|ALLIANCE EDUCATION ASSOCIATION,|||||CASE NO. 395|
|An Unincorporated Association,||||
|v.|||||OPINION AND ORDER|
|THE SCHOOL DISTRICT OF ALLIANCE,||||
|IN THE COUNTY OF BOX BUTTE, IN THE||||
|STATE OF NEBRASKA, A Political||||
For the Plaintiff: Theodore L. Kessner.
For the Defendant: Thomas A. Danehey.
Before: Judges Gradwohl, Wall, and Berkheimer.
This matter came on for trial for a determination of wages and other conditions of employment pursuant to Section 48-818. The parties agreed that there are four remaining areas of dispute for the 1980-1981 school contract year:
1. Base salary.
2. Vertical and horizontal index factors on the salary schedule.
3. School district contribution for family health insurance premiums (Blue Cross/Blue Shield).
4. Number of contract days.
The Commission has jurisdiction of the parties and of the subject matter.
The controlling statute is Section 48-818, which states:
The findings and order or orders may establish or alter the scale of wages, hours of labor, or conditions of employment, or any one or more of the same. In making such findings and order or orders, the Commission of Industrial Relations shall 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 of workers exhibiting like or similar skills under the same or similar working conditions. In establishing wage rates the commission shall take into consideration the overall compensation presently received by the employees, having regard not only to wages for time actually worked but also to wages for time not worked, including vacations, holidays, and other excused time, and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees. Any order or orders entered may be modified on the commission's own motion or on application by any of the parties affected, but only upon a showing of a change in the conditions from those prevailing at the time the original order was entered.
2. Nature of the Industrial Dispute.
Plaintiff is the certified bargaining representative of Alliance public school teachers under the Nebraska Commission of Industrial Relations statutes. See Alliance Education Association v. School District of Alliance , 4 CIR 154 (1980) (Certification Order, April 23, 1980, Case No. 345). This suit was filed after negotiations between the parties did not result in agreement on all of the issues. The parties stipulated in this proceeding that except for base salary, the vertical and horizontal index factors on the salary schedule, School District paid Blue Cross/Blue Shield health insurance premium payments for teachers with dependents, and the number of contract days, the terms and conditions of employment for the teachers employed by the School District for 1980-1981 shall be as previously established by the agreements made by the parties during negotiations.
Because of the negotiations, this suit was filed at a relatively late date. Both parties acted most expeditiously in holding a pretrial conference and the trial.
3. Applicable Rules of Procedure, Evidence and Burdens of Proof.
The procedure in the Commission of Industrial Relations must conform to the code of civil procedure applicable to the district courts of the state except as modified by Commission Rule or by a specific statute pertaining to the Commission. Section 48-
812. See Fraternal Order of Police, Lodge No. 8, County of Douglas , 4 CIR 185 (1980). The Commission is bound to follow the rules of evidence applicable to the trial of civil cases. Section 48-809;
Plattsmouth Police Department Collective Bargaining Committee v. City of Plattsmouth , 205 Neb. 567, 288 N. W. 2d 729 (1980). Decisions must be based solely upon evidence in the record or evidence of which a district court might take judicial notice.
Section 48-817; General Drivers and Helpers Union v. City of West Point , 204 Neb. 238, 281 N. W. 2d 772 (1979).
The burden is on the moving party in a Section 48-818 determination to demonstrate that existing wage rates, hours of labor, and conditions of employment are not comparable to the prevalent wage rates, hours of labor, and conditions of employment.The burden of proof is satisfied by actual proof of the facts, of which proof is necessary, regardless of which party introduces the evidence. Lincoln Fire Fighters Assn. v. City of Lincoln , 198 Neb. 174, 178, 252 N. W. 2d 607, 610 (1977).
The parties made several agreements and stipulations at the pretrial conference. The Association presented eight exhibits and the District presented three exhibits at the pretrial conference. It was agreed that these exhibits, or revised exhibits on the same subjects, could be received in evidence at the trial without objection as to foundation. The parties agreed to attempt to arrive at an agreed placement of the 1980-1981 Alliance teachers on the Alliance index salary schedule and on the salary and benefit schedules of the other school districts involved in the
comparisons under Section 48-818.
Unfortunately, there was not an agreement by the parties before the trial on certain facts essential to the Section 48-818 comparisons. The statutes require that the decision in this matter be based upon facts received in evidence under the rules applicable to civil cases. Just prior to trial, an error in the placement of one teacher was discovered, resulting in a change of one teacher from BA-Step 5 as originally shown on Exhibit 1 to BA-Step 6. The parties were not agreed upon the number of Alliance teachers receiving single person and family medical insurance benefits. Although the respective exhibits were introduced without objection as to foundation in accordance with the pretrial conference, there are some unexpected and unnecessary disparities in the evidence in this matter. In addition, each of the post-trial briefs refers to some matters which are not contained in the evidentiary record. The following determinations of the Commission are based on the evidence admitted at the trial under the rules of evidence applicable to civil cases.
