8 CIR 100 (1985)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

SNYDER EDUCATION | CASE NO. 584
ASSOCIATION, An |
Unincorporated Association, |
|
Petitioner, |
|
v. | FINDINGS AND ORDER
|
SCHOOL DISTRICT NUMBER 39, |
DODGE COUNTY, NEBRASKA, |
A Political Subdivision, a/k/a |
SNYDER PUBLIC SCHOOLS, |
|
Respondent. |

Appearances:

For Petitioner: Mark D. McGuire

Theodore L. Kessner

Crosby, Guenzel, Davis,

Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska

For Respondent: Neal E. Stenberg

140 South 16th Street

Lincoln, Nebraska

Before: Judges Gradwohl, Kratz and Orr.

GRADWOHL, J.:

The Snyder Education Association (Association) filed suit with the Commission of Industrial Relations to resolve an industrial dispute concerning wages and conditions of employment for teachers in School District No. 39 for the 1984-85 school contract year. The Respondent, School District No. 39 (District), employs twelve teachers and has a current student enrollment of 114 students. Prior to and during the trial in this matter, all issues constituting the industrial dispute were settled by the agreement of the parties except for base salary and health insurance. The Commission has jurisdiction of the parties and of the subject matter.

1. Statute.

The controlling statute is section 48-818, which states:

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. Any order or orders entered may be modified on the commission's own motion or on application by any of the parties affected, but only upon a showing of a change in conditions from those prevailing at the time the original order was entered.

2. Comparable School Districts.

Both the Association and the District presented comparisons with the following six school districts: Beemer, Dodge, Leigh, Monroe, Prague, and Rising City. The Association also presented comparisons with the school districts of Chester-Hubbell-Byron and Humphrey, while the School District presented comparisons with the additional school districts of Chambers and Clearwater. The parties stipulated that work skills and working conditions of the teachers employed by Snyder and the teachers employed in all ten 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 of employment 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, county, number of miles from Snyder, and athletic contacts.

The Commission has frequently held that school districts used for purposes of comparison should generally range from one-half to twice as large as the school district in question, see e.g., Diller Education Ass'n v. School Dist. No. 103, Jefferson County , 7 CIR 196, 200 (1984); District 15 Education Ass'n v. School Dist. No. 15 of Adams County , 5 CIR 347, 351 (1982); Coleridge Teachers Ass'n v. School Dist. of Coleridge , 5 CIR 416, 420 (1982); Alliance Education Ass'n v. School Dist. of Alliance , 5 CIR 113, 121 (1981), and that an array which is balanced by school districts which are larger and smaller than the subject district is important, see e.g., Diller Education Ass'n v. School Dist. No. 103, Jefferson County , 7 CIR 196, 200 (1984); South Sioux City Educ. Ass'n v. School Dist. of South Sioux City , 3 CIR 90, 92 (1976). In addition, the Commission has often used membership in the same athletic conference as a factor in determining the comparability of school districts. See, e.g., Diller Education Ass'n v. School Dist. No. 103, Jefferson County , 7 CIR 196, 200 (1984). Both parties recognize that these guidelines cannot be used in this case, however, due to Snyder's small size and the nature of the athletic conference of which it is a member. Table 1 sets out most of the 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. Lincoln County Sheriff's Employees Association v. County of Lincoln , 216 Neb. 274, 343 N.W.2d 735 (1984); IAFF Local 831 v. City of North Platte , 215 Neb. 89, 337 N.W.2d 716 (1983); Fraternal Order of Police v. County of Adams , 205 Neb. 682, 685, 289 N.W.2d 535, 537 (1980). See AFSCME Local 2088 v. County of Douglas , 208 Neb. 511, 304 N.W.2d 368 (1981); 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 in this case, the Commission has considered student enrollment, geographic proximity, athletic contacts and other factors. From the evidence as to these factors, the Commission determines that a suitable array for the purposes of section 48-818 consists of the following six school districts: Beemer, Dodge, Leigh, Monroe, Prague, and Rising City.

