NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Before: Commissioners Orr, Blake and Lindahl

ORR, C: 

NATURE OF THE PROCEEDINGS:

Central City Education Association (hereinafter, “Petitioner” or “Association”) filed a wage petition on December 2, 2008, seeking resolution of an industrial dispute for the 2008-2009 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. The Respondent filed an Answer and Counterclaim on December 23, 2008. The Commission held a pretrial on February 11, 2009 and a Trial on March 10, 2009. The Respondent submitted its brief on March 25, 2009 and the Petitioner submitted its brief on March 26, 2009 by mail.

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: 

Both sides agree to an array consisting of the following school districts: Adams Central, Lakeview, York, Grand Island Northwest, Aurora, Cross County, St. Paul, Twin River, Doniphan-Trumble, Centura, Centennial, Sutton, Wood River, Boone Central. The array schools are all within 45 miles of Central City and meet the Commission’s size criteria. The Commission will adopt the parties’ joint array.

BASE SALARY:

Using the above set forth array to calculate the base salary, the parties were different in their base salary computation by $2.00. This was due in part to fringe benefit placement. The Petitioner and the Respondent stipulated to using the Petitioner’s base salary computation. Currently each teacher’s base salary from the 2007-2008 contract year is $26,075. Table 1 sets forth the relevant information for determining the appropriate base salary. The midpoint of the total compensation $3,401,795 minus the cost of fringe benefits of $678,869 equals $ 2,722,927 which, when divided by the new total staff index factor of 97.8400, equals a new prevalent base salary of $27,830 for the 2008-2009 school year.

FRINGE BENEFITS:

The majority of the parties’ issues deal with whether or not the Commission should determine the prevalancy of various contract provisions for inclusion or exclusion. The Respondent argues that five contract provisions should be determined on the basis of prevalancy. The Petitioner argues the Respondent offered no evidence demonstrating the prevalancy with respect to variety of contract language issues nor did the Respondent offer any evidence demonstrating how the deletion of certain negotiated agreement provisions affects the bargaining unit members.

The Nebraska Supreme Court has previously discussed the issue of determining the prevalancy of contract provisions in Hyannis Educ. Ass’n v. Grant County School Dist., 269 Neb. 956 (2005). In Hyannis, the Nebraska Supreme Court discussed the Commission’s authority, acknowledging that "[a] prevalent wage rate to be determined by the [CIR] must almost invariably be determined after consideration of a combination of factors."  Citing Omaha Assn. of Firefighters v. City of Omaha, 194 Neb. 436, 440, 231 N.W.2d 710, 713 (1975). The Nebraska Supreme Court held that the use of the word "prevalent" does not require that the employment terms in array contracts be completely identical to the provision at issue. The Nebraska Supreme Court agreed with the Commission that a prevalence determination is a subjective determination. The Supreme Court reasoned that the standard inherent in the word "prevalent" is one of general practice, occurrence, or acceptance, and determinations regarding "prevalent" practices are within the field of expertise of the Commission.

            Using Hyannis as clear authority, the Commission is charged with under Neb. Rev. Stat. §. 48-818 determining prevalancy of various contract provisions between the array school districts and Central City. The parties request the Commission to consider whether or not to include approximately ten different contract provisions in the 2008-2009 negotiated agreement. In order to determine whether or not these provisions should remain or be added to the contract we must conduct a prevalancy analysis similar to the one conducted in Hyannis. The Petitioner’s and Respondent’s issues were clearly set forth in the Pretrial Order. All contracts of each array school district are received into evidence. A comparison of these bargaining subjects can be accomplished through a comparison of the array school district contract provisions. Therefore, we will consider the requested issues one by one to determine whether or not various provisions are prevalent.

Contract Continuation:

The Petitioner requests the Commission to determine whether or not it is prevalent to have a contract continuation clause in the Central City contract. The Respondent argues that because the Commission’s authority is limited to the contract year in dispute it does not have the requisite jurisdiction to decide a contract provision, which extends beyond the contract year in dispute.  The Respondent reasons that because the contract continuation clause extends beyond the contract year in dispute, deciding whether or not the contract provision is prevalent is not within the Commission’s jurisdiction.

