| NEBRASKA PUBLIC EMPLOYEES | | | CASE NO. 898 |
| LOCAL UNION 251 affiliated | | | |
| with THE AMERICAN FEDERATION | | | |
| OF STATE, COUNTY, AND | | | |
| MUNICIPAL EMPLOYEES, An | | | |
| International Union, | | | FINDINGS AND ORDER |
| | | ||
| Petitioner, | | | |
| | | ||
| vs. | | | |
| | | ||
| OTOE 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
Max J. Kelch
Otoe County Attorney
1010 Central Avenue
Nebraska City, Nebraska 68410
Before: Judges Cullan, Moore, Flowers, McFarland, and DeLay (EN BANC);
Moore and DeLay dissenting in part. McFarland concurring.
CULLAN, J:
A petition was filed on April 21, 1995 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 full-time and regular part-time employees of the Department of Roads of Otoe County performing road and maintenance work, excluding supervisors, office clerical, guards and all other employees. Respondent filed its Amended Answer on June 27, 1995.
Petitioner moved to strike paragraph 10 of the Amended Answer which challenges the Commission's jurisdiction regarding retroactive wage orders. The Petitioner's Motion to Strike was heard and taken under advisement at the Pretrial Conference on July 12, 1995. The motion was granted at the time of trial and paragraph 10 of the Amended Answer was stricken.
The Commission on its own motion will consider this case en banc.
The parties disagree as to the contract year in dispute. Other contested issues before the Commission as set forth at the pretrial conference include step pay plan; probationary wages; wage administration; minimum and maximum wages for the position of highway/bridge crew (also referred to as a highway worker); sick leave; funeral leave; vacation; holidays; health insurance; dental coverage; life insurance; retirement; longevity pay; standby pay; call-in pay; work hours; overtime compensation; compensatory time; premiums for clothing, cleaning and safety equipment; union dues check off; employee assistance program; long-term disability; overtime counted for vacation, sick leave and holidays; and overall compensation.
The parties stipulated to waive the 60-day time limit set forth in § 48-813(2) within which the hearing was to be held, to waive foundation on all exhibits, reserving objections only as to relevancy and materiality, and to jointly use John Goomis as an expert witness.
The parties stipulated that the following counties should be included in the array: Butler, Cass, Gage, Jefferson, Nemaha, Richardson, Saline, Saunders, and Seward. The parties also stipulated that the work, skills, and working conditions of the Respondent's bargaining unit employees and the employees of the employers in the array are sufficiently similar to satisfy the standards of § 48-818.
The Commission finds that an array composed of the above stipulated counties constitutes an appropriate array in this matter.
At the pretrial conference, the Petitioner moved to keep the record of the trial open for the purpose of taking judicial notice of the Commission's Findings and Order in Nebraska Public Employees Local Union 251 v. Nemaha County, Case No. 888, which had not yet been issued. As mentioned above, the parties herein agreed to include Nemaha County in the array in this case. Petitioner sought to have the Commission consider the wages and benefits to be established in the anticipated order rather than data the parties were able to obtain in preparation for trial. The Petitioner's Motion was taken under advisement at the Pretrial Conference and denied at the time of trial.
Petitioner has filed a post-trial motion to reconsider the Commission's denial of its request for judicial notice, to take such judicial notice of the Findings and Order in Nemaha County (issued on August 7, 1995), or to reopen the hearing to allow Petitioner to offer the Findings and Order as evidence in this case.
Petitioner's Motion requires the Commission to choose between its desire to have the most current and useful evidence to consider in resolving the dispute between the parties and its desire that all evidence be presented before the close of evidence at the time of trial so that a decision can be made in a timely manner. The record in this case contains evidence regarding Nemaha County in connection with all of the fringe benefit issues addressed by the parties, whereas the decision in Nemaha County is not as comprehensive--it does not cover every fringe benefit issue addressed by the evidence. Without taking judicial notice of the Nemaha County decision, the Commission has adequate information in the record to allow it to determine appropriate wages and other terms and conditions of employment. The Commission therefore denies Petitioner's Motion for Reconsideration or to Reopen the Hearing and declines to take judicial notice of the Nemaha County decision.
In its Petition, the Petitioner seeks relief for the fiscal year commencing July 1, 1994, through June 30, 1995. Respondent has not alleged a different period in its Amended Answer but argues that relief should not be granted for the entire fiscal year. Respondent's contention is based on its position that the Commission lacks jurisdiction to make its wage orders retroactive beyond various dates within the fiscal year.
At the pretrial conference the parties stated that they do not agree concerning the contract year in dispute. This is seldom a disputed issue because the parties' contract year frequently coincides with the employer's fiscal year, or when there is a history of collective bargaining, the contract year is established in earlier collective bargaining agreements. When there is no such history, the parties normally agree on the period covered by their dispute.
