13 CIR 128 (1998). Appeal dismissed April 26, 1999.
|NEBRASKA PUBLIC EMPLOYEES LOCAL||)||CASE NO. 938|
|UNION 251 affiliated with THE AMERICAN||)|
|FEDERATION OF STATE, COUNTY, AND||)|
|MUNICIPAL EMPLOYEES, An International Union,||)|
|Petitioner||)||FINDINGS AND ORDER|
|COUNTY OF YORK, NEBRASKA,||)|
|For the Petitioner:||M. H. Weinberg|
|9290 West Dodge Road|
|Omaha, NE 68114|
|For the Respondent:||Jerry L. Pigsley|
|Margaret E. Stine|
|800 Lincoln Square|
|121 S. 13th Street|
|Lincoln, NE 68508|
|York County Courthouse|
|510 Lincoln Avenue|
|York, NE 68467|
Before: Judges Anderson, Cullan, and Moore
NATURE OF PROCEEDINGS
The Nebraska Public Employees Local Union 251, AFSCME (hereinafter known as "Petitioner"), representing a bargaining unit consisting of full-time employees of the York County roads and bridges department, filed a Petition against the County of York (hereinafter referred to as "Respondent") on June 12, 1997, seeking establishment of wage rates and other conditions of employment for the period July 1, 1996 through June 30, 1997 pursuant to §48-818. This unit had been certified by the Commission on December 30, 1996.
After numerous motions for mediation, factfinding, violations of a Status Quo Order, and extensions of time, a pretrial conference was held on October 14, 1997. Trial was held on October 27, 1997.
A Report on Pretrial Conference on October 15, 1997, found:
1) the year in dispute to be July 1, 1996 through June 30, 1997;
2) the following preliminary issues would be resolved:
a) whether, pursuant to Nebraska Constitution Article III, Section 19, the Commission lacks authority to increase wage rates and fringe benefits for the fiscal year beginning July 1, 1996 through June 30, 1997;
b) whether §48-817 prohibits the Commission from establishing wages, hours or working conditions for a fiscal year which has already elapsed; and
c) whether the Commission has authority to establish wages, hours, or working conditions for the period prior to the Petitioner's certification, as the exclusive collective bargaining representative on December 30, 1996.
4) the common array members are Butler, Gage, Hamilton, Jefferson, Saline, Saunders and Seward Counties, with the Petitioner offering the additional counties of Cass, Nemaha, Otoe and Washington as comparable, and the Respondent offering the additional counties of Clay and Merrick Counties as comparable; and
5) the Respondent's Demurrer was overruled.
The parties stipulated: 1) that Paul Essman, John Goomis and John Cripe may testify as expert witnesses; and 2) that the work, skills and working conditions of the bargaining unit employees of the common array counties are sufficiently similar to the work, skills and working conditions of the York County employees to satisfy the requirements of §48-818.
Prior to trial on October 23rd the parties jointly stipulated that 1) the job positions which were certified by the Commission
could be divided into three categories which are then subject to this proceeding: Mechanic, Foreman and Road Crew; 2) the
work, skills and working conditions of the bargaining unit employees at the non-common counties of Cass, Clay, Merrick ,
Nemaha, Otoe and Washington are similar to York County employees.,
We first address the preliminary issues.
A. Constitutional Issue
The Respondent argues that the Commission is prohibited by the Nebraska Constitution at Article III, Section 19 from issuing an order increasing wage rates and fringes once the fiscal year is ended. This issue has been decided previously by us in Tekamah-Herman Educ. Ass'n v. School Dist. of Tekamah-Herman, 9 CIR 78, 80-83 (1987), and reiterated in International Association of Firefighters v. City of Columbus, 11 CIR 267, 268-269 (1992). The reasoning is still good.