We have included in our array the six school districts proposed by both parties. The six districts agreed upon by the parties are individually suitable for the purposes of section 48-818 and collectively comprise an acceptable array for comparison purposes. They share a number of similar characteristics and are geographically proximate to Snyder. Among other reasons, Chambers, Chester-Hubbell-Byron, and Clearwater are not included in the array due to their distances from Snyder, and Humphrey is not included due to its comparatively large size. Based on the facts in the record, the six districts selected above form an appropriate array.

3. Base Salary

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."

There is a substantial controversy between the parties concerning the yardstick for measurement of the time period for which the Snyder base salary for 1984-1985 is compared with other base salary amounts. The controlling statutory language on this issue is "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."

The Association contends that the proper standard of measurement for the base salary amount is 190 contract days. The School District contends that the proper standard of measurement is 183 days and, additionally, that the standard of measurement should be further reduced for a shorter work day in the Snyder District than in comparable school districts.

We agree with the position of the Association that, based upon the evidence in the record in this case, the proper standard of measurement for the base salary amount for comparisons under Section 48-818 is 190 contract days. We note, however, as reflected in subsequent portions of this Findings and Order that Section 48-818 requires the Order entered by the Commission of Industrial Relations to be based upon "overall compensation" and that the base salary amount and standard salary schedule compensation are merely components in arriving at total teacher compensation and "overall compensation".

In the spring of 1984, as in prior years, each Snyder teacher signed an individual Teacher's Contract in accordance with the Nebraska Teacher Tenure statutes (Sections 79-12,107 to 79-12,121, 1984 Cum. Supp.). These contracts were duly approved and executed by the School District.

The 1984 contracts left the 1984-1985 salary figure blank. These individual Teacher's Contracts state in part:

WITNESSETH: That the Board of Education of the District hereby agrees to employ the Teacher above named in the schools of the District for a school year, which shall begin on or about August 22, 1984, and end on or about May 24, 1985, and shall consist of 190 days of service including at least 180 teaching days and that the Teacher hereby agrees to accept such employment at a salary of $ and under the following conditions.

FIRST: The salary of the Teacher shall be payable in 12 equal installments. The first installment shall be payable on the 10 day of September, 1984, and the remaining installments shall be payable on the 10 day of each month thereafter.

SECOND: The teacher hereby agrees to be governed by the policies of the Board of Education of the District and that the teaching duties to be performed by him/her under this contract shall be subject to assignment of the Superintendent of the District with the approval of the Board of Education of the District; and further agrees to devote full time, during days of school to his/her position in all respects, to diligently and faithfully perform the assigned duties as Teacher to the best of his/her professional ability.

* * *

FIFTH: That upon termination of this contract for just cause, or upon the release of the Teacher from this contract, the compensation paid or to be paid hereunder shall be an amount which bears the same ratio to the yearly salary herein specified as the number of days of service to the date of such termination bears to 190 days of service. Any unearned fractional portion of an installment paid but not earned prior to termination of the contract shall be refunded by the Teacher.

SIXTH: There shall be no penalty for release or resignation by the Teacher from this contract; Provided no resignation shall become effective until the close of the school year unless accepted by the Board of Education of the District and the Board shall fix the time at which the resignation is to take effect.

* * *

NINTH: Terms and conditions set forth in this agreement shall be subject to such wages and conditions of employment as may, from time to time, be mutually agreed upon by and between the Board and teachers or a duly recognized collective bargaining agent for said teachers, and said agreement, when reduced to writing, and executed by the parties, shall be deemed to be included herein by reference and shall become a part hereof.

TENTH: Hereafter, this contract may be continued by a separate, annual written "Renewal Agreement" which shall incorporate all the provisions hereof by reference, except as stated on such Renewal Agreement. Renewal Agreements or renewal contracts must be executed by the Teacher and delivered to the Superintendent of Schools or the Secretary of the Board of Education of the District within fifteen (15) calendar days of receipt thereof from the district. Said Renewal Agreement or renewal contract shall not be offered to the Teacher prior to March 15th. Contract renewal, amendment, termination or cancellation shall also be subject to the requirements of Sections 79-12,111 through 79-12,114 R.R.S. (1982 Supp) and any other applicable state statutes.

