|OMAHA POLICE UNION LOCAL 101,|||||CASE NO. 801|
|Affiliated with the INTERNATIONAL||||
|UNION OF POLICE ASSOCIATIONS,||||
|v.|||||FINDINGS AND ORDER|
|THE CITY OF OMAHA, NEBRASKA, A||||
For the Petitioner: Bruce G. Mason
Ross & Mason, P.C.
8420 West Dodge Rd., Suite 105
Omaha, Nebraska 68114
For the Respondent: Kent N. Whinnery
Deputy City Attorney
804 Omaha/Douglas Civic Center
1819 Farnam Street
Omaha, Nebraska 68183
Before: Judges Orr, F. Moore, and V. Moore Jr.
NATURE OF PROCEEDINGS
NATURE OF PROCEEDINGS
The Omaha Police Union Local 101 filed a petition in this case, requesting that we set the wages and terms and conditions of employment for all full-time patrol officers, sergeants, lieutenants and captains for the fiscal year December 23, 1990, through December 23, 1991.
Petitioner requested that we settle the following terms and conditions of employment: Sick leave accumulation rate, maximum accumulation, conversion, usage for sick family members, pay off at retirement, death, resignation and dismissal; vacation accumulation at 1, 5, 10, 15 and 20 years of employment, maximum accumulation and carry over; funeral leave; higher education pay; court pay; call back pay; injured on duty pay; holidays; vision insurance; pension contribution rate by employee and by employer; distribution between employer and employee of premium cost of dental insurance; prescription insurance; hours per work week for bureau and uniform field employees; education incentive/reimbursement; stand by pay; uniforms; overtime; whether vacation, holidays or sick leave is considered as hours worked when computing overtime; pay for working out of classification; accumulation of compensatory time; life insurance policy amount; number of steps in pay plan; length of time to reach maximum pay; shift differential; health insurance for retirees and dependents, including the employer contribution rate; longevity; and employer contribution rate for single and family health insurance.
In addition to the above, respondent asked that we settle the following terms and conditions of employment: Long term disability insurance; the health insurance deductible, coinsurance for hospital charges and maximum out-of-pocket employee expense; shift structure; and the procedure for employees being assigned to shifts.
Our judicial system in Nebraska is one of statutes, case precedents and rules. The purpose of which is to create a forum where conflicts can be resolved in an orderly manner and which is fair to both parties. When one party decides to not follow the statutes, case precedents and rules governing the proceeding, it is the duty of the trier of fact to enforce the statutes, case precedents and rules. If this is not done, the system completely breaks down.
The system functions best when both sides to a conflict are well prepared, follow the statutes, case precedents and rules and present their case in a professional manner. The trier of fact then has the benefit of hearing both parties' version of facts and of hearing argument over those versions. The rules, however, limit what evidence may be offered in support of each party's version. These rules seek to assure that no party has an unfair advantage because evidence they offer has not been fully substantiated or authenticated.
Unfortunately, in the instant case, only half of the case is actually before the trier of fact. Virtually all of the petitioner's evidence was received by the Commission, while most of the respondent's evidence was excluded. At this point, it would be helpful to review the history of the case.
HISTORY OF CASE
At the beginning of this case, petitioner filed two motions for a temporary restraining order ("TRO"). The first TRO, filed November 19, 1990, requested that the Commission restrain respondent from implementing its last and final offer after the expiration of the labor agreement on December 22, 1990. Petitioner alleged that respondent refused to extend that labor agreement past the expiration date. It was unnecessary for the Commission to rule on petitioner's motion because respondent stipulated that it would not change or modify any of the terms in the current labor agreement without the mutual consent of the parties.
On December 12, 1990, petitioner filed another Motion for Temporary Restraining Order. In it, petitioner alleged that respondent issued an order changing the hours and days off of work for ninety-nine officers in the Criminal Investigation Bureau. The Commission, on December 13, 1990, issued a TRO enjoining the respondent from altering the employees' employment status. However, respondent correctly pointed out, in its response filed December 17, 1990, that Neb. Rev. Stat. § 48-816.02 (1988) provides that the Commission shall hold a hearing within ten days from the filing of a TRO.
