| EDUCATIONAL SERVICE UNIT | | | CASE NO. 598 |
| NO. 15 EDUCATION | | | |
| ASSOCIATION, An | | | |
| Unincorporated Association, | | | |
| | | ||
| Petitioner, | | | |
| | | ||
| v. | | | FINDINGS AND ORDER |
| | | ||
| EDUCATIONAL SERVICE UNIT | | | |
| NO. 15 OF THE STATE OF | | | |
| NEBRASKA, A Political | | | |
| Subdivision, | | | |
| | | ||
| Respondent. | | |
Appearances:
For the Petitioner: Mark D. McGuire
Crosby, Guenzel, Davis,
Kessner & Kuester
400 Lincoln Benefit Building
Lincoln, Nebraska 68508
For the Respondent: John F. Recknor
Barlow, Johnson, DeMars & Flodman
1227 Lincoln Mall
P.O. Box 81686
Lincoln, Nebraska 68501
Before: Judges Kratz, Orr, and Mullin
KRATZ, J:
NATURE OF PROCEEDINGS
On June 19, 1985, Educational Service Unit No. 15 Education Association, hereafter called Association, filed a Petition with the Commission of Industrial Relations, hereafter called Commission, alleging that Educational Service Unit No. 15 of the State of Nebraska, hereafter called ESU No. 15, was not bargaining in good faith regarding certain mandatory subjects of bargaining. Shortly thereafter, July 12, 1985, the parties entered into a stipulation whereby they agreed to resume good faith negotiations "on the terms and conditions of employment for the members of the bargaining unit represented by the Association for the 1985-86 contract year..." (emphasis supplied). Based on this stipulation, the Commission entered an order stating it would take no further action unless requested to do so by either party.
The resumed negotiations apparently failed and on January 27,1986, the Association filed an "Application" which requests the Commission to establish wages, terms and conditions of employment for the employees of ESU No. 15 for the 1985-86 contract year. The bargaining unit involved herein was certified by this Commission (then Court) on December 14, 1978, and is described as follows (Order of March 3, 1978):
All certified teachers, nurses and therapists, including special education teachers employed by Educational Service Unit No. 15 of the State of Nebraska, excluding artist in residence, administrative and supervisory employees and office clerical employees.
ESU No. 15 employs six teachers and ten nurses. Four of the nurses have a B.A. degree and six have a diploma. The counties of Chase, Dundy, Frontier, Hayes, Hitchcock and Red Willow are all serviced by ESU No. 15. The parties agreed in their pre-trial stipulation that "the terms and conditions of employment for the staff employed by ESU No. 15 for the 1985-86 contract year shall be as previously established by the agreements made by the parties" except for base salary, index salary schedule, and grievance procedure. The Commission has jurisdiction of the parties and the subject matter of this action.
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 the conditions from those prevailing at the time the original order was entered."
COMPARABLE EMPLOYERS
In choosing an appropriate array for comparison, the ultimate issue is whether ESU No. 15 should be compared to other Educational Service Units (ESU's) or to Nebraska school districts. this issue is one of first impression for the Commission.
Pursuant to 48-818 the Commission is obligated to:
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.
(emphasis added).
Following the mandate of 48-818, in Fraternal Order of Police v. County of Adams, 205 Neb. 682, 289 N.W.2d 535, (1980), the Supreme Court stated that:
In selecting employment units in reasonably similar labor markets for the purpose of comparison as to wage rates and other benefits, the question is whether, as a matter of fact, the units selected for comparison are sufficiently similar and have enough like characteristics or qualities to make comparison appropriate."
Id at 685.
Each case however, must be decided on the basis of its own evidence. The Association's evidence supported comparing ESU No. 15 only to other ESUs, while ESU No. 15's evidence favored an array comprised solely of local school districts. The Association's proposed array consisted of the following: ESU 2, ESU 7, ESU 10, ESU 11, ESU 13 and ESU 16, ESU No. 15's proposed array consisted of the school districts of Bartley, Benkleman, Beaver Valley, Champion, Culbertson, Eustis, Haigler, Hayes Center, Maywood, Medicine Valley, Palisade, Stratton, Trenton, and Wauneta.
ESUs are statutory entities, created pursuant to Section 79-2201 (R.S. Supp., 1984). This statute outlines the purpose of E.S.U.s as follows:
(1) to provide supplementary educational services to local school districts, (2) to aid school districts in meeting approval and accreditation standards and the core curriculum standards adopted and promulgated by the State Board of Education pursuant to sections 79-328, 79-4, 140.03, and 79-1247.02 and in otherwise upgrading their staff, curriculum, or equipment, and (3) to assist in the teacher evaluation requirements prescribed in section 79-12,111 and the entry-year assistance program...Further-more, that provision states that the educational service units shall cooperate with the staff of the State Department of Education to promote quality instructional programs in all areas of the state.
Id.
Section 79-2208 (R.R.S. 1943) establishes the extent to which ESU services may be provided to the Nebraska School systems:
(1)provide supplementary services to (a) the requesting school systems within its geographical area, (b) requesting school system not within its geographical area to the extent allowed under section 79-2201.01, and subsection (3) of section 79-2203, and (c) any other educational service unit,
(2)plan and coordinate educational services within its geographical area whenever such services are offered on a cooperating basis between local school districts, and
(3)contract for educational services within the board of any other educational service unit, any school district, any other educational agency, or with any appropriate state or federal officer or agency...
Id.
Thus, ESUs are separate entities from school districts and function under independent guidelines. The role of the ESU teacher varies substantially from that of the public school teacher. ESU teachers are called upon to provide special teaching skills in areas where the school district faculty does not have the necessary expertise. in many instances, the ESU teacher applies his/her specialized training on an individual basis to the school district pupil. A low teacher-pupil ratio is the norm, rather than the exception. Additionally, the services provided by ESU teachers are supplemental to the basic curriculums of the school districts they serve. They are based primarily on the unique needs of each district and may vary considerably from school to school.
