5 CIR 301 (1981)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

WEST HOLT FACULTY ASSOCIATION, An | Case No. 422
Unincorporated Association, |
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Plaintiff, |
|
v. | OPINION AND ORDER
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SCHOOL DISTRICT NUMBER 25 OF HOLT |
COUNTY, NEBRASKA, A/K/A West Holt |
Jr-Sr High School, A Political |
Subdivision, |
|
Defendant. |

Appearances:

For the Plaintiff: Theodore L. Kessner

Crosby, Guenzel, Davis, Kessner & Kuester

For the Defendant: L. Bruce Wright

Cline, Williams, Wright, Johnson & Oldfather

Before: Judges Berkheimer, Kratz and Gradwohl.

BERKHEIMER, J:

This matter came on for trial for a determination of wages and other conditions of employment pursuant to Section 48-818. The issues for resolution by the Commission are:

Base Salary

Salary Schedule Structure Paid Sick Leave

Paid Personal Leave

Paid Professional Leave

Paid Health Insurance

Comparables

The parties stipulated that teachers in the West Holt Jr-Sr High School and the teachers in the public schools in Ainsworth, Bassett (Rock County Rural), Chadron, Gordon, Loup City, O'Neill, Plainview, Rushville and Valentine exhibit like or similar skills but with the reservation that the parties do not agree as to the specific schools which should constitute the array to be used by

the Commission in making a determination pursuant to Section 48-818. The parties agree as to Ainsworth, Bassett, Chadron, Gordon and Valentine. The Association would include and the District would exclude O'Neill, Loup City and Plainview. The District would include and the Association would exclude Rushville. In selecting employments for the purpose of comparison in arriving at comparable and prevalent wage rates and conditions of employment, 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 Dist. of Crete , 193 Neb. 245, 255, 226 N.W.2d 752, 758 (1975). Since this is a factual determination to be made in such 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 consisted of the size and ranking of the schools by student enrollment, geographic proximity to West Holt and community of interest of the other schools with West Holt, especially as to athletic competition.

All of the agreed upon districts are members of the Rangeland Athletic Conference. Rushville is also a member of that conference. The District's Superintendent testified that there is a strong community of interest among all of the Rangeland Conference schools in that for these schools other than Chadron and perhaps Gordon, the conference affords the only practical opportunity for competition in an athletic conference. The superintendent testified that it is necessary for these schools "to stay together to survive" in giving students opportunities for athletic competition. There is evidence that the athletic conference ties have given rise to administrative and school board contacts among the Rangeland Schools.

The Association agrees with the District on the inclusion of Chadron and Gordon but disagrees as to Rushville. Distances from Atkinson where West Holt is located are Gordon 139 miles, Rushville 154 miles and Chadron 186 miles. The evidence is that there are no greater contacts with Chadron or Gordon than there are with Rushville.

O'Neill is only 18 miles from Atkinson. It is the closest school of comparable size and competes with West Holt in several sports. Loup City is 98 miles south of West Holt, competes in the Lower Platte Conference, and its only direct contact with Atkinson is a football game. Plainview, a member of the Northeast Nebraska Athletic Conference, is 65 miles east and competes with West Holt in basketball and perhaps volleyball. The District's Superintendent testified to the greater number and concentration of schools to the east than to the west with the inference that the schools to the east find convenient contacts with other schools close to home and that therefore contacts as far west as Atkinson are infrequent. The evidence is clear that of necessity West Holt must look westward particularly for its athletic competition and for schools with which it can establish a community of interest.

Disparity of enrollment among the schools proposed is not sufficient to be a material factor. The Commission on the basis of distances, few contacts and lack of community of interest excludes Loup City and Plainview from the array and upon the basis of proximity includes O'Neill. Despite the great distances involved, Rushville as well as other Rangeland Conference schools will be included because of frequency of contacts and strong community of interest. The Commission therefore finds that the array used for comparison should consist of Ainsworth, Bassett (Rock County Rural), Chadron, Gordon, O'Neill, Rushville and Valentine.

