NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

NEBRASKA PUBLIC EMPLOYEES	|	CASE NO. 888
LOCAL UNION 251 affiliated	|
with THE AMERICAN FEDERATION	|
OF STATE, COUNTY, AND	|
MUNICIPAL EMPLOYEES, An	|
International Union,	|
	|
Petitioner,	|	FINDINGS AND ORDER
	|
v.	|
	|
NEMAHA COUNTY, NEBRASKA,	|
	|
Respondent.	|

Appearances:

For the Petitioner: M. H. Weinberg

9290 West Dodge Road # 205

Omaha, Nebraska 68114

For the Respondent: John G. Liakos

8701 West Dodge Road

Omaha, Nebraska 68114

Before: Judges McFarland, Moore and DeLay

MCFARLAND, J:

NATURE OF PROCEEDINGS

A petition was filed by the Nebraska Public Employees Local Union 251 ("Petitioner") requesting that the Commission establish wages and other terms and conditions of employment pursuant to Neb. Rev. Stat. § 48-818 (1993) for the employees employed on a full-time and regular part-time basis by the Department of Roads of Nemaha County ("Nemaha County" or "Respondent") performing road and maintenance work, excluding supervisors, office clerical, guards and all other employees. The fiscal year in dispute is July 1, 1994, through June 30, 1995.

The contested issues are step pay plan, characteristics of probation, wage administration, minimum and maximum wage, sick leave, funeral leave, vacation, holidays, health insurance, dental insurance, life insurance, contribution to retirement plan, standby pay, call-in pay, work hours and overtime, compensatory time, clothing and cleaning allowance, employee assistance program, long term disability insurance, and whether vacation, sick leave, or holidays are counted as time worked for purposes of overtime pay. In addition to the above issues, Respondent in its Answer alleges that the Commission does not have jurisdiction or authority to establish wage rates and other conditions of employment for the period prior to August 22, 1994, the date when Petitioner was certified by this Commission as the exclusive bargaining agent for employees in the bargaining unit.

Petitioner filed its Petition on November 10, 1994. By Stipulation of the Parties filed on December 29, 1994, Petitioner and Respondent jointly waived their right pursuant to Neb. Rev. Stat. § 48-813(2) (1993) to have a hearing within 60 days after the filing date of the Petition, and agreed for the present case to be held in abeyance until March 28, 1995, to enable Petitioner and Respondent to meet and confer for the purpose of negotiating a collective bargaining agreement. Upon failure to reach a collective bargaining agreement, the hearing was held on May 23, 1995, with the parties permitted to file written briefs in lieu of final argument. Petitioner submitted its Brief on June 5, 1995. Respondent submitted its Brief on June 19, 1995, and Petitioner submitted its Reply Brief on June 21, 1995.

EFFECTIVE DATE OF ORDER

In the prior representation case in which Petitioner was certified as the exclusive bargaining agent for the employees in the bargaining unit, Nebraska Public Employees Local Union 251 v. Nemaha County, (Case No. 881, Rep. Doc. No. 299), Petitioner filed its Representation Petition on June 16, 1994. The certification election was held on August 11, 1994. The Report of Election was filed on August 12, 1994. And, the Certification Order was entered on August 22, 1994. The fiscal year for Respondent is July 1, 1994, to June 30, 1995.

Respondent argues that any order entered by the Commission cannot be retroactive to the date of the beginning of the Respondent's fiscal year on July 1, 1994, but can only be retroactive to the date of the Certification Order for the Petitioner on August 22, 1994. Respondent cites in support of its position Neb. Rev. Stat. § 48-817 (1993) which reads in relevant part as follows:

... Except as provided in the State Employees Collective Bargaining Act, the final decision and order or orders shall be in effect from and after the date therein fixed by the commission, but no such order or orders shall be retroactive. ...

A similar argument was made in Crete Education Association v. School District of Crete, 193 Neb. 245, 226 N.W.2d 752 (1975). In that case, the School District argued that the Order of the then Court of Industrial Relations entered on February 28, 1974, was in contravention of § 48-817 in that it applied retroactively to the 1972-73 school year. The Nebraska Supreme Court held that the February 28, 1974 Order could properly apply to the 1972-73 school year. In rejecting the School District's argument, the Nebraska Supreme Court began its analysis by stating that "statutes pertaining to the same subject matter should be construed together...." Crete, 193 Neb. at 249, 226 N.W.2d at 756. The Court considered the entire statutory scheme of §§ 48-801 et seq. It stated that the interpretation of § 48-817 advanced by the School District would to a large extent have the effect of depriving the Court of Industrial Relations of the power granted to it by § 48-810 to settle public industrial disputes in order to carry out the public policy announced in § 48-802 to regulate relations between employers and employees in the public sector. The Nebraska Supreme Court also cited § 48-816 which allowed the Court of Industrial Relations to enter temporary orders "to preserve and protect the status of the parties ... pending final determination of the issues" as an indication "that the Legislature intended that the `final determination of the issues' by the Court of Industrial Relations may be made retrospective in the sense of affecting the `status of the parties' at a time prior to the date that such `determination' is made." Crete, 193 Neb. at 250-51, 226 N.W.2d at 756. The Court concluded:

...We believe that the only reasonable interpretation of section 48-817, R.R.S. 1943, is that the prohibition against a retroactive order means that the orders of the Court of Industrial Relations cannot apply to a period prior to that embraced within the dispute submitted to it.

