|FRATERNAL ORDER OF POLICE,|||||CASE NO. 712|
|SARPY LODGE NO. 3,||||
|v.|||||FINDINGS AND ORDER|
|COUNTY OF SARPY, NEBRASKA,||||
For the Petitioner: Bruce G. Mason
Ross & Mason, P.C.
8420 West Dodge Road
Omaha, Nebraska 68114
For the Respondent: George C. Rozmarin
Fraser, Stryker, Vaughn, Meusey,
Olson, Boyer & Bloch, P.C.
500 Electric Building
Omaha, Nebraska 68102
Before: Judges Cope, Orr, and Peetz
NATURE OF PROCEEDINGS
The Petitioner brings this action pursuant to Section 48-818 seeking an order establishing wages and the following conditions of employment; health insurance contribution, longevity pay, vacation accumulation, length of pay plan and pension contribution rate. The Respondent filed an Answer, an Amended Answer, and a Second Amended Answer and Counterclaim raising the following issues; reduction of wages, sick leave, vacation, holidays, dental insurance, life insurance, clothing allowance, funeral leave, disability insurance and sick leave at resignation, dismissal or death.
The fiscal year in dispute is July 1, 1987 to June 30, 1988, thus the year has ended. The parties were encouraged to reach some agreement as to the job classifications or job positions at dispute prior to trial but no clear agreement was reached. From all of the evidence it appears that the following job classifications are at issue:
Word Processing Operator
Civil Process Clerk
Records Clerk II
Senior Radio Dispatcher
Account Clerk Supervisor
Radio Dispatch Supervisor
Deputy Sheriff 1 (Road Deputy)
Deputy Sheriff 2 (Corporal)
Deputy Sheriff 3 (Investigator)
Deputy Sheriff 4 (Sergeant)
Deputy Sheriff 5 (Lieutenant) (currently unoccupied)
Deputy Sheriff 6 (Captain)
The controlling statute is Neb. Rev. Stat. Section 48-818 (Supp. 1987) which provides in pertinent 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 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.
The selection of comparables is the most critical part of the process in resolving any 48-818 dispute. 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. Douglas County Health Dept. Employees Ass'n. v. County of Douglas , 229 Neb. 301, 427 N.W.2d 28 (1988), 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). "As a general rule it may be said that factors most often used to determine comparability are geographic proximity, population, job descriptions, job skills, and job conditions." Douglas County Health Dept. Employees Ass'n v. County of Douglas , 229 Neb. at 308 citing AFSCME Local 2088 v. County of Douglas , 208 Neb. 511, 304 N.W.2d 368 (1981).
The Commission's findings as to the appropriate array are factual findings, not conclusions of law. Thus, the array decision rests on the evidence presented by the parties in dispute. If there has not been any stipulation as to similarity of work, skills and working conditions, each party must provide credible evidence as to which factors they believe demonstrate and determine similarity of work, skills and working conditions and how their array displays such similarity.
In the present case the Petitioner proposed an array consisting of nine county sheriff departments located across the country: Bay, Michigan; Eaton, Michigan; El Dorado, California; Orange, North Carolina; Oswego, New York; Pottawattamie, Iowa; Washington, Minnesota; Washington, Wisconsin; and Yolo, California. The Respondent on the other hand presented an array comprised of both county sheriff departments and city police departments: Bellevue, Nebraska; Douglas County, Nebraska; Hall County, Nebraska; LaVista, Nebraska; Leavenworth County, Kansas; Omaha, Nebraska; Papillion, Nebraska; Platte County, Missouri; Pottawattamie County, Iowa; Riley County, Kansas; Story County, Iowa; Midlands Hospital; and Papillion School. The last two of Respondent's proposed array points are local employers of clerical staff and are included solely as comparables for clerical positions. Table 1 sets out the relevant data concerning the proposed array points.
