|CEDAR RAPIDS EDUCATION|||||CASE NO. 177|
|ASSOCIATION, An Unincorporated||||
|v.|||||OPINION AND ORDER|
|THE SCHOOL DISTRICT OF||||
|CEDAR RAPIDS, IN THE COUNTY||||
|OF BOONE, STATE OF NEBRASKA,||||
|POLITICAL SUBDIVISION OF THE||||
|STATE OF NEBRASKA,||||
For Plaintiff: Theodore L. Kessner.
For Defendant: Edwin C. Perry and John M. Brower.
Before: Judges Kratz, DeBacker and Green
This brings before us a dispute between the Cedar Rapids Education Association and that school district as to the terms and conditions of employment for the academic year 1976-1977. The parties are in dispute as to a number of the substantive terms that should govern the relationship between the teachers and the district for that academic year. However, at the start we are met by a procedural objection raised by the school district. The district notes that Section 79-1291 requires that an organization, which represents teachers, submit to the board of education a list of its members in January of each year. The district also notes that the association here has not submitted such a list.
We believe that the objections raised by the district are soon answered. First of all, there is no evidence that the district refused to recognize the association because of failure to comply with the statute. The district simply exercised its right under the teachers professional negotiation act to refuse to commence bargaining at all. Had this case involved a denial of recognition because of the provision of Section 79-1291, that statute might affect the outcome. However, where non-compliance was not raised until after a refusal to negotiate it is not relevant. Secondly the only significance the statute attaches to the filed list is in a situation where there has been a competition for recognition. In that situation, the district may recognize an association, which for the last two years has enrolled a majority of members as demonstrated by the filed list. Thus, the purpose of the list is as a device for determining a contest. It authorizes recognition without election in case of contest, where one association has represented a majority for 2 prior years as demonstrated by previously filed membership lists. Thus, under the statute, the only effect of a failure to file a list would be that in case of contest one could not rely upon prior majority status as demonstrated by filed list. The statute prescribes no other effect of failure to file the list. In this case, where there is no contest, it would appear that the statute is irrelevant.
The testimony of the association is that it represents a majority of the employed teachers in the district. This testimony is not contradicted. However, the district notes that individual teachers have the right to negotiate with the board, Section 79-1288, and the right to bring their own actions before this court, 48-811. In its brief, the district raises the question "as to the effect on non-members of plaintiff of this action." The answer to that question should await the case in which it arises. The evidence is that the association represents a majority of the teachers. There is no evidence that any of the non-members would not accept the fruits of an order of this court. Should a non-member, who has exercised the right of individual negotiation under 79-1288, desire to opt out of a decision of this court, then the district's question arises. Until that event occurs, the question is hypothetical.
The district does not currently use an index salary schedule. It utilizes a system of individual evaluation of teachers, with salary set on the basis of the outcome of that evaluation. The association asks that an index salary schedule be prescribed for the district. The evidence from both the association's array of districts, exhibit 3, and the district's array of districts, exhibit 20, is that virtually every arguably comparable school district utilizes an index salary schedule. The statutory standard of "comparable to the prevalent" contained in Section 48-818 requires us to utilize "the norm in the trade" in setting wages and conditions of employment. Nebraska City Education Association v. The School District of Nebraska City , 2 CIR 116-1, 13 (1974). "The use of an index salary represents a recognition by teachers and school districts that teachers with greater experience or advanced education possess skill levels different from teachers who lack the added experience or education." Tecumseh Education Association v. The School District of Tecumseh , 2 CIR 119-1, 11 (1975). If we failed to order the adoption of an index, where that was the norm, we would not comply with the statutory mandate that rates of pay be comparable for workers exhibiting like or similar skills. Tecumseh Education Association v. The School District of Tecumseh , Supra. Thus, as we have done in prior cases where this issue has arisen, here we hold that adoption of an index salary schedule is required by the evidence that that practice prevails among comparable school districts. See, e.g. Valentine Education Association v. School District #IV of Cherry County , 2 CIR 66-1, 7 (1973); Scottsbluff Education Association v. The School District of Scottsbluff , 2 CIR 70-1, 5, 7 (1973).
So long as the parties to a dispute are able to reach an agreement, the basic norm of the Court of Industrial Relations Act is freedom of contract. Scottsbluff Education Association v. The School District of Scottsbluff , Supra. However, if the parties cannot reach agreement, in resolving their dispute, we are required to apply the statutory standard of comparability. The essence of that standard is a requirement that wages bear a reasonable relationship to the normal practice in comparable districts. The statutory standard prescribes a kind of averaging process, which bars the adoption of wages or practices significantly different from those adopted by others. While the district's desire to closely relate salary to individual teaching excellence may be meritorious, the practices, which it has utilized to achieve that result, varies so much from what is usually done, that they may only be adopted through bargaining, and their continuation may not be authorized by a decision under 48-818.
