|DISTRICT 8 ELEMENTARY|||||CASE NO. 95|
|v.|||||FINDINGS AND ORDER|
|SCHOOL DISTRICT NO. 8 OF||||
|DODGE COUNTY, a/k/a NORTH||||
|BEND GRADE SCHOOL,||||
Theodore L. Kessner of Crosby, Pansing & Guenzel, for plaintiff.
Neil W. Schilke of Sidner, Svoboda, Schilke & Wisemore, for defendant.
Before: Judges Baylor, DeBacker, Grant and Kratz.
Plaintiff filed its Petition in this case alleging that it is an unincorporated association of the certified elementary teachers in defendant School District No. 8 of Dodge County, Nebraska; that plaintiff is a "labor organization," as defined in Section 48-801, R.S. Supp. Neb. 1972, and that it has a usual place of conducting its activities in North Bend, Dodge County, Nebraska. The Petition further alleged that defendant School District is a Class I School District and is an "employer," as defined in Section 48-801, R.S. Supp. Neb. 1972; and that members of plaintiff association have exercised their right to join the association and have designated the plaintiff association as their representative to negotiate collectively with defendant to determine the terms and conditions of employment.
Defendant, in its Answer, admits plaintiff's allegations set out above, although in Paragraphs 3,4, and 5 of its Answer, defendant goes on to allege (a) that plaintiff does not have a usual place of doing business other than the general unspecified area of North Bend, Dodge County, Nebraska; (b) that plaintiff does not have a clerk or general agent within Nebraska; and (c) that plaintiff has not filed a certified statement in the Office of the Secretary of State of the State of Nebraska as required by Section 25-314, R.R.S. Neb.
If the allegations of Paragraphs Numbers 3,4, and 5 of the Answer are to be sustained, dismissal of this action must follow. In this case before us now, the evidence is that District 8 Elementary Teachers Association was formally organized by the teachers acknowledging membership, formally adopting a constitution and by-laws, electing a president and other officers, and conducting business meetings in the school or at the president's home; that all ten members discussed the many questions of interest of which negotiations with the Board of Education and bringing of this lawsuit are a small part; and that the Board of Education recognized and negotiated with the association. There is no evidence in support of Paragraph No. 5 of the Answer, but, on the contrary, the President of the association answered "Yes" to the question, "Has the Association filed with the Secretary of State indicating that it has an agent for service of process in Nebraska?"
With regard to this Court's jurisdiction over the subject matter of this suite, the Court notes plaintiff's allegation, generally denied by defendant, that there exists an "industrial dispute" between plaintiff and defendant, that there exists an "industrial dispute" between plaintiff and defendant (as that term is defined in section 48-801); and defendant's affirmative allegations in its Answer to the effect that each member of plaintiff association has signed a contract with defendant for the 1973-1974 school year and that inferentially, such contracts are conclusive and that an "industrial dispute" therefore does not exist between plaintiff and defendant. The Court finds that an "industrial dispute" does exist between the parties and that the execution of individual contracts by members of plaintiff association does not affect the controversy concerning salary schedules between plaintiff and defendant. See Hastings Education Association v. school District of Hastings , Case No. 42. Order entered July 15, 1971; Milford Education Association v. School District of Milford , Case No. 45. Findings and Order entered July 15, 1971; Centennial Education Association v. School District No. 67R of Seward County , Case No. 44, Findings and Order entered August 19, 1971; Sidney Education Association v. School District of Sidney , Cases No. 81 and 88. Findings and Order entered March 27, 1974.
Beginning with the school year 1970-1971, an index schedule has not been promulgated or used as the only criterion for individual salaries. The Board of Education calls its procedure for setting salaries "The Merit System," and most of the evidence and arguments are devoted to establishing the conclusion that this system was fair, equitable, not wrong, was employed by this Board conscientiously with the best interests of the school, the teachers, and the taxpayers at heart, and resulted in salaries which were all the District could afford. All such evidence and arguments are irrelevant in this Court. The only question here is; Are the rates of pay comparable to prevalent rates paid for similar work of teachers exhibiting similar skills under similar working conditions? See Section 48-818. R.S. Neb. 1972 Supp; Centennial Education District v. School District No. 67R of Seward County, supra; Fremont Education Association v. School District of Fremont , Case No. 50, Findings and Order entered March 14, 1972; Scottsbluff Education Association v. School District of Scottsbluff , Case No. 70, Findings and Order entered February 15, 1973; Crete Education Association v. School District of Crete , Case No. 64. Findings and Order entered February 28, 1974; Sidney Education Association v. School District of Sidney , cases No. 81 and 88, supra .
The defendant correctly and thoroughly develops that we have held in the last cited cases that similarity of longevity and education provided for by index schedules is competent evidence of similarity of skills, but that longevity and education is not the only competent evidence of skills. Nevertheless, there is no evidence here (as distinguished from the conclusion that opinions not here delineated were presented to the Board) of skills other than the inference which may be drawn from longevity and education. Salary schedules in other schools set forth salaries based on longevity and education. Accordingly, we seek the schools of which the salary schedules may be deemed the prevalent with respect to the defendant.
