3 CIR 323 (1978)



Plaintiff, |
OF NEBRASKA, A Political |
Subdivision, |
Defendant. |

Filed January 12, 1978.


For Plaintiff, Theodore L. Kessner

For Defendant, Ralph J. Fischer

Before: Wall, Kratz and McGinley, J.

Per Curiam

A hearing was held in the above-entitled action on March 22, 1977. The plaintiff association seeks a Section 48-818 determination of base salary, index salary schedule, health insurance contribution and paid leave provisions for the 1976-1977 school year.

The defendant is a Class III school district. The parties have submitted their dispute to fact-finding pursuant to the Teachers' Professional Negotiations Act. Section 79-1293 R. R. S. 1943. The report of the Fact-Finding Board was rejected, and the association brought the dispute to this Court for resolution. The Court finds that "an industrial dispute" exists between the parties and that it has jurisdiction over the parties and subject matter.

The parties are in some disagreement as to which school districts the Court should look to in constructing an array of total teacher compensation. The districts offered by plaintiff are set forth on Table I with relevant data.

The Beatrice School District has an enrollment of 2,636. On the basis of this fact alone, it is apparent that the district of Bellevue, Millard and Grand Island, must be eliminated from consideration because they are much too large for comparison. See, Tecumseh Educ. Assoc. v. School Dist., 2 CIR 119-1 (1975).

The geographic figures which the parties have offered for Hastings and Kearney vary significantly as illustrated in Tables I and II. The district offered Exhibit 12 at trial which was a mileage table from a 1976 Nebraska highway map. This document verified the miles distant figures which the defendant offered into evidence. The association however, presented no such authentication of its distances, so the Court will rely on the defendant's figures for miles distant. Both parties have offered the districts of Hastings, Norfolk, Kearney, South Sioux City and York as comparable to the defendant district. These schools are all in excess of 100 miles from Beatrice, and South Sioux City sets an outside limit of 166 miles. None of the other schools offered by either party go beyond this limitation and most are much closer. For this reason geographic proximity is not as significant a factor as it has been in other similar cases before the Court.

The athletic conference participation factor is also not as important in the instant case. The parties have offered schools which participate in a variety of conferences. The evidence revealed that Beatrice participated in the Apollo Conference during the 1976-1977 school year, but that this conference was scheduled to disband before the next school year. Historically this conference had not been a strong one. Several of its districts participated in other conferences, as well, and individual districts did not always participate with all other conference members. Beatrice was scheduled to go into another conference during the next school year. For these reasons, the Court will not consider conference participation to be a dominant factor in its determination.

The defendant's offered districts of Crete, Norris, and Fairbury are properly included in the array of comparables. They are very close to Beatrice geographically. While Fairbury is slightly below the Court's usual size limitation, it is not significantly smaller than Crete or Norris which do fall within the appropriate limits. The utilization of these three districts yields a more balanced array between larger and smaller districts, which is preferred (See Tecumseh).

Similarly, the plaintiff's offered district of Fremont is slightly above the usual size limit. However, it is not significantly larger than Papillion which is within the acceptable range. There is a definite variation between Fremont and Grand Island, the next largest district, however, which indicates that Fremont should be included, if otherwise acceptable under the remaining criteria.

The defendant has argued that Ralston, Bellevue, Millard, Fremont, Blair and Papillion should be excluded from an array of total teacher compensation, because these districts are very close to the metropolitan Omaha area. While it is conceivable that the close proximity of Omaha could have a distorting effect on compensation, there was no evidence offered to support this conclusion. It would be an abuse of discretion for the Court to accept this allegation apart from any evidence establishing such a relationship between these districts.

Millard and Bellevue have already been eliminated on the basis of size. It is unlikely that Fremont, which is 36 miles from Omaha or Blair at 26 miles distant, would present the same problems as Ralston, Bellevue, Millard, or Papillion which are directly contiguous to Omaha. Thus, any distortion which might possibly result from a metropolitan influence has been minimized to some extent.

The testimony of defendant's superintendent was that Beatrice has no contact with the Blair district. This district should be included, however, because it fits adequately within the size and geographic boundaries previously discussed, and its inclusion yields a more balanced array between larger and smaller schools, which is preferred. The evidence on specific contacts which Beatrice has with the other offered districts was not extensive. It did reveal that there were no athletic contacts with Bellevue or Millard which confirms their exclusion from the array, and that there were definite athletic contacts with Papillion, Fremont, and Ralston which supports their inclusion.

The resulting array of total teacher compensation

is depicted in Table III below:

The mean of this array is $1,971,909.15 and the mediam is $1,946,527.92. The district has contended that an adjustment should be made to the total teacher compensation figures to allow for differances in contract days, i.e., the total number of work days for the teachers in each district. The applicable number of contract days for comparable districts are set forth on Table IV, with the exception of the Blair district figure which was not available in the record.

The Beatrice district had 184 contract days which is obviously at the bottom of the range depicted on Table IV. If an adjustment were indicated it would be preferable to alter the number of contract days for the Beatrice district rather than adjusting the compensation. That would not be possible in the instant case, however, since the 1976-1977 school year has already transpired.

There are conceptual difficulties which argue against adjusting the compensation figure to reflect the contract days. There was no evidence revealing what duties were expected of the tea#cbers on the contract days. It would be necessary to know the number of teaching days per district, and specifically what was required on the non-teaching days. The district's Director of Business Affairs conceded the latter point at trial.