The Commission held a hearing and subsequently issued an order dissolving the TRO. Respondent presented evidence indicating it had a right under the current labor agreement to "establish, allocate, schedule, assign, modify, change and discontinue City operations, work shifts, and working hours." The Commission's statutory authority does not allow it to issue an order which gives either party more rights than it had at the time of the filing of the petition.
For reasons known only to the respondent, it chose to ignore the Nebraska Rules of Discovery and some of this Commission's orders. This conduct on behalf of the respondent required the petitioner to come to the Commission twice, seeking orders compelling and sanctions. On February 1, 1991, petitioner filed its first motion seeking an order to compel and for sanctions. At that time, respondent was approximately 70 days late in answering interrogatories and 20 days late in producing requested documents. The Commission ordered respondent to answer the interrogatories and produce the requested documents by February 11, 1991, and ordered respondent to pay $250 attorney's fees to petitioner. Respondent did not object to the order or make any showing that it could not produce or answer by February 11, 1991. Respondent failed to comply with the Commission's order, and petitioner filed a new motion on February 15, 1991. A new hearing was held on petitioner's motion for sanctions and order to produce. Once again, respondent was ordered to answer the interrogatories and produce the requested documents, and the Commission ordered respondent to pay petitioner the sum of $250 per day until it complied with the Commission's order. Respondent was also ordered to pay petitioner an additional $150 for attorney's fees.
If the respondent had objections to any of the interrogatories or the request to produce, the Nebraska Rules of Discovery clearly provide a procedure for such objections. No objection was filed by the respondent. If the respondent needed more time to answer and to produce the documents, the Nebraska Rules of Discovery also provide a procedure for extending the time to answer and produce. Respondent did not seek additional time. Respondent simply ignored the rules which are designed for the orderly exchange of discovery information. The rules for discovery, as they are now formulated by the Supreme Court, place a substantial responsibility on the attorneys to follow the spirit and intent of the rules.
Respondent, on two additional occasions, failed to follow the clear mandate of the rules of discovery. On January 15, 1991, respondent faxed a Notice of Deposition to the petitioner, scheduling the deposition for January 17, 1991. Again, on February 20, 1991, respondent faxed a notice to petitioner, scheduling the deposition for February 22, 1991. On both occasions, petitioner sought a motion to quash and the same was granted by the Commission for the reason that respondent had failed to comply with Rule 30B(1)(A) of the Nebraska Rules of Discovery. Rule 30B(1)(A) requires reasonable notice, and two days or less was not reasonable notice under the circumstances.
A pretrial conference was held on February 21, 1991. Although CIR Rule 22 requires the parties to exchange exhibits five days prior to the pretrial conference, the parties were unable to do so. Preliminary exhibits were exchanged at the pretrial conference, and the Commission ordered the parties to exchange final copies of all exhibits and to present the Commission with a copy of all final exhibits intended to be introduced at trial by March 19, 1991. This deadline was later extended to March 25, 1991.
Petitioner marked as exhibits, and provided the Commission and respondent with a copy of exhibits numbered 1-165. Included in these exhibits were authenticated surveys from each of the cities in petitioner's array. Respondent marked as exhibits, and provided the Commission and petitioner with a copy of exhibits numbered 301-319. Respondent did not mark or identify any of its survey data.
The pretrial order also provided a deadline for the submission of written foundational objections to the exhibits. Any foundational objections not made by the date specified, are deemed waived. The deadline for foundational objections to the exhibits was extended from March 26, 1991, to March 29, 1991. Both petitioner and respondent filed a notice with the Commission reserving their right to object to any and all exhibits offered by opposing counsel at trial.
During the presentation of petitioner's case in chief, the petitioner offered, and the same was received by the Commission, authenticated surveys and supporting data for each of its survey locations. These authenticated surveys and the accompanying data formed the foundation and basis for petitioner's compilation exhibits which were also received by the Commission. Petitioner's expert then testified from the compilation exhibits as to the comparability of petitioner's proposed array.
Section 48-809 of Neb. Rev. Stat. (1988) provides in part as follows:
"In the taking of evidence, the rules of evidence, prevailing in the trial of civil cases in Nebraska shall be observed by the Commission of Industrial Relations."
Since the Nebraska Supreme Court in 1980 rendered its opinion in Plattsmouth Police Department Collective Bargaining Committee v. The City of Plattsmouth, 205 Neb. 567, 288 N.W.2d 729 (1980), the Commission of Industrial Relations has allowed authenticated questionnaires and the accompanying and identified materials to be received into evidence.