Information on these schools in the array are as follows:

Salary Schedule

Table 2 following compares the salary schedules of the schools in the array with West Holt by showing increments vertically for longevity and horizontally for educational attainment and, for each school the number of vertical longevity steps for each educational lane in issue in this case.

The Association in its brief argues that increments should be changed from 4% to 4.25% both horizontally and vertically and that one vertical longevity step should be added for the BA plus 27 lane and for the MA or BA plus 36 lane. The District in its brief contends that there should be no change in either vertical or horizontal increments and the schedule should remain a 4 x 4 schedule. The District suggests that West Holt's MA or BA plus 36 lane should be changed to MA only and that an additional lane of MA plus 18 be added.

Taking first the District's position. Two of the seven districts used for comparison have an MA or BA plus 36 lane, four have an MA only lane, and one an MA or BA plus 42 lane, showing some prevalence of an MA only column. As to the District's suggestion for an MA plus 16 lane, five of the seven schools do have such a lane showing a prevalence of that feature. The difficulty in establishing an MA lane or an MA plus 18 lane, if we were inclined to do so, is that the evidence does not reveal sufficient data to determine the staff index factor which would result from so doing. The evidence shows that as of the 1981-82 school year, 9 of the District teachers are in the MA or BA plus 36 lane. The evidence does not reveal how many of these teachers are in that lane by virtue of an MA educational attainment or how many, if any, in that lane presently have educational attainments which would qualify for an MA plus 18 lane. Total teacher compensation and use of a staff index factor have been the established bases for the Commission's adjustment of teacher compensation and this case was tried on those bases. There is therefore insufficient evidence to consider the change suggested by the District.

With respect to the Association's argument for a 4.25 x 4.25 schedule, Table 2 shows vertical longevity increments of 4% in three of the seven schools and 4.25% or higher increments in four schools. Horizontally, four of the seven schools had increments of 4% and three with 4.25% or higher. Only one school in the array has a 4.25 x 4.25 schedule.

With respect to the additional steps sought by the Association, four schools have the same number of steps as West Holt in the BA plus 27 lane and three have less. In the MA or BA plus 36 lane one school has a greater number of steps than West Holt, one has less and one the same.

Variations in the salary schedule affect the distribution of compensation among teachers within the group but do not affect total compensation. Some teachers may receive less and others more depending upon the schedule, e.g. higher increments result in the lower base salary. Because four of the seven schools have vertical increments of 4.25 or higher and four out of the seven schools have horizontal increments of 4%, it could be argued that a 4.25 x 4 schedule is roughly comparable to prevalent schedules. Such a schedule however produces a result sought by neither party with a redistribution of total compensation not envisioned by either.

It is the Commission's experience that because of varying effects of different schedules upon teachers within the bargaining group, changes in the structure of the schedule are best achieved through collective bargaining and that past practice should not be disturbed in the absence of substantial variances from prevalent practice which the Commission does not find in this case. Therefore, the Commission finds that no change in the salary schedule structure of West Holt is required.

Paid Health Insurance

Table 3 following shows insurance provided by schools in the array compared to West Holt and shows health insurance monthly premiums for single and dependent coverage to be clearly below the prevalent benefits paid by other schools. The Commission finds that the health insurance monthly premiums paid by the District for single coverage should be increased to $41.40 per month and for dependent coverage to $111.30 per month with coverage in each case to be equivalent to the NSEA Blue Cross/ Blue Shield Plan.

PAID PERSONAL LEAVE & PROFESSIONAL LEAVE

Paid personal leave and professional leave allowed by schools in the array and leave allowed by West Holt are shown in Table 4.

