|WINNEBAGO EDUCATION ASSOCIATION,|||||CASE NO. 592|
|An Unincorporated Association,||||
|v.|||||FINDINGS AND ORDER|
|THE SCHOOL DISTRICT OF WINNEBAGO,||||
|In the County of Thurston In the||||
|State of Nebraska, a Political||||
For the Petitioner: Mark D. McGuire
Crosby, Guenzel, Davis, Kessner & Kuester
400 Lincoln Benefit Building
For the Respondent: Neal E. Stenberg
140 South 16th Street
Before: Judges Mullin, Ashford and Orr.
The Petitioner commenced this action seeking a determination of certain wages and other terms and conditions of employment for teachers at the Winnebago School District for the 1984-85 contract year. The Respondent admitted in its Answer that an industrial dispute exists over the terms and conditions of employment identified by the Petitioner and also asked the Commission to establish a number of other terms and conditions of employment that it identified as being in dispute.
The Report of Pretrial Conference identifies the issues raised by the parties as:
paid health insurance, including cash payment or annuity
in lieu of health insurance,
paid personal leave,
association business leave,
extra pay for covering classes beyond the normal
extra pay for covering classes on a temporary basis,
the bargainability of the right to assign classes
beyond the normal teaching load,
the bargainability of the right to assign teachers on a
temporary basis to cover class or study hall,
the bargainability of the right to schedule work by
establishing the number of teacher contract days and
length of teacher work days, and
the bargainability of the right of the School Board to
establish procedures for evaluating the performance of
The Commission has jurisdiction over the parties and the subject matter of this action.
1. Comparable School Districts.
The controlling statute is §48-818 R.R.S. 1943 (Reissue 1984), which provides in part:
...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....
To determine prevalent wage rates and conditions of employment, each party submitted a number of school districts for comparison at trial. Both parties presented the school districts of Macy and Newcastle. The Petitioner also presented comparisons with the school districts of Hartington, Lyons-Decatur, Snyder and Wakefield, while the Respondent presented additional comparisons with the school districts of Allen, Bancroft-Rosalie, Beemer, Homer and Walthill. The parties stipulated that the work skills and working conditions of the teachers employed in all of the districts proposed for comparison are similar and satisfy the standards set forth in Section 48-818.1 The evidence of similarities between the districts presented for comparison with the School District of Winnebago is set forth in Table 1.
Although the Petitioner presented a number of school districts for comparison with Winnebago to establish prevalent wages and conditions of employment, it argues in its brief that since the 1984-85 school year is effectively over, the only "logical and expeditious manner to resolve the dispute" is for the Commission to declare all non-economic issues for determination in this case "moot" and to resolve the economic issues, including base salary, health insurance, and annuity and cash options, in favor of what has been the Respondent's practice during the time this industrial dispute has been pending.2
While we agree that a number of the issues raised for resolution by this Commission are no longer appropriate for determination, we are obligated to resolve those issues which are properly before us according to the standards of §48-818.
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, 289 N.W.2d 535, (1980).
In selecting an array of school districts for the purpose of comparison, we have considered the evidence of comparability presented by the parties, including student enrollment, geographic proximity, community of interest demonstrated by athletic contacts, and other factors.
Table 1 sets forth most of the evidence of comparability presented by the parties.
Based on the evidence, we select the following nine school districts for our array: Allen, Bancroft-Rosalie, Beemer, Homer, Lyons-Decatur, Macy, Newcastle, Wakefield and Walthill.
Of the districts offered for comparison by the parties, only two, Snyder and Huntington, have been excluded from our array.
The Commission has frequently held that districts used for comparison should generally range from one-half to twice as large as the district in question. See Diller Educ. Ass'n v. School Dist. No. 3, Jefferson Co. , 8 CIR 12, 16 (1985); District 15 Educ. Ass'n v. School Dist. No. 15 of Adams Co. , 5 CIR 347, 351 (1982); Coleridge Teachers Ass'n v. School Dist. of Coleridge , 5 CIR 416, 420 (1982).
While there are often instances when this guideline cannot be strictly applied, here there are a sufficient number of comparable school districts within the guideline that its application is appropriate. Thus, Snyder was excluded from our array because it has less than half the number of students enrolled in the Winnebago School District.
Hartington was also excluded from our array. While its size is generally comparable to the Respondent's, Hartington has no athletic contacts with Winnebago and is 73 miles away from it - the furthest of any of the districts proposed for comparison. This compares to 25 miles for the School District of Wakefield and 21 miles for Lyons-Decatur, the only other compared to districts that have no athletic contacts with Winnebago.
The remaining school districts presented by the parties are sufficiently similar and have enough like characteristics or qualities to make comparison with Winnebago appropriate. In addition, they form a reasonably balanced array consisting of five school districts larger than Winnebago and four which are smaller. See e.g., Diller Educ. Ass'n v. School Dist. No. 103, Jefferson Co. , 7 CIR 196, 200 (1984).
