| NEBRASKA DEPARTMENT OF | | | CASE NO. 535 |
| EDUCATION TEACHERS | | | |
| ASSOCIATION, An | | | |
| Unincorporated Association, | | | |
| | | ||
| Petitioner, | | | |
| | | ||
| v. | | | FINDINGS AND ORDER |
| | | ||
| DEPARTMENT OF EDUCATION, | | | |
| State of Nebraska, | | | |
| | | ||
| Respondent. | | |
Appearances:
For the Petitioner: Theodore L. Kessner
Crosby, Guenzel, Davis
Kessner & Kuester
400 Lincoln Benefit Building
Lincoln, Nebraska
For the Respondent: Sharon M. Lindgren
Assistant Attorney General
2115 State Capitol
Lincoln, Nebraska
Before: Judges Mullin, Gradwohl, and Kratz
MULLIN, J:
This matter comes on for determination of teacher compensation for the teachers represented by the Nebraska Department of Education Teachers Association at the Department of Education for the 1983-84 contract year pursuant to Section 48-818. The Department of Education employs teachers at two schools: the Nebraska School for the Deaf, in Omaha, and the Nebraska School for the Visually Handicapped in Nebraska City. For the school year 1983-1984, there were thirty-six teachers at the School for the Deaf and sixteen teachers at the School for the Visually Handicapped. Testimony from Respondent's witnesses, Mr. Steve Srb and Mr. Jerry Regler, revealed that for the 1983-1984 school year there was a student enrollment at the School for the Deaf of 144 and 40 at the School for the Visually Handicapped. The
only issue for resolution as established by the Pretrial Order is base salary.
JURISDICTION
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 of a comparable array nor did it disagree with the Petitioner's contention that its teachers are underpaid. Rather, the Respondent questions the authority of the Commission to make a Section 48-818 determination and takes the position that in the absence of a specific appropriation or specific authorization by the legislature, it has no authority to grant a pay increase to the Petitioner's members.
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 at 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. 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, Economic 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, recommendations are made to make state employee salaries comparable. Mr. Joseph Stefkovich, Comptroller for the Department of Education, testified as to how the budget for the Department is developed. The State Board of Education sets budget guidelines, including salary guidelines, which are then issued by the Department of Education to the various program administrators who develop a program budget using those guidelines. For salary purposes, teachers are lumped together in the budget request. The program budgets are submitted to the comptroller's office for summarization and then submitted to the Commissioner of Education and his cabinet who review it and make adjustments, if necessary. The budget is then submitted to the State Board of Education for its approval. Following which, it is submitted on September 15 to the Governor's office for distribution to the Legislative fiscal office and the Governor's budget office.
Although the Board sets the salary guidelines for budget preparation, the Department has always followed the legislative intent expressed in the appropriations bill for granting salary increases. The Legislature's appropriation may include a percentage salary increase. The appropriations bill designates a lump sum called a "personal services limitation" for each of the fifteen programs in the Department which can be used for salaries. This personal services limitation, which includes salaries for both teachers and nonteachers, cannot be exceeded. it is applicable to all employees of the Department of Education, and not to just a specific group. There was also testimony that the Department of Education has multiple sources of funding including general, cash, revolving and federal funds which are included in the appropriations bill. Federal funds can not be used to finance a general pay raise.
Mr. Bob Lundberg, Personnel Manager for the Department of Education, testified that the Department is a constitutional agency. Therefore, it is not under the Department of Personnel but, rather, has its own personnel department and its own personnel department and its own pay plan which is lower than the pay plan established by the Department of Personnel. All employees of the Department of Education are non-classified employees. In addition, teachers are not eligible to receive pay increases through promotions or reclassifications due to the nature of their positions. Mr. Lundberg also testified that he did not believe that any teacher had ever received a merit increase, although he did not know the reason. Respondent's witness, Mr. Stefkovich, testified that base salaries for teachers are determined by taking the base salary pool in the previous year, adjusting the pool for increases and decreases in staffing numbers, adding to the pool the percentage salary increase appropriated by the Legislature, and then distributing the total amount over a negotiated salary schedule index.