In Crete Education Association v. School District of Crete, 193 Neb. 245, 226 N.W.2d 752 (1975), the Nebraska Supreme Court held that the Commission's orders properly apply to the entire period embraced within the industrial dispute before the Commission. This position was reaffirmed by the Supreme Court in Douglas County Health Department Employees Association v. County of Douglas, 229 Neb. 301, 427 N.W.2d 28 (1988). We hold that the period embraced in an industrial dispute must be determined on the pleadings filed by the parties and the evidence before the Commission.
In this case there is no collective bargaining history or agreement to define the so-called "contract year" in dispute. However, in Respondent's published Personnel Policy various terms and conditions of employment are defined including sick leave carryover which is calculated on the basis of a fiscal year running from July 1 through June 30 of the following year. Also the group coverage provided to employees by Blue Cross/Blue Shield was effective July 1, 1994.
The record bearing on the question of what period is involved in the industrial dispute in this case is as follows:
1)The statutory budget/fiscal year of Respondent runs from July 1 to the following June 30;
2)Fringe benefits for bargaining unit members include sick leave carryover calculated on the basis of a July 1 to June 30 fiscal year and coverage provided by Blue Cross/Blue Shield which was effective July 1, 1994;
3)The last wage increase granted to Respondent's employees was to take effect September 1, 1994;
4)Petitioner sought to initiate the collective bargaining process by seeking voluntary recognition as the collective bargaining agent for the bargaining unit herein in early October, 1994;
5)The representation petition was filed on October 26, 1994;
6)Petitioner was certified as the collective bargaining agent for the bargaining unit herein on December 23, 1994;
7)Collective bargaining actually commenced when Respondent responded to Petitioner's written request to bargain dated January 23, 1995; and
8)The Petition in this case was filed on April 21, 1995, seeking wage rates and other conditions of employment for the period July 1, 1994, through June 30, 1995.
The above sequence suggests that an industrial dispute began to arise when bargaining unit employees were disappointed with the wages the County granted to them in September, 1994. Shortly after the raises were granted, the union sought voluntary recognition for the purpose of collective bargaining. There followed a series of informal requests and formal proceedings which resulted in the present action. However, this sequence does not define the "contract year" in dispute. That is defined in the evidence by the fiscal year used by Respondent for group insurance and fringe benefit purposes.
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 commencing July 1, 1994, and ending June 30, 1995. The stipulation of the parties as to the contested issues included at least two matters which encompass this period; i.e., insurance and sick leave. The Commission's Findings and Order shall therefore be effective for the 1994-95 fiscal year.
The power of the Commission to make its orders which provide changes in wage rates and other conditions of employment retroactive is well established. In Douglas County, the Supreme Court stated, "A retroactive wage increase is within the authority of the CIR." Id. at 318. The Court also stated, "It is clearly within the authority of the CIR to order a reduction of wages." Id. at 316. The Supreme Court, however, held:
The CIR did not act arbitrarily in failing to order a retroactive wage decrease, especially in light of difficult implementation and policy questions.
Id. at 318. It is thus clear that the Commission may, but is not required to, order such decreases retroactively.
The public policy considerations which have historically persuaded the Commission to resist retroactive implementation of decreases in employee compensation arise from the essential purposes of Nebraska public sector labor law. The public policy of the State of Nebraska is stated in § 48-802 (1993), as follows:
(1) The continuous uninterrupted and proper functioning and operation of the governmental service . . . to the people of Nebraska are hereby declared to be essential to their welfare, health and safety. It is contrary to the public policy of the state to permit any substantial impairment or suspension of the operation of governmental service . . . by reason of industrial disputes therein. It is the duty of the State of Nebraska to exercise all available means and every power at its command to prevent the same so as to protect its citizens from any dangers, perils, calamities, or catastrophes which would result therefrom. It is therefor further declared that governmental service . . . are clothed with a vital public interest and to protect same it is necessary that the relations between the employers and employees in such industries be regulated by the State of Nebraska to the extent and in the manner hereinafter provided;
(2) No right shall exist . . . to hinder, delay, limit, or suspend the continuity or efficiency of any governmental service . . . either by strike, lockout, or other means . . .
Historically, the Commission's general practice before 1982 was to make no change in wage rates shown to be higher than the prevalent. In 1982 the Commission was directly requested by management in I.B.E.W. Local 1521 v. M.U.D., 6 CIR 246 (1982) to order reductions in certain wages shown to be above prevalent rates. In M.U.D. the Commission refused to order such reductions because the issue had not been addressed in collective bargaining. The Commission held that "[w]hile reductions in wages should be ordered in a proper case, the starting point for reductions should be at the bargaining table and not before the Commission." Id. at 264. The Commission reasoned that where there was no bargaining over wage reductions, the issue was not a genuine part of the labor dispute which brought the parties to the Commission and that "an order reducing wages does not settle that dispute." Id. at 263.
