|STATE CODE AGENCIES EDUCATION|||||CASE NO. 530|
|ASSOCIATION, An Unincorporated||||
|v.|||||FINDINGS AND ORDER|
|DEPARTMENT OF PUBLIC||||
|INSTITUTIONS, State of||||
For the Petitioner: Theodore L. Kessner
Crosby, Guenzel, Davis,
Kessner & Kuester
400 Lincoln Benefit Building
For the Respondent: Sharon M. Lindgren
Assistant Attorney General
2115 State Capitol
Before: Judges Orr, Gradwohl, and Davis
This matter came on for a determination of teacher compensation for the teachers represented by the State Code Agencies Education Association at the Department of Public Institutions (DPI), which includes the two campuses, Beatrice State Developmental Center (BSDC) and the Lincoln Regional Center (LRC), for the 1984-1984 contract year pursuant to Section 48-818. For the school year 1983-1984, there were nine teachers at BSDC and six teachers at LRC. The latest enrollment figures in evidence, which are for 1982-1983, show a student enrollment of 69 at BSDC and 39 at LRC. The issue for resolution is only base salary.
The Commission has ruled previously that it has jurisdiction to establish wages and conditions of employment applicable to agencies of Nebraska state government pursuant to Section 48-818. For an extensive analysis of applicable authorities, see State Code Agencies Education Association v. Department of Public Welfare, 7 CIR 134 (1984).
The State offered no evidence on comparables, nor did the State challenge the array proposed by the Petitioner. At the close of the trial, the Attorney for the Respondent stated:
I think I can state our position in that we don't necessarily disagree with the array to a large extent. We don't necessarily agree that the teachers are not paid below comparable. We are still of the - you know, we looked at it, we did a study and came to the conclusion that the data included in that was valid. And we really couldn't dispute it. But we still are of the position that being a state agency, we're in a rather unique position, and we question how we can pay this and how we can get around the specific language contained in the appropriation bill each year. And that's our position, and it's going to be our position in all four cases. (T65:5-16).
The Commission of Industrial Relations is statutorily created and has only that jurisdiction and authority provided in the statutes. To the extent the Legislature has made binding determinations by appropriations legislation or other statutes, the Commission and the parties are precluded from acting in a different manner. In the State Code Agencies Education Association v. Department of Public Welfare decision, the Commission stated with respect to the parties' obligations to bargain in good faith:
The Department is correct that where the Legislature specifies that a precise term or condition of employment shall exist, the parties to collective bargaining are not free to vary the statutory mandate through collective bargaining; it is equally true, however, that to the extent there is not such a statutory directive as to a term or condition of employment, the parties are obligated under the public employment bargaining statutes to negotiate in good faith on all mandatory subjects. Speaking to the issue of the relationships of the CIR statutes to the civil service act applicable to Lancaster County, the Supreme court stated in American Federation of State, County and Municipal Employees v. Lancaster County, 200 Neb. 301, 304-305, 263 N.W.2d 471, 474 (1978), affirming 3 CIR 200 (1977):
'Among the topics included in the package bargaining agreement, which was presented by the Plaintiff to the defendant were the following: Hours of work, work breaks, holidays, vacations, sick leave, leaves of absence, unpaid leaves of absence, insurance, wages, minimum time payments, overtime, transfers, lay-off and recall, uniforms and protective clothing, severance pay, work rules, and longevity pay. There is nothing in the civil service act which prohibited the county board from bargaining with its employees in regard to these topics. There were other topics included in the package bargaining agreement which were controlled by the civil service act to some extent, such as promotions, discipline, grievance procedure, nondiscrimination, and termination. To the extent that the civil service act contains specific and mandatory provisions relating to such matters, the county board is not free to bargain. As an example, the act provides all appointments and promotions shall be based on merit and fitness. The county board has no power or authority to bargain or agree that any appointment or promotion shall be based upon anything other than merit and fitness except as provided in the act.'
7 CIR 139-140.
Thus, the testimony in the Respondent's case centered on the appropriations process and how base salary has been determined for those teachers in the bargaining unit in the past. We take judicial notice of the appropriation and salary bills applicable to the Department for the 1983-1984 fiscal year, LB 628, LB 772 and LB 772A.