The parties stipulated at trial that the work, skills and working conditions of the teachers employed by the Alliance School District and the teachers employed at the compared to school districts are similar, and satisfy the standards required by Section 48-818 to permit a comparison of terms and conditions of employment if included in the array of compared to school districts by the Commission. Both parties presented evidence concerning teacher wages and conditions of employment in the public schools of Chadron, Gering, Kimball (Class VI district), McCook, North Platte, Scottsbluff, and Sidney, Nebraska. At the pretrial conference, the District stated that it would, additionally, introduce evidence concerning teacher wages and conditions of employment in the public schools of Gordon (Class VI District), Kearney, and Mitchell, Nebraska. At trial, however, the District presented evidence only as to Gordon and Mitchell. The Association presented evidence as to Kearney and Ogallala.
In selecting employments for the purpose of comparisons to arrive at comparable and prevalent wage rates and conditions of employment in accordance with Section 48-818, the question is whether, as a matter of fact, the employments selected for comparison are sufficiently similar and have enough like characteristics or qualities to make comparison appropriate in that situation. Fraternal Order of Police v. County of Adams , 205 Neb. 682, 685, 289 N.W. 2d 535, 537 (1980); Omaha Assn. of Firefighters v. City of Omaha , 194 Neb. 436, 441, 231 N. W. 2d 710, 713 (1975); Crete Education Assn. v. School District of Crete , 193 Neb. 245, 255, 226 N. W. 2d 752, 758 (1975). Since this is a factual determination to be made in each case, the use of a particular array in one case does not require that the same group of employments would be appropriate in a different case. Crete Education Assn. v. School Dist. of Crete , 193 Neb. 245, 255, 226 N. W. 2d 752, 758 (1975).
The evidence in this case, in addition to the stipulation as to work skills and working conditions, consists of the size and ranking of the schools by student enrollment, geographic proximity to Alliance, and community of interest of the other schools with Alliance, especially as to athletic competition.
Table 1 sets out some of the information about the school districts in the proposed array. Seven of the proposed districts were agreed to by both parties.
From the evidence in this case, it is determined that a suitable array for the purposes of Section 48-818 should consist of teachers in the following school districts: Chadron, Gering, Gordon (Class VI District), Kearney, Kimball (Class VI District), McCook, Mitchell, North Platte, Scottsbluff, and Sidney. Chadron, Gering, Kimball, McCook, North Platte, Scottsbluff and Sidney were agreed to by the parties. The other three are Gordon, Kearney, and Mitchell which were presented at the pretrial conference by the District. Gordon and Mitchell are included in the array even though they are less than half the size in student enrollment of Alliance because of their significant geographic proximity to Alliance and the general presence of an existing strong community of interest between the school districts administratively, scholastically and athletically. Kearney is within the Commission's size comparison range from one-half as large to twice as large. Although Kearney is withdrawing as a member of the Big 10 Athletic Conference after the current school year, and is relatively far from Alliance, it has had in the past, and has during this school year, a strong community of interest on a conference-wide basis with Alliance. Kearney was initially proposed by the District and should be included in the array, We find that the public school district of Ogallala should not be included in the array since there is lacking an actual community of interest with Alliance administratively, scholastically and athletically. We find that the array so selected is a balanced array, suitable for making appropriate determinations in this matter.
5. Determination as to "Overall Compensation."
Section 48-818 states that "In establishing wage rates the Commission shall take into consideration the overall compensation presently received by the employees, having regard not only to wages for time actually worked but also to wages for time not worked, including vacations, holidays, and other excused time, and all benefits received, including insurance and pension, and the continuity and stability of employment enjoyed by the employees." This rule of overall compensation does not require an identity of benefits, but that the overall compensation be "comparable to the prevalent wage rates paid and conditions of employment for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions." These determinations must be made on the basis of the evidence introduced by the parties in the trial of the case. The determinations under Section 48-818, R. R. S. 1943, may, therefore, vary from case to case depending upon the evidence introduced by the parties.
The four items for determination by the Commission, upon which the parties have not agreed previously, are 1) base salary, 2) vertical and horizontal index factors on the salary schedule, 3) school district contribution to dependent health insurance premiums (Blue Cross/Blue Shield), 4) number of contract days.
The 1980-1981 placement of Alliance teachers on the Alliance index salary schedule is reflected in the evidence in Exhibits 1 (as corrected to show 1 teacher at BA-Step 5 and 7.3 teachers at BA-Step 6), 11, and 13. The total staff index factor for the 105 present Alliance teachers holding 103.8 FTE positions on the present Alliance schedule is 145.47 (Exhibit 1 as corrected); Exhibit 13 (4.50 x 4.50 schedule). The length of time Alliance teachers have been "frozen" on the bottom step of the Alliance schedule is reflected in Exhibits 1 and 2. Exhibits 1 and 2 were presented at the Pretrial Conference. While the figures contained in Exhibits 1 and 2 for "frozen" teachers cannot be reconciled directly with the "Experience" figures in Exhibit 11, these figures in Exhibits 1 and 2 appear to be correct and not in conflict with Exhibit 11 or the other evidence in this matter.
