7 CIR 96 (1983)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

SCHOOL DISTRICT NO. 125, | CASE NO. 505
FRONTIER COUNTY, NEBRASKA |
a/k/a MEDICINE VALLEY PUBLIC |
SCHOOLS, A Political |
Subdivision of the State |
of Nebraska, |
|
Plaintiff, |
|
v. | OPINION AND ORDER
|
CURTIS EDUCATION |
ASSOCIATION, An |
Unincorporated Association, |
|
Defendant. |

Appearances :

For the Plaintiff: Kelley Baker

Nelson & Harding

P.O. Box 82028

Lincoln, Nebraska

For the Defendant: Mark D. McGuire

Crosby, Guenzel, Davis,

Kessner & Kuester

400 Lincoln Benefit Bldg.

Lincoln, Nebraska

Before : Judges Orr, Kratz and Davis.

ORR, J :

This matter came on for a determination of wages and other conditions of employment for School District No. 125 (Medicine Valley Public Schools) teachers for the 1982-1983 contract year pursuant to Section 48-818. School District No. 125, hereafter referred to as Medicine Valley, is a Class III school district employing 33 teachers and had a student enrollment for the 1981-1982 school year of 306 students.

The issues for resolution by the Commission are: base salary, salary schedule index, payment of tuition for work on masters degree, payment for earning college credit hours beyond the masters level, sick leave provisions (yearly entitlement, maximum accumulation and payment for unused sick leave), the negotiability of board policies, maternity leave, limitation on the authority of the board and administration to assign extracurricular duties, limitation on the board's and administration's authority to assign teaching duties, pay for substitute teachers, definition of grievance, provision for impasse resolution regarding grievances following the decision of the board of education, limitations on the evaluation of teachers, health insurance coverage and long term disability insurance coverage.

The Commission has jurisdiction of the parties and of the subject matter.

1. 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 the continuity and stability of employment enjoyed by the employees.

2. Comparable School Districts .

The District and the Association both presented comparisons with the following eight school districts: Alma, Arapahoe, Bertrand, Cambridge, Eustis, Maxwell, Maywood, and Oxford. The Association also presented comparisons with the school districts of Benkelman, Chase CHS (Imperial), Culbertson, Elwood, Hershey, Perkins CHS (Grant), and Sutherland. The parties stipulated that the work skills and working conditions of the teachers employed by Medicine Valley and the teachers employed in all fifteen of the compared to districts are similar and satisfy the standards set forth in Section 48-818 to permit a comparison of terms and conditions if included in the array of compared to school districts by the Commission.

The evidence in this case as to the compared to school districts in addition to the stipulation as to work skills and working conditions, consists of student enrollment (rank and number), county, number of miles from Medicine Valley, athletic conference, and community of interest of the districts with Medicine Valley, demonstrated by athletic, academic, and administrative contacts. Table 1 sets out most of the above information about the school districts in the proposed arrays.

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 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 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).

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. In considering the evidence as to these factors, the Commission determines that a suitable array for the purposes of Section 48-818 should consist of the following school districts: Alma, Arapahoe, Bertrand, Cambridge, Eustis, Maxwell, Maywood, and Oxford.

We have included the eight school districts proposed by both parties. These eight districts agreed upon by the parties are individually suitable for the purposes of Section 48-818 and collectively comprise a balanced array for comparison purposes. We decline to include Chase County High School (Imperial) and Perkins County High School (Grant) because they are Class VI schools and, while there is no rule which necessarily precludes the use of Class VI schools for comparison purposes with Class III schools, we decline to do so in this instance because of the availability of a sufficient number of similar Class III schools. The other school districts not selected for comparison were excluded for the reasons of student enrollment size or number of athletic, academic, and administrative contacts with Medicine Valley. 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 District of Crete, 193 Neb. 245, 255, 226 N.W.2d 752, 758 (1975).

3. Base Salary.

One of the issues in this dispute is the amount of base salary. The District in placing the Medicine Valley teachers on the compared to school district's salary schedules took into account the years of out-of district teaching experience the Medicine Valley teachers would have been granted at the compared to schools. The Medicine Valley School District grants a newly hired teacher unlimited (limited only by the number of steps on the appropriate column) years of credit for prior out-of-district teaching experience. This is not the case at the compared to school districts. Most of the compared to Districts allow from three to six years of teaching experience (outside-the-district) toward the initial placement of a teacher on the salary schedule. The Association in its brief argues that: "Such an approach is speculative, contrary to the established practices in hundreds of ยง48-818 teacher cases and is an invitation to chaos both in cases before this Commission and to school districts and teacher associations alike when they are at the bargaining table."