The state Legislature mandates the Department of Personnel to perform an annual salary survey of comparable employers. Based on the results of said survey, the Director of the Budget Division of the Department of Administrative Services, pursuant to the statute, issues a memorandum to all state agencies directing them to include a certain percentage salary increase for their employees in their budget request which is due September 15 for the following fiscal year. The Legislature may then grant that same percentage salary increase, a different one, or none at all. The Legislature designates a lump sum called a "personal services limitation" for each agency by program, which can be used for salaries. This personal services limitation cannot be exceeded.
On behalf of the Respondent, Mr. Carlbom, Labor Relations Coordinator with the Department of Personnel, testified as to how base salary has been determined in the past under contracts between the teachers represented by a union and the state agency that employs them. This procedure is one that has been used to determine base salary for teachers represented by unions in the Department of Public Institutions, Department of Corrections, Department of Social Services, and the Department of Education. The base salary for 1982-83 under the contracts was calculated by taking the total amount of money expended for salaries in the previous year and adding to that the percentage salary increase appropriated by the Legislature. This pool was then divided by the new projected staff index which gives the new base salary. This process in arriving at base salary was by agreement of the parties for the 1982-1983 year.
The Respondent also called Ms. Layman, Personnel Director for DPI, who testified that the staff index factor is the result of placing teachers on a salary schedule which is agreed to by the parties. The percentage increase that each teacher receives depends on where the teachers fall on the salary schedule so it is possible that some teachers will receive a larger and some a smaller percentage than that granted by the legislature. For example, she stated that when the 5% salary increase was granted effective January 1, 1983, teachers received anywhere from 2% to 8%. She also testified that the teachers at DPI are nonclassified employees and, therefore, do not come under the rules and regulations of the State Department of Personnel. They are not then subject to salary increases based on promotions, salary grade adjustments, or reclassifications. However, they are eligible to receive merit raises under a policy established by DPI following guidelines set by the Governor. Each campus has its own personal services limitation and these limitations include salaries for employees other than teachers (T49:16-25, 50:1-2).
The Respondent is not in a different position than any other public employer subject to budget limitations. It is clear from the evidence that after the personal services limitation has been set, the Respondent may adjust individual salaries independently within the total percentage increases appropriated by the Legislature. While it may be true that state agencies do not have the ability to generate funds as many other governmental entities do, the Commission does not and cannot consider "ability to pay." See Nebraska City Education Assn. v. School Dist. of Nebraska City, 3 CIR 281 (1977), affirmed, 201 Neb. 303, 267 N.W.2d 530 (1978); Hall Teachers Association v. School District No. 5, 4 CIR 114 (1979). See also Local No. 2088, American Federation of State, County and Municipal Employees v. County of Douglas, 208 Neb. 511, 304 N.W.2d 368 (1981), decision following remand, 5 CIR 265 (1981); Board of Regents of The University of Nebraska v. American Association of University Professors, 7 CIR 1 (1983).
If the Commission sets wages based on the statutory comparability standard and the results of that decision could cause the agency to go over the personal services limitation using its present staffing numbers, as unpopular as the ramifications might be, it would be up to the agency to decide how it might best remain within the personal services limitation through layoffs or other personnel actions. Those layoffs could be from anywhere within the agency's program; teachers or nonteachers, classified or nonclassified employees, since there is not a separate personal services limitation for teachers only.
The controlling statute is Section 48-818, which states in part:
The findings and order or orders may establish or alter the scale or wages, hours of labor, or conditions of employment, or any none 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 continuity and stability of employment enjoyed by the employees.
COMPARABLE SCHOOL DISTRICTS
The Association presented comparisons with the following ten school districts: Beatrice, Central Raymond, Crete, Lincoln, Malcolm, Milford, Palmyra, Tecumseh, Tri-County, and Wilber-Clatonia. The State did not present any comparisons. The Association's witness, Mr. Halama, testified that the work skills and working conditions of the teachers in their proposed array were similar to those of the teachers at DPI. The only challenge to this by the Respondent was its citation to the Commission's decision in Case #480, Prague Education Association v. School District Number 104, Saunders County, 6 CIR 324 (1982). In Prague, the Commission declined to use the Nebraska School for the Deaf as an array comparison to Prague, even though both parties stipulated at the pretrial conference that the work skills and working conditions of the teachers proposed by both sides were similar to Prague to permit a comparison, should the Commission include them in the array.
