|STATE CODE AGENCIES EDUCATION|||||CASE NO. 534|
|ASSOCIATION, An Unincorporated||||
|v.|||||FINDINGS AND ORDER|
|State of Nebraska,||||
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 Mullin
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 Correctional Services, which includes juvenile facilities at Kearney and Geneva, for the 1983-1984 contract year pursuant to Section 48-818. For the school year 1983-1984, there were seven teachers at Geneva and sixteen teachers at Kearney. The latest available enrollment figures in evidence, which are for 1982-1983, show a student enrollment of 20 at Geneva and 113 at Kearney. 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 nor did it disagree with the Petitioner's contention that its teachers are underpaid. Rather, the Respondent argued 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 State Code Agencies Education Association v. Department of Public Welfare, 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.
The factual evidence presented by the Respondent in this case is almost identical to that presented by the Department of Public Institutions in State Code Agencies Education Association v. Department of Public Institutions . Thus, the testimony in the Respondent's case, like that in the Department of Public Institutions case, 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, 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 to the legislature. The legislature may then grant the suggested percentage salary increase, a different increase, or none at all. In making its appropriation to a given 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 salaries.
The testimony of the Respondent's other witnesses, including that of 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. Mr. Gary Burger, Personnel Administrator for the Department of Correctional Services, testified that the percentage increase a given teacher receives under this process depends on where that teacher is placed on the salary schedule. Thus, an individual teacher may receive an increase smaller than the percentage increase granted by the legislature, while another teacher may receive a larger percentage increase. The Respondent's testimony also showed that teachers at the Department of Correctional Services are non-classified 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 reclassifications. They are eligible, however, to receive merit increase.
The Commission takes judicial notice of the appropriation and salary bills applicable to the Department of Correctional Service for the 1983-84 fiscal year, LB 628, LB 772 and LB 772A. As in State Code Agencies Education Association v. Department of Public Institutions, referred to above, we hold that the Respondent is in no different position than any other public employer that is subject to budget limitations. Even though the legislature places a total personal services limitation on the Respondent, the Respondent may, nevertheless, adjust individual salaries independently within the personal services limitation appropriated by the legislature. In the Department of Public Institution 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 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 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 fifteen school districts: Aurora, Bruning, Clay Center, Geneva, Gibbon, Hastings, Hebron, Henderson, Kearney, Minden, Ravenna, Sandy Creek, Shelton, Sutton, and Wood River RHS. The Respondent did not present any comparable employments.
The Association's witness, Mr. Richard Halama, testified that the work skills and working conditions of the teachers in the Petitioner's proposed array were similar to those of the teachers at the Department of Correctional Services. As in State Code Agencies Education Association v. Department of Public Institutions, 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). We again 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 the 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.
Mr. Halama testified that the criteria which he used to compare schools included geographic proximity and size. He stated that size, in this instance, is deceiving because of the small size of the juvenile facilities. He testified that he did not look at some of the other criteria which the Commission usually considers, such as athletic conference membership, because neither juvenile facility belongs to an athletic conference. Kearney does not participate in sports with other schools and Geneva has only extremely limited contacts with similar types of schools, such as Lincoln's Nebraska Children's Home.
Table 1 sets forth a comparison of the factors that the Petitioner used in selecting its proposed array.
The evidence shows that the facilities of the Department of Correctional Services are similar to other public schools in their school calendar, grievance procedure, provisions for leave, use of a salary schedule, provisions on professional responsibilities and teacher evaluation, and teacher certification standards. They are also similar in that they meet the standards set down by the Department of Education for certification of a public school district except that, pursuant to an agreement with the Department of Education, they do not have to teach certain advanced courses. This is a result of the short-term nature of student enrollment at these special facilities, which do teach the normal, basic required courses all schools must teach to graduate students. We find that the Petitioner has amply met the comparable work skills and working conditions requirement.
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).
The only comparables presented are all larger than the Respondent's facilities. The Commission can not, then, follow its previous "one-half to twice as large" guidelines or the balanced array concept. See Diller Education Assn. v. School Dist. No. 103, Jefferson County, Case No. 540 (Findings and Order entered May 29, 1984, by the Honorable Robert W. Mullin, Hearing Judge); South Sioux City Education Assn. v. School Dist. of South Sioux City, 3 CIR 90, 92 (1976). The Commission has ruled previously that an array of six to eight employers is an appropriate array. Lincoln Police Union International Brotherhood of Police Officers, Local 544, v. City of Lincoln, 5 CIR 134 (1981); Fraternal Order of Police, Hall County No. 10 v. County of Hall, 5 CIR 358 (1982). The Commission chooses an array of the eight schools with the smallest enrollment, all of which are geographically proximate to the Respondent's facilities: Bruning, Clay Center, Henderson, Ravenna, Sandy Creek, Sbelton, Sutton and Wood River RHS. 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 v. School Dist. of Crete, 193 Neb. 245, 255, 226 N.W. 2d 752, 759, (1975).
The only issue in dispute is base salary. Mr. Halama testified to the similarity of several working conditions, including fringe benefits, between the Respondent and the schools in the Petitioner's proposed array.
Pursuant to previous decisions by this Commission, the Association's figures were adjusted for the differences in contract days between Geneva and Kearney and those of the school districts in the array. Both the Geneva and the Kearney facilities have 185 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 of Dorchester, 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).
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 for teachers at the Geneva campus shall be $11,990.00 and the base salary for teachers at the Kearney campus shall be $12,260.00
IT IS THEREFORE ORDERED:
1. That the base salary for teachers at the Geneva Youth Development Center of the Department of Correctional Services shall be $11,990.00, effective at the beginning of the 1983-84 contract year.
2. That the base salary for teachers at the Kearney Youth Developmental Center of the Department of Correctional Services shall be $12,260.00, 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 Findings and Order.
Filed July 12, 1984.