In M.U.D. the Commission also pointed to difficult practical problems and public policy considerations which should be considered:
[E]stablishing lower wage rates presents difficult practical problems and public policy considerations. Usually the year involved in the dispute has partially elapsed and sometimes, as here, entirely elapsed before the case can be tried and decided by the Commission. During all of the elapsed time, the employees have been receiving wages at the higher levels. The question of how a wage reduction order for the year in question could be implemented is not easy to answer. For employees to be required to repay excessive wages or to require future wages to be still further reduced by the already paid excess would create severe hardships on employees and place severe strain on the employer-employee relationship. The lowering of wages should not be lightly undertaken.
Id. at 262-63 (emphasis added).
That practical problems may accompany wage reductions was also recognized in Judge Orr's dissenting opinion in M.U.D. Judge Orr argued that wage reductions should be ordered but that such reductions should not be retroactively applied in M.U.D. because of public policy considerations, problems inherent in implementation, and because no such retroactive relief had been requested. Judge Orr stated in pertinent part:
[A] retroactive decrease could pose many problems for both the employer and employee.
It is not uncommon for the contract year to have lapsed by the time the case is tried and a decision rendered. Obtaining a refund of wages already paid by the employer to the employee would put a strain on the employer-employee relationship.
The Commission was created "in order to carry out the public policy of the State of Nebraska as set forth in Section 48-802." Section 48-802 provides in part: "the continuous, uninterrupted and proper functioning and operation of the governmental service . . . to the people of the State of Nebraska are hereby declared to be essential to their welfare, health and safety."
M.U.D. at 267.
The next significant consideration of this issue was in 1985 in Judge Mullin's opinion in District 8 Elementary Teachers Association v. North Bend Elementary School, 8 CIR 126 (1985). In North Bend the Commission found that certain benefits in excess of those established by the evidence to be prevalent had been provided to some collective bargaining unit members. In that case the parties stipulated to an adjustment for the values of such benefits through deductions in their monthly salary. Based on the stipulation the Commission required the agreed reimbursements. However, recognizing the hardships to employees involved in such reimbursements the Commission held:
[T]he reimbursement is to be paid from and limited by sums due to each of the two teachers by reason of our adjustment in base salary. We do not intend for either of the two teachers to reach into his pockets for this reimbursement since all but one month of the year in question has elapsed. See IBEW, Local 1521 v. MUD, 6 CIR 246 (1982). ". . . For employees to be required to repay excessive wages or to require future wages to be still further reduced by the already paid excess would create severe hardships on employees and place severe strain on the employer-employee relationship." Id. at 262.
North Bend, 8 CIR at 132.
The practice adopted in North Bend to cap or limit retroactive decreases in compensation to the amount of a bargaining unit member's increase in wages so that the employees did not need to reach into their own pockets was followed until 1989, as discussed below.
In 1986 the Commission reviewed the criteria set forth in M.U.D., discussed above. In Douglas County Health Department v. County of Douglas, 8 CIR 208 (1986), aff'd, 229 Neb. 301, 427 N.W.2d 28 (1988), the Commission held that reductions in compensation may be sought in proceedings before the Commission even when they were not sought as a part of the collective bargaining process and that all evidence of negotiations involving wages and other conditions of employment is not admissible in a wage case. To the extent inconsistent with these holdings, M.U.D. was overruled.
In the Commission's 1986 Douglas County case, the Commission declined to order retroactive decreases in wages and declined to make any wage adjustment in instances involving "salary anomalies" resulting from "extenuating circumstances." Citing much of the above quoted language from M.U.D., the Commission stated at page 223:
[T]he problems encountered in a (retroactive) decrease could well outweigh any benefit received.
As mentioned above, the Commission's failure to order a retroactive wage decrease, and its refusal to change certain wages was approved by the Nebraska Supreme Court in Douglas County Health Department Employees Association v. County of Douglas, 229 Neb. 301, 427 N.W.2d 28 (1988).
In 1987, the Commission dealt directly with retroactive reductions in fringe benefits provided bargaining unit members in Rodeo Telephone, Inc. Employees Association v. Rodeo Telephone, Inc., 9 CIR 118 (1987), where the Commission found a fringe benefit which had been paid to be in excess of the prevalent. The Commission noted that the practical problems encountered in reducing or deleting a fringe benefit were similar to those involved in retroactive reductions in wages. To require repayment for compensation or benefits out of the employees' own pockets "would further strain the employee - employer relationship at Rodeo and is against public policy." Id. at 131.
In Rodeo, rather than ordering repayments of "overpayments" received by employees, the Commission ordered that such amounts be offset against any lump sum payments for retroactive wage increases allowed such employees. The Commission stated at page 131:
[B]y ordering an offset for overpayment during the year in dispute, we prevent the employees from receiving a windfall and credit the employer for benefits paid in excess of the prevalent practice in the Commission's array. We find this resolution to be fair and equitable to both parties.