The second problem encountered is how to make the adjustment. The district offered an adjustment based on a comparison of average contract days to the Beatrice figure. The resulting differential factor was applied to the midpoint of the total teacher compensation array . To have any validity such an adjustment would have to be made to the mean total compensation figure, not the median. Utilizing the Table IV figures, the average number of Contract days should be 186.7. Applying the defendant's formula, the differential factor would be .98554 which applied to mean total teacher compensation yields $1,943,762.36. While the application of such an adjustment to the facts of this case is questionable, it is apparent that if such an approach were used the resulting total compensation figure would not vary significantly from the median compensation figure which the Court has traditionally looked to in its 48-818 determinations. Accordingly the Court will rely on the median figure for its "approximate midpoint" in this case.

The association has argued for certain changes in the existing salary schedule structure. Specifically, the association maintains that the BA + 45 or MA column should be altered to BA + 36 or MA, and that each column should have added to it additional vertical steps for years of experience. The district has alleged that the current salary schedule structure is "comparable to the prevalent" as it now exists.

In reviewing the salary schedules which were in effect at the twelve arrayed districts during the 1976-1977 school year, the Court found that a wide variety of schedules were in existence. To evaluate the comparability of the Beatrice salary schedule, the Beatrice staff have been placed on the schedules in effect in the other twelve districts. The mean of the resulting staff index factors, (which range from 245.39 to 221.02) is 228.16. The placement of the then existing Beatrice schedule yields a staff index factor of 229.27 which is slightly above this mean, and within an acceptable range of prevalence. The proposed additions of steps to the Beatrice schedule would necessarily increase the staff index factor beyond the acceptable range. The Court accordingly finds that such additions are not supported by the evidence. The BA + 36 or MA column does appear to be prevalent, however, as the evidence demonstrates that at least nine of the twelve compared to districts contain this feature. Plaintiff's exhibit 7 shows that the proposed change to a BA + 36 or MA would not have increased the staff index factor under the existing staff placement. Thus the Court determines that this alteration in the schedule is warranted.

The Court having evaluated the paid leave provision in effect in the arrayed districts, excepting Ralston for which data was not available, finds that the district should provide to each teacher ten days of sick leave per year cumulative to 60 days. Two additional days should be available for personal leave per year for the specific reasons listed in the prior personnel leave policy or with administrator approval. Professional leave beyond that required by the district shall be within the discretion of the superintendent.

The district has contended that the Court must consider the continuity and stability of employment enjoyed by the employees in determining wage rates under Section 48-818. The statutory provision does provide in part that:

in establishing wage rates the court shall take into consideration the overall compensation presently received by the employees, ...including vacation, holidays, and other excused time, and all benefits received including insurance and pensions, and the continuity and stability of employment enjoyed by the employees. Section 48-818 R. R. S. 1943.

To support its contention the defendant offered evidence that 120 of the 158.5 Beatrice teachers have advanced to or beyond the sixth year steps on the salary schedule, that the Beatrice teachers have 14 years average experience and that out of the 296 Nebraska schools, only six had a higher average experience figure. While the Court accepts this data, the district has not suggested any possible use for it in the instant determination.

The Court has not found any reference in this history of the Court of Industrial Relations Act which explains or sets forth the intended use of the "continuity and stability of employment" factor. The district has neither pointed to such a reference, or suggested any possible application which the Court might make to the compensation data before it. Thus, the Court finds that there is no adequate authority or evidence upon which to base a determination concerning the factor. To hazard a guess, it would seem that the "continuity and stability of employment" factor would preclude the comparison of the wages and benefits of temporary employees to permanent employees or newly hired employees to those employees with longer years of service. That is not the case here as a calculation has been made for each Beatrice teacher upon the various index salary schedules, which differentiates for years of employment.

Working from the "approximate midpoint" of $1,946,527.92 the Court finds that the base salary for the Beatrice teachers during the 1976-1977 school year should be $8,160. This permits an employer's insurance contributions of $23.40 per teacher per month towards the single Blue Cross/Blue Shield premium; $42.85 per teacher towards the family Blue Cross/Blue Shield premium for staff members with dependents, $1.65 per teacher per month for the life insurance premium, and the .0055 gross salary income protection coverage. This total insurance package amounts to $75,003.33 which is within the prevalent range set by the twelve districts used for comparison. Then added to the total salaries from the standard salary schedule of $1,870.843.20, the total teacher compensation for the Beatrice school district for the 1976-1977 school year comes to $1,945,-846.33.

It is therefore ordered:

1. That the scale of wages for the Beatrice teachers for the 1976-1977 school year shall be computed with a base salary of $8160 in accordance with the 5 x 4 salary schedule then in effect in the Beatrice district, except that the BA + 45 or MA column shall be altered to BA + 36 or MA.

2. That the defendant shall provide a single Blue Cross/Blue Shield contribution of $23.40 per month and $42.85 towards the family contribution where applicable, $1.65 per month life insurance, and Income Protection insurance (.0055 of gross salary).

3. That ten days of sick leave shall be provided for each staff member, cumulative to sixty days; and two days of personal leave, and professional leave, in accordance with this opinion; and

4. That these wages and terms of employment be effective from the first day of the 1976-1977 school year.