The two parties presented entirely distinct and in some respects unique theories on array choice. The Petitioner originally hired a demographer to compose a proposed array. The demographer testified that he looked at all counties in the United States that mirrored Sarpy in that they are located next to a large metropolitan area, such as Omaha, and yet are not dominated by a large city within the county borders. After narrowing his list to nine, he sent it to Petitioner's expert. The Petitioner's expert then testified that he did a telephone survey of the proposed counties to determine if they were comparable enough to warrant an in-depth survey. Upon finding that the array proposed by the demographer was comparable to the point of continuing, the expert visited each array point and met with a representative from the administrative function of their department. The expert testified that they then compared documents such as job descriptions and contracts, discussed working conditions and, if possible, arrived at job matches for the various job classifications in dispute. The expert also testified that he toured each of the proposed departments and at some point received organizational charts, job descriptions contracts and surveys from these departments. All of the information the expert received is in the record.
The Petitioner presented considerable testimony as to the similarity of work, skills and working conditions between Sarpy and those counties set out on its array. Initially, the demographer testified that the counties are demographically similar. Petitioner's expert testified that the proposed counties are comparable in population and the departments are comparable in work force size. There was also testimony that the organizational structure is comparable and the work performed was similar under similar conditions.
We find that the evidence warrants inclusion of Bay County, Michigan; Eaton County, Michigan; Pottawattamie County, Iowa; Washington County, Minnesota and Washington County, Wisconsin. These counties are located within the North Central Region and are sufficiently similar for comparison purposes. We do not find it necessary, given the evidence in this case, to extend the array to both coasts; thus El Dorado County, California; Yolo County, California; Oswego County, New York; and Orange County, North Carolina will not be included in the Commission's array.
The Respondent's expert derived his array from one of three sources. He first chose all law enforcement agencies, both police departments and sheriff departments, he considered to be in Sarpy County's labor market, regardless of size (T Vol. II 49:18; 50:22). The second group of proposed comparables included counties that were not more than double nor less than half the size of Sarpy but were within 150 miles of Sarpy. The out of state counties that fit these criteria were filtered based on a l98l total crime statistic (T Vol. II 5l-54). Lastly, the expert included randomly chosen local employers of clerical personnel (T Vol. II 58:3; 6l:l).
Once Respondent's expert set out this array, he had his survey collector visit each department and meet with either the personnel director or an administrative officer. The survey collector set out Sarpy County's various job classifications and asked the representative of the proposed county if there was a match. The survey collector wrote down on a survey form the representative's responses and had that representative authenticate the survey form. The survey collector presented the surveys to the Respondent's expert and they are a part of the record in this case.
Initially, it is imperative to point out that Respondent's expert stated his opinion as to similar work, skills and working conditions only for Omaha, Papillion, LaVista, Bellevue and Riley County, on cross-examination (T Vol. II 146: 9-13). The record does not contain any other specific testimony from Respondent's expert with reference to his opinion as to similarity of work, skills and working conditions for the counties of Douglas, Hall, Leavenworth, Plattee, Pottawattamie or Story as listed on Respondent's exhibits. We must therefore look to the record to determine if in fact the Respondent presented credible evidence of similar work, skills and working conditions.
When questioned as to what information he looked at concerning work, skills and working conditions, Respondent's expert replied that he did not secure any information in addition to that data contained on the surveys but that he knew of certain other information (T Vol. II 101:12-12). When questioned further,Respondent's expert testified that the following were working conditions he considered: all proposed array points have a paramilitary form of organizational structure (T Vol. II 101:24-25), their work is dangerous (T Vol. II 103:1), the sworn employees are subjected to a lot of walking and riding when they are on patrol (T Vol. II 103:7-9), the sworn personnel generally receive the same kinds of training and may have to work in inclement weather (T Vol. II 103:10-13), and most are under some kind of contract administration (T Vol. II 103:19-21).