In F.O.P. Lodge No. 23 v. City of Holdrege, 9 CIR 257 (1988), the Commission refused to "break with (its) previous holdings that wage reductions will not be retroactive and that (the Commission) will not order employees to pay back any overpayment to the employer." Id. at 264. Not withstanding such refusal to alter its previous practice, the Commission found the Holdrege case to present a "unique" situation where bargaining unit employees had been paid wages in excess of the prevalent but fringe benefits below the prevalent. In order to "prevent either party from being unfairly treated," the Commission ordered a set-off of excessive wages paid against any lump sum due for inadequate fringe benefits provided. Id. The amount of the payback was again limited to the amount of any lump sum cash payment due the employee.
In 1989 the Commission made the break with its previous holdings, which in 1988 it had said in the Holdrege case it would not make. In F.O.P. Lodge No. 2 v. County of Douglas, 10 CIR 148, 153 (1989), the Commission ruled that refusing to order retroactive reductions in compensation to levels shown to be prevalent "is to ignore the clear language of (48-818) requiring the Commission to set wages at the prevalent wage rates paid." F.O.P., 10 CIR at 153.
This radical departure from the previous practice of the Commission overlooks the ruling of the Nebraska Supreme Court in Douglas County, where the court specifically affirmed the Commission in refusing to impose retroactive wage reductions "especially in light of difficult implementation and policy questions."
The public policy considerations and difficult practical problems which motivated the Supreme Court's 1988 ruling in Douglas County and the above rulings of the Commission have not changed. The harshness of a retroactive decrease in compensation to be paid out of the employee's own pocket is no less a severe strain on the employee-employer relationship now than it was when the Commission entered its 1982 ruling in M.U.D. The problems for both the employer and employee, Judge Orr noted in his dissent in M.U.D., are still abroad in the land. The public policy of Nebraska's public sector labor law as expressed in § 48-802 has not been modified by the Legislature. The continuous uninterrupted and proper functioning and operation of government and avoiding unnecessary strains on public sector employer-employee relations are still in the public interest. To require employees to reach into their own pockets to pay back excessive compensation paid to them or to further reduce future wages to pay back such excessive compensation is still an unreasonable strain on the relationship of the parties and is frequently viewed by bargaining unit members as a punitive measure not required by the Industrial Relations Act.
Judge Mullin argued in his dissent in the 1989 F.O.P. case that the Commission is required to exercise its judgment and discretion in adjusting the compensation of those subject to its jurisdiction. He argued correctly that:
There is no statutory mandate that we reach into the pockets of public employees to take back wages they most probably have already spent. The purpose of the Industrial Relations Act is to protect the economic interests of public employees who are denied the right to strike. See the concurring opinion of Krivosha, C. J., Lincoln Co. Sheriff's Emp. Assn. v. Co. of Lincoln, 216 Neb. 274, 283, 343 N.W.2d 735 (1984). It is an anomalous result if that protection requires that these employees must repay their employer.
F.O.P., 10 CIR at 157.
Our decisions following the 1989 F.O.P. case reflect the practical problems involved in retroactive decreases in compensation. Seldom, if ever, have we provided a practical method for the employer to collect the overpayments out of the employee's own pocket or from the reduced level of compensation ordered. In one case the parties by stipulation avoided the harshness of retroactive decreases by agreeing that any decreases in compensation be ordered only on a prospective basis, Grand Island Education Association v. Hall County School District, 11 CIR 23 (1992). In most cases, our Orders are silent as to any payback which might be required. No means to avoid severe strains on the public sector employer-employee relationship which accompany retroactive compensation cuts have been suggested since 1989.
We find that to the extent inconsistent with our holdings in this case the Commission's 1989 decision in F.O.P. Lodge No. 2 v. County of Douglas, 10 CIR 148 (1989), should be, and hereby is, overruled. We hold that absent compelling evidence to the contrary, because of difficult implementation and policy questions, wage reductions will not be retroactive, and we will not order employees to pay back any overpayment to the employer. Retroactive wage reductions are appropriate only where they can be accomplished without conflicting with public policy and without implementation difficulties. Such reductions will be required only when shown by the evidence to be appropriate.
We hold that the effective date of an increase in wages should be the beginning of the contract year in dispute but the effective date of any decrease in wages should be the date of the Commission's Order; i.e., increases in wages should be retroactive but wage decreases should be only prospective. However, where a bargaining unit member is to receive a retroactive wage increase by a lump sum payment, we hold that the employer should be entitled to an offset for any payment made to the employee for benefits paid in excess of the prevalent practice in the Commission's array. The employer should also be entitled to an offset in unique cases such as FOP Lodge No. 23 v. City of Holdrege, 9 CIR 257 (1988), where an employee is entitled to a lump sum payment because fringe benefits paid by the employer were found to be below the prevalent but wage rates were above the prevalent. We hold that only those employees entitled to a lump sum payment from the employer shall be obligated for overpayments received. The amount of any reimbursements required shall be capped by or limited to the amount of any lump sum due the employee.
As we stated in Rodeo, by this means:
. . . we prevent the employees from receiving a windfall and credit the employer for benefits paid in excess of the prevalent practice in the Commission's array. We find this resolution to be fair and equitable to both parties.