The Superintendent at Medicine Valley testified that teachers consider this practice in moving from one district to another. Furthermore, the Association's expert witness testified that the initial placement of a teacher on a salary schedule upon entry into a school system is a matter which directly affects a teacher's economic welfare, thereby, making it a "term and condition of employment."

A similar adjustment was proposed in Alliance Education Association v. School Districts of Alliance, 5 CIR 113 (1981), and in that case the Commission found:

"Defendant attempted at trial to introduce Exhibit 15 pertaining to teacher placement on the index salary schedules of other school districts. This evidence had been gathered by Bob Duryea, Business Manager, Alliance Public Schools, who testified at the trial. The purpose of Exhibit 15 was to show that certain Alliance teachers would have received less credit for prior experience when hired in other school districts and less credit for educational activities beyond the Bachelor Degree while hired in other districts.

"Plaintiff objected to Exhibit 15 for three reasons: relevance, outside the scope of the pretrial conference, and insufficient foundation. The objection was overruled as to relevance and outside the scope of the pretrial conference. It was sustained as to insufficient foundation, relying on Plattsmouth Police Department Collective Bargaining Committee v. City of Plattsmouth, 205 Neb. 567, 570-571, 288 N.W.2d 729, 732 (1980). The basis for this ruling is that in placing the Alliance teachers on the index salary schedules of the other school districts for the purpose of making comparisons under Section 48-818, all items pertaining to the placement, contained in the evidence, are taken in account. For example, additional experience for "frozen" teachers who would be compensated at a higher level is taken into account. Similarly, a lesser number of steps or columns is figured into the calculations. For that reason, Exhibit 15 was relevant. Exhibit 15 was also within the scope of the pretrial conference. It was not a part of the subject matter of the eleven exhibits presented by the parties, but it would properly have been part of the portion of the Report of Pretrial Conference stating that the parties should attempt to arrive at agreed figures for the placement of Alliance teachers on the schedules of the other school districts. Exhibit 15, therefore, was within the subject matter of the pretrial conference."

5 CIR at 123-124.

The Commission finds that the standard salary figures for the compared to school districts should be adjusted to reflect the outside experience limitations as presented by the District since it is a relevant factor that affects where a Medicine Valley teacher would be placed on the comparable districts' salary schedules.

In addition, the Association increased the standard salary figures for Bertrand (182 contract days), Cambridge (184 contract days), and Eustis (182 contract days) to adjust for the longer contract year of 185 days at Medicine Valley. All of the other compared to districts had the same number of contract days as Medicine Valley. The District's Superintendent testified that the teachers served only 181 days even though the contract called for 185 days.

Section 48-818 states, among other things, 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 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." The evidence in the present case shows that the teachers were obligated by contract to serve 185 days during the 1982-1983 school year. It is true that there may be variances, presumably downward, in the actual number of days served by teachers at Medicine Valley and the other comparable schools. The Commission, however, is called upon in this proceeding to place a value on the 185 contract days to which the parties have agreed, and have become legally obligated. Were the School District to choose to limit the teachers' obligations to the statutory minimum 175 school days and nothing more, it would, nevertheless, according to the evidence in this record, be legally obligated to pay for the 185 contract days for which the parties have contracted.

We find that in this case an adjustment in the standard salary figures should be made to take into account the differences in contract days at Bertrand, Cambridge, and Eustis (districts proposed by both parties). 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 compensation figures adjusted for outside teaching experience and contract days are shown on Table 2.

4. Salary Schedule Index.

Another one of the issues in this dispute is the salary schedule index which includes the index factors, the salary schedule lanes and the number of steps in each lane. The Association argues in its Post-Trial Brief that the "BA + 36 or MA" column is an "overwhelming" prevalent term and condition of employment among the compared to school districts. Medicine Valley currently has a MA column. Furthermore, the Association contends that a MA + 9 column should be added to the structure at Medicine Valley since it is also a prevalent term and condition of employment at the compared to school districts. There currently is no column beyond the MA at Medicine Valley. The Superintendent testified that the number of steps in the Masters lane was negotiated and the District in its Petition alleged that it proposed a change in the salary index which would have resulted in a reduction of salary for some members of the Association.