In effect, the record reflects that the Respondent's expert relies on a theory that all law enforcement work is fungible, thus all law enforcement agencies whether they are sheriff departments or police departments are similar and comparable. Implicit in Respondent's presentation of this theory is a notion that fungibility establishes similar work, skills and working conditions. However, this Commission has never supported such a notion, See Fraternal Order of Police Lodge No. 17 v. County of Dodge , 8 CIR 156 (1986), and does not adopt it now. This Commission has found that there are certain occupations that generally, to some degree, exhibit similar work, skills and conditions, i.e. teachers, but even assuming such fungibility, the parties are still required to provide credible evidence that their array in fact exhibits similar work, skills and working conditions, See Wayne Educ. Ass'n v. School Dist. of Wayne , 9 CIR 281 (1988). While there may be some inherent similarities between law enforcement agencies, the Petitioner in this case has presented considerable testimony as to major differences between sheriff and police departments and as to differences between sheriff departments as well (T Vol. 103:6-105:18; 111:7-112:4).
Upon careful scrutiny of the record, the Commission can find little evidence supporting Respondent's opinion that the array presented is sufficiently similar for comparison under Section 48-8l8. It is clear that Respondent's expert did not participate in the job match process nor did he examine any job descriptions (T Vol. II 98:2-8). The expert testifies that job titles are not controlling and that you must look at the job tasks as set out in the job description yet it is apparent that he had nothing more than job titles to verify matches for those departments he was not personally familiar with (T Vol. II 63:l-5). The expert did not examine any contracts or organizational charts, (T Vol. II 98:l3-l6; l04:2-l7). Overall, the record exhibits the expert's general lack of familiarity with the array points and data introduced.
It is important to emphasize that the Commission's array choice must be based in fact and cannot be based on assumption or conjecture. Thus, each case presents a different factual basis that necessitates specific findings. The Commission does not intend to imply that the expert must in every case participate in the job match process or examine every document. If, however, he elects to delegate this work to subordinates he must convince the Commission that he is familiar enough with the array points and underlying data to justify acceptance of his opinion as to similarity. We find that the record before us is insufficent to support the Respondent's experts' opinion as to comparability.
As always the Commission as finder of fact is not bound to accept the opinions of experts See Tatara v. Northern States Beef Co. , 230 Neb. 230, N.W.2d (1988). Furthermore, it is also for the Commission as trier of fact to resolve conflicts in the evidence and to determine the weight and credibility to be given the testimony of witnesses. See Joyner v. Steenson , 227 Neb. 766, 420 N.W.2d 278, (1988). Given the record in this case it would be arbitrary, capricious, unreasonable and contrary to Section 48-818 for this Commission to find that Respondent presented sufficient evidence of similar work, skills and working conditions to warrant using any of its proposed array.
The Petitioner presented evidence on a position of Administrative Secretary while the Respondent did not. When questioned the parties were unable to reach any agreement or stipulation as to whether the position was in the bargaining unit or not. The position is not listed in the unit description of the prior contract, Petitioner's Exhibit P13. The Commission cannot set wages for positions which are not in the bargaining unit. Since it is unclear whether the position of Administrative Secretary is appropriately in the unit, we will not set wages for that position.
We will also not set wages for the position Deputy Sheriff V (Lieutenant) because that position is currently vacant (Exhibit P12).
There was insufficient array data to directly set wages for the positions of Account Clerk Supervisor, Office Manager, Vehicle Inspector, Radio Dispatcher Supervisor, Deputy Sheriff II (Corporal), and Systems Manager. However, the parties stipulated that the Commission could set wages for these positions by keying them to other specified positions in the unit (T Vol. I, 4:l3 through 9:7). The wages set preserve the previously established differentials between these positions and the positions to which they are keyed.
Tables 2 through l8 set out the relevant wage data for the bargaining unit members. Some of the array points had different contract years so the wage figures set out on the tables were prorated by the parties where necessary and where possible.
The Commission finds that it is inappropriate to set wages for the positions of Record Clerk and Senior Radio Dispatcher based on the market wage data provided. See Tables 6 and 8. To set wages based on the matches set out for Senior Radio Dispatcher would result in a supervisory position being paid less than a position it supervises. In such situations the Commission will employ other means of computing wages if such means exist. See Local No. 647, International Ass'n of Firefighters v. City of Grand Island , 9 CIR 43 (1987).