West Holt for the 1980-81 year allowed 1 day personal leave "at the discretion of the superintendent" and 1 day professional leave "at the discretion of the principal or superintendent." Personal leave of 2 days appears clearly prevalent in the array and personal leave for West Holt should be increased to 2 days with the same administrative discretion requirements as in the 1980-1981 agreement. As to professional leave there is not satisfactory evidence of the basis for unlimited professional leave by schools in the array, but an increase to 2 days professional leave appears warranted, again with the same administrative discretion as in the 1980-81 agreement.

Paid Sick Leave

Table 5 shows paid sick leave allowed by the schools in the array and by West Holt.

Median annual sick leave allowed by the schools in the array is 10 and the median cumulative sick leave is 35. The Commission finds that the paid sick leave allowed by West Holt should be increased to 10 days with no change in permitted accumulation.

Base Salary

The District contends that in this case the base salary should be adjusted downward to reflect the fact that West Holt's teacher contract days are less than all but one school in the array.

Table 6 shows the number of contract days and the number of teaching days of the schools in the array and of West Holt.

Section 48-818 provides in part:

.... In establishing wage rates the Commission shall take into consideration the overall compensation received by employees, having regard not only to wages for time actually worked but also for time not worked ...

In Local No. 2088 AFSCME v. County of Douglas Social Services Administration , 4 C.I.R. 76, 83-84 (1979), reversed on other grounds, 208 Neb. 511, 304 N.W.2d 368 (1981), and in Fraternal Order of Police Local No. 12 v. County of Adams , 3 C.I.R. 585, 590 (1978), affirmed 205 Neb. 682, 289 N.W.2d 535 (1980), the Commission made adjustments based on differences in work week hours. In Beatrice Education Association v. School District , 3 C.I.R. 323, 329-331 (1978), and in Columbus Education Association v. School District , 3 C.I.R. 385, 391-392 (1978), the Commission declined to adjust compensation for differences in contract days noting among other reasons absence of evidence as to the number of teaching days.

In the Columbus case, the Commission said: "The teachers enter into a contract for a school term, without particular regard to the number of days involved in that term." 3 CIR 385 at 391. The undisputed evidence in this case requires a departure from that finding. Here, the Association's expert witness testified that teaching employees should expect additional compensation if additional contract days are required and testified as to methods of adjustment generally based on a daily measurement.

In the Be atrice and Columbus cases the Commission indicated that adjusting contract days rather than adjusting compensation would be a better or correct approach. In School District of Seward Education Association v. School District , 188 Neb. 772, 784, 199 N.W.2d 752 (1972), the Supreme Court under the evidence of that case stated that the right to schedule work is exclusively within the management prerogative. The Association in its brief argues that the 182 contract days at West Holt have been unilaterally established by the District Board to accommodate farm families in the District and that therefore no salary adjustment should be made for a lesser number of contract days than prevalent among schools in the array. The evidence shows that the number of contract days were unilaterally established by the Board to accommodate farm families, but as noted above the evidence also shows that teachers' salary expectations are related to the number of contract days. The Commission finds on the evidence in this case that an adjustment in basic salary should be made for a lesser number of contract days and makes the adjustment by adjusting total salary schedule amounts for each of the schools in the array (except Rock County Rural) to 182 contract days. The overall compensation of schools in the array so adjusted are shown in Table 7 following:

Applying the statutory criteria of Section 48-818 to the evidence in this case we find that effective at the beginning of the 1981-1982 school contract year, the base salary amount for West Holt Jr-Sr High School should be $11,365.00. This is a standard salary schedule of $308,910.70 (base salary amount of $11,365 x staff index factor of 27.18088) and fringe benefit package of $21,956.49 making an overall compensation of $330,867.19.

The Association asserted in its Brief (pages 7-9) that in several recent opinions, the Commission has made a substantial departure from its prior decisions in computing total teacher compensation and entering wage orders under Section 48-818. At the request of the panel Judges, the Association promptly submitted a Supplemental Brief containing a further explanation of its position and the mathematical computations in support of its position.