Rodeo, 9 CIR at 131. By providing for an offset capped by the amount of any lump sum payment due the employee, we provide the parties with a result which is fair and reasonable to both, which is not difficult to implement, and which conforms to the dictates of public policy.
John Goomis, the parties' joint expert witness, testified that when he was retained as a consultant in this matter Otoe County had no written job description for any bargaining unit member. With Respondent's approval he therefore created what he termed a single "Class Specification" to cover every employee in the bargaining unit. This single class specification refers to all bargaining unit members as "Highway Workers" and contains five sections titled: Description of Work; Examples of Work; Required Knowledge; Skills and Abilities; Training and Experience; and Working Conditions. The Class Specification for Highway Worker (Exhibit #33) is set forth in Appendix A. In this case we are asked to establish the wage rates for all employees in this single "Highway Worker" classification.
The Otoe County Personnel Policy manual attached to Exhibit 43 provides that all Highway and Bridge Department employees "shall be paid an hourly rate at the discretion of the Otoe County Commissioners, but said rate shall not be less than the federal minimum wage." The policy further provides for a probationary period of 90 days and states that salary increases thereafter "may be given at the discretion of the employing official."
The Wage Comparability Survey for Otoe County certified by Robert D. Fleming, Otoe County Highway Superintendent, on June 5, 1995, (Exhibit 43) indicates that there were 26 Highway Workers in Otoe County, that their minimum salary rate effective April 1, 1994 was $7.50 per hour ($7.00 was entered and crossed out); that their maximum salary rate effective September 1, 1994 was $8.65 per hour (a difference of $1.15 per hour), and that it takes a satisfactory employee 3 to 5 years to reach the maximum salary rate. Exhibit 8 prepared by the parties' joint expert indicates that bargaining unit members receive a probationary minimum wage of $7.00 and a maximum wage of $8.64 (a difference of $1.64).
A review of the Wage Comparability Surveys for the counties in the array shows that all counties reported a 90% similarity between Otoe County's Highway Worker and the comparable jobs they identified. Seven of the nine counties in the array reported two comparable jobs. Saunders County and Nemaha County only reported one job match.
The Wage Comparability Surveys also reported wage rates paid for comparable jobs. Butler County reported minimum and maximum salary rates plus a probationary rate for their Bridge Crew job. Gage County, Nemaha County, and Richardson County reported maximum salary rates and probationary rates. Cass County, Saline County, Saunders County, and Seward County reported minimum and maximum rates. Only three counties in the array reported step pay plans. The remaining six counties in the array reported direct progression from the probationary or entry level salary rate direct to the maximum rate. In Exhibit 7 prepared by the parties' joint expert, six of the nine counties in the array are classified as having Probationary Wage Plans.
The evidence establishes that it is not prevalent to have a step pay plan and that the prevalent practice is to advance an employee from the probationary or entry level salary rate directly to the maximum rate in 6.5 months. Otoe County does not have a step pay plan but advances employees to the maximum salary rate in only three months. Otoe County's wage increase from probation to maximum is thus 3.5 months shorter than the prevalent practice.
On Exhibit 8 the parties' joint expert witness calculated the minimum and maximum salary rates actually paid to employees for the comparable jobs identified in the Wage Comparability Surveys. Where applicable, probationary salary rates were shown as minimum salary rates. Where more than one maximum salary rate was reported in the Wage Comparability Survey, the highest rate reported is shown as the maximum salary rate. Exhibit 8 reflects the following minimum and maximum salary rates as being actually paid:
| Location | Location/Position | Minimum | Maximum |
|---|---|---|---|
| Butler | Equip. Operator/Bridge Crew | 8.19 | 9.94 |
| Cass | Motorgrader/Truck Driver | 7.74 | 10.89 |
| Gage | Equip. Operator II/Highway Worker | 8.60 | 9.84 |
| Jefferson | Road Maintenance/Bridge Maintenance | 6.94 | 9.25 |
| Nemaha | Road Crew | 6.93 | 7.93 |
| Richardson | Equip. Operator/Culvert leader | 6.76 | 8.00 |
| Saline | Road Crew/Bridge Crew | 8.20 | 8.60 |
| Saunders | Equip. Operator II | 8.22 | 10.34 |
| Seward | Equip. Operator II/Truck Driver | 6.00 | 10.50 |
Based on the salary rates reflected in Exhibit 8, the prevalent minimum and maximum hourly wage rates paid for comparable jobs are $7.62 and $9.66 respectively.
The Commission finds that Petitioner has met its burden of proof that wages paid to bargaining unit members are not comparable to the prevalent. For the period beginning July 1, 1994, the probationary wage rate for bargaining unit members shall be $7.62. After a 6.5-month probationary period, the wage rate shall advance to a maximum wage rate of $9.66 per hour. Any employee who completed the probationary period in 3 months rather than 6.5 months shall have the additional wages ordered adjusted to conform to the probationary period and wage rates provided in this order.