The petitioner, in submitting its case, followed the Nebraska Rules of Evidence to the letter. Unfortunately, when it came time for the respondent to present its case in chief, it totally ignored the Nebraska Rules of Evidence. Very early on in respondent's presentation, it offered exhibit 301. This exhibit was a compilation of the information it had reportedly obtained from surveys sent out by Robert Ottemann, respondent's identified expert. Respondent had not marked at pretrial any of its surveys or accompanying materials. As soon as the respondent offered exhibit 301, petitioner objected as to foundation and petitioner's objection was sustained.
One of the issues facing the Supreme Court in Plattsmouth, was the admission of compilation exhibits. The supreme court stated: "Because of the lack of foundation evidence to establish the source and reliability of the information contained on the questionnaires which was the basis for the compilations offered by the plaintiff, the defendant's objections to these exhibits should have been sustained." Plattsmouth, 205 Neb. at 571, 288 N.W.2d at 732. Exhibit 301 contained the compilations of data gathered by respondent's expert presumably from questionnaires sent out. The Commission did not have the benefit of any of respondent's base data. Respondent's exhibit 301 was clearly inadmissible because of the lack of foundation.
Respondent should clearly have anticipated a foundation problem with exhibit 301 for the following reasons:
(1) Foundation had not been waived;
(2) The parties had not arrived at any stipulation for the admittance of evidence;
(3) The petitioner filed a written objection as to foundation; and
(4) Petitioner marked and identified at pretrial all of its survey data which formed the basis for petitioner's compilation exhibits.
As a result of respondent's exhibit 301 being excluded from evidence, respondent's expert's testimony was severely restricted. Once again, as in Plattsmouth, much of respondent's expert's testimony was based upon the information contained in exhibit 301. "Since the exhibits were the basis for the opinion testimony given by the plaintiff's expert witness, the defendant's objections to his testimony should have been sustained." Plattsmouth, 205 Neb. at 571, 288 N.W.2d at 732.
As regrettable as it was, the respondent left the Commission with no choice but to render its opinion based solely on the evidence presented by the petitioner.
Section 48-818 requires that all rates of pay and conditions of employment established by the Commission 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." The evidence presented to the Commission must, therefore, set out an array of comparable employments which are sufficiently similar and have enough like characteristics to make comparison appropriate. See Lincoln Firefighters Ass'n v. City of Lincoln, 8 CIR 31, 38 (1985). No precise formula has been established for mechanical application in selecting an array, and thus each determination made by the Commission is a factual one. The use of one array in a particular case does not require that it be used again in a subsequent case involving the same parties. See Crete Education Ass'n v. School Dist. of Crete, 2 CIR No. 64 (1974), aff'd, 193 Neb 245, 226 N.W.2d 752 (1975). At the same time, consistency and stability of the array applicable to the same parties is a factor for the Commission to consider in making factual determinations concerning the appropriate array in a specific case. Local No. 831, Int'l Ass'n of Firefighters, AFL-CIO v. City of North Platte, 6 CIR l, 9 (1982).
Petitioner and respondent both offered Cincinnati, St. Paul and Toledo as array members. Petitioner also offered the cities of Portland, Rochester, Sacramento and Seattle. Respondent's additional array members are Colorado Springs, Denver, Des Moines, Lincoln, Oklahoma City, Tulsa and Wichita. All of petitioner's proposed array members fit within the Commission's criteria of not more than twice as large nor less than half as small as Omaha. All of respondent's proposed array members, except Denver and Lincoln in number of officers, fit within this criteria. Table 1 sets out some relevant information on the proposed array members (including respondent's for which we have no wage and benefit data as discussed in the prior section).
