|STATE CODE AGENCIES|||||CASE NO. 520|
|EDUCATION ASSOCIATION, An||||
|v.|||||FINDINGS AND ORDER|
|DEPARTMENT OF PUBLIC||||
|WELFARE, State of Nebraska,||||
For the Petitioner: Mark D. McGuire
Crosby, Guenzel, Davis,
Kessner & Kuester
400 Lincoln Benefit Building
For the Respondent: Sharon M. Lindgren
Assistant Attorney General
2115 State Capitol
Before: Judges Kratz, Gradwohl, and Mullin
This matter came on for a determination of employee wages for the 1982-83 contract year pursuant to Neb. Rev. Stat. 48-818 for the teachers represented by the State Code Agencies Education Association at the Department of Public Welfare (now called "Department of Social Services"). The teachers represented by the Association teach at the Nebraska Center for Children and Youth (NCCY) in Lincoln, Nebraska. There were eleven teachers at NCCY during the 1982-83 school year and thirty nine students, with some fluctuation through the year. The only issue for resolution is 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. See State Code Agencies Education Association v. Department of Public Welfare, 7 CIR 134 (1984); State Code Agencies Education Association v. Department of Public Institutions, 7 CIR 186 (1984).
The Respondent offered no evidence on comparable school districts at trial nor does it disagree with the Petitioner's contention that its teachers are underpaid. Rather, the Respondent argues in its brief that in the absence of a specific appropriation or specific authorization from the legislature, it has no authority to grant the pay increase requested by the Petitioner.
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 our "Order En Banc as to Jurisdiction" in this case, entered January 17, 1984, we stated as follows 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, 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, non-discrimination, 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.
The evidence presented by the Respondent in this case is virtually the same as that which was presented by the Department of Public Institutions in State Code Agencies Education Association v. Department of Public Institutions, supra. The Respondent's evidence centered on the appropriations process and how base salary has been determined for its teachers in the past.
Mr. Bill Oberg, Compensation Analyst for the Department of Personnel, testified that his department conducts an annual salary survey pursuant to a legislative mandate. Based on the results of the survey, the Director of the Budget Division of the Department of Administrative Services issues a memorandum to all state agencies directing them to include a certain percentage salary increase for their employees in their budget request to the legislature. The legislature may then grant the suggested percentage salary increase, a different increase, or no increase at all. In making its appropriation to each state agency, the legislature will designate a lump sum amount called a "personal services limitation", which can be used for salaries by that agency. The agency cannot spend more than the personal services limitation on employee salaries.
The testimony of the Respondent's other witnesses, including Mr. David Carlbom, Labor Relations Coordinator with the Department of Personnel, revealed that base salary for teachers under past contracts has been determined by taking the amount of money expended for teachers' salaries in the previous year, adding to that the percentage salary increase appropriated by the legislature, then distributing the total amount over an agreed upon salary schedule. The Respondent's testimony also showed that teachers at the Department of Public Welfare are nonclassified employees, who are not subject to the Department of Personnel's rules and regulations. Consequently, they are not entitled to salary increases based on promotions, salary grade adjustments, or re-classifications. They are eligible, however, to receive merit increases.
The Commission takes judicial notice of the appropriation and salary bill applicable to the Department of Public Welfare for the 1982-83 fiscal year, LB 761. As in State Code Agencies Education Association v. Department of Public Institutions, supra, we hold that the Respondent is in no different position than any other public employer who is subject to budget limitations. Even though the legislature places a total personal services limitation on Respondent, the Respondent may, nevertheless, adjust individual salaries independently within the personal services limitation appropriated by the legislature. In the Department of Public Institutions case, we said:
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 268 (1981), decision following remand, 5 CIR 265 (1981); Board of Regents of the University of Nebraska v. American Association of University Professors, 7 CIR I (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.
Id. at 5 (Typewritten Findings and Order).
The controlling statute is Section 48-818, which states in part:
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 continuity and stability of employment enjoyed by the employees.
The Association presented comparisons with the following fourteen school districts: Ashland-Greenwood, Centennial, Crete, Lincoln, Malcolm, Milford, Murdock, Norris, Palmyra, Raymond Central, Seward, Syracuse-Dunbar-Avoca, Tri-County and Waverly. The Respondent did not present any school districts for comparison and witness Bill Oberg testified that state employees are paid an average of twelve percent less than their counterparts in the labor market.
