| PAXTON EDUCATION | | | CASE NO. 437 |
| ASSOCIATION, an | | | |
| Unincorporated Association | | | |
| | | ||
| Plaintiff, | | | |
| | | ||
| v. | | | OPINION AND ORDER |
| | | ||
| SCHOOL DISTRICT NUMBER SIX, | | | |
| KEITH COUNTY, NEBRASKA, | | | |
| Also Known as PAXTON | | | |
| CONSOLIDATED SCHOOLS, | | | |
| | | ||
| Defendant. | | |
Appearances:
For the Plaintiff: Mark D. McGuire
Crosby, Guenzel, Davis,
Kessner & Kuester
Lincoln, Nebraska
For the Defendant: Harold W. Kay
Kay & Kay
North Platte, Nebraska
Before: Judges Kratz, Davis, and Orr.
KRATZ, D.:
The Paxton Education Association (Association) asks the Commission of Industrial Relations (Commission) to determine wages and conditions of employment for the Paxton Consolidated School teachers for the 1981-82 school contract year. The Defendant, School District Number Six of Keith County, Nebraska (District), claims the Commission is without jurisdiction because the District is a Class III school district and therefore comes under the Teachers Professional Negotiations Act (TPNA) 1, and the parties have not exhausted the provisions of that act. The District cites Section 48-810, R.R.S., 1943, in this regard, claiming that the Commission has long recognized the legislative intention that the TPNA must be pursued to impasse prior to exercise of the Commission's jurisdiction.
When a negotiations between the parties first commenced, and at the time of the certification order, 2 the District was a Class II school district. The TPNA does not apply to Class II school districts. On June 12, 1981, the State Department of Education reclassified the District as a Class III school district, effective September 1, 1981. The negotiations between the parties commenced in April. They continued after June 12, and after September 1, and at no time during these negotiations did the District claim that the TPNA applied. This issue was raised only in response to the Petition filed herein. In School District of Seward Educ. Ass'n v. School Dist. of Seward , 1 CIR 34 (1971), aff'd, 188 Neb. 172, 199 N.W. 2d 752 (1972), the Nebraska Supreme Court held that when there is nothing properly proceeding under the TPNA, the provisions of the Act are to be considered exhausted, thus conferring jurisdiction on the Commission. The Commission finds that it has jurisdiction of this dispute. See Central City Educ. Ass'n v. School Dist. of Central City, Lyons Classroom Teachers Ass'n v. School Dist. of Lyons, Ashland-Greenwood Educ. Ass'n v. Saunders County School Dist. 1 , 1 CIR 35, 36 and 38 (1971).
The District also claims that the only wage and condition issue that can be determined in this case is base salary, inasmuch as the Association has waived any right to have any other issue considered. The only other issue presented to the Commission by the Association is the matter of salary schedule, and the District's claim of waiver in this regard is based on the fact that during the many negotiation meetings, and the correspondence with regard thereto, the Association made no reference to "increments", though this word was included in its original list of demands. Section 48-818 requires the Commission to consider all terms and conditions of employment. The Petition herein requests the Commission to determine terms and conditions of employment which are comparable to the prevalent. The schedule structure is a part of the base salary, and clearly it is a term or condition of employment. It can be a part of this determination, pursuant to Section 48-818, even though it was not a part of the unsuccessful negotiations which led to the filing of this case.
The statute applicable to this case is Section 48-818, R.R.S., 1943, which says as follows:
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.
The evidence presented has shown that the work, skills, and working conditions of the teachers employed by the District and the teachers employed at the schools presented by both parties as compared to school districts are similar and satisfy the standards set forth in Section 48-818.
The Association's array of compared to school districts contained the schools of Arthur, Big Springs, Brule, Venango, Wallace, Hershey, Sutherland, Chappell, and Grant. The Districts array consisted of Arthur, Big Springs, Brule, 4 Venango, Wallace, Lewellen, Tyron, and Wheatland. Thus, five schools were included in both arrays, and the parties disagreed with regard to Hershey, Sutherland, Chappell, and Grant, submitted by the Association, and Lewellen, Tyron, and Wheatland, submitted by the District.