The Commission has previously addressed the issue of contract continuation language. See Yutan Educ. Ass’n v. Saunders County Sch. Dist., 12 CIR 68 (1994); Red Cloud Educ. Ass’n v. School Dist. of Red Cloud, 10 CIR 120 (1989); Clarkson Educ. Ass’n v. Colfax County Sch. Dist., 13 CIR 31 (1997); and Central City Educ. Ass’n v. Central City Pub. Sch., 15 CIR 270, 274 (2996). The Commission has also directly addressed the issue of whether the Commission has jurisdiction over contract continuation clauses. In Clarkson Educ. Ass’n, the Commission determined that a contract continuation clause is within its jurisdiction. Furthermore, in Clarkson Educ. Ass’n, the Commission found that since the contract continuation clause was prevalent among the array of school districts, a contract continuation clause should be in the contract between Petitioner and Respondent.

As seen in our Table 2 below, contract continuation is prevalent in 10 of the 14 array schools. “This Agreement shall continue in full force and effect until a successor agreement is adopted which is then retroactive to the beginning of that school year.” The contract continuation language as set forth in Table 2, will be included in the contract between the parties because it is prevalent.

Article V-Leaves, Delete Paragraphs 6 and 7

Both parties jointly agree to delete Article V-Leaves, Paragraphs 6 and 7. The following is the language in the provisions:

6. Any teacher who becomes pregnant or anticipates a disability while under contract shall notify the Superintendent at least 4 months in advance of the anticipated absence, if possible. Prior to the anticipated date of delivery or disability, the teacher shall inform the superintendent if he/she will resume teaching duties after the birth or disability, and state the date on which he/she anticipated returning to work. The teacher’s right to be employed by the School District in the following year shall be governed by the state’s continuing contract law.

 

7. Emergency absences with pay may be excused at the direction of administration. Emergency leave requires the approval of the building principal. Administrative approved emergency leave shall be deducted from the accumulated sick leave days of the certified employee, if such days still remain. Non-excused leave or leave in excess of the accumulated sick leave will result in loss of pay. 

The Commission finds that based upon the parties stipulation, Paragraphs 6 and 7 of Article V-Leaves will be deleted.  

Contract Days

The Respondent requests the removal of the following contract language: “A teacher’s contract year shall be considered 185 days of service.” The Respondent argues the number of contract days is a management prerogative and should not be compared under a prevalency analysis.  The Petitioner agrees that the number of contract days is management prerogative but argues that whatever the number of days the Respondent requires should be in the negotiated agreement.

Determining the number of contract days is clearly management prerogative. See Yutan Educ. Ass’n v. Saunders County Sch. Dist., 12 CIR 68 (1994). In Yutan, the Commission quoted the Nebraska Supreme Court in School Dist. of Seward Educ. Ass'n v. School Dist. of Seward, 188 Neb. 772, 784, 199 N.W.2d 752, 759 (1972), where the Court stated that the right to schedule work is exclusively within management prerogative. In Yutan, the Commission held that the number of hours in a work day and the number of work days per year were subjects of management prerogative. In the instant case, the Commission will not determine the prevalancy of contract days because it is management prerogative.

Section V, Paragraph 1: Provision to Incorporate Negotiated Agreement into Individual Contracts:  

            The Respondent requests the Commission remove the following language from the negotiated agreement, “… and shall be adopted as part of all teachers’ contracts signed for the 2006-2007 school year.” The Petitioner argues the Respondent offered no evidence demonstrating the prevalancy with respect to variety of contract language issues nor did the Respondent offer any evidence demonstrating how the deletion of certain negotiated agreement provisions affects the bargaining unit members. We find the evidence does exist and it is prevalent to remove the aforementioned section from the 2008-2009 negotiated agreement.