Petitioner's Methodology and Array Selection
The petitioner's two key witnesses in choosing an array were Gary Troutman and Keith Lant. Mr. Troutman formerly served as Omaha's Personnel Director, Labor Relations & Safety Director, negotiator and in other personnel positions for many years. Mr. Lant has served the city of Omaha in a variety of positions. He held several ranks within the Omaha police department up to and including Deputy Chief. He also served as Safety Director of Omaha until 1987 and presently works for Troutman and Associates as a law enforcement specialist. Mr. Lant was relied on mostly by Mr. Troutman to make determinations on working conditions. He was given some demographic information for 19 cities (some of these cities were also included in the respondent's array) to choose what factors he felt were important to look at. He examined organizational charts, personnel rosters, and annual reports (which contain a variety of things such as structure, crime statistics, etc.). With all of this information, he devised exhibit 5 which lists, among other things, factors he felt would impact upon working conditions.
Mr. Lant testified that he felt that two key criteria for choosing array members with comparable working conditions were the existence/nonexistence of gangs and public housing. Table 2indicates the extent to which petitioner's proposed array members contain public housing projects, gangs, and gang units within the police department. Gangs, primarily the Bloods and Crips, are the chief pushers behind crack/cocaine distribution in cities. In order to determine if the cities had gang problems, he spoke to various people on whether they had gangs, what type of gangs they had, and if they had drive-by shootings. He looked at intelligence reports and whether the city had formed a gang unit to handle the problems. Mr. Lant testified that the existence of gangs and public housing has an effect on working conditions because they effect the type of training the officers need, the type of weapons they are up against (gang members carry or have access to heavy armament), and the amount of stress/burnout they experience. Policies and procedures are often changed in those areas of town that have public housing. Two man cars are often sent for officer safety and he believes that such areas play a big part in comparability (T57-62).
All of the cities in petitioner's proposed array were visited by Mr. Troutman and Mr. Lant. The other cities that were eliminated were visited by either Mr. Troutman or Mr. Lant and usually by both together. Mr. Troutman's primary duties involved making job matches and collecting the wage and fringe benefit information. He also observed some of the same working conditions as Mr. Lant. While at each location, he shared Omaha's job descriptions with the person being interviewed and asked questions about the performance of those duties at the compared to city. He looked to see if duties were performed by sworn or nonsworn officers and whether two job descriptions were performing the functions of an Omaha police officer.
While Lant testified that duties of all police officers in the 19 cities were basically the same (T132), Lant and Troutman made a combination decision to narrow down their choice of an array to seven cities which had the most similar working conditions.
Respondent tried to discredit the petitioner's theory on similar working conditions because of gangs and public housing with the use of their expert witness, Dr. Kenney. Dr. Kenney is certainly very knowledgeable in the area of law enforcement, having been both a policeman at one time and an academic and consultant who has received many grants in the area of law enforcement. He testified as to what approach he would use in collecting data and in studying the various cities. He said that to do an accurate study of a city would take at least 2-3 weeks at each city, including a week of interviewing (T670-671). He testified as to a study by Larry Sherman, a professor at the Univ. of Maryland, which initiated the concept of hot spots as being areas of chronic calls and that the study shows that public housing areas are not at the top of the list.
This Commission realizes that studies of similar work, skills and working conditions done by both parties in wage cases brought before it would rarely pass the rigors of a scientific approach. However, it is unrealistic to think that they need to or should. Neither party has the substantial funds or amount of time that it would take to do such a study. We note that respondent did not conduct such a rigorous study of its own cities. Like petitioner, only a day or so was spent in each city. Furthermore, Mr. Lant used hot spots, not so much as an indicator of chronic calls, but more as those hot spots impact on the working conditions. We do not feel that Dr. Kenney's testimony as to the unscientific nature of Mr. Lant's study disproves Mr. Lant's belief that the working conditions are more similar in cities which have gangs and public housing.
Commission's Array Choice
The Commission finds that the cities of Cincinnati, Portland, Rochester, Seattle, St. Paul and Toledo are comparable to the city of Omaha. We exclude Sacramento. When exhibits were exchanged pursuant to the pretrial order, petitioner provided respondent with Sacramento's most current labor agreement which covered wages for the period of June, 1987 to June, 1990. Shortly thereafter, the Sacramento Police Officers Association and the city of Sacramento reached a labor agreement for June, 1990 to June, 1993. Mr. Troutman received this updated information on the day that exhibits were to be submitted to the Commission as established by the pretrial order and the petitioner did not present these to the Commission or respondent until the trial. When petitioner presented the new labor agreement and summary exhibits of that labor agreement at trial, we received them into evidence over the respondent's objection. We now realize that for purposes of consistency and fairness to respondent, this updated information must be rejected and we, therefore, reverse our previous position of accepting them into evidence. If the Commission uses Sacramento in its array, the most current figures we now have available are for the year 1990, yet the wages we are setting in the case at bar are for the year 1991. The Commission prefers to use more current information. Board of Regents v. A.A.U.P., 7 CIR 1, 24 (1983).