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 employment selected for comparison are sufficiently similar and have enough like characteristics or qualities to make comparison appropriate in that situation. Dorchester Education Ass'n. v. School District of Dorchester, 6 CIR 408 (1983); 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 Education Ass'n. v. School Dist. of Crete, 193 Neb. 245, 255, 226 N.W. 2d 752, 758 (1975).
The Association's expert witness, Mr. Richard Halama, testified that the work skills and working conditions of the teachers in the Petitioner's proposed fourteen school array were similar to those of the teachers at the Department of Public Welfare. As in State Code Agencies Education Association v. Department of Public Institutions, supra, the Respondent challenged Mr. Halama's testimony based on the Commission's decision in Case #480, Prague Education Association v. School District Number 104, Saunders County, 6 CIR 324 (1982). Once again we emphasize that the Prague decision does not prohibit all teachers employed by the various agencies of the State of Nebraska from being compared to teachers employed by public school districts. Each case must be decided on the basis of its own evidence. From the evidentiary record in this case, we determine that it is appropriate to consider the public school employments presented by the Petitioner.
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 in the past considered, among other factors, the following: student enrollment,geographic proximity, athletic conference membership, and community of interest demonstrated by athletic, scholastic and administrative contacts. School District No. 125, Frontier County v. Curtis Education Assn., 7 CIR 96 (1984).
Mr. Halama testified that the criteria which he used to compare schools in this case were geographic proximity and student enrollment. In arriving at the proposed array, he selected schools within a forty to fifty mile radius of NCCY. He testified that it is "extremely difficult" to find schools with student enrollments of less than 39 students. Consequently, the Petitioner's proposed array included schools with both large and small student enrollments for a "balanced" comparison. He testified that in his opinion the other factors that the Commission often considers in selecting an array of comparable school districts, such as athletic conference membership or community of interest, did not apply. NCCY does not belong to an athletic conference.
Table 1 sets forth a comparison of the factors the Petitioner used in selecting its proposed array.
The evidence shows that work skills and working conditions at NCCY are comparable to those at the school districts proposed in the Petitioner's array. All have comparable class times, class offerings, number of contract days and all use an index salary schedule. Moreover, teachers at NCCY meet the same basic teacher certification standards that teachers at other public schools must meet. They are also hired from the same employment pool as other public school teachers and they are able to return to that pool should their employment with NCCY terminate. In addition, NCCY and all of the schools in the Petitioner's proposed array meet the same basic standards for certification of public school districts set by the Department of Education, with a few exceptions. NCCY is allowed to place special emphasis in certain areas where individual students have deficiencies and NCCY does not offer certain advanced courses. We find that the Petitioner's proposed array meets the comparable work skills and working conditions requirement.
In presenting an array of comparable schools, Petitioner presented schools which were all larger than the subject schools. The evidence establishes that each of the proposed schools is sufficiently similar to the subject school to which it was compared and has enough like characteristics or qualities to be used for comparison. Respondent neither disputed the propriety of Petitioner's array in either instance, nor offered an array of its own. Rather, it admitted in its brief that the teachers in the subject schools, together with other state employees are paid less than their counterparts in the labor market. We find that an array of the following seven schools with the smallest enrollments, all of which are geographically proximate to the Respondent's facilities, is appropriate: Syracuse-Dunbar-Avoca, Milford, Centennial, Tri County, Palmyra, Malcolm, and Murdock.
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.
The comparability of fringe benefits is not an issue in this case. Thus, the only remaining issue to be determined is base salary. The compensation paid to teachers in the array we have selected is shown in Table 2.
Applying the statutory criteria of Section 48-818 to the evidence in the case, we find that the base salary for teachers at NCCY for the 1982-83 contract year should be $12,155.00.
IT IS THEREFORE ORDERED:
1. That the base salary for teachers at NCCY for the 1982-83 contract year shall be $12,155.00.
2. This Order shall be effective for wages and conditions of employment with respect to the 1982-83 contract year. The adjustments resulting from this Order 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 these Findings and Order.
Filed July 24, 1984.