| NEHAWKA EDUCATION | | | CASE NO. 65 |
| ASSOCIATION, An | | | |
| Unincorporated Association, | | | |
| | | ||
| Plaintiff, | | | |
| | | ||
| v. | | | FINDINGS AND ORDER |
| | | ||
| SCHOOL DISTRICT NO. 103 | | | |
| OF CASS COUNTY, | | | |
| NEBRASKA, ALSO KNOWN | | | |
| AS NEHAWKA | | | |
| CONSOLIDATED SCHOOLS, | | | |
| A Political Subdivision, | | | |
| | | ||
| Defendant. | | |
GRANT, J:
Concurring opinion by Baylor
This is an action to establish wages and conditions of employment pursuant to Section 48-818, R.R.S. Nebr. 1943.
Plaintiff filed its Petition alleging generally that Plaintiff was an unincorporated association formed by the certificated public school employees (the teachers) of Defendant school district and that Plaintiff sought recognition as the representative of such public employees and further sought a determination by this Court as to appropriate terms and conditions of employment and a resolution of the "industrial dispute" (as that term is defined in Section 48-801, R.R.S. Nebr. 1943) between Plaintiff and Defendant.
Defendant, School District No. 103 of Cass County, also known as Nehawka Consolidated Schools, filed its Answer admitting that Defendant is a Class II School District, and alleging that, as such a Class II school, it was not required to negotiate with Plaintiff under the provisions of Section 79-1287, R.S. Nebr. 1943; alleging that no industrial dispute existed between Plaintiff and Defendant; alleging that this Court has no jurisdiction in this case; and praying that the petition be dismissed.
On May 8, 1972, Plaintiff filed a Motion seeking an order of this Court requiring Defendant to undertake good faith bargaining with Plaintiff. This Motion was submitted to the Court by agreement of the parties and on May 31, 1972, the Court entered its Order finding and decreeing that Plaintiff was entitled to represent Defendant's certificated teachers who authorized Plaintiff to act for them and ordering the parties to undertake good faith negotiations. The order also directed the parties to report to the Court if negotiations were successful or unsuccessful.
Thereafter, Plaintiff filed an Application stating that the negotiations were unsuccessful and seeking an adjudication establishing "wages, hours of employment and other terms, tenure and conditions of employment" and solving the industrial dispute between the parties. Defendant filed its Answer to this Application alleging that the petition did not state a cause of action and that Defendant had "adopted rates of pay and conditions of employment which are comparable to the prevalent wage rated paid and conditions of employment maintained for the same or similar work or workers exhibiting like or similar skills under the same labor market area."
On November 28, 1972, pursuant to notice and Court Order, the matter came on for trial. Evidence adduced generally established that the Defendant is a rural school district located primarily in Cass County, Nebraska, maintaining classes in kindergarten through twelfth grade (a K-12 district). The school has 210 students, 17 certificated teachers and one non-degree teacher. The district presently operates on a nominal $6,250, 4 x 3 salary schedule - meaning that on a base salary of $6,250 annually, the district provides raises of 3% for each nine (9) hours of study completed by a teacher after the BA degree (through 4 steps after the BA) and of 4% of each year for each additional year of service through 6 years of service. Evidence was submitted on behalf of Defendant that the continuation of such a schedule would result in Defendant maintaining rates of pay and conditions of employment which are comparable to the prevalent wages 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 statutory test set forth in Section 48-818, R.R.S. Nebraska.
Evidence adduced by Plaintiff suggests that a schedule employing a base salary of $6,800.00 with step raises of 5% for each year of service and 5% for each 9 hours of education beyond the BA degree (a $6,800.00, 5 x 5 schedule) would be required to meet the statutory test set forth above. In its Brief, Plaintiff submitted the suggestion that a $6,500 base with a 4 x 3 index would satisfy the statutory standards.
In determining how the Court should comply with the requirements of Section 48-818 to the effect that, "In determining wage rates the court shall take into consideration the overall compensation received by the employees***," this Court has consistently followed its decision in Milford Education Association v. School District of Milford, Case No. 43, wherein it was stated:
"Since the present case was initiated in behalf of all teachers in the Milford School District, and since all of the teachers are paid on the same index schedule and receive the same insurance benefits, it is the total Milford teacher compensation which should be compared with the compensation schedules and benefits of other comparable school districts."
The same criterion has been followed in later cases by this Court, and will be applied in the instant case.
In applying this total compensation concept, and in making the comparisons required by Section 48-818, the Court has followed the method of first determining, from the evidence in each case, what school districts should be considered in determining "the prevalent wage rates paid and conditions of employment maintained." Plaintiff makes the same suggestion in this case as that presented in Valentine Education Association v. School District No. VI of Cherry County, Nebraska , Case No. 66, that the skills, work and working conditions in all accredited schools in Nebraska are comparable. That suggestion is rejected in this case, for the reasons as set out in Case No. 66--there is simply not sufficient evidence herein to warrant such a conclusion.