In selecting employment units in reasonably similar labor markets for the purpose of comparison as to wage rates and other benefits, pursuant to Section 48-818, the question is whether, as a matter of fact, the units selected for comparison are sufficiently similar and have enough like characteristics of qualities to make comparison appropriate. Fraternal Order of Police v. County of Adams , 205 Neb. 682, 685, 289 N.W. 2d 535, 537 (1980); Omaha Ass'n of Firefighters v. City of Omaha , 194 Neb. 436, 441, 231 N.W. 2d 710, 713 (1975); Crete Educ. Ass'n v. School Dist. of Crete , 193 Neb. 245, 255, 226 N.W. 2d 752, 758 (1978). Since this is a factual determination, the use of a particular array in one case does not require that the same array be appropriate in a different case. Crete Educ. Ass'n v. School Dist. of Crete , 193 Neb. 245, 255, 226 N.W. 2d 752, 758 (1978). Since this is a factual determination, the use of a particular array in one case does not require that the same array be appropriate in a different case. Crete Educ. Ass'n v. School Dist. of Crete , 193 Neb. 245, 255, 226 N.W. 2d 752, 758 (1975).
The evidence regarding the characteristics of the arrays of the parties respective compared to school districts includes the enrollment and rank of each district, the distance between it and Paxton, and its athletic conference. There was also evidence regarding other common interests of these schools with Paxton.
Table 1, as follows, sets out some of the significant information about all of the school districts included in the proposed arrays:
We conclude that a suitable array for the purposes of Section 48-818 should consist of the following school districts: Arthur, Big Springs, Brule, Chappell, Grant, Sutherland, Venango, and Wallace. We reject Hershey because its student enrollment is more than twice the size of Paxton. Sidney Educ. Ass'n v. School Dist. of Sidney , 2 CIR 81 and 88 (1974). We are unable to consider Lewellen, Tyron, and Wheatland because the evidence is not sufficient to permit an accurate placement of Paxton teachers on the salary schedules of these three schools. In District 15 Educ. Ass'n v. school Dist. 15 of Adams County , 5 CIR 347 (1982), affirmed on rehearing en banc (with modification not material here), 5 CIR 356 (1982), this Commission determined that in establishing teacher compensation under Section 48-818 it will not include a school in an array unless the criteria applied by that school in determining its teachers salaries are shown in a manner that will permit the Commission to apply such criteria to the teachers at the subject school.
Section 48-818 provides 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 pensions, and the continuity and stability of employment enjoyed by the employees." This rule of overall compensation does not require an identity of benefits, but requires that the overall compensation be "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." 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 may, therefore, vary from case to case depending upon the evidence.
The two items for determination by the Commission are base salary and salary schedule structure. Table 2 below shows the total teacher compensation in the selected array, based on the total of the teachers salaries and their fringe benefits. Table 3 shows the salary schedule structure in the selected array.
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 Paxton Teachers shall be $11,900.00. In the case of West Holt Faculty Association v. School District 25 of Holt County , 5 CIR 301, 309 (1981), this Commission said as follows:
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 e disturbed in the absence of substantial variances from prevalent practice...
Based on the afore quoted decision, and a review of the index salary structures of the compared to schools, we conclude that the salary schedule structure shall remain unchanged for the 1981-1982 contract year.
IT IS THEREFORE ORDERED THAT:
1. The base salary amount for Paxton Teachers shall be $11,900.00, effective at the beginning of the 1981-1982 school contract year.
2. The salary schedule structure shall remain unchanged.
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 ratably 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.
Filed May 28, 1982.
1. 79, 1287 to 79, 1295, R.R.S. 1943.
4. The only evidence presented by the District for Brule was the base salary (Respondent's Exhibit 12a). No supplementary evidence was presented.
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