Section V, Paragraph 2: Provision for Leave without Pay: 

            The Respondent requests the Commission remove the following language from the negotiated agreement, “After sixty consecutive school days of absence from duty, the Board of Education may at their discretion terminate further pay until such time as the teacher is able to return to work.” The Petitioner argues the Respondent offered no evidence demonstrating the prevalancy with respect to variety of contract language issues nor did the Respondent offer any evidence demonstrating how the deletion of certain negotiated agreement provisions affects the bargaining unit members. We find the evidence does exist and it is prevalent to remove the aforementioned section from the 2008-2009 negotiated agreement.

Section V, Paragraph 4: Provision for Extended Paid Emergency Sick Leave: 

The Respondent requests the Commission remove the following language from the negotiated agreement, “…If all the cumulative sick leave by an individual teacher has been used, the school district may extend to the teacher additional emergency sick leave upon request, sufficient to support the teacher until the income protection insurance provided by the school district for the teacher, becomes effective.” The Petitioner argues the Respondent offered no evidence demonstrating the prevalancy with respect to variety of contract language issues nor did the Respondent offer any evidence demonstrating how the deletion of certain negotiated agreement provisions affects the bargaining unit members. We find the evidence does exist and it is prevalent to remove the aforementioned section from the 2008-2009 negotiated agreement.

Section VI: Provision to Make Up “Snow Days”: 

The Respondent requests the Commission remove the following language from the negotiated agreement: “School days missed, shall be made up when exceeding the 175 minimum attendances as prescribed by the North Central Association.” The Petitioner argues the Respondent offered no evidence demonstrating the prevalancy with respect to variety of contract language issues nor did the Respondent offer any evidence demonstrating how the deletion of certain negotiated agreement provisions affects the bargaining unit members. We find the evidence does exist and it is prevalent to remove the aforementioned section from the 2008-2009 negotiated agreement.

Section D-1, Paragraph M: Payment for Unused Sick Leave and Personal Leave: 

The Respondent requests the Commission remove the following language from the negotiated agreement:

…The requested emergency sick leave must be documented by a written statement from the teacher’s doctor indicating that the teacher will be physically unable to perform his/her assigned teaching duties for some time. The emergency sick leave is for the teacher personally and is not to be used for any other member of the family. A five day deductible factor applies to the emergency sick leave coverage. Under no circumstances will the emergency sick leave coverage extend beyond the first eligible date of the school district’s income protection policy as this policy affects this individual teacher. 

 

The Petitioner argues the Respondent offered no evidence demonstrating the prevalancy with respect to variety of contract language issues nor did the Respondent offer any evidence demonstrating how the deletion of certain negotiated agreement provisions affects the bargaining unit members. We find the evidence does exist and it is prevalent to remove the aforementioned section from the 2008-2009 negotiated agreement. 

IT IS THEREFORE ORDERED THAT:

1.      The Respondent shall pay the teachers a base salary of $27,830 for the 2008-2009 school year.

 

2.      The Respondent shall add the language, “This Agreement shall continue in full force and effect until a successor agreement is adopted which is then retroactive to the beginning of that school year;” at the end of its contract because it is prevalent to do so. 

3.      The Respondent shall remove Paragraphs 6 and 7 of Article V-Leaves from the 2008-2009 negotiated agreement.  

4.      The number of contract days in the 2008-2009 negotiated agreement is a management prerogative.  

5.      The Respondent shall remove Section V, Paragraph 1 from the 2008-2009 negotiated agreement. 

6.      The Respondent shall remove Section V, Paragraph 2 from the 2008-2009 negotiated agreement.

7.      The Respondent shall remove Section V, Paragraph 4 from the 2008-2009 negotiated agreement.

8.      The Respondent shall remove Section VI from the 2008-2009 negotiated agreement.

9.      The Respondent shall remove Section D-1, Paragraph M from the 2008-2009 negotiated agreement.  

10.  All other terms and conditions of employment for the 2008-2009 school year shall be as previously established by the agreement of the parties and by the Findings and Order of the Commission.  

11.  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. 

All commissioners join in the entry of this order.

    To obtain a copy of the tables, please contact the Commission of Industrial Relations at 402-471-2934 or industrial.relations@ncir.ne.gov