2. Paid Fringe Benefits.
The Respondent currently provides $190.45 per month in paid fringe benefits to its teachers. Teachers have the option of receiving paid fringe benefits in the form of cash, an annuity or in Blue Cross/Blue Shield health insurance coverage. Teachers electing to receive health insurance coverage may also receive any amounts in excess of the cost of the insurance premium in cash or in an annuity.
The cost of Blue Cross/Blue Shield insurance for teachers receiving dependent coverage is the full $190.45 per month. The cost of single health coverage under the Blue Cross/Blue Shield plan is $66.51 per month.
The Petitioner wants to retain the current paid fringe benefit plan, while the Respondent argues that the prevalent practice is to provide only health insurance costing $66.51 per month for single teachers and $190.45 per month for teachers receiving dependent coverage. The Respondent argues that the cash or annuity option currently available to its teachers is not a prevalent practice and should, therefore, be eliminated.
Table 2 shows the paid fringe benefits offered at the other school districts in our array.
In our analysis it appears that only three of the districts in the array give teachers an option to receive cash, an annuity or other benefits in lieu of health insurance coverage. The options offered vary widely among the districts and the prevalent practice appears to be to limit paid fringe benefits to health insurance only, with no cash or annuity option.
It also appears to be the prevalent practice to provide the full health insurance premium of $66.51 per month to teachers receiving single health insurance coverage. The prevalent practice for teachers receiving dependent health coverage is less clear from Table 2. No single practice emerges as prevalent. Nevertheless, the Respondent proposes to provide the full premium of $190.45 to teachers receiving dependent coverage3 and this practice appears to match or exceed the practices of the other school districts in our array.
We find, therefore, that the Respondent should contribute the full insurance premium of $66.51 per month to teachers receiving single health coverage and the full insurance premium of $190.454 to teachers receiving dependent health coverage. We also find that the cash or annuity option currently provided by the District should be eliminated. Since all but one month of the contract year in question has passed, however, we find that teachers who have already received cash or annuity benefits during the 1984-85 contract year should not be required to reach into their pockets to reimburse the Respondent for the amounts they have already received. In fact, the Respondent acknowledges in its brief that "In truth, it would probably be unworkable to require any teacher to do so." Any such reimbursement should instead be paid from and limited by sums due to teachers as a result of an upward adjustment in base salary, if any. See District 8 Elementary Teachers Ass'n v. School District No. 8, Dodge Co. , 8 CIR 126 (1985). "For employees to be required to repay excessive wages or to require future wages to still be further reduced by the already paid excess would create severe hardships on employees and place severe strain on the employer-employee relationship." I.B.E.W., Local 1521 v. M.U.D. , 6 CIR 246, 262 (1982).
3. Pay Period.
Teachers at the Respondent School District are currently being paid on the 15th and 30th of each month. The Respondent argues that the prevalent practice is for districts to pay their teachers only once per month. The pay periods of the school districts in our array are shown on Table 3.5
We find that one pay period per month is the prevalent practice and that the Respondent should be required to pay its teachers only once per month.
4. Provisions of Prior Contract.
The Respondent continued to operate under the terms of the expired 1983-84 collective bargaining agreement during the 1984-85 school year. It now seeks the elimination of several of those terms arguing that they are not prevalent.
The Petitioner points out that a number of the provisions of the 1983-84 agreement which the Respondent wants altered or eliminated, such as association business leave, extra pay for teaching classes beyond the normal load, and grievance procedure, were not invoked during the 1984-85 school year. It argues that the school year is over and that the issues raised by the Respondent are moot.
The Respondent acknowledges the evidence at trial indicated "that at the time of the hearing the school year had been concluded and students and teachers released."6 The Respondent goes on to argue however, that the matters it raises are not moot because "the District has thus far used only 179 of 184 contract days, and could if it chose [sic] recall the teachers for the remaining five days."7
Superintendent Roach testified that the 1984-85 school year is over8 and the overwhelming weight of the evidence supports his testimony. Teachers at Winnebago have submitted final grades, students have graduated, teachers have turned in their keys and have been checked out, some have gone on to summer jobs or summer school, while others have resigned and must be replaced.9
There can be little doubt that the 1984-85 school year is over and that the Respondent seeks a determination of these matters for the purpose of receiving guidance for negotiations with the Petitioner for the 1985-86 contract year.10 We decline to give such guidance by making a ruling on issues which do not now exist.11 See District 8 Elem. Teachers Ass'n v. School Dist. No. 8, Dodge Co. , 8 CIR 126, 133 (1985); School District No. 125 v. Curtis Educ. Ass'n, 7 CIR 96, 108 (1983).