We do find that Sarpy County has a well established grade level system for all positions in the bargaining unit. We will use that system to set wages for the two positions where we otherwise would have insufficient data. See Pl3. We will align the position of Records Clerk to Civil Process Clerk as they are both clerical positions of the same grade level. We will align the Senior Radio Dispatcher position to the Radio Dispatcher position. There is a step grade level increase between these positions yet they have similar duties except that the Senior Radio Dispatchers have some supervisory authority over the Radio Dispatchers (Exhibit Pl2).
It appears from the evidence that both Petitioner and Respondent request that the Commission adjust Sarpy County's pay plan. The Petitioner presented a plan decreasing both the number of steps and the number of years required to progress to the maximum. Evidence as to the number of steps was presented with regard to only one of the array points chosen by the Commission. We are thus unable to determine whether an alteration in the current number of steps would be appropriate. On the other hand, the number of years required to progress to the maximum in Sarpy County is above the prevalent, necessitating a reduction. See Table 19. The pay plan should be such that bargaining unit employees reach maximum in seven years.
Respondent has asked that the Commission cost out benefits. Respondent's argument focuses on the "overall compensation" language of Section 48-818 which provides in pertinent part: "[i]n establishing wage rates the commission shall take into consideration the overall compensation presently received by the employees. . . ." R. R. S. Section 48-818 (Supp. 1987). Respondent asserts that the Commission's decision in Local Union No. 647, Int'l. Ass'n. of Firefighters v. City of Grand Island , 9 CIR 43 (1987) together with the plain meaning of the statute requires the Commission to adjust wages downward to reflect "real and definable costs" experienced by the employer in providing benefits above prevalent.
First, the Commission's decision in Grand Island Firefighters was explicitly limited in scope and application. The opinion expressly points out that Grand Island's contract prohibited the Commission "from making any changes in fringe benefits." Id. at 45-46. The opinion later continues,
". . . since we can adjust wages only, it is necessary to cost out the benefits to provide overall compensation." Id . at 54. Our concern was that because the contract did not allow the Commission to directly address fringe benefit issues it became necessary to utilize an alternative method when "tak[ing] into consideration the overall compensation presently received" Section 48-8l8 R.R.S. (Supp. l987). Again, however, the circumstances surrounding the Commission's determination in Grand Island Firefighters were unique. In general, this Commission has been averse to costing out benefits where the approach appears to be arbitrary and speculative. See Bellevue Police Officers Ass'n. v. The City of Bellevue , 8 CIR 186,190-191 (1986). The arguments and evidence presented by Respondent in this case have done little to address those concerns.
At trial, Respondent's expert testified with respect to the formula that he utilized in establishing "some means by which we can superimpose a changed wage on the current benefit package that's in existence." (T Vol. II 92-93). One of the troublesome aspects of Respondent's methodology is evidenced by an examination of the process utilized in calculating sick leave.
Respondent's expert attributed a numerical value to sick leave by taking the midpoint of the number of days accumulated per year for the array times eight hours. That number was then multiplied by the midpoint of the salary for each position. The product was then divided by the total number of hours per year, providing an hourly calculation of the yearly costs associated with sick leave. (T Vol. II 89-90). The problem with Respondent's approach is that it appears to double count employer sick leave costs. See Lincoln Firefighters Ass'n., Local No. 644 v. City of Lincoln , 8 CIR 31, 52 (1985) (For recognition of the same problem with respect to vacation and holiday hours). Absent additional proof or explanation, it would appear that sick leave costs are already reflected by salary. Therefore, under Respondent's methodology, sick leave is not properly characterized as a "real and definable" cost to the employer.
In addition, Respondent's practice of averaging the cost of single and family health insurance premiums to arrive at the benefit's cost is speculative, inappropriate and has been previously rejected by the Commission. See Bellevue Police Officers Ass'n. v. The City of Bellevue , 8 CIR l86, l09-l9l (l986). Respondent's method penalizes employees receiving only single health insurance by attributing to them a cost above actual costs incurred. Similarly those employees receiving dependent health coverage are benefited by the lower cost associated with the average of single and dependent coverage.