Some of these array members have positions which do not exist in Omaha. It would be difficult to find any city police department that has an identical structure to Omaha, as respondent's expert testified to about its own chosen array (T682-683). Some cities have investigators or community service officers which in some instances may do some of the same duties that an Omaha police officer does but we do not find that they substantially detract from the police officer's duties so that the police officer matches are not comparable. Mr. Troutman testified as to several of these positions - that they were intermediate positions which are not the same as ranks. While some of the array members may have intermediate pay scales between certain ranks, this alone does not make the ranks uncomparable. We have used comparables with intermediate pay scales in the past. Omaha Police Union, v. City of Omaha, 3 CIR 356 (1977). These intermediate positions are non-supervisory positions with a pay scale that is more like a premium pay for performing special responsibilities, as in Seattle. Omaha does not have specialty areas that they get paid for. Respondent argues that where you have all of these specialty add-ons you would not know which specialty wage to match. Since petitioner did not include these add-ons to either the minimum or maximum wage figures at their arrayed cities, we do not have to worry about this factor. The Commission finds that the petitioner has met its burden of proof that the work, skills and working conditions are same or similar in the above chosen array. Police and sheriff are paramilitary in nature and are somewhat comparable by the nature of the things they do. We have ample testimony from petitioner's expert that the presence of gangs and public housing have some impact on working conditions. These are just another two elements we considered for comparability along with similarity in structure and size. All of these cities, with the exception of adding Seattle this time and deleting Sacramento because we do not have recent wage data, were used the last time these parties were before the Commission in 198l.
The Commission finds the prevalent wages to be those set forth in Tables 3-6.
The Supreme Court has stated that we are to take longevity into consideration when establishing rates of pay. IBEW Local 1536 v. City of Fremont, 2l6 Neb. 357, 345 N.W.2d 29l (1984).
The parties dispute as to whether or not there is a longevity pay plan in existence in the common cities of Toledo and St. Paul. Respondent believes that these cities have a longevity pay plan and would treat the upper steps as a separate fringe benefit and would not include them in any maximum step salary. Petitioner's figures at maximum are higher because they believe these two cities do not have a longevity pay plan and used the pay rate all the way out to the end of the scale. The maximum figures in dispute are for the positions of Toledo police officer and St. Paul police officer, sergeant, and lieutenant. Petitioner's surveys for Toledo and St. Paul say they do not have a longevity pay plan and their contracts do not have a section labeled "longevity". Mr. Troutman testified that he studied the contracts and had discussions at these cities as to whether or not they had a longevity pay plan and that the answer was that they did not negotiate longevity but rather negotiated their steps (T392-394; 399-400). We accept petitioner's argument that there is no longevity pay plan at Toledo and St. Paul. Table 7 shows that half the Commission's chosen array members have a longevity plan and half do not. There can be no prevalent or modal practice where there is no clear majority of array members implementing the practice so we decline to make any change to Omaha's present longevity pay plan. However, because of the increase in the length of time to reach maximum as noted in the next section, we increase the year in which the longevity pay plan goes into effect from the present "after the 7th year" to after the 9th year.
Steps in Pay Plan and Years to Reach Maximum
The Commission is to make adjustments for timing differences -the length of time it takes to progress through a pay plan. IBEW v. City of Fremont, 2l6 Neb. at 365. In regard to the number of steps and length of time to reach maximum, see Tables 8 and 9. Based on the prevalent, the Commission finds that the number of steps should remain the same 6 steps as currently exists for police officer but be increased to 4 for sergeant, lieutenant and captain. We find the prevalent number of years to reach maximum to be 9 for police officer and 8 for sergeant, lieutenant and captain. Salary should be allocated to the intervening steps in equal increments as shown in the Order. In reviewing the number of intervening steps in conjunction with the years from minimum to maximum, we find that for police officer there shall be six months between the first and second and second and third steps, 2 years between the third and fourth steps, and 3 years between the fourth and fifth and fifth and sixth steps. For the positions of sergeant, lieutenant and captain there shall be 2 years between the first and second steps and 3 years between the second and third and third and fourth steps.