There has been no change by the Commission in its method of calculating "overall compensation" or in its decisional process in entering orders under Section 48-818. The change appears to be that the Association has in the recent cases not based its calculations solely upon the "median" figure contained in the various tables and has taken into account the "mean" figure and the concept that the "mid-point" is a range involving both the "median" and "mean" figures.

The two cases representing the well established overall compensation rules from which the Association contends the Commission has recently departed are Milford Education Association v. School District of Milford , 1 CIR No. 43 (1971), and Fremont Education Association v. School District of Fremont , 3 CIR 492 (1978). The Milford decision first applied the total teacher compensation concept which the Commission has consistently applied since then. The Milford opinion sets out general rules but does not contain the mathematical calculations leading to the decision in favor of the School District. Subsequent decisions have set forth the mathematical calculations involved. It is the method of mathematical calculation to which the Association objects, not the underlying rules of total teacher compensation.

In the Fremont decision, the Commission based its determination upon a total teacher compensation of $3,988,349.72, which was calculated as follows (3 CIR at 502-503):

The median of the array is $3,984,323.91, excluding the South Sioux City district, and $3,928,960.00 including the South Sioux City district. The mean compensation level is $4,037,552.04 with South Sioux City, and $4,001,465.82 without. This establishes a compensation of $4,037,552.04 at the maximum, and

$3,928,960.00 at the minimum. In the informed exercise of our legislative judgement and expertise, we find the 'approximate midpoint' of total teacher compensation under the facts of this case to be $3,988,349.72.

The Commission has followed the same method in the later cases cited by the Association in placing the midpoint total teacher compensation upon which the order is based between the "mean" and "median" overall compensation figures. In Ohiowa Education Association v. Ohiowa Public Schools , 4 C.I.R. 126, 131 (1979), the mean overall compensation figure was $163,855.27, the median overall compensation figure was $166,321.62, and the Commission order reflected a total teacher compensation of $164,324.72. The complaint in the Association's Supplemental Brief in this matter appears to be that the Commission did not use the median figure alone, $166,321.62, as the "mid-point" and the basis for the Commission's order.

Similarly, in School District of Norfolk v. Norfolk Education Association , 4 C.I.R. 45, 50 (1980), the mean overall compensation figure was $3,011,493.29, the median overall compensation figure was $3,029,305.46, and the Commission order reflected a total teacher compensation of $3,018,017.25. The complaint in the Association's Supplemental Brief in this matter appears to be that the Commission did not use the median figure alone, $3,029,305.46, as the "mid-point" and the basis for the Commission's order.

The Association raises the same objection to the recently entered order in Butte Education Association v. Butte Public Schools , (September 11, 1981). In the Butte decision, the mean overall compensation figure was $188,581.80, the median overall compensation figure was $189,398.05, and the Commission order reflected a total teacher compensation of $188,969.20.

We follow precisely the same method in this matter. As shown above, the mean overall compensation figure is $331,050.41, the median overall compensation figure is $330,557.19, and the Commission's order reflects a total teacher compensation of $330,867.19. This method has been consistently applied by the Commission from the seminal decision in Milford in 1971 to the present decision.

IT IS THEREFORE ORDERED that:

1. The base salary amount for West Holt Jr-Sr High School teachers shall be $11,365.00 effective at the beginning of the 1981-1982 school contract year.

2. The present salary schedule structure shall remain unchanged.

3. The District shall pay amounts for health insurance premiums of $41.40 per month toward single coverage and $111.30 per month toward dependent coverage substantially equivalent to the NSEA Blue Cross/Blue Shield plan with the same full time employment and other adjustments as presently exist.

4. Paid personal and professional leave shall be each increased to 2 days per year with the same administrative discretion as in the 1980-1981 agreement between the parties.

5. Paid sick leave shall be increased to 10 days per contract year with maximum accumulated sick leave to remain at 35 days.

This Order shall be effective for wages and conditions of employment with respect to the 1981-1982 school contract year. The adjustments resulting from this Order shall be made rateably over the 12 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 November 2, 1981.

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