It must be pointed out that our attempt to identify flaws in Respondent's methodology does not indicate a willingness to cost out fringe benefits in future determinations. Instead it is the Commission's intention to utilize these examples only to emphasize the inherent problems we perceive in costing out employee benefits.
In Omaha Ass'n of Firefighters v. City of Omaha , l94 Neb. 436, 23l N.W.2d (l975), the Nebraska Supreme Court upheld the Commission's practice of accounting for overall compensation by means other than costing out fringe benefits. The Court said that by resolving fringe benefit issues in conformity to prevalent practices, the Commission "did take into consideration the overall compensation presently received by the employees, including all fringe benefits, as required by section 48-8l8, R.R.S. l943." Id . at 44l-442. Therefore, based on the evidence presented we hold it is not necessary nor appropriate to cost out Sarpy County's fringe benefits.
The parties requested that the Commission resolve a number of disputed economic and non-economic benefits. However, this Commission has continually refused to rule on certain fringe benefits when the contract year has passed. A determination as to a benefit that has no carryover into the next contract year would constitute an advisory opinion outside the Commission's jurisdiction. See Papillion-LaVista Education Ass'n v. School District of Papillion-LaVista , l0 CIR l8, 22-23 (l988), Fraternal Order of Police Lodge No. 23 v. The City of Holdrege, Nebraska , 9 CIR 257, 262 (l988), Trenton Education Ass'n v. School District of Trenton , 9 CIR 20l, 204-205 (l987), Winnebago Education Ass'n v. School District of Winnebago , 8 CIR l38, l46-l48 (l985). See also District No. 8 Elementary Teachers Ass'n v. School District No. 8, Dodge County , 8 CIR l26 (l985), School District No. l25 v. Curtis Education Ass'n , 7 CIR 96 (l983). Thus, for purposes of this determination and in keeping with past Commission practice, the following issues are considered moot for the 1987-1988 contract year: holidays (Table 20), funeral leave, clothing allowance (Table 2l), disability insurance, life insurance (Table 22), vacation accumulation rate (Table 23), maximum allowable vacation accumulation (Table 23) and all issues with respect to sick leave (Table 24).
VACATION CARRYOVER AND PENSION CONTRIBUTION RATE
As is evident from Table 23, Sarpy County's current practice of allowing a specified number of vacation days to be carried-over to subsequent years is not the prevalent within the Commission's array The benefit should therefore be eliminated.
We reject a request by the Petitioner that the Commission make adjustments to wages based on the pension contribution rates. See Table 25. Pension plan obligations are long-term in nature and beyond the scope of the disputed 1987-1988 contract year. As recognized, the Commission is without jurisdiction to make alterations to the pension benefit itself. See Plattsmouth Police Department Collective Bargaining Committee v. City of Plattsmouth , 205 Neb. 567, 288 N.W.2d 729, (1980). See also Lincoln Firefighters Ass'n., Local 644 v. City of Lincoln , 8 CIR 31 (1985). The Petitioner thus suggests that we increase wages by some percentage which appears to be determined by taking the midpoint of the percentage contributions made by the array points. The Petitioner does not present any evidence as to the comparability of the pension plans and it is conceivable that benefits are similar even assuming different costs. It would be speculative to alter the wages based on the evidence presented.
HEALTH AND DENTAL INSURANCE
Petitioner has challenged Sarpy County's practice of paying only a portion of employee health insurance premiums, asserting that the prevalent practice is for employers to pay the entire cost of both single and dependent coverage. Table 26 sets out the relevant information on health insurance. However, the Petitioner has not taken into account that Sarpy County follows a nonprevalent practice in providing dental coverage at no cost to employees. Table 27 sets out the relevant information on dental insurance. Rather than eliminate Sarpy County's dental insurance provision and increase the employer contribution to health insurance, the Commission is satisfied that a joint examination of dental and health insurance benefits indicates that Sarpy County's current package is comparable. Thus, no change in either health or dental insurance is warranted.