Petitioner requested that the Commission set the pension contribution rate by employee and employer. The Commission declines to order any adjustments or changes to the pension plan because pensions are in the nature of long-term contracts, and we do not have jurisdiction over contractual disputes. Plattsmouth Police Dep't Collective Bargaining Comm. v. City of Plattsmouth, 205 Neb. 567, 568-69, 288 N.W.2d 729, 731 (1980); Douglas County Health Dep't Employees Ass'n v. County of Douglas, 229 Neb. 301, 315, 427 N.W.2d 28, 39 (1988).
When establishing wage rates, the Commission considers pension benefits, as well as all other benefits, as part of the overall compensation received. See Lincoln Firefighters Ass'n, Local No. 644 v. City of Lincoln, 8 CIR 31, 66-67 (1985); Douglas County Health, 8 CIR 208, 229-30 (1986), aff'd, 229 Neb. at 315, 427 N.W.2d at 39. In the case at bar, the Commission declines to consider pension benefits as part of the overall compensation received because it is difficult to value pension benefits due to the many factors involved. In addition, the Commission has insufficient data to valuate the pension plans, and any adjustment made to wage rates based on these pension plans would be based on speculation or conjecture. See Local Union No. 647, International Ass'n of Firefighters v. City of Grand Island, 9 CIR 43, 47-48 (1987); Douglas County Health, 8 CIR at 230 (1986), aff'd, 229 Neb. at 39, 427 N.W.2d at 315 (1988).
Petitioner's expert witness on insurance was John Hansen. Respondent's expert witness on insurance was Robert Moyle. The Commission, after hearing and evaluating both witnesses, believes the expertise and knowledge of Mr. Moyle to be more credible, and we rely more on Mr. Moyle's testimony in deciding the health insurance benefits.
There is conflicting testimony over whether Omaha's major medical policy is base plan or comprehensive. Mr. Hansen testified for the petitioner that it is comprehensive. (T574:15-18). Mr. Moyle, on the other hand, testified for the respondent that it is base plan. (T996:18). Relying on the testimony of Mr. Moyle, the Commission finds that Omaha's health insurance is a base plan major medical policy.
A base plan policy generally pays 100 percent of in-hospital expenses. (T970:19-25, T971:1-6). The benefit limits are usually on the number of days of inpatient hospital coverage. (T971:19-23). A comprehensive plan differs from a base plan in that the insured is required to pay money, such as a deductible or coinsurance, before insurance benefits are actually paid. (T972:12-20). The base plan is preferrable from an employee's point of view because of the 100 percent coverage for in-hospital situations. (T973:11-17).
Of the six cities in the Commission's array, six offer either base plan or comprehensive major medical in addition to offering other types of health insurance plans. In some areas, Omaha's policy is above prevalent, and in other areas it is below prevalent. In its entirety, however, the health insurance plan offered by Omaha is comparable to those plans offered by the array cities. See generally Lincoln Firefighters Ass'n, Local No. 644 v. City of Lincoln, 8 CIR 31, 67 (1985). No change shall be ordered for the health insurance.
Health Insurance for Retiree and Family
As indicated by Table 11, there is no prevalent provider of health insurance to retired employees and their family, so no change shall be made. Regarding provider contribution, the prevalent practice is for the provider to contribute 100 percent. Since Omaha provides 100 percent, it is comparable and no changes shall be made.
Paid Leave Considered as Hours Worked in Computing Overtime
Table 16 indicates whether sick leave, vacation or holidays are considered as hours worked when computing overtime pay. Omaha considers vacation, but not sick leave or holidays. The prevalent practice is to consider sick leave and vacation. There is no prevalent practice regarding holidays because the six cities in the final array are evenly split on this issue.
Call Back Pay
Table 17 sets out the call back policy practices for the cities in the Commission's array. An employee receives call back pay when he is called to duty during his off-duty time. Omaha's policy is below prevalent. The prevalent practice for an employee called back to work is to pay that employee 1 1/2 times his or her normal rate of pay for a minimum of 4 hours.