ELEVENTH: The failure to return a signed copy of the contract or renewal agreement to the Superintendent of Schools or Secretary of the Board of Education of the district on or before April 20th shall constitute a rejection by the teacher of the offer of employment.

TWELFTH: Other Contract Terms:

Annual Salary and fringe benefits shall be based on current schedule until negotiation are completed.

The execution of these individual Teacher's Contracts by the teachers and the School District established binding legal responsibilities upon both parties. That this relationship was further subject to collective bargaining under the Nebraska Teachers' Professional Negotiations Act (Sections 79-1287 to 79-1295) and the Commission of Industrial Relations statutes, or to the establishment of wages and conditions of employment by the Commission pursuant to Section 48-818, does not alter the legally binding nature of the commitments of the parties.

The individual Teacher's Contracts plainly state that "the District hereby agrees to employ the Teacher above named in the schools of the District for a school year which . . . shall consist of 190 days of service . . . ." The Teacher is obligated to perform 190 days of service for the District in accordance with the provisions of the Teacher's Contract (or such different arrangements as may be mutually agreed to through collective bargaining). The School District is simply in error in stating (Brief, page 8) that "there is no binding contract which would compel the Board of Education either to use or to pay for 190 contract days."

The School District attempted to establish that its teachers would actually work only 183 or 184 days during the 1984-1985 school year for the following reasons (Record, pages 75-76):

MR. STENBERG: I think our position is they haven't used 190 contract days, and that the contract, and I think we can show that, is somewhat ambiguous in it specifies a starting date, an end date, and I think we can show you that the district has always felt obligated to release the teachers on or before the date specified and at the end date, that the teachers have an expectation that they will be so released, and for this particular contract year you can't put 190 days between August 22nd and May 24th.

Snyder Superintendent of Schools, Gale Johnston, testified that, with the approval of the Board, he administratively established the length of the school work day for teachers. There is no specified length of day, or beginning or ending times, in any contract, statute, or written rule or policy applicable to this case. Superintendent Johnston testified that the length of work day was fixed by him, with Board approval, announced to the teachers at an in-service teachers' meeting at the beginning of the school year, and could, in his opinion, be changed by him. The School District's position is that since Snyder teachers will actually work only 183 or 184 days during the 1984-1985 school year and since, in fact, they are free to leave school at 3:15 p.m. each day, they will work fewer hours annually than teachers in other comparable schools. The District contends that the proper unit of measurement in this case is the number of annual hours, rather than the number of contract days.

The Commission has previously dealt with similar contentions in Republican Valley Education Association v. School District No. 109R , 7 CIR 58 (1983), and School District No. 124 v. Curtis Education Association , 7 CIR 96 (1983). In Republican Valley, the School District attempted to base its calculations on 184 "duty days" rather than 185 "contract days". The Commission's decision notes further (7 CIR at 62): "The District also contends that its snow days policy is more favorable than those of other comparable school districts, although at the time of the hearing in this matter, there had been no snow days during 1982-1983." In Curtis , the Commission's decision reflects that (7 CIR at 101): "The District's Superintendent testified that the teachers served only 181 days even though the contract called for 185 days."

Both Republican Valley and Curtis held that adjustments in the standard salary figures of the compared to school districts should be made to take into account the differences in contract days. The Republican Valley decision states (7 CIR at 63):

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 are 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 Republican 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. The Superintendent testified that teachers missing a day's teaching have their salary reduced by 1/185th of their total salary.

We find that in this case an adjustment in the standard salary figures be made to take into account the differences in contract days at Bertrand and Cambridge (both School 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), aff'd , 205 Neb. 682, 289N.W.2d 535 (1980).

This language is repeated in the Curtis decision (7 CIR at 102).

The parties in this case have voluntarily contracted for 190 days of teacher service for the 1984-85 school year. In so doing, each party became legally obligated to the terms and conditions of the agreement. The teachers, for their part, are legally bound to perform 190 days of service, if required by the school district; similarly, the district is legally bound to compensate its teachers for the 190 days of teaching services for which it contracted. Based upon the evidence in the record in this case, the proper standard of measurement for the base salary amount for comparisons under Section 48-818 is 190 contract days.