A brief analysis of the working conditions of the ESU staff provides the Commission with further indicia of the unique circumstances under which these individuals are employed. ESU teachers are generally itinerant. Their work is not confined to a single classroom or school but encompasses a number of different schools in several school districts. Travel is inherent in their employment. Morever, the daily schedule of the ESU teacher may vary during a single school week. An ESU teacher's day generally commences at the beginning hour of one school district and ends at the closing hour of another school district. Therefore, since most school districts' opening and closing schedules differ, each weekday can begin and end at a different time. In some instances, two time zones may be encountered in a single school day. That is, a teacher may commence the day in Benkleman under Mountain Standard Time and finish the day under McCook under Central Standard Time. Since their services are provided on an "as needed" basis, the number of schools an ESU teacher serves may change from month to month and year to year. These working conditions are significantly different than the working conditions of the ordinary public school teacher.
We conclude that the work, skills and working conditions of ESU teachers are peculiar to their statutory employment arrangement and differ in several aspects from the work, skill and working conditions of teachers in the Nebraska school districts. Therefore, the other ESU's and not the school districts, "are sufficiently similar and have enough like characteristics or qualities to make comparison appropriate" (Fraternal Order of Police v. County of Adams, supra), and we find that an array comprised solely of E.S.U.'s is the appropriate array for comparison herein.
Based on the facts in the record, the following ESUs selected for comparison are sufficiently similar and have enough like characteristics or qualities to make such comparison appropriate: ESU 2, ESU 7, ESU 10, ESU 11, ESU 13, and ESU 16. Table one sets out basic information on the array members.
INDEX SALARY SCHEDULE
Another issue in this case is the structure of the existing index salary schedule at ESU 15. The present schedule does not extend beyond the "M.A. + 9" level and has a maximum of eleven verticle steps. ESU 15 also has a "Diploma" (DIP) column which is not present in any other ESU schedule. The Association contends that two vertical steps should be added to the DIP column, an additional step added to each of the other columns, and that an "M.A. + 18" column, with thirteen vertical steps, should be added to the existing salary schedule. Table two sets out the comparability evidence of index salary schedules presented by the Association.
Though the Commission has held that index salary schedules are susceptible to analysis under Section 48-818, we have favored the position that changes in salary schedules are best effected through the collective bargaining process. See, Valentine Education Ass'n v. School District No. 6, Findings and Order entered June 12, 1986. However, the Commission will change a salary schedule when appropriate to achieve comparability to prevalency. This is particularly true when a substantial variance exists between the compared to salary schedules and the one in issue, and a change will not result in a materially large disturbance of the internal balance of the schedule. Sherman County Teachers Ass'n v. School District No. 15, 8 CIR 77, 81 (1985).
According to Table 2, an "M.A. + 18" column is prevalent. All six of the compared to ESUs have such a column although the number of steps in the column varies. The present schedule at ESU 15 varies substantially from the schedule of the other array members. All but one of the compared to ESUs have more than thirteen vertical steps in the "M.A. + 18" column. The burden of proof is on the moving party in a Section 48-818 to show that a particular condition of employment is comparable to the prevalent. Here, the Association has met this burden of proof. Based on the evidence in this case, we find that an "M.A. + 18" column with thirteen vertical steps is comparable to the prevalent and should be added to the present index salary structure at ESU 15. This modification is possible without disturbing the internal balance of the schedule.
The Association also asks to have two vertical steps added to the DIP column. As evident from Table 2, this is clearly not the prevalent condition in the Commission's selected array and we, therefore, decline this request.
The Association's request to add an additional step to each column, if granted, would result in a majority of the teachers changing positions on the present salary schedule index. The Commission will not change a salary schedule when the modification will result in a material disturbance of the internal balance of the schedule. We, therefore, decline this request as well.
GRIEVANCE PROCEDURE
The final issue herein involves the grievance procedure. Presently, ESU 15 has no formal grievance procedure in its collective bargaining agreement. All of the ESUs in the selected array, with the possible exception of ESU 11, have grievance procedures. We have previously held that we will not order a specific condition of employment unless there is sufficient evidence defining the prevalent condition. See, City of Omaha v. Omaha Police Union Local 101, 5 CIR 171 (1981). The Association has provided the Commission with evidence from all array members indicating the existence of a formal grievance procedure in each ESU (Table No. 3). Without a grievance procedure the present conditions of employment at ESU 15 are not comparable to prevalent. A grievance procedure, therefore, must be formed and inserted in the collective bargaining agreement. The specific language of said grievance clause should be worked out by mutual agreement of the parties.
BASE SALARY DETERMINATION
The only remaining issue for resolution by the Commission is a determination of base salary. Tables four through six set out the information and calculations used to determine base salary.
In making our base salary determination we have separated the non-degree nurses from the B.A. salary schedule. applying the statutory criteria of 48-818 to the evidence in this case, we find that the base salary for the ESU No. 15 staff should be $14,355 for the 1985-86 school year.
IT IS THEREFORE ORDERED:
1. That the base salary amount for Educational Service Unit No. 15 shall be $14,355, effective for the 1985-86 school contract year.
2. That an MA + 18 column with 13 verticle steps shall be added to the existing index salary schedule for the 1985-86 school contract year.
3. That a grievance procedure be inserted into the collective bargaining agreement for the 1985-86 school contract year. The specific language of said grievance clause should be worked out by mutual agreement of the parties.
4. That the amount due for 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 September 18, 1986
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