As triers of fact, we are persuaded by the plaintiff's evidence that the North Bend school district has a community of interest with the other medium-sized accredited, Class I districts similarly organized with six-man board in Class VI districts. We are not persuaded by the defendant's contention that the prevalent should be found in Morse Bluff, Uehling, Hooper, and Districts 92 and 93, because they are close; each of the latter has less than half the number of teachers and pupils of North Bend District 8. Furthermore, there is no evidence of skills of any of the teachers of the last five employers; neither evidence of their longevity and education nor any other evidence from which skills may be determined and then compared with those of the defendant's teachers.
We are limited in establishing rates of pay to rates 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." Section 48-818, R.R.S. Nebraska. Defendant has adduced evidence as to the allegedly different skills of various teachers working in defendant district. There is no evidence comparing the skills of various teachers in defendant district with the skills of various teachers in comparable districts. Instead, defendant is apparently making an intra-school comparison of teachers within defendant district, and then determining what wage rate shall be paid to each on a "merit" basis. No attempt is made to compare, for example, what an absolutely top-flight teacher with a given number of years experience and graduate study is paid in defendant district as compared with a teacher with the same qualifications in a comparable work situation. In other words, this Court is given no evidence of what comparability basis defendant uses in determining a wage rate, outside of the studies that defendant conducts within its own school system.
In the absence of evidence permitting the Court to make the individual comparisons sought by defendant, we must follow the earlier decision of this Court comparing total teacher compensation in comparable school districts.
In the present case, as the Court did in Scottsbluff , Case No. 70, the Court, as triers of fact find from the evidence in this case that an index schedule with the various increments expressed in terms of percentage of base is the prevalent form (as distinguished from the numbers constituting base and percent) of wage rate.
We turn then to a consideration of the proper base and increment percentage necessary in this case to comply with the standards of Section 48-818. In support of its position that a base of $6,600 and increments of 4% by 4% are needed to establish a total teachers' compensation which will be comparable to the prevalent.
Plaintiff has introduced evidence setting forth all the Class I schools in the State of Nebraska with seven (7) or more teachers. There are 28 such schools. From this list, plaintiff's witnesses excluded "approved" schools, as distinguished from "accredited schools," excluded those schools which have a three person board (defendant has 6 members on its board), and excluded those schools from which the witness had not received answers as to the form of the school's salary schedule. Plaintiff then suggests that the Court must use 13 named schools, including the North Bend Junior-Senior High School. Placing the members of the plaintiff North Bend faculty on these various schedules results in total teacher compensation of from $73,458 to $81,282.
Defendant, on the other hand, adduced evidence of its projections as to total teacher compensation in 5 other schools, to wit, Morse Bluff, Uehling, Hooper, and two rural schools (District 92 and 93). We find that, in determining the prevalent wage rate, it would be improper to use the schools cited by defendant. The North Bend elementary school is located in the town of North Bend (population 1,350) and is an accredited school and has ten teachers and 215 students. Morse Bluff had a population of 162 in 1970 and had 3 1/2 teachers in its school; Uehling had a population of 249 with 3 1/2 teachers in its school; Hooper had a population of 895 with 6 teachers; while District 92 was a rural school with 3 1/2 teachers and District 93 was a rural school with 3 teachers. Omitting Hooper, the other 5 of these schools have kindergarten through 6th grades-meaning in each case, a teacher in that system must teach more than one grate. Each of these schools presents sharply different work and working conditions than those present in North Bend. We find that comparable schools for comparison shall include accredited Class I schools, having seven or more teachers, operating with a Class VI District, but excluding the largest five of such schools. We find a definite break in student enrollment and number of teachers after the largest four schools, which respectively have 832, 567, 486, and 448 students and 48,33,31, and 23 teachers. The fifth largest Class I school has 358 students and the remaining Class I schools on Exhibit 3 range down to 72 students in the 28th largest. We find from the evidence in this case that it would be improper to compare these substantially larger schools to the school in the present case.
There are 22 Class I schools remaining after the exclusion of the largest four. Twelve of these schools are approved schools rather than accredited, leaving ten accredited schools. Evidence was not available, or in any event, not presented, from three of these schools available for this comparison. North Bend is one of the nine, and Hooper is another. There was no evidence presented placing the North Bend faculty on the Hooper salary scale.
There are available for comparison, under the evidence presented in this case, the following schools: Wood River, Grant, Atkinson, Oshkosh, Bassett, Curtis and Burwell.
Placing the North Bend faculty on each of the schedules results in the following total teacher compensation:
The approximate midpoint on the foregoing computation is $77,350.00 A schedule with a base of $6,500 and increments of four percent (4%) horizontally and vertically would yield $76,180.00. Hospitalization insurance is furnished in each of the comparable schools (including Hooper) and should be furnished to the teachers in plaintiff association at the rate of $11.00 per month per teacher, resulting in an addition of $1,320 or a total compensation of $77,500.
