16 CIR 272 (2009)  Affirmed in part, and in part reversed and remanded with directions, 280 Neb. 27. 

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

CENTRAL CITY EDUCATION ASSOCIATION, ) CASE NO. 1200
an Unincorporated Association, )
) FINAL ORDER
                                  Petitioner, )
         v. )  
)  
MERRICK COUNTY SCHOOL DISTRICT NO. 61-0004, )
A/K/A CENTRAL CITY  PUBLIC SCHOOLS, a Political )
Subdivision of the State of Nebraska, )
  )  
                                  Respondent. )

 Entered May 8, 2009.

APPEARANCES:

For Petitioner: Mark D. McGuire
McGuire and Norby
605 South 14th Street
  Suite 100
Lincoln, NE  68508
For Respondent: Kelley Baker
Harding & Shultz
  800 Lincoln Square
121 south 13th Street
P. O. Box 82028
Lincoln, NE  68501

Before: Commissioners Orr, Blake and Lindahl

ORR, C: 

After the trial of this matter, the Commission entered a Findings and Order on April 21, 2009. The Petitioner timely filed a request for a Post-Trial Conference as provided for in Neb. Rev. Stat. §48-816(7)(d), which allows the Commission to hear from the parties on those portions of the findings and order which are not based upon or which mischaracterize evidence in the record. A Post-Trial Conference was held on May 1, 2009.

            The Petitioner’s Request for a Post-Trial Conference raised several areas of objection to the Commission’s Order of April 21, 2009. Those areas are dealt with as follows:

1.      Section V, Paragraph 1- Page 6 of the Commission’s April 21, 2009, Findings and Order 

The Petitioner states that the heading reference on page 6 of the Commission’s Findings and Order incorrectly refers to Section V, Paragraph 1when it should refer to Page 1, Paragraph 3 of the Introduction. The Respondent did not comment on this correction at the Post-trial conference. We agree that this reference needs to be corrected and will change the opinion to reflect the correct heading. 

2.      Section D-1, Paragraph M- Page 8 of the Commission’s April 21, 2009, Findings and Order 

The Petitioner states that the heading reference on page 8 of the Commission’s Findings and Order incorrectly refers to Section D-1, Paragraph M when it should refer to Section V, Paragraph 4. After review of this paragraph, the Commission finds that the changes do not refer to an incorrect heading but instead are due to the incorrect inclusion of a paragraph of the collective bargaining agreement in the body below the heading. The Commission will change the paragraph to correctly reflect the collective bargaining agreement and Table 7. 

3.      Page 9 of the Commission’s April 21, 2009 Order

The Petitioner argues that on Page 9, Number 9 of the Commission’s April 21, 2009 Order, the Commission incorrectly states the Commission shall remove the provisions in Table 7. The Petitioner argues that Table 7 indicates that including such a paragraph is prevalent. The Petitioner states that Table 7 shows 10 schools that have a similar provision and four schools which do not have a similar provision. The Respondent argues that these provisions are too all- inclusive and that the school district will never be able to remove the provisions if the Commission were to include any vaguely comparable provisions.  Considering Table 7 in light of the Nebraska Supreme Court decision, Hyannis Educ. Ass’n v. Grant County School Dist., 269 Neb. 956 (2005), which held that provisions need not be identical but only similar, we find that the Petitioner is correct that the Order portion on Page 9 will now read instead of “shall remove” to “shall not remove.” The Commission will also correct the last sentence of the paragraph on Page 8 to read, “We find the evidence does exist and it is prevalent to not remove the aforementioned section from the 2008-2009 negotiated agreement.”

4.      Contract Days

The Petitioner argues that while it agrees that contract days are management prerogative, the Commission should nevertheless order the Respondent to place that management prerogative into the contract. The Respondent argues that it is more confusing to have the number of contract days in the contract.

In our findings and order, we held that contract days are a management prerogative and we did order the Respondent to place the number of contract days into the negotiated agreement. Even if we could order the Respondent to place the contract days in the Order, the evidence clearly shows it is not prevalent to have contract days in the array school district’s contracts.  Contract days are clearly management prerogative and we will not order the Respondent to place the contract days into the negotiated agreement.

            IT IS, THEREFORE, ORDERED that the portion of page 6 of the Findings and Order entered herein on April 21, 2009, which reads, “Section V, Paragraph 1: Provision to Incorporate Negotiated Agreement into Individual Contracts:” is hereby corrected to read: “Negotiated Agreement: Page 1, Paragraph 3 of the Introduction:”

       IT IS FURTHER ORDERED that the portion of page 8 of the Findings and Order entered herein on April 21, 2009, which reads:

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

After carefully reviewing Table 7, we now hold that it is not prevalent to remove the aforementioned section from the 2008-2009 negotiated agreement. Therefore, Page 8 of the Commission’s April 21, 2009 Findings and Order, is hereby corrected to read:

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:

Any teacher having served the Central City Public Schools for 10 or more years shall receive severance pay for each day of accumulated, unused sick leave or personal leave at the rate of one-third (1/3) of his/her daily earnings are to be based on the amount of the last contract, and the number of service days on the contract. The school district will credit each qualifying employee with a maximum of 60 days of {sic} said employee has accumulated the maximum sick leave allowed by the school district.

 

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 not remove the aforementioned section from the 2008-2009 negotiated agreement.

IT IS ALSO ORDERED that the portion of page 9 of the Order entered herein on April 21, 2009, which reads, “The Respondent shall remove Section D-1, Paragraph M from the 2008-2009 negotiated agreement.” is hereby corrected to read: “The Respondent shall not remove Section D-1, Paragraph M from the 2008-2009 negotiated agreement.”

IT IS FINALLY ORDERED  that all other terms and conditions of employment for the 2008-2009 contract year shall be as previously established by the agreement of the parties and by orders and findings of the Commission. Adjustments and compensation resulting from this Order shall be paid in a single lump sum payable within thirty (30) days of this Final Order.

All commissioners assigned to the panel in this matter join in the entry of this Order.