4. Health Insurance

The evidence on health insurance for the six districts in the array contains several discrepancies which do not have a major impact on the decision, but which do affect some of the information contained on Tables 2 and 3. These figures are used for comparative purposes only and necessarily involve approximations in some respects.

Table 2 contains a comparison of the health insurance benefits at each of the school districts included in the Commission's array.

TABLE 2

THIS IS THE ONLY FOOTNOTE WE LEFT IN THIS TABLE:

(b) Beemer offers a "cafeteria" fringe benefit program. Each teacher receives $125.00 per month which may be applied to health, or dental or long-term disability insurance.

Snyder currently pays the full premium for single Blue Cross/Blue Shield coverage and $86.51 of the $180.48 premium for dependent coverage. The School District recognizes that the evidence warrants some upward adjustment in the monthly Board coverage. See Respondent's Memorandum Brief, pp 19-20.

Table 3 is a comparison of the total compensation received by teachers at each of the compared to school districts. The fringe benefit values for the Dodge and Monroe school districts are based on the District's information for determining which employees are provided with health insurance benefits at each of those districts. The policy for providing health insurance benefits at the Prague school district is described in Respondent's Exhibit No. 21. It states that the policy at Prague is to:

A.Attempt to jointly sponsor family ins. whenever a spouse is employed by a different sch. dist.

B.

When spouse employed by business providing similar coverage Dist. not required to provide similar family insurance.

C.

When husband & wife hired, may elect to take two single ins. pgms.

D.When ins. coverage not provided by Dist. for any of the above, that lack of coverage will be filed in writing with the Board. [sic].

Two of the teachers at Snyder receive health insurance coverage through their spouses' policies.1 In calculating the value of fringe benefits the Snyder teachers would receive at the Prague school district, the Association's figures have these two teachers receiving the dependent health insurance coverage provided by the district. The District, on the other hand, treats these two teachers as receiving no district sponsored health coverage in making its fringe benefit calculations.

For the purposes of making comparative calculations under Section 48-818, we are treating these two teachers as receiving single health insurance coverage at the Prague and Snyder school districts.2 The fringe benefit figure for Prague contained in Table 3 has been adjusted accordingly.

1These teachers are Barbara Manhke and Martha Anderson, who are part-time teachers (.625 full time equivalency [FTE], each). Snyder gives its teachers the option of receiving $250.00 per year, prorated by their FTE, in lieu of receiving health insurance benefits. Both teachers elected to receive the cash option in lieu of health insurance coverage. During the trial, the parties agreed that these teachers would, in fact, continue to receive the cash option during the 1984-85 school contract year.

2Pursuant to the agreement of the parties, the two teachers will, of course, continue to receive the cash option in lieu of health insurance coverage.

Determination as to "Overall Compensation."

The rule of overall compensation contained in Section 48-818 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 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 this case, we find that effective at the beginning of the 1984-85 school contract year, the base salary amount for Snyder teachers should be $13,100.00, and that the District should pay the full premium for single health insurance and $150.00 per month toward dependent health insurance coverage. This represents a standard salary schedule of $183,203.50 (base salary amount of $13,100.00 multiplied by a staff index factor of 13.985), plus fringe benefits of $13,688.90 which makes the total teacher compensation for the purposes of these calculations: $196,892.40.

IT IS, THEREFORE, ORDERED:

1. That the base salary amount for School District Number 39, Dodge County teachers shall be $13,100.00, effective at the beginning of the 1984-85 school contract year.

2. That the District shall contribute the full premium of $66.51 per month for single health insurance coverage and $150.00 per month toward dependent health insurance coverage, effective at the beginning of the 1984-85 school contract year for those teachers who elected to receive health insurance coverage.

3. This Order shall be effective for wages and conditions of employment with respect to the 1984-85 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 possible following the entry of this Order.

All judges assigned to the panel in this case join in the entry of these Findings and Order.

Entered May 23, 1985.

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