Exhibit 11 shows that 56 Alliance teachers receive single person medical insurance benefits, 41 Alliance teachers receive family medical insurance benefits, and the other eight Alliance teachers do not receive medical insurance benefits. We find that Exhibit 11, taken from the District's actual payroll figures, is more accurate than the information contained in Exhibits 1 and 2 and utilized throughout the Plaintiff's computations.
Defendant attempted at trial to introduce Exhibit 15 pertaining to teacher placement on the index salary schedules of other school districts. This evidence had been gathered by Bob Duryea, Business Manager, Alliance Public Schools, who testified at the trial. The purpose of Exhibit 15 was to show that certain Alliance teachers would have received less credit for prior experience when hired in other school districts and less credit for educational activities beyond the Bachelor Degree while hired in other districts.
Plaintiff objected to Exhibit 15 for three reasons: relevance, outside the scope of the pretrial conference, and insufficient foundation. The objection was overruled as to relevance and outside the scope of the pretrial conference. It was sustained as to insufficient foundation, relying on Plattsmouth Police Department Collective Bargaining Committee v. City of Plattsmouth , 205 Neb. 567, 570-571, 288 N. W.2d 729, 732 (1980). The basis for this ruling is that in placing the Alliance teachers on the index salary schedules of the other school districts for the purpose of making comparisons under Section 48-818, all items pertaining to the placement, contained in the evidence, are taken into account. For example, additional experience for "frozen" teachers who would be compensated at a higher level is taken into account. Similarly, a lesser number of steps or columns is figured into the calculations. For that reason, Exhibit 15 was relevant. Exhibit 15 was also
within the scope of the pretrial conference. lt was not a part of the subject matter of the eleven exhibits presented by the parties, but it would properly have been part of the portion of the Report of Pretrial Conference stating that the parties should attempt to arrive at agreed figures for the placement of Alliance teachers on the schedules of the other school districts. Exhibit 15, therefore, was within the subject matter of the pretrial conference.
Exhibit 15 contained evidence secured by Bob Duryea from other school districts. In this, it was similar to the evidence rejected by the Supreme Court in the Plattsmouth Police case. In Platts-mouth Police , the expert witness had compiled questionnaires concerning salaries paid in 22 first-class cities. The evidence was inadmissible because: "The questionnaires which were returned to the plaintiff through the mail were not authenticated in any way. The questionnaires listed minimum and maximum salaries but there was no indication as to whether the salaries listed were actually being paid or under what conditions employees would be entitled to receive the maximum salaries." 205 Neb. at 570; 288 N. W. 2d at 732. Exhibit 15 is similarly lacking in foundation. It is not admissible, therefore, under the rules of evidence prevailing in the trial of civil cases as required by Section 48-809. Since Exhibit 15 was not submitted at the pretrial conference, or otherwise in conformity with Section 48-817, it is not admissible under the special rules contained in Section 48-817. Accordingly, Exhibit 15 was not admissible in evidence in this matter and it
has not been considered in arriving at the determinations in this Opinion and Order.
The evidence establishes the following salary and fringe benefit comparison as compiled in Table 2.
Table 3 compares the vertical and horizontal index factors on the salary schedule of alliance to those of the array school districts.
The insurance benefits of Alliance and the districts in the selected array are set out in Table 4. There are substantial differences in the insurance benefits provided by the districts in the array. The most significant of these differences are the amount of district paid monthly dependent health insurance premiums, whether a cash equivalent for other employee benefits is allowed employees not receiving dependent health insurance premiums, and the provision of life insurance coverage. The comparative impact of these differences in insurance benefits is reflected in the computations set out in Appendix A to this Opinion and Order.
The evidence establishes in Table 5 the number of contract days at Alliance and at the school districts in the array.
Applying the statutory criteria of Section 48-818 to the evidence in this case, we find that effective at the beginning of the 1980-1981 school contract year, the base salary amount for Alliance teachers should be $10,750.00 and that District contribution to the dependents' health insurance coverage shall be $70.00/month. The vertical index factor on the salary schedule shall be changed from 4.5 to 4.25 and the horizontal index factor on the salary schedule shall remain unchanged at 4.5. This represents a total standard salary schedule cost of $1,546.239.69 (base salary amount, $10,750.00 times staff index factor, 143.83625), fringe benefits of $66,606.53 and an overall compensation of $1,612,846.22. in addition, we find that the number of contract days shall be 186 days.
IT IS THEREFORE ORDERED that:
1. The base salary amount for Alliance teachers shall be $10,750.00 effective at the beginning of the 1980-1981 school contract year.
2. The vertical index factor on the Alliance salary schedule shall be 4.25 and the horizontal index factor shall be 4.5.
3. The School District contribution for dependent health insurance coverage (Blue Cross/Blue Shield) shall be $70.00 per month.
4. The number of contract days for Alliance teachers shall be 186 days.
This Order shall be effective for wages and conditions of employment with respect to 1980-1981 school contract year. The adjustments resulting from this Order shall be made ratably over the twelve months of the school contract year. The amount due for the portion of the school contract year already elapsed shall be paid as soon as feasible following the entry of this Order.
All Judges assigned to the panel in this case join in the entry of this Opinion and Order.
Entered January 20, 1981.
NOTE: APPENDIX A was not typed into the computer.