Sick Leave (See Table 1)
Maximum accumulation. In this case maximum sick leave accumulation and the yearly rate of sick leave accumulation as it affects maximum accumulation have carryover effects into following years and are therefore not considered moot even though the contract year is over. The prevalent practice among employers in the array is to allow employees to accumulate up to 87 days of sick leave at the rate of 11 days per year. Otoe County allows accumulation of only 30 days at the rate of 6 days per year. Maximum sick leave accumulation at Otoe County should be increased by 57 days to a total of 87 days. The yearly accrual rate at Otoe County should be increased to 11 days per year for the purpose of the employers' calculating and adjusting their sick leave accumulation/carryover.
Compensation for unused sick leave. Otoe County allows employees to be paid cash for unused sick leave after an accumulation of 30 days. Employers in the array allow accumulation of a greater number of days but do not pay cash for sick days which cannot be accumulated. Otoe County should cease paying employees for excessive unused sick leave days. Any cash payouts to employees for unused sick leave should be reimbursed.
Vacation (See Table 1)
Carryover & compensation for unused vacation. Otoe County allows its employees to either carryover unused vacation from year to year or to receive cash for unused vacation at the end of a year. Counties in the array do not allow either practice. Otoe County should eliminate both practices.
Overtime
Otoe County follows a practice whereby vacation leave, sick leave, and holidays are counted as time worked for purposes of computing overtime. This is not the prevalent practice and should be eliminated. Employees receiving excess overtime pay because of this practice should reimburse the employer.
Health and Dental Insurance (See Table 2)
Otoe County offers health insurance and Dental insurance to employees within the bargaining unit. This is the prevalent practice.
When considering Otoe County's health and dental insurance plans in their entirety they are generally comparable to plans offered by Counties in the array. Since the contract year in dispute is over, making changes in the coverage which has been provided would be practically impossible or very difficult. The Commission will, therefore, not order any changes in the basic plans offered. 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); and Nebraska Public Employees Local Union 251 v. Nemaha County, ____ CIR ____ (1995).
Premiums for health and dental insurance are paid partly by Otoe County and partly by bargaining unit employees. The percent of total premium paid by Otoe County for dental insurance coverage are comparable to the prevalent paid by the counties offering dental insurance coverage to their employees. However, Otoe County's contribution to health insurance premiums in some instances is significantly less than the percent paid by counties in the array. In such cases the Commission has ordered an increase of the employers contribution. See F.O.P Lodge No. 23 v. City of Holdrege, 9 CIR 257, 263 (1988) and Nebraska Public Employees Local Union 251 v. Nemaha County, ____ CIR ____ (1995).
The percentage of health insurance premium paid by Otoe County and by the array employers is set forth in Table 2. The prevalent contribution to health insurance premiums by employers is as follows:
Single coverage 100%
2-party coverage 56%
Family coverage 47%
Otoe County should increase the percentage of its contribution to employee health insurance premiums accordingly and should reimburse employees for any extra amount they were required to pay for such coverage.
Call-In Pay
Otoe County pays employees a minimum of 2 hours at time and a half if they are called in to work when they are not scheduled to work. Four counties in the array have similar practices, five do not. The prevalent practice is to pay employees for only the actual hours worked and not to pay overtime unless it is otherwise required. Otoe County should eliminate its call-in pay practice, and employees receiving excess pay because of this practice should reimburse the employer.
Long-term Disability
Long-term disability (LTD) was provided by Otoe County; however, that is not the prevalent practice. The parties agree that the cost of LTD coverage is $218.40 per year and that this amount should be reimbursed by bargaining unit members.
The following fringe benefits will remain unchanged because the benefits provided by Otoe County are comparable to the prevalent paid by the Counties in the array:
Special Pay, Allowances for Clothing,
Cleaning Expenses and Safety Equipment
The prevalent practice is to furnish safety equipment but not to offer a clothing or cleaning allowance.
Stand-By Pay
The prevalent practice is not to offer stand-by pay.
Longevity Pay
The prevalent practice is not to consider longevity in determining compensation.
Retirement Contribution
The prevalent practice calls for the employer and employees to contribute to retirement as provided by statute.
Holiday Pay
The prevalent practice is to pay employees time and a half for work on holidays.
Life Insurance
The prevalent practice is to pay 100% of the life insurance premium.
Several of the issues that were brought before the Commission are moot. Two basic reasons have been advanced for considering an issue moot. One is where it is impossible or impractical to retroactively change a benefit. Another is where a decision would for all practical purposes be merely advisory and have no carryover value.
Issues concerning the following benefits are determined by the Commission to be moot because the contract year in dispute is over, and it is, therefore, either impossible or impractical to retroactively make a change in the benefit or an opinion concerning the relevant issues would be merely advisory and have no carryover value:
Sick leave:
- Whether excessive sick leave is to be taken as vacation.
- Whether accumulated sick leave is to be converted to cash at resignation, dismissal, death, or retirement.
- Whether to allow sick leave to be taken for family illness or funeral leave.