We shall continue to apply the criteria heretofore used by this Court in determining comparability-community of interest and geographic proximity ( Fremont Education Association v. School District of Fremont , Case No. 50); general cooperation among school districts (Hastings, Case No. 42), and athletic conferences (Seward, Case No. 34.)
Further in discharging our statutory obligation under Section 48-818 to "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 or workers exhibiting like or similar skills under the same or similar working conditions," we shall continue to determine this type of case by using the "approximate mid-point" of the total compensation of the teachers in the school districts determined to be comparable. This approximate "mid-point" criterion was first applied in the case of Centennial Education Association v. School District No. 67-R of Seward County , Nebraska , Case No. 44, decided August 18, 1971, and has been applied since in all cases decided. Plaintiff, in its Brief herein, states "Also, the 'mid-point' concept should be reexamined," but Plaintiff suggests no specific different approach, and the Court believes that in comparison to "prevalent wage rates", some midpoint approximation is necessary. Certainly the highest wage rate in a group of comparable schools is not the "prevalent" wage rate, nor is the lowest. The Court remains open to evidence and testimony as to different approaches which would be helpful in determining the "prevalent" wage rate, but no such evidence is present in this case and the Court will herein apply the "approximate mid-point" concept.
We turn then to an examination of the evidence presented. Plaintiff presented evidence showing the total teacher compensation as determined by placing the faculty in the Defendant school district on the salary structures of 14 other schools. Nine of these schools are in the Homestader Athletic Conference along with Nehawka-Adams, 281 student enrollment; Barneston, 175; Elk Creek, 137; Diller, 190; Filley, 219, Lewiston, 213; Odell, 254; Dawson-Verdon, 220; and Table Rock, 210. Nehawka has 210 students. The other five schools were Douglas (104), Elmwood (226), Louisville (482), Murdock (232) and Palmyra (455).
We find that the comparable school districts to Defendant are the Homesteader conference schools. This conclusion is not based solely on the fact that the schools named are members of the athletic conference, but upon the comparability criteria set out above.
Using the Homesteader conference schools for comparison purposes, we conclude that the existing experience and educational steps should be retained; that the existing index of 4 x 3 should be retained; that the base should be revised to $6,450; and that the defendant should continue to furnish insurance coverage of a value of $108 or the cash equivalent thereof.
In reaching this conclusion, we have rejected Defendant's contention that we must consider evidence as to tax valuation of Defendant and the mill levy in the school district and other districts. Considerations as to the results that this Court's decisions may have on the tax valuation and the mill levy are beyond the statutory authority of this Court.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED:
That the scale of wages for certificated teachers employed by Defendant school district shall be computed in accordance with a salary schedule having a base salary of $6,450.00 index increments of 4% vertically and 3% horizontally, and $108.00 per year for health and accident insurance coverage, with the provision that a teacher not desiring insurance shall receive $108.00 per year for health and accident insurance coverage, with the provision that a teacher not desiring insurance shall receive $108.00 cash. Other aspects of the terms and conditions of employment of Plaintiff's members shall remain unchanged by this Order.
Judge Nielsen did not participate in the trial or decision of this case.
| NEHAWKA EDUCATION | | | CASE NO. 65 |
| ASSOCIATION, An | | | |
| Unincorporated Association, | | | |
| | | ||
| Plaintiff, | | | |
| | | ||
| v. | | | CONCURRING OPINION |
| | | ||
| SCHOOL DISTRICT NO. 103 | | | |
| OF CASS COUNTY, | | | |
| NEBRASKA, ALSO KNOWN | | | |
| AS NEHAWKA CONSOLIDATED | | | |
| SCHOOLS, A Political | | | |
| Subdivision, | | | |
| | | ||
| Defendant. | | |
BAYLOR, Judge.
This action was filed March 30, 1972. The Defendant, being a Class II School District, is not subject to the Teacher's Professional Negotiations Act, and accordingly the proviso of §48-810 concerning the Court's jurisdiction is not involved. After trial May 15, 1972, the Court by order entered May 31, 1972, ordered the parties to bargain. On October 20, 1972, the Plaintiff pleaded that the parties had been unable to reach agreement on rates of pay, and prayed that the Court establish rates of pay in accordance with §48-818 R.R.S. Neb. November 28, 1972, there was trial of many issues and subissues pertaining to establishment of rates of pay.
For the school year 1972-1973 the Defendant compensated its teachers in accordance with an index salary schedule of $6,250 4 x 3, with insurance benefits of $108 per year per teacher. These are the same salary schedule and fringe benefits as were in effect for the 1971-72 school year. The Plaintiff contends that the schedule should be $6,500 4 x 3 with $132 in insurance benefits. Those readers of this opinion who are unfamiliar with index-salary-schedule jargon may obtain a fuller conception of the meaning of the foregoing terms by referring to our Findings and Order entered February 15, 1973, in scottsbluff Education Association v. Scottsbluff, Case No. 70.