All schools provide for a horizontal advancement on the basis of 9 hours to the Master's Degree and therefore the salary schedule ordered herein should provide for BA, BA+9, BA+18, BA+27, and Masters.
Six of the seven schools provide for five steps on the BA level, with the other providing only three steps. There is a general pattern of advancement in each schedule in the way of one additional vertical step for each horizontal advance, meaning the Master's Degree will have nine vertical steps, and this form is also ordered.
Evidence adduced through a member of defendant's School Board indicated that the School Board had had "problems" with one teacher. That teacher now receives substantially less than if she were placed on an appropriate step on the index salary schedule hereinafter ordered. We note, however, that the Principal of the school found in his general ratings that no teachers were below average and no teachers were superior. Under the evidence, we are unable to make the specific different findings contended for by defendant with regard to this specific teacher, and we find that since all the certificated teachers are members of plaintiff association that all teachers should be paid on the index schedule hereafter ordered.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED:
1. That the rates of pay for certificated teachers employed by defendant school district be, and they hereby are, established in accordance with a salary schedule having: (a) a base salary of $6,500.00; (b) index increments of four percent (4%) horizontally and four percent (4%) vertically; (c) horizontal advancements of BA, BA+9, BA+18, BA+27, and MA:(d) five vertical steps in the BA column, six in the BA+9, seven in the BA+18, eight in the BA+27, and nine in the MA.
2. That each teacher shall be provided health insurance contribution of $11.00 per month.
3. That, except for the provisions of Paragraphs 1 and 2 of this Order, other terms and conditions of the employment of the certificated teachers shall remain unchanged by this Order.
This case was heard before Judges Baylor, DeBacker, Grant, and Kratz. Prior to the departure on May 15, 1974, of Judge Grant from this Court, all four of said Judges were in agreement respecting the Findings and Order in all respects except one. That one respect concerned the establishment of the wages of the music teacher in accordance with the salary schedule which all the Judges agreed should be established by this Court's order for the others of the defendant's teachers. Judge Grant's Findings and Order not mentioning the music teacher or expressly reserving her from the order were signed by him and delivered to the Presiding Judge prior to his departure from the Court. Judge Baylor's separate opinion, now filed herewith, concurring generally with Judge Grant's Findings and Order, but dissenting with respect to including therein the music teacher likewise was prepared and submitted to Judge Grant prior to his departure, but he informed the Presiding Judge that he could not modify his views with respect to the music teacher. Without either concurring or dissenting from Judge Baylor's views as set forth in said separate opinion of his, Judges Kratz and DeBacker now agree that the Findings and Order prepared and signed by Judge Grant should be the order of the Court with respect to all teachers other than the music teacher, and that a new evidentiary hearing with respect to only the music teacher should be held. Accordingly, said Findings and Order signed by Judge Grant are filed herewith but are modified as follows.
NOW THEREFORE IT IS ORDERED, ADJUDGED, AND DECREED:
1. That the rate of pay for certificated teachers other than Pat Pflotner employed by defendant school district be, and they hereby are, established in accordance with a salary schedule having: (a) a base salary of $6,500.00; (b) index increments of four percent (4%) horizontally and four percent (4%) vertically; (c) horizontal advancements of BA, BA+9, BA+18, BA+27, and MA; (d) five vertical steps in the BA column, six in the BA+9, seven in the BA+18, eight in the BA+27, and nine in the MA.
2. That each teacher shall be provided health insurance contribution of $11.00 per month.
3. That, except for the provisions of Paragraphs numbered 1 and 2 of this Order, other terms and conditions of the employment of the certificated teachers shall remain unchanged by this Order.
4. That on Thursday, June 27, 1974, at 1:30 P.M., in Court Room No. 2 of the Supreme court in the State Capitol Building at Lincoln, Nebraska, shall commence a trial of only the question of the establishment or withholding of establishment of the wages of Pat Pflotner.
5. That Richard C. Thoene or Lettie Bartusek of Lincoln, Nebraska, is appointed the reporter of said trial.
This matter came on for hearing pursuant to the Order of this Court entered June 20, 1974, for the purpose of determining the question of establishment or withholding of establishment of wages for Pat Pflotner. The Court after being advised by the parties, finds that the terms and conditions of employment of Pat Pflotner have been established by agreement among the School District, Teachers Association and Ms. Pflotner, that therefore there is no longer an industrial dispute with reference thereto, that the Findings and Order dated May 15, 1974, and made conditional by the Court's Order of June 20, 1974, be therefore applicable to all teachers employed by the school District except Pat Pflotner and that the Court should withhold the establishment of wages and other terms and conditions of employment for the said Pat Pflotner for the reason that there is no industrial dispute with reference thereto.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Findings and Order of May 15, 1974, and Order of June 20, 1974, be applicable to all teachers employed by the School District for 1973-74 except Pat Pflotner, and that the Court withhold the establishment of wages and other terms and conditions of employment for Pat Pflotner for 1973-74.