Funeral leave:
- Whether funeral leave is to be allowed and the number of days allowed.
Vacation:
- The number of vacation days allowed with accumulated years in service.
- Whether accrued vacation days are to be converted to cash at resignation, dismissal, death or retirement.
Holidays:
- The number of holidays allowed.
Life Insurance:
- Policy amount.
Work Hours and Overtime
Employee Assistance:
- Whether an employee assistance plan is to be offered for matters not covered by insurance.
Long-term disability:
- Whether LTD is to be offered.
Union Dues Checkoff
Any lump sum settlement due bargaining unit members under this order shall allow a credit to employer for the following listed wages or benefits paid in excess of those allowed:
-any excess wages paid due to early advancement from the probationary wage rate;
-any cash payouts for unused sick leave;
-any extra pay received because of Otoe County's overtime pay practice;
-any extra pay received because of Otoe County's call-in pay practice; and
-the cost of long-term disability coverage.
The amounts of any reimbursements due the employer are capped by and limited to the amount of any lump sum payment due the employee under this order.
IT IS, THEREFORE, ORDERED that for the 1994-95 fiscal year commencing July 1, 1994:
1. Otoe County shall pay the following hourly rates of pay for all bargaining unit members:
Probationary Wage Rate Maximum Wage Rate $7.62 $9.66 The effective date for these wage changes shall be July 1, 1994;
2. The probationary period shall be 6.5 months;
3. Maximum sick leave accumulation at Otoe County shall be increased to a total of 87 days, accumulating at the rate of 11 days per year.
4. The practice of paying cash for unused sick leave after an accumulation of 30 days shall be eliminated;
5. Otoe County shall eliminate its practice of allowing bargaining unit members to either carryover unused vacation from year to year or to receive cash for unused vacation at the end of a year;
6. Otoe County shall pay the percentage of its contributions to bargaining unit health insurance premiums as follows:
Single coverage 100%
2-party coverage 56%
Family coverage 47%
7. Otoe County shall eliminate its call-in pay practice;
8. Otoe County shall eliminate its practice of counting vacation leave, sick leave, and holidays in computing overtime;
9. Any additional compensation due bargaining unit members shall be offset by all overpayments received during the fiscal year for early advancement from probationary status, cash payouts for unused sick leave, excess pay received because of Otoe County's overtime pay practice or call-in pay practice, and the cost of long-term disability coverage. Such reimbursements shall be capped by and limited to the amount of increases due to the employee from the employer;
10. Pursuant to the Pretrial Conference stipulation, all pay adjustments shall be made by payment of a single sum with a payroll check issued after 45 days of the final order entered herein.
11. All other terms and conditions of employment are not affected by this Order.
Entered March __, 1996.
James D. McFarland, Concurring:
I concur with the result reached by the Commission in this case, but write separately to explain further the basis of my agreement. Such agreement is primarily based upon principles regarding statutory interpretation and construction.
In the present case, there is a question whether reductions in employee compensation are or are not to be retroactive. With respect specifically to whether wage decreases, or increases for that matter, are to be retroactive, the Industrial Relations Act, Neb. Rev. Stat. §§ 48-801 et seq., is silent. The only provision relating directly to retroactivity is § 48-817 which provides in relevant part that "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." But, this provision does not indicate clearly and unambiguously whether the commission may or may not enter an order based on comparability to the prevalent wage rate containing a remedy which provides for compensation to the employee for wages underpaid or to the employer for wages overpaid during the period of the industrial dispute. A statute is open to construction where the language used requires interpretation or may reasonably be considered ambiguous. Iske v. Papio Natural Resources Dist., 218 Neb. 39, 41 (1984).
The Nebraska Supreme Court has broken this statutory silence with respect to retroactive wage increases or decreases. Most notably, the Court has spoken authoritatively in Crete Education Association v. School District of Crete, 193 Neb. 245 (1975), and Douglas County Health Department Employees Association v. Douglas County, 229 Neb. 301 (1988).
With regard to retroactive wage increases, the Nebraska Supreme Court in Crete indeed found that a retroactive wage increase prior to the date of the then Court of Industrial Relations order was within the power of the CIR. In interpreting and applying § 48-817 and other relevant sections of the Industrial Relations Act, the Court found that CIR orders could apply to the period of time embraced within the industrial dispute submitted to it. Crete, 193 Neb. at 251. Furthermore, the Court in Douglas County Health stated, "A retroactive wage increase is within the authority of the CIR." Douglas County Health, 229 Neb. at 318.
In contrast with regard to retroactive wage decreases, the Nebraska Supreme Court in Douglas County Health recognized that retroactive wage decreases are generally held in disfavor. While the Court stated that "It is clearly within the authority of the CIR to order a reduction of wages." Id. at 316, the Court did not affirmatively state that such reduction of wages should be applied retroactively. In fact, the Court specifically found that the CIR did not act arbitrarily in failing to order a retroactive wage decrease. The Court further found that there were "difficult implementation and policy questions" involved with retroactive wage decreases. Id. at 318.