The first standard to consider is that portion of §48-818 R.R.S. Neb., "....The Court....shall establish rates of pay....which are comparable to the prevalent wage rates paid....for....similar work of workers exhibiting....similar skills under....similar working conditions." What is competent evidence of "work of workers exhibiting....similar skills under similar working conditions"? There is no testimony or documentary evidence of the job descriptions of, grades or subjects taught by, materials used by, or evaluations of the individual teachers at Nehawka or their respective counterparts in other school districts. Nevertheless in accordance with our previous decisions, the parties respectively have educed evidence of what each contends are "comparable school districts". We consistently have held and shall continue to do so that in the absence of other persuasive evidence, evidence of "comparability" of employers raises the further inferences that the work of the workers of such employers is similar, and that the respective employers' workers exhibit similar skills under similar working conditions. It should be noted, however, that in Kramer, Case No. 16, Findings and Order entered December 16, 1963, we rejected the contention that the only competent evidence of similarity of work, skills, and working conditions was general comparability of employers.* Developing next a little more profoundly the law applicable here we come to the question of what evidence is competent to support a conclusion that certain school districts are and others are not comparable to Nehawka? As instructed by our previous decisions the parties here have educed in support of conclusion of comparability of school districts, evidence of schools' having a "community of interest" with, geographic proximity to, general co-operation with, and membership in athletic conferences with Nehawka. In addition, however, over the objection of the Plaintiff, the Defendant has offered evidence of teacher-pupil ratios, per-pupil-property-tax evaluations, mill levies, total numbers of students, and condition and modernity of the respective plants.
The majority of this Court is not persuaded that this evidence be considered or that ruling on this objection be made. On the other hand, I think that the evidence adduced by the Defendant in the last described respects is competent for consideration along with the factors contended for by the Plaintiff in reaching a conclusion of which school districts are comparable to Nehawka. (We all must bear in mind that a conclusion of comparability of school districts in turn is only an evidentiary conclusion in support of but not conclusive of the ultimate finding of similarity of work, skills, and working conditions.) Our holding in Fremont, Case No. 50, Findings and Order entered March 15, 1972, upon which the Plaintiff bases its objection to the Defendant's evidence, is distinguishable. In Fremont the employer educed evidence of those factors only with respect to itself and had no such evidence with respect to other government employers. The ultimate contention was that this Court should superimpose on §48-818 an additional standard of "fairness" in the light of the history of benevolent treatment of the Fremont employees. It was only this standard and evidence solely in support of this standard that the Court rejected.
We are not able to explain precisely the weight we as triers of facts give to each of the considered elements. I note that the Plaintiff's argument gives more emphasis than seems reasonable to geographical proximity, so that the Plaintiff thus would diminish the weight given to total pupils and pupil-teacher ratio. After considering mill levy and per-pupil-property-tax evaluation, it seems that they are not significantly different among the districts shown in the evidence here except for Dawson and Table Rock. There was no rebuttal of the Defendant's superintendent's conclusionary testimony that the Defendant's teacher-pupil ratio in its secondary school is slightly lower than that of most other districts; that the plant is exceptionally modern and comfortable; and that the Nehawka community attitude and the discipline of pupils are comparable to those of schools of similar pupil and community population and more favorable to the teachers than those of larger school districts. This testimony, however, seems to have been offered to counteract the Plaintiff's contention for comparison with near-by but larger school districts rather than having been offered as affirmative support for the Defendant's contention as to which districts were comparable.
Upon these considerations I would find that the school districts comparable to Nehawka are Lewiston, Elk Creek, Diller, Adams, Filley, O'Dell, and Barneston.
From Exhibit 10 I would find that the total extra-duty pay, $5,144, of the Nehawka teachers is comparable to the pay they would receive for the same extra duties at the comparable schools, and from Exhibit 9 that the fringe benefits of insurance as now paid, social security, and retirement are likewise comparable.
From Exhibits 3 and 10 I would find that the approximate midpoint of the respective totals resulting from placing the Nehawka teachers on the salary schedules of the comparable school districts is about $125,000; and that a 46,450 4 x 3 will produce a total teacher compensation from the 1972-73 Nehawka teaching staff of $125,646.
Both the parties stress the obvious that "prevalency" is not equivalent in meaning to "midpoint". The Plaintiff contends that therefore the teachers' demands, despite a tendency up from the midpoint, should be respected if the opposing party has not shown them to be unreasonable by some other extrinsic standard. The Defendant contends that therefore the school board's good faith in setting wages, despite a tendency down from the midpoint, should be respected when the opposing party has not shown them to be unreasonable by any other extrinsic standard. I think the doctrine of the approximate midpoint is more likely to achieve the legislative purpose set forth in §48-802 R.R.S. Neb.
*In that case the labor organization contended that the OPPD wage scale was the only one relevant because OPPD and Loup were the only public power districts operating electrical generating plants. Rejecting that contention, we considered the wage scales of several private industrial plants so far as they pertained to job classifications of the defendant employer.
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