As in State Code Agencies Education Association v. Department of Public Institutions, we hold that the Respondent is in no different position than any other public employer which 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 Department of Public Institutions, 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 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.
STATUTE
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.
COMPARABLE EMPLOYMENTS
The Association presented a separate proposed array for each of the facilities in dispute. The array comparisons for the Nebraska School for the Deaf consisted of the following ten school districts: Bellevue, Bennington, Elkhorn, Ft. Calhoun, Gretna, Millard, Omaha, Papillion, Ralston and Valley. The array comparisons for the Nebraska School for the Visually Handicapped consisted of the following seven school districts: Auburn, Louisville, Nebraska City, Palmyra, Syracuse, Tecumseh and Weeping Water. The Respondent did not present any evidence of comparable employments and admitted that the employees in question were paid less than comparable.
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 Association's witness, Mr. Richard Halama, testified that the work skills and working conditions of the teachers in the Petitioner's proposed arrays were similar to those of the teachers at the Department of Education. As in State Code Agencies Education Association v. Department of Public Institutions, the Respondent challenged the comparability of school districts 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 school included geographic proximity and size. Because of the small enrollment size of the Petitioner's facilities, he stated that it is difficult to meet the Commission's criteria of "one-half to twice the size". Thus, he chose instead to put more weight on geographic proximity, while still trying to maintain a balance between small and large schools presented in each array. Trying to stay in close geographic proximity to the compared to facility resulted in arriving at separate arrays for each facility with no overlap. He stated that he did not think that some of the other criteria which the Commission considers was applicable to this case, such as athletic conference membership or community of interest. Mr. Steven Srb, Principal of the Nebraska School for the Deaf facility, stated that the facility does participate in sport activities including football, volleyball, basketball, and track and they are a member of the Logan Valley Conference. Extra-curricular activities consist of a school play and an oratory contest with other hearing impaired schools in the midwest. Mr. Jerry Regler, Administrator of the Nebraska School for the Visually Handicapped, testified that his facility participates with other schools in the Nebraska School Activities Association in speech, music, and wrestling. It also participates in a twelve state midwest area activity conference in swimming and track and does charitable work in the community.
Table 1 sets forth a comparison of the factors that the Petitioner used in selecting its proposed arrays.
The evidence shows that the facilities of the Department of Education are similar to other public schools in its contract days and school days, number of class assignments, health insurance, extra duty payment provision, leaves, grievance procedure, use of a salary schedule, and provisions for reduction in teacher force, termination and evaluation. The certification standard which teachers must meet are the same as public school teachers; but, teachers must eventually receive a special endorsement in teaching the deaf or visually handicapped. This is no different than public school teachers who must sometimes get a special endorsement in special education or some other particular area. These facilities meet the standards set down by the Department of Education for certification of a public school district, with minor differences due to the special nature of the students. We find that the Petitioner has amply met 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 that the teachers in the subject schools, together with other state employees are paid less than their counterparts in the labor market. The Commission chooses an array for the Nebraska School for the Deaf of the eight schools with the smallest enrollment, all of which are geographically proximate to the Respondent's facilities: Bellevue, Bennington, Elkhorn, Ft. Calhoun, Gretna, Papillion, Ralston, and Valley. For the Nebraska School for the Visually Handicapped we chose the seven array members presented which are also geographically proximate to the facility: Auburn, Louisville, Nebraska City, Palmyra, Syracuse, Tecumseh and Weeping Water.
BASE SALARY
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 arrays.
Pursuant to previous decisions by this Commission, the
Association's figures were, adjusted for the differences in contract days between the Petitioner's facilities, both having 188 contract days, and those of the school districts in both proposed arrays. 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 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 Tables 2 and 3.
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 Nebraska School for the Visually Handicapped facility should be $11,640.00 and the base salary for teachers at the Nebraska School for the Deaf facility should be $12,390.00.
IT IS THEREFORE ORDERED:
1. That the base salary for teachers at the Nebraska School for the Visually Handicapped of the Department of Education shall be $11,640.00, effective at the beginning of the 1983-84 contract year.
2. That the base salary for teachers at the Nebraska School for the Deaf of the Department of Education shall be $12,390.00, 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.
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