on Millard Education Ass’n v. School District of Millard, 5 CIR 425 (1982), which stated that the cost of insurance should be excluded from total compensation in computing the total compensation. The Respondent also suggests that it is losing the benefit of the bargain if the Commission were to use array schools without cash-in-lieu of insurance options.
In Educational Service Unit No. 13 Education Ass’n v. Educational Service Unit No. 13, "ESU 13", 14 CIR 1 (2003), the Commission included schools in its array that did not provide cash-in-lieu of insurance, to be compared with Educational Service Unit No. 13, which did provide cash-in-lieu of insurance. The Commission has also included schools in arrays that did provide health insurance benefits with schools that had no direct health insurance benefits such as in the cases of Crawford Teachers Ass’n v. Dawes County School District No. 0071, ("Crawford"), 11 CIR 254 (1991) and Scotts Bluff County School District No. 17-0064 v. Lake Minatare Education Ass’n, ("Lake Minatare") 13 CIR 256 (2000).
After careful review of teacher wage negotiations over the past thirty years, the Commission has consistently used health insurance in its calculations of total compensation and has not excluded array choices because of the lack of cash-in-lieu of insurance. Neb. Rev. Stat. § 48-818 mandates that the Commission use the costs of health insurance benefits in its calculation of total compensation. If the Commission were to accept the logic of the Respondent’s argument, the Commission would have to exclude other array schools because of their differences in benefits. For example, Columbus does not provide employer paid long-term disability and Beatrice does provide employer paid long-term disability, making Columbus dissimilar from Beatrice under the general logic of the Respondent’s argument. Furthermore, once a case is filed with the Commission, both parties place at risk what they perceive as their past bargained for benefit. The Commission finds that neither side has proven their contested array member should be excluded from the Commission’s array. Therefore, Norris, Waverly, Seward, Nebraska City, York, Gretna, South Central Nebraska Unified School District No. 5, Aurora, and Norfolk are all comparable under Neb. Rev. Stat. § 48-818 with respect to work, skill and working conditions and likewise should be included along with the schools of Blair, Columbus, Crete, Elkhorn, Hastings, Plattsmouth, and Ralston in the array.
Calculating Fringe Benefits
The Petitioner argues that the Commission should determine the election of the cash-in-lieu of option for calculating fringe benefits in this case using the methodology set forth in ESU 13. The Petitioner also urges the Commission to place teachers who take cash-in-lieu of insurance at Beatrice as taking the highest benefit possible to them at each array school, including those schools which also offer cash-in-lieu of insurance. The Respondent argues that such methodology is flawed and that the Commission should only consider choosing an array in which each school offers cash-in-lieu of insurance. The Respondent also urges the Commission to place each Beatrice "cash-in-lieu of insurance" teacher as taking cash-in-lieu at the array schools who offer it, regardless of the amount offered at the array school.
In our Final Order in South Sioux City Education Ass’n v. Dakota County School District No. 22-0011, a/k/a South Sioux City Community School, "South Sioux City", 15 CIR ____, (Entered November 17, 2004) we noted that in ESU 13 the Commission was faced with comparing an election at the subject school district to take the health insurance benefit as either dependent coverage, individual coverage plus cash, or all cash. However, none of the array schools had a cash option similar to Educational Service Unit No. 13. In ESU 13, the Respondent urged the Commission to place all those individuals as taking zero dollars for their health insurance benefits. The Commission concluded that each employee would make an economically rational choice to accept the maximum fringe benefits available to him or her and not to choose zero health insurance benefits. We further developed our rationale in South Sioux City’s Final Order by concluding that the inference of the economically rational choice of the greatest benefit should not be followed in placing those teachers who selected a cash option at a subject school when the cash option is sufficiently similar to the option offered at the subject school.
In the instant case, the array schools of Norris, Waverly, Seward, Nebraska City, York, Gretna, South Central Nebraska Unified School District No. 5, and Aurora offer no cash option. The Beatrice teachers placed on those eight schools’ salary schedules will be placed as taking the maximum benefit available to them.
We conclude that if an array school provides a cash option to their teachers and that cash option is sufficiently similar to the subject school’s cash option, we will place the subject school teachers as taking the cash option at the array school. If an array school does not offer a cash option, or that cash option is not sufficiently similar to the subject school’s cash option, we will place the subject school’s teachers as receiving the maximum insurance benefit for which they are qualified (dependent or individual coverage). We also find that the cash options at the array schools of Blair, Crete, Elkhorn, Columbus, Norfolk, Hastings and Plattsmouth are sufficiently similar to the cash option provided at Beatrice, while the cash option at Ralston is not sufficiently similar. See Table 2. We conclude that it is appropriate to compare cash options when we have determined those options to be sufficiently similar to the subject school.
The Petitioner urges the Commission to determine all issues, other than the determination of total compensation, base salary and employer contributions towards fringe benefits, moot. Respondent maintains its issues regarding vertical movement on the salary schedule, fringe benefits, including the prevalence of employer level of coverage of employer provided health insurance, including deductible amount and employer premium contribution, and elimination of the provisions in the 2002-2003 contract that deal with Teacher Improvement, Personnel Files, and Professional growth, are not moot.
This Commission has continually refused to rule on certain fringe benefits when the contract year has passed. See South Sioux City, CIR 15 _____, (Entered September 15, 2004). Any dispute over benefits other than total compensation, base salary, and employer contributions towards fringe benefits are moot for the 2003-2004 contract year.
Table 3 sets forth the relevant information for determining the appropriate base salary. The midpoint of the total compensation $7,854,384 minus the cost of fringe benefits $941,542 equals $6,912,842 which, when divided by the total staff index factor of 251.86, equals a base salary of $27,447 for the 2003-2004 school year.
IT IS THEREFORE ORDERED THAT:
All judges join in the entry of this order.
Entered December 17, 2004.
For copies of the Tables, please contact the Clerk of the Commission, (402) 471-2934.