An employee receives court pay when, during his off-duty time, his attendance in court is required in connection with his officially assigned duties. Table 18 indicates that there is no clear prevalent practice among the array cities. The mean, median and midpoint of the minimum hours were calculated using the cities of Portland, Rochester, Seattle, St. Paul and Toledo. Cincinnati was not used because the minimum hours paid varies according to the situation. Omaha is comparable to the midpoint of the cities used in our calculation, so no change will be made concerning this benefit.
Compensatory time is a method to compensate an employee for overtime work performed by that employee. If the employee is not paid in cash for the additional work, then his earned overtime is paid on the basis of compensable time off. Table 20 indicates that Omaha does not allow compensatory time, while all of the cities in the array allow compensatory time. Omaha's compensatory time policy shall be changed so that it allows compensatory time up to a maximum of 237 hours.
Pay For Working Out of Class
An employee is paid for working out of class when he receives the rate of pay of a higher ranking position for performing the duties and responsibilities of that higher position. As Table 21 indicates, all of the cities in the array provide additional compensation for employees working out of their class. Omaha's policy of not paying its employees additional compensation for working out of their class is not comparable. Omaha's employees shall receive the rate of pay of the higher class after they have worked in the higher class for 5 consecutive days.
Table 22 sets out the shift differential policy of each array member. An employee who works during certain shifts may receive shift differential compensation in addition to his regular rate of pay. There is no prevalent shift differential policy among the array members. Although the Commission can determine the midpoint of the additional amount paid, there is no consistency among the array members regarding the shift hours for which the additional compensation is paid. No change shall be made to Omaha's shift differential policy.
The uniform policy for the cities in the Commission's array is set out in Table 25. The prevalent practice is to provide the employees with uniforms, to provide the plain clothes employees with an annual allowance, and to not provide any funding for cleaning the uniforms. Omaha shall provide uniforms to its employees whose job requires that they wear a uniform, and not provide those employees with an annual clothing allowance. Its plain clothes employees shall be provided with an annual allowance in the amount of $384.00. Omaha's policy of not providing a cleaning allowance shall remain unchanged.
Procedure for Assigning Employees to Shift and Location
The Commission declines to make any changes to the procedure for assigning employees to shift and location because exhibit 93, which contains all of the necessary information on this benefit, was not received into evidence. Troutman testified that the procedure for assigning employees to shift and location information was derived from the collective bargaining agreements and surveys. (T322:5-17). However, the Commission was unable to find all of this information, and therefore we are unable to alter this benefit.
Life Insurance Policy Amount
Table 26 demonstrates that Omaha is below prevalent in the life insurance policy amount. Omaha shall provide the following life insurance policy amounts: Police officer, $19,000; sergeant,
$20,000; lieutenant, $21,000; and captain, $22,000.
The shift hours for the cities in the Commission's array are set out in Table 28. The Commission declines to make any changes in Omaha's shift hours because there is no prevalent practice among the array members. Although respondent did not raise this issue during the trial, the Commission questions whether it could order a change in shift hours even if there was a prevalent practice because this issue may be within the realm of management prerogative.
Sick Leave Accumulation
Table 29 sets out the relevant information on sick leave accumulation. Omaha is above comparability on hours accumulated per month, and below comparability on maximum accumulation. Omaha's sick leave accumulation policy shall allow employees to accumulate a maximum of 9 hours per month, and shall allow employees an unlimited accumulation throughout the duration of their employment.
Utilization of Sick Leave for Family Members
Table 30 sets out the relevant information concerning utilization of sick leave for family members. Although the prevalent practice is to allow utilization of sick leave for family members, there is no prevalent practice regarding the nature of the illness or injury necessary before the sick leave can be used. Therefore, the Commission declines to order Omaha to adjust its policy for the utilization of sick leave for family members.
Conversion of Sick Leave to Cash or Vacation
Table 31 indicates that Omaha's policy of allowing conversion of sick leave to vacation is above prevalent. The prevalent practice is to not allow conversion of sick leave to cash or vacation. Therefore, Omaha shall eliminate its policy of allowing conversion of sick leave to vacation.
Sick Leave Pay-Off at Retirement or Resignation
Table 32 sets out the policies of the array members for sick leave pay-off at retirement or resignation. There is no prevalent policy concerning sick leave pay-off at retirement, so no change will be ordered for Omaha. When an employee resigns, the prevalent practice is to not allow any sick leave pay-off, so Omaha shall eliminate its policy of allowing sick leave pay-off upon resignation.