Crete, 193 Neb. at 251, 226 N.W.2d at 757.

In a subsequent case, Douglas County Health Department Employees Association v. County of Douglas, 229 Neb. 301, 427 N.W.2d 28 (1988), the Nebraska Supreme Court reaffirmed the authority of the Nebraska Commission of Industrial Relations (CIR) to enter retroactive orders for the contract year in dispute. In this case, the Douglas County Health Department Employees Association filed its petition with the Commission on October 16, 1985, to resolve the industrial dispute between the parties for the contract year July 1, 1985, through June 30, 1986. The Court held that a "retroactive wage increase is within the authority of the CIR." Douglas County, 229 Neb. at 318, 427 N.W.2d at 40.

We find from the evidence in the present case that the period embraced within the industrial dispute submitted to this Commission is the fiscal year 1994-95. Nemaha County in fact acknowledges that the salaries for the fiscal year 1994-95, including a 3.5 percent pay increase, became effective on July 1, 1994 and remained in effect through June 30, 1995. The Commission's Findings and Order shall therefore be effective for the fiscal year from July 1, 1994, through June 30, 1995.

ARRAY SELECTION

The parties are in agreement as to the array selected by their joint expert, John Goomis. Mr. Goomis selected Nebraska employers whose county population was no more than double nor less than one-half the population of Nemaha County, who were geographically proximate to Nemaha County, and whose employees had similar work, skills and working conditions. Mr. Goomis also looked at whether the counties have bridges, gravel roads, or pavement, and whether the county is in a Metropolitan Statistical Area. The array selected by Mr. Goomis consists of the counties of Butler, Fillmore, Jefferson, Johnson, Otoe, Richardson, Saline, Seward and Thayer. The Commission finds that the array selected by the parties is an appropriate array and satisfies the requirements of Neb. Rev. Stat. § 48-818 (1993). Table 1 sets forth characteristics of this array.

WAGES

Respondent argues that the Commission should set the wages at Nemaha County below the comparable wages paid by the array employers because Nemaha County "is the second lowest of the array of taxable value of county assessed property, property taxes levied by the counties and total property taxes levied. Accordingly, it is appropriate to consider Nemaha County to be in the lower echelon of counties for the establishing of pay rates." (Brief of Respondent, filed June 19, 1995).

In 1978, the Nebraska Supreme Court stated that the Court of Industrial Relations could not consider an employer's ability to pay when determining comparable wages and fringe benefits. Nebraska City Educ. Ass'n v. School Dist. of Neb. City, 201 Neb. 303, 267 N.W.2d 530 (1978). "Section 48-818 . . . states specifically those factors which the Court of Industrial Relations shall look to when establishing wage rates and conditions of employment in disputes before it. Section 48-818 . . . makes no mention of or reference to the school district's `ability to

pay.' " Nebraska City, 201 Neb. at 305-306, 267 N.W.2d at 532. "Had the Legislature wanted the Court of Industrial Relations to consider factors such as `ability to pay,' when setting wage rates and conditions of employment it would have specifically provided therefor." Id. at 306, 267 N.W.2d at 532. The Commission cannot consider ability to pay as a factor in establishing wage rates and conditions of employment.

Tables 2 and 3 provide the comparable hourly wage for the positions of foreman and road crew respectively. Nemaha County is below comparable. The hourly wage at Nemaha County for the position of foreman had no minimum (minimum or probationary minimum) and was $7.93 (maximum). It should be noted that foremen at the maximum rate of hourly pay also received $50.00 per month in addition to their base pay of $7.93 per hour. The hourly wage at Nemaha County for the position of road crew was $6.93 (minimum or probationary minimum) and $7.93 (maximum).

For the fiscal year 1994-95, the hourly wage at Nemaha County for the position of foreman shall be $9.19 (minimum or probationary minimum) and $10.24 (maximum). For the fiscal year 1994-95, the hourly wage at Nemaha County for the position of road crew shall be $7.00 (minimum or probationary minimum) and $9.06 (maximum).