In selecting an array of school districts for the purpose of comparison in arriving at comparable and prevalent wage rates and conditions of employment, the Commission has considered, among other factors, the following: student enrollment, geographic proximity, athletic conference membership, and community of interest demonstrated by athletic, scholastic and administrative contacts. The evidence in this case as to the compared to school districts consists of student enrollment, county, and miles from BSDC and LRC as set out in Table 1.
Mr. Halama testified that the criteria which he used to compare schools was geographic proximity because some of the criteria the Commission usually looks at are not present in this case. The two campuses at DPI do not belong to an athletic conference, nor do they participate in athletic competition. There were no other schools the size of BSDC or LRC that he could make comparisons to, and though he could have included other schools that were also within close geographic proximity, he limited the number to a manageable array size. In Prague, the Commission had before it a large array of comparable public schools to choose from which did fit the other criteria that the Commission looks at, such as size and athletic contacts and conferences. Since we cannot use these factors in the instant case, we must rely on evidence of comparable work skills and working conditions which has been amply met and not refuted by the Respondent. DPI is similar to other public schools in their school calendar, grievance procedure, provisions for leave, health insurance benefits, and use of a salary schedule. Teachers in state institutions are covered by the same certification statutes of the State of Nebraska as are public school teachers and they are also covered by the same teacher retirement plan. The Prague decision in and of itself does not prohibit all teachers employed by the various agencies of the State of Nebraska from being compared to teachers employed by the individual school districts.
In selecting employments for the purpose of comparisons 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).
While Lincoln is in close geographic proximity to both BSDC and LRC and all of the proposed schools are more than twice the size, the Commission chooses to eliminate Lincoln from the proposed array because it is nearly eleven times larger than the next larger school and there is a sufficient number of schools to compose an array without it. We have chosen the following schools to include in an array: Beatrice, Central Raymond, Crete, Malcolm, Milford, Palmyra, Tecumseh, TriCounty, and Wilber-Clatonia. It is not necessary to determine whether in other circumstances different schools could be included in an array to resolve another industrial dispute. Crete Education Association, 193 Neb. at 245, 255.
The issue in dispute consists only of base salary. Petitioner's witness, Mr. Halama, testified that the fringe benefits of all the schools in the proposed array of public schools were similar to BSDC and LRC.
Pursuant to previous decisions by this Commission, the Association's figures were adjusted for the differences in contract days of BSDC and LRC with those in the array. BSDC has 185 contract days and LRC has 188 contract days. See West Holt Faculty Association v. School District 25 of Holt County, 5 CIR 301, 313-314 (1981); Bellwood Faculty Association v. School District Number 3R, 6 CIR 396 (1983); Dorchester Education Association v. School District, 6 CIR 408 (1983). Similarly, the Commission has made adjustments based on differences in work week hours in Fraternal Order of Police Local No. 12 v. County of Adams, 3 CIR 585, 590 (1978), affirmed, 205 Neb. 682, 289 N.W.2d 535 (1980). The Association's figures were also adjusted for differences in years of outside teaching experience granted. See School District No. 125 v. Curtis Education Assn., 7 CIR 96 (1983), Platte County District #24 Teachers Organization v. School District Number 24, 7 CIR 167 (1984). While the Petitioner would seem to want us to combine the two campuses and set the same salary figure for both campuses, the Commission believes this should not be done since it would not reflect the difference in the number of contract days the teachers are obligated to be under.
The compensation figures adjusted for differences in contract days and outside teaching experience are shown in Table 2.
DETERMINATION AS TO "OVERALL COMPENSATION"
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 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, R.R.S. 1943, may, therefore, vary from case to case, depending upon the evidence introduced by the parties.
Applying the statutory criteria of Section 48-818 to the evidence in the case, we find that effective at the beginning of the 1983-84 contract year, the base salary amount shall be $12,935 for teachers at the BSDC campus of DPI and the base salary amount shall be $12,560 for teachers at the LRC campus of DPI.
IT IS THEREFORE ORDERED:
1. That the base salary amount shall be $12,935 for teachers at the BSDC campus of DPI, effective at the beginning of the 1983-84 contract year.
2. That the base salary amount shall be $12,560 for teachers at the LRC campus of DPI, effective at the beginning of the 1983-84 contract year.
3. This Order shall be effective for wages and conditions of employment with respect to the 1983-84 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.
Filed May 17, 1984