Sick Leave Pay-Off at Dismissal or Death
The sick leave pay-off at dismissal or death policies are set out in Table 33. The prevalent practice is to not provide sick leave pay-off at dismissal and Omaha is comparable. There is not a prevalent practice concerning sick leave pay-off at death, and therefore Omaha's policy will not change.
Vacation Accumulation Rate
The relevant information is set out in Table 34. The Commission finds that Omaha's vacation accumulation rate shall be: After 1 year, 11 days; after 5 years, 15 days; after 10 years, 17 days; after 15 years, 20 days; and after 20 years, 23 days.
Vacation Carry Over and Maximum Accumulation
The vacation carry over and maximum accumulation policies are set out in Table 35. There is no prevalent carry over policy among the array members, so Omaha's carry over policy will not be changed. Omaha's policy is to allow a maximum accumulation of 30 days vacation. However, the midpoint of the array is 50 days. Therefore, Omaha shall allow its employees to accumulate a maximum of 50 days vacation.
Table 36 indicates that there is no prevalent funeral leave policy for immediate and non-immediate family members. No change shall be made concerning this benefit.
Remaining Fringe Benefits
The following fringe benefits will remain unchanged because the benefits provided by the City of Omaha are comparable to those provided by the other array cities:
Health Insurance for Retiree and Family (Table 10)
Dental Benefits (Tables 12-13)
Hours of Work Per Week (Table 14)
Overtime (Table 15)
Stand-By Pay (Table 19)
Educational Incentive/Reimbursement (Table 23)
Additional Pay for Higher Education (Table 24)
Holidays (Table 27)
Injured in the Line of Duty Pay (Table 37)
IT IS THEREFORE ORDERED THAT:
1. The number of steps shall be six steps for police officer and four steps for sergeant, lieutenant and captain.
2. The years from minimum to maximum shall be nine years for a police officer, and eight years for sergeant, lieutenant and captain. For police officer there shall be six months between the first and second and second and third steps, 2 years between the third and fourth steps, and 3 years between the fourth and fifth and fifth and sixth steps. For the positions of sergeant, lieutenant and captain there shall be 2 years between the first and second steps and 3 years between the second and third and third and fourth steps.
3. Wages for the intervening steps shall be set as follows: A B C D E F
Police Officer $29,260 $3l,005 $32,749 $34,494 $36,238 $37,983
Sergeant 39,845 4l,168 42,492 43,815
Lieutenant 44,497 45,989 47,480 48,972
Captain 50,883 52,386 53,888 55,39l
4. The longevity pay plan shall begin after completion of the ninth year.
5. Omaha shall consider paid sick leave and vacation as hours worked when computing overtime.
6. Employees called back to work be paid 1 1/2 times their normal rate of pay for a minimum of 4 hours.
7. Omaha shall establish a compensatory time policy and allow a maximum of 237 hours of compensatory time.
8. Employees assigned to work outside of their regular class shall receive the rate of pay for the higher class after they have worked in the higher class for 5 consecutive days.
9. Employees whose job requires that they wear a uniform shall be provided with those uniforms by the city of Omaha, and shall not receive an annual uniform allowance. Plain clothes employees shall be provided an annual allowance of $384.00.
10. Management discretion shall be the procedure used when assigning employees to a location.
11. Omaha shall provide the following life insurance policy amounts: Police officer, $19,000; sergeant, $20,000; lieutenant, $21,000; and captain, $22,000.
12. The sick leave accumulation policy allow employees to accumulate a maximum of 9 hours of sick leave per month, and allow an unlimited maximum accumulation throughout the duration of their employment.
13. Omaha shall eliminate its policy of allowing conversion of sick leave to vacation.
14. Omaha shall eliminate its policy of allowing sick leave pay-off upon resignation.
15. The vacation accumulation rate shall be: After 1 year,11 days; after 5 years, 15 days; after 10 years, 17 days; after 15 years, 20 days; and after 20 years, 23 days.
16. The maximum accumulation of vacation shall be 50 days.
All judges assigned to the panel in this case join in the entry of this Findings and Order.
Entered October 17, 1991.