Moreover, the Respondent is a Class III school district and is subject to the provisions of the Nebraska Teachers' Professional Negotiations Act ("NTPNA"), §§79-1287 to 79-1295, R.R.S. Section 48-810 provides that the Commission of Industrial Relations "shall have no jurisdiction over any persons, organizations, or school districts subject to the provisions of the Nebraska Teachers' Professional Negotiations Act, sections 79-1287 to 79-1295, until all provisions of such act have been exhausted without resolution of the dispute involved". Superintendent Roach testified at trial that bargaining for the 1985-86 school contract year had not yet begun and that the provisions of the NTPNA have not been exhausted.12 As a consequence, we are without jurisdiction to give guidance on these matters even if we were inclined to do so.13
5. Bargainability Issue.
The Respondent also wants us to rule on whether the following matters are bargainable:
i) the District's right to assign teachers on a temporary basis to cover class or study hall;
ii) the District's right to assign classes beyond the normal load;
iii) the District's right to schedule work by establishing the number of teacher contract days and length of teacher work days;
iv) the right of the School Board to establish procedures for evaluating the performance of teachers.
Though Respondent attempts to argue that the bargainability of these matters are part of the current industrial dispute, it acknowledges that it foresees these matters as points of discussion for the 1985-86 school year and for future years and asks us to resolve these matters for guidance in future negotiations.14
Since bargaining for the 1984-85 contract year is obviously over and bargaining for the 1985-86 contract year has not yet begun, the Respondent is really seeking an advance determination of these matters for the 1985-86 contract year -- a decision before there is a dispute.
Once again we are without jurisdiction to rule on these matters since the NTPNA has not been exhausted and they are not a part of the current industrial dispute. See §48-810. See also, District 8 Elem. Teachers Ass'n v. School Dist. No. 8, Dodge Co. , 8 CIR 126 (1985); 7 CIR 96 (1983), School Dist. No. 125 v. Curtis Educ. Ass'n , 7 CIR 96 (1983).
6. Base Salary.
Section 48-818 requires that we take into consideration all wages received as well as all insurance and other benefits when determining wage rates.
Table 4 sets forth the compensation figures at the compared to school districts. These figures have been adjusted for differences in credit allowed for outside teaching experience and for differences in contract days. There is a dispute in the evidence as to whether there were 185 or 184 contract days at the Respondent School District during 1984-85. We are persuaded that 184 is the correct number.
After adjusting the paid fringe benefit figures offered at Winnebago to conform with our decision, we find that the base salary for teachers should be $12,165.00. This represents a standard salary schedule amount of $470,542.20 (base salary of $12,165.00 multiplied by a staff index factor of 38.68) plus fringe benefits of $53,689.20, which makes total teacher compensation for the purposes of these calculations: $524,231.40. For the reasons stated in District 8 Elementary Teachers Ass'n v. School Dist. No. 8, Dodge Co. , 8 CIR 126 (1985) and I.B.E.W., Local 1521 v. MUD. , 6 CIR 246 (1982), teachers shall not be required to reimburse the Respondent for any excessive wages that they have already received as of the date of this decision.
IT IS, THEREFORE, ORDERED:
1. That the base salary for Respondent's teachers shall be $12,165.00, effective at the beginning of the 1984-85 school year; 2. That the Respondent shall contribute the full premium of $66.51 per month for teachers receiving single health insurance coverage and $190.45 per month for teachers receiving dependent health coverage and shall eliminate the cash or annuity options;
3. That there shall be one pay period per month;
4. That all other terms and conditions of employment shall remain unchanged.
All judges assigned to the panel in this case join in the entry of these Findings and Order.
Entered August 14, 1985.
1Report of Pretrial Conference
2Petitioner's Trial Brief at 10-11.
3Respondent's Memorandum Brief at 4 and 6.
4This amount includes $9.57 for family dental coverage. T14:4-25 through T15:1.
5The Petitioner objected to the relevancy of the evidence on this matter at trial arguing that the majority of the 1984-85 contract year has passed and that Respondent's real purpose in raising this issue is to set a term and condition of employment for the 1985-86 contract year. (T74:1-8 and 79:6-80:8; see also T98:3-21). The Petitioner's objection was taken under advisement (T93:22-24). Since payments are still to be made to teachers for the 1984-85 school year, we find that the evidence offered on this matter is relevant and the Petitioner's objection is overruled. Respondent's Exhibit No. 19 is received.
6Respondent's Memorandum Brief at 9.
7 Id .
9T97-3 through T98:1
10Respondent's Memorandum Brief at 19-22.
11The Respondent attempts to revive two of these issues, paid personal leave and pay for teaching extra classes on a temporary basis, by arguing that the prevalent practice needs to be established so that the District can be reimbursed for any excess payments that it made to teachers who received compensation for these matters under the provisions of the 1983-84 agreement. We disagree. It is impossible for us to now determine whether any individual teacher would have requested approval for paid personal leave had he or she known that the Respondent would later ask to be reimbursed for the leave that it granted. We will not require reimbursement for paid personal leave originally taken with the School District's approval. Furthermore, we will not now penalize teachers who undertook the obligation of teaching additional classes with the belief, fostered by the Respondent at the time, that they would be paid for doing so.
12T94:13 through T95:10.
13At trial, the Petitioner objected to the introduction of Respondent's Exhibit No.s 20 through 24 (T80:2-8). The objections were taken under advisement (T93:22-24). The objections are now sustained.
14Respondent's Memorandum Brief at 19-22.