The Commission has been reluctant to change salary schedules. In West Holt Faculty Association v. School District, 5 CIR 301, 309 (1981) the Commission said, "it is the Commission's experience that because of the varying effects of different schedules on teachers within the bargaining group, changes in the structure are best achieved through collective bargaining and that past practice should not be disturbed in the absence of substantial variances from prevalent practice. . ."

The following Table 3 shows the index factors, columns, and number of steps in each column of the school districts selected for comparison.

In reviewing the index factors of the compared to school districts shown in Table 3 only two out of the eight have different index factors than Medicine Valley. Therefore, the Commission finds that the present index factors of 4 x 4 should not be changed since they are comparable to the prevalent at the compared to school districts.

In reviewing the columns and the number of steps in each column of the school districts' index salary schedule, the only variations from the comparable practice are: 1) Medicine Valley's MA column has a greater number of steps than at the other school districts, and 2) Medicine Valley's BA + 18 column and BA + 27 column have fewer number of steps than at the compared to school districts. The Commission finds these variations to balance each other and for the reasons previously stated in West Holt , we decline to adjust the structure of the index salary schedule in this case. See also Millard Education Association v. School District of Millard, 5 CIR 425 (1982).

5. Sick Leave.

Table 4 shows the following six leave provisions at the selected districts and at Medicine Valley: 1) yearly entitlement, 2) maximum accumulation, and 3) payment for unused leave.

The Commission finds that Medicine Valley's current sick leave provisions is materially more favorable than the prevalent provisions among the districts used for comparison. The prevalent practice among the districts is to set a limit on the number of days of sick leave that can be accumulated. Medicine Valley does not have such a limit. In addition, Medicine Valley is the only district when compared to the other districts selected that will reimburse for unused sick leave upon termination. If the Commission were to eliminate these two provisions as not being prevalent benefits the Commission is unable with the evidence before it to determine the amount which would thereby be deleted from fringe benefit payments and become available for salaries in making up the prevalent total compensation amount. This lack of data prompts the Commission not to disturb the sick leave provisions for the 1982-83 school year. See Ralston Education Association v. School District of Ralston, 6 CIR 416 (1983).

6. Other Terms and Conditions of Employment.

The District presented evidence (see Table 5) on a number of other conditions of employment that were raised by its board of education in negotiations.

The District in its post-trial brief states:

"Though it is true that the school year was completed before trial, the District urges the Commission to issue an order establishing all conditions of employment raised in the Petition. It is of little moment legally to the District where the Commission includes these issues in its Order or declares them to be moot. However, the guidance to the District and the Association would be of great help as a practical matter and would likely avoid future disputes.

"Failing a Commission decision on each issue, the District's position is that each of the items was negotiated to impasse. Therefore, there is no agreement on any of the items and they have been removed from the negotiated agreement."

The Association in its post-trial brief while arguing that these issues are moot, also urges the Commission to decline the District's invitation to give "guidance" to the parties since the Commission has been asked only to establish terms and conditions of employment for the 1982-83 school year and not future years.

The Commission in exercising its discretionary power to alter or establish terms and conditions of employment should first address the question of whether in this case exercising such authority would settle the dispute in a manner which will best carry out the purpose of the statutes. Inasmuch as the Medicine Valley Teachers have operated under these non-prevalent terms and conditions of employment for the 1982-83 school year, the elimination or modification of those terms could result in the type of implementation problems discussed in IBEW Local 1521 v. MUD, 6 CIR 246 (1982). The Commission in considering the inherent problems that may be caused and the policy of the statutes will order no change in these contractual provisions for the 1982-83 school year.

7. 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 1982-83 school contract year the base salary amount for Medicine Valley teachers shall be $11,823.00. This represents a standard salary schedule of $480,977.15 (base salary amount of $11,823.00 multiplied by a staff index factor of 40.682, plus fringe benefits of $44,510.00, which makes the total teacher compensation for the purpose of these calculations:

$525,487.15.

IT IS THEREFORE ORDERED:

1. That the base salary amount for Medicine Valley teachers shall be $11,823.00, effective at the beginning of the 1982-83 school contract year.

2. That all other conditions of employment shall remain unchanged for the 1982-83 school contract year.

3. This Order shall be effective for wages and conditions of employment with respect to the 1982-83 school 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 September 7, 1983

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