We turn then to the question of the appropriate index numbers and the matrix to which those numbers should be applied.
The parties are in agreement that a 4 x 4 index should be adopted. They agree that there should be a BA column, a BA+9 column, a BA+18 column, a BA+27 column and a MA or BA+36 column. They are in disagreement as to whether or not there should be a MA+18 column. Of the 15 districts arrayed on the association's exhibit 3 only 4 have such a column. Thus, on the association's own evidence, it would be extremely difficult to call the establishment of such a column the prevalent practice. Of the 8 districts arrayed by the district on exhibit 20, only 2 have such a column. In this situation, we need not choose between the arrays. On either array, it is clear that MA+18 column is not prevalent practice. The parties are agreed that the BA+9 column should contain 7 steps and that the BA+18 column should contain 8 steps. Compare, association exhibit 5 and district exhibit 23. They are in disagreement as to the number of steps on the BA column, where the association seeks 6 and the district concedes 5, the BA+27 column where the association seeks 9, and the district concedes 8, and the MA or BA+36 column, where the association seeks 11 steps and the district concedes 10. As to the BA column, the association's exhibit 3 shows that 7 of the 15 districts have 6 or more steps, while 8 have 5 steps. On the association's own exhibit, a slight preponderance of the district's utilize 5 steps. Five steps is clearly prevalent for this column on exhibit 20. Thus, we adopt 5 rather than 6 steps as the appropriate number of steps for the BA column. When we move to the BA+27 column 10 of the 15 districts on exhibit 3 use 9 or more steps. Of the districts on exhibit 20, 4 use 9 or more steps, while 4 use 8. On exhibit 20, there is an even split between the number of districts, which use 8 steps, and the number of districts which use 9 or more. However, 3 of the 4 districts which use 9 steps in fact have additional steps, so that 9 steps is the average on exhibit 20 for the BA+27 column. Given that 9 steps is clearly prevalent on exhibit 3 and is at least as prevalent on exhibit 20 as 8 steps, we order 9 steps in the BA+27 column. The final disagreement is as to the number of steps in the BA+36 or MA column. On exhibit 3, 8 of the 15 districts have 11 or more steps. On the other hand, on exhibit 20, only 3 of the 8 districts have 11 or more steps. Given that 11 steps only slightly preponderates on exhibit 3, and that less than 11 steps clearly preponderates on exhibit 20, we believe that the BA+36 or MA column should contain 10 steps. Thus, in terms of an appropriate index design we essentially adopt the defendant's exhibit 23 with the addition of one step in the BA+27 column.
The next matter to which we must address ourselves is the matter of salary. The association on exhibit 4 presents us with a list of 15 districts claimed to be comparable. The district on exhibit 22 presents 8 comparables. The district is a member of the Goldenrod Conference. That conference is composed of 10 schools. Nine of the 10 schools in the conference are arrayed on exhibit 4. Three of the members of the conference are arrayed on exhibit 22. However, the conference is divided into a large school and a small school division. Where such a division exists, we have indicated that we will give the great weight, which we usually give to conference membership, only to the division to which the litigating district belongs. Tecumseh Education Association v. School District of Tecumseh , 2 CIR 119-1, 8, 9 (1975). Cedar Rapids is in the smaller school division. The other members of that division are Palmer, Silvercreek, Clarks and Polk. All of these districts are arrayed on exhibit 3, all but Polk are arrayed on exhibit 22.
Exhibit 22 shows a mid-point base salary cost of $199,924.50. That cost is based upon an index factor of 25.28 based upon exhibit 23. Thus, it would support a base salary of $7,900.00. The 4 conference members, which are in the smaller school division, when broken out of exhibit 4 and separately arrayed have a mid-point salary of $205,760.00. When that figure is divided by the index number upon which exhibit 4 is computed, 25.80, that would support a beginning salary of $7,975.00. If the 4 conference members which are in the smaller school division, and the other districts common to exhibits 4 and 23, Wheeler Central, North Loup-Scotia, Walbach, and Greeley are separately arrayed on the exhibit 4 basis, that array of 8 schools would have a mid-point salary cost of $202,960.00. When this is divided by the index figure of 25.80 upon which exhibit 4 is computed, it supports a salary of $7,866.00.