As a result of these decisions, the Nebraska Supreme Court has by interpretation put a gloss on the Industrial Relations Act with regard to retroactive wage increases and decreases. Retroactive wage increases are within the authority of the CIR, and retroactive wage decreases are inappropriate except in cases where there are no difficult implementation or policy questions.
The Commission opinion by Judge Cullan clearly sets out the policy reasons against retroactive wage decreases. Such retroactive wage decreases create severe hardships on employees and place a strain on the employer-employee relationship in contravention of the public policy for the state contained in the Industrial Relations Act.
Moreover, I believe the implementation questions are crucial. Retroactive wage decreases are inappropriate "absent compelling evidence" that there are no difficult implementation or policy questions because of the difficulty of fashioning a remedy to implement a retroactive wage decrease. Judge Cullan notes the lack of any consistent remedial process to implement a retroactive wage decrease in prior CIR cases. How does the CIR fashion an efficient, expeditious, and conclusive remedy for individual employees to pay back a portion of wages already earned? How could the CIR fashion such a remedy for individual employees who may resign or retire from their employment positions during the period in dispute? These employees cannot pay back a portion of wages already earned by employer deductions from future wages. There are no such future wages for them because they are no longer employed. Furthermore, an employee who is ordered to pay back wages already earned from future wages may well be disposed to resign and take another position with another employer who would not subject future wages to such a pay back. Frankly, except where a retroactive wage reduction can be set off against a lump sum payment to the employee because fringe benefits paid were below the prevalent, it is hard, if not impossible, to foresee a case in which the implementation of a retroactive wage reduction would not be difficult.
The CIR's decision in F.O.P. Lodge No. 2 v. Douglas County, 10 CIR 148 (1989), in which a retroactive wage decrease was ordered without consideration of the difficult implementation and policy questions involved, was in contravention of the doctrine of stare decisis because it was inconsistent with the Court's decision in Douglas County Health. It was also a usurpation of legislative authority because it was a radical departure from prior precedent without legislative action being taken on the matter. Because the Court has not considered this issue of retroactive wage decreases since 1988, legislative inaction after the CIR's FOP decision in 1989 cannot be interpreted as approval of the FOP decision any more than legislative inaction after the CIR decisions prior to 1989, which were explicitly or implicitly overruled by FOP, can be interpreted as approval of these prior CIR decisions. The Nebraska Supreme Court is the final authority on statutory interpretation of state law, not the CIR.
Generally, where a statute has been judicially construed and that construction has not evoked an amendment, it will be presumed that the legislature has acquiesced in the court's determination of its intent. Muller v. Thaut, 230 Neb. 244 (1988). The legislature has not enacted legislation to reverse the Nebraska Supreme Court's holdings in Crete and Douglas County Health. The Court has not reversed these holdings either. The CIR was not justified in ordering a retroactive wage decrease in the FOP case without a finding that there were no difficult implementation or policy questions involved. The overruling of the CIR's 1989 FOP decision is overdue.
Frankie J. Moore, Dissenting:
The majority opinion correctly sets forth the evolution of case law treatment by the Commission on the issue of retroactive reductions in compensation. I respectfully dissent to the result reached in this case. Despite the potentially difficult implementation and policy issues inherent in retroactive reductions, the clear statutory mandate given to the Commission is to "establish rates of pay and conditions of employment which are comparable to the prevalent wage rates paid and conditions of employment maintained . . ." by other similar employers. Neb. Rev. Stat. § 48-818.
In Douglas County Health Department Employees Association v. County of Douglas, 229 Neb. 301, 427 N.W.2d 28 (1988), the Nebraska Supreme Court stated that "It is clearly within the authority of the CIR to order a reduction of wages." Id. at 316. The Court, in applying the appropriate standard of review and simply affirming the Commission's decision in that case to not order retroactive wage decreases, determined that the Commission "did not act arbitrarily . . ." Id. at 316. The Supreme Court did not affirmatively state that the Commission was statutorily prohibited from ordering retroactive reductions in compensation or that it would be inappropriate in all cases to order a retroactive reduction in compensation. The decisions issued by the Commission since its ruling in F.O.P. Lodge No. 2 v. County of Douglas, 10 CIR 148 (1989), in ordering retroactive reductions in compensation, while perhaps a departure from its previous practices, represent consistent applications of the statutory directive to set comparable wages and conditions of employment. It is not the responsibility of the Commission, but rather up to the employer to determine how to implement the retroactive decreases, if at all. The post-1989 decisions have not been overturned by the Nebraska Supreme Court (although it has not been required to decide the issue) and have, in all likelihood, been relied upon by numerous parties in their approach to bargaining. There is no statutory directive to provide retroactive wage increases, but not decreases. If this is, in fact, consistent with public policy, I feel the issue should be determined by the legislative branch, not the Commission.
Thomas H. DeLay joins in this dissent.
NOTE: Class Specification (Appendix A) Deleted From End of Opinion
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