FRINGE BENEFITS

Maximum Sick Leave (Maximum Accumulation)

Table 4 shows the policy for maximum accumulation of sick leave. It is prevalent to allow employees to accumulate a maximum of 53 days of sick leave. Nemaha County shall reduce the maximum accumulation of sick leave from 120 days to 53 days for accumulation from year to year.

Vacation Carryover

The vacation carryover policies of the array employers is set out in Table 5. It is prevalent not to allow carryover of unused vacation from year to year. Nemaha County shall eliminate its policy of allowing its employees to carry over five days of unused vacation from year to year.

Health Insurance

In comparing health insurance providing differentiated coverage, the Commission will consider the effect of each plan in its entirety. Even though the employer's health insurance plan may be above prevalent in some areas and below prevalent in other areas, if, in its entirety, the health insurance plan offered by the employee is comparable to the plans by other employers in the array, no change will be ordered in the basic plan design. See generally Lincoln Firefighters Association, Local 644 v. City of Lincoln, 8 CIR 31, 67 (1985); Omaha Police Union Local 101 v. City of Omaha, 11 CIR 114, 127 (1991).

We find from the evidence presented that the coverage of the health insurance plans provided by the Respondent are comparable to the coverage of the health insurance plans provided by the members of the array. While the Respondent's health insurance plan is above prevalent in some areas and below prevalent in other areas, we find that no change is required in the basic health insurance plans provided by the Respondent.

In a situation where health insurance costs are materially different, we will, if possible, compare the benefits to the employees and not the costs to the employer. Fraternal Order of Police Lodge No. 23 v. City of Holdrege, 9 CIR 257, 263 (1988). A benefit such as health insurance premiums paid partly by the employer and partly by the employee is not comparable when an employer pays a significant percentage less of such premium than the comparable percentage paid by the member employers in the array.

The amount of the health insurance premium paid by the array employers is provided on Table 6. Nemaha County is prevalent in the amount it pays for single coverage, and is below prevalent in the amount it pays for family coverage. Nemaha County shall pay 100 percent of the premium amount for single coverage health insurance which is comparable to the premium amount for single coverage paid by the array employers. Instead of paying 40 percent of the premium amount for family coverage, however, Nemaha County shall pay 47.5 percent of the premium amount for family coverage which is comparable to the premium amount for family coverage paid by the array employers.

Remaining Fringe Benefits

The following fringe benefits will remain unchanged because they are moot since the year in dispute is over:

Sick Leave (number of days per year)

Sick Leave (usage for family illness or funeral)

Sick Leave (conversion to cash at resignation, dismissal, retirement or death)

Sick Leave (payout in vacation when over maximum accumulation)

Funeral Leave

Vacation (days per year)

Vacation (conversion to cash at resignation, dismissal, retirement or death)

Holidays (number per year)

Dental Insurance (whether its provided)

Life Insurance (policy amount)

Employee Assistance Program

Compensatory Time

Work and Overtime Hours

The following fringe benefits will remain unchanged because the benefits provided by Nemaha County are comparable to those provided by the array counties:

Step Pay Plan

Wage Administration (Characteristics of Probation)

Wage Administration (Road Crew)

Wage Administration (Foreman)

Sick Leave (payout in cash when over maximum accumulation)

Holidays (rate of pay)

Life Insurance (amount paid by employer)

Retirement

Stand-by Pay

Call-in Pay

Clothing/Cleaning Allowance

Long Term Disability Insurance (amount paid by employer)

Vacation, Sick Leave, or Holidays Counted as Time Worked When Calculating Overtime Pay

Vacation (conversion to cash at end of year)

IT IS THEREFORE ORDERED THAT:

1. For the 1994-95 fiscal year, Nemaha County shall pay the following hourly rates of pay:

Minimum or Probationary	Minimum	Maximum
Foreman	$ 9.19	$10.24
Road Crew	$ 7.00	$ 9.06

2. For the 1994-95 fiscal year, Nemaha County shall reduce the maximum accumulation of sick leave from 120 days to 53 days from year to year.

3. For the 1994-95 fiscal year, Nemaha County shall eliminate its policy of allowing its employees to carry over 5 days of unused vacation time from year to year.

4. For the 1994-95 fiscal year, Nemaha County shall pay 47.5% of the premium amount for family health insurance coverage and to the extent that Nemaha County paid less than 47.5% of such premium amount, Nemaha County shall reimburse each employee covered by family health insurance for such underpayment.

5. All compensation due to any foreman or road crew employee for the 1994-95 fiscal year for unpaid regular and overtime wages, for reimbursement for Nemaha County's underpayment of premium amounts for family health insurance coverage, and for any other reason shall be paid in a reasonable time following the entry of this Order. Nemaha County shall receive credit for the $50.00 per month payments made to foremen in addition to their regular base pay of $7.93 per hour.

6. All other terms and conditions of employment governing the 1994-95 fiscal year are not effected by this Order.

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

Entered August 7, 1995.

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