Turning to exhibit 4, the median school among the 15 arrayed is Palmer with a standard salary schedule cost of $204,160.00. When this figure is divided by an index of 25.80 it would support a starting salary of $7,913.00. Of the 15 school districts arrayed on exhibit 4, only 4 have standard salary schedule costs higher than the $207,690.00, which would be produced by the $8,050.00 base salary requested by the association, when multiplied by the index factor of 25.80. Thus, it is difficult to see how exhibit 4, itself, could be used to support a salary much above $7,900.00. Since $7,913.00 is the salary start supported by the median school on exhibit 4 and since $7,900.00 is the salary supported by the computed mid-point of exhibit 22, it seems clear that $7,900.00 is the appropriate starting salary for teachers in the district.
While $7,900.00 is the salary level supported by the evidence as to standard salary schedule, our cases have utilized a total teacher compensation test. This test recognizes that a total compensation package may involve a trade off between wages and fringe benefits, so that a district with lower than normal fringe benefits may be required to pay higher than normal wages in order to make its total compensation package comparable. The mid-point of total teacher compensation on exhibit 4 is North Loup-Scotia with a total teacher compensation cost of $212,455.60. When the fringe benefit costs actually incurred by the district of $6,177.60 is subtracted from this total, it leaves $206,278.00 available for teacher compensation, which when divided by the 25.80 index upon which the exhibit is computed would support a starting salary $7,995.00. However, there are several schools on exhibit 4 whose inclusion is at least questionable when measured by the size and distance standards, which we have customarily applied. See, Tecumseh Education Association v. School District of Tecumseh , supra. On the other hand, of the four members of the smaller division of the conference to which the district belongs, three have fringe benefit costs identical with those of the district, while one has a slightly higher fringe benefit cost. Of the four schools, other than small conference members, common to the arrays of both parties, one, Greeley, has fringe benefit costs equal to those of the district, Wheeler Central and Wolbach have fringe benefit costs lower than the district, while one, North Loup-Scotia has a higher fringe cost. Exhibit 22, the district's array, does not report fringe costs. However, the fringe costs of 7 of the 8 districts thereon can be obtained from exhibit 4. Of the 7, only 2 have fringe costs higher than the district. Thus, we do not believe that application of the total teacher compensation test varies the starting salary we have heretofore computed. The evidence is that the fringe benefit package paid by the district is comparable to the normal fringe package of other districts. Thus, in this case, there is no occasion to set a higher salary in order to compensate for lower than normal fringe benefits.
The parties are also in dispute as to extra duty pay. The association has presented a proposed extra duty pay schedule as exhibit 8, which is supported by the array of schools on exhibit 7. These 15 schools are the same as those contained on exhibit 4. The school district arrays the extra duty pay in its 8 comparable districts on exhibit 21. The extra duty pay schedule contained on exhibit 8 of the association is supported by exhibit 7. The proposed pay schedule does not differ significantly from the column listed as prevalent of schools with provision on exhibit 21. Exhibit 21 also attempts to compute a prevalent of schools, which takes account of schools which do not have extra duty pay among the 8 arrayed. However, since it is not possible to determine from the exhibit whether those districts do not grant extra duty pay or do not have the particular program, we think it would be more appropriate to ignore the schools which do not grant extra duty pay. Taking that approach, we think both exhibits 21 and 7 support the extra duty pay schedule proposed on the association's exhibit 8. We therefore adopt exhibit 8 as an appropriate extra duty pay schedule.
The district has always maintained a liberal sick leave policy, which has not contained either daily limitations on sick leave or accumulation provisions. The district asks that its own practice be changed. Essentially the district's argument is that the sick leave policy was a liberality not required by prevalent practice and just as litigation can force the district to give up its merit pay practice in favor of the normal index system, so, if the teachers litigate, they stand in danger of losing existing benefits, which substantially exceed the norm. We believe this argument constitutes an accurate reading of the statute. Based upon exhibit 19, we find that 10 days of annual sick leave with an allowable accumulation of 40 days of such sick leave would constitute a sick leave practice comparable to the prevalent.
The foregoing shall constitute our resolution of the dispute between the parties. This decision is effective as from the commencement of the involved academic year. The parties, pursuant to their stipulation, will establish procedures for the placement of teachers on the salary schedule for recognition of the years of experience and advanced educational attainment. If the parties are unable to agree upon proper placement on the index salary schedule, either party may submit the matter to the Court for determination.
Entered January 20, 1977.