Table 28 sets out the relevant longevity data for the Commission's array. The Petitioner seeks a longevity pay schedule as a fringe benefit separate from the Sarpy County pay plan. The Petitioner's expert testified that Sarpy County has a longevity pay plan that can be construed as being built into the pay plan (T Vol I 177,5). Respondent's expert testified that the pay loop in Sarpy County is a longevity pay loop and includes longevity out to the last step (T Vol II 66: 3-6).
On its exhibits, Respondent listed a maximum without longevity and a maximum with longevity but only dealt with the longevity paid at the maximum salary step on Sarpy's current pay plan which is l0.5 years long, ignoring any and all longevity payments made at the array points for any period beyond ten years. The Petitioner suggested taking an average of the midpoint of all longevity payments made for each job classification and arriving at an overall set longevity plan to be given to all job classes equally upon attaining the specified anniversary set out in the table. It is clear from the array that the prevalent practice is to have an extra longevity pay plan separate from the wage pay plan. As the prevalent practice is to receive some set dollar amount after attaining maximum and some set number of years, the Commission finds that Sarpy should have a longevity benefit separate from the pay plan and should make payments in the amounts set out on Table 28.
As is evidenced by Tables 2 through l8, certain job classifications in the Sarpy County Sheriff Department were paid above the prevalent wage rate for the l987-88 fiscal year. In keeping with our previous findings, we will not order retroactive wage decreases. See Douglas County Health Dept. Employees Ass'n v. County of Douglas , 8 CIR 207 (l986), aff'd , 229 Neb. 30l, 427 N.W.2d 28 (l988); Fraternal Order of Police Lodge No. 23 v. City of Holdrege , 9 CIR 257 (l988), Trenton Education Ass'n v. School District of Trenton , 9 CIR 20l (l987). We do find, however, that it would be inequitable to order lump sum longevity payments for any employee who was otherwise overcompensated. Therefore, any employee that should receive a lump sum longevity payment will have that amount offset by any overpayment of wages received for the l987-88 fiscal year. Employees shall not be required to reimburse the Department for any amount of overpaid wage which is above the longevity payment ordered.
With the changes as set out above we find that the overall compensation received by Sarpy County Sheriff Department employees in the FOP bargaining unit is comparable to the overall compensation received at the comparable employers. In making this determination, the Commission has considered all of the evidence received as to wages and benefits.
IT IS THEREFORE ORDERED THAT
l. The salaries for the employees of the Sarpy County Sheriff
Department are established at the following rates for the
l987-88 fiscal year:
Receptionist/Switchboard Operator $l2,897 $l5,853
Clerk Typist/Stenographer l2,669 l5,983
Word Processing Operator l2,669 l5,983
Civil Process Clerk l3,578 l6,460
Records Clerk l3,578 l6,460
Radio Dispatcher l6,ll0 2l,300
Senior Radio Dispatcher l7,238 22,79l
Account Clerk Supervisor l4,936 l8,l06
Office Manager l4,936 l8,l06
Vehicle Inspector l5,615 l9,094
Radio Dispatcher Supervisor l9,996 26,438
Deputy Sheriff I 20,2l0 26,529
Deputy Sheriff II (Corporal) 2l,018 27,590
Deputy Sheriff III (Investigator) 22,847 27,804
Deputy Sheriff IV (Sergeant) 28,655 29,693
Deputy Sheriff VI (Captain) 32,593 35,049
Systems Manager 28,655 29,693
2. Sarpy County shall make longevity payments to the employees who qualify and in the amounts set out on Table 28.
3. Any additional compensation due to employees pursuant to number 2 above shall be offset by all overpayment of wages received by the qualifying employee during the l987-88 fiscal year.
4. Any additional compensation due the Sarpy County Sheriff
Department employees for the l987-88 fiscal year shall be paid in a reasonable time following the entry of this Order.
5. Sarpy County's pay plan for sheriff department employees be amended so that the number of years set to progress from minimum to maximum shall be seven.
6. The benefit of allowing vacation days to be carried over into the subsequent fiscal year shall be eliminated.
7. All other terms and conditions of employment governing the l987-88 fiscal year are not affected by this Order.
Entered December 5, 1988.