Article III, Section 19 prohibits retroactive pay increases by a "grant [of] any extra compensation to any public officer...after the services have been rendered...." The Commission is authorized to settle industrial disputes and to "establish rates of pay and conditions of employment which are comparable to the prevalent wage rates paid and conditions of employment maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions." Neb. Rev. Stat. §48-818 (1993). Although the Commission has no jurisdiction to increase wages when the parties are already bound by a collective bargaining agreement, it does have jurisdiction to set wages when the parties have been unable to agree upon a collective bargaining agreement establishing what the rate of pay for work should be. International Association of Firefighters, 11 CIR at 268-269. The Commission, therefore, is not increasing wage rates when, pursuant to §48-818 , it proceeds to "establish rates of pay and conditions of employment which are comparable to the prevalent wage rates paid...." Neb. Rev. Stat. §48-818 (1993). It is establishing the rates of pay in the first instance. Tekamah-Herman, 9 CIR at 80-83; International Association of Firefighters, 11 CIR at 268-269. Indeed, if the Commission were unable to set wages applicable during the period in dispute, then public workers would never be paid the wages "comparable to the prevalent wage rates paid ...for the same or similar work...." Neb. Rev. Stat. §48-818 (1993). We, therefore, continue to adhere to the conclusion reached in our previous decisions, and find that the Nebraska Constitution at Article III, Section 19 does not prohibit the Commission's entry of an order during an industrial dispute establishing wages during or after the fiscal year that is over pursuant to §48-818.
B. Statutory Issue
Respondent also argues that an order from the Commission establishing wages and benefits for a year which has already elapsed is a violation of §48-817 prohibiting retroactive orders. This issue has been decided by the Nebraska Supreme Court in Crete Educ. Ass'n v. School Dist. of Crete, 193 Neb. 245, 226 N.W.2d 752 (1975).
Neb. Rev. Stat. §48-817 (1993) provides:
[T]he final decision and order or orders [of the Commission] shall be in effect from and after the date therein fixed by the commission, but no such order or orders shall be retroactive.
In Crete the year in dispute was the school year 1972-73. The petition was filed March 30, 1972 alleging an industrial dispute and requesting the Commission enter such orders as are necessary to resolve the dispute . A temporary bargaining order was entered January 8, 1973. An application requesting a final order pursuant to §48-818 to establish terms and conditions of employment was filed February 15, 1973. Trial was held and the Commission entered an order on February 28, 1974 increasing rates of pay and establishing conditions of employment effective for the 1972-73 fiscal year. On appeal the Respondent claimed that the order entered in February 1974 could not apply to wages paid in 1972 and 1973 without violating the anti-retroactivity provisions of §48-817.
The Supreme Court ruled that the anti-retroactivity provisions of §48-817 do not apply to wages and working conditions of the year in dispute. In Crete the Supreme Court said that "the only reasonable interpretation of §48-817, R.R.S. 1943, is that the prohibition against a retroactive order means that the orders of the [Commission] of Industrial Relations cannot apply to a period prior to that embraced within the dispute submitted to it." Crete, 193 Neb. at 251. In that case, the Court affirmed the Commission's order increasing the rates of pay effective the first day of the period in dispute.
This holding was followed in Douglas County Health Department Employees Association v. Douglas County, 229 Neb. 301, 318, 427 N.W. 2d. 28, 40 (1988). In Douglas County the Commission's order increased wages for the bargaining unit members effective the first day of the period in dispute although the petition was not filed until three and one half months afterwards. In its ruling, the Supreme Court said: "A retroactive wage increase is within the authority of the CIR."Id. at 318, 427 N.W.2d at 40.
In the case at bar, the year in dispute is July 1, 1996 through June 30, 1997. The petition to resolve the industrial dispute was filed June 12, 1997, within the period in dispute. We find that pursuant to the Supreme Court decision in Crete the provisions of §48-818 do not preclude an order of the Commission setting rates of pay and terms of employment for the year in dispute.
C. Wage-Setting Authority Prior to Certification
Lastly, Respondent argues that we do not have the authority to establish wages and benefits for a term prior to the bargaining unit's certification. This issue has been addressed in Nebraska Public Employees Local Union 251, AFSCME v. Nemaha County, 12 CIR 152 (1995) and again in Nebraska Public Employees Local Union 251, AFSCME v. Otoe County, 12 CIR 177 (1996). In both cases, we ruled that our order would be effective with the first day of the period in dispute, irrespective of the certification date of the bargaining unit. The reasoning in those cases was based upon the rulings of the Nebraska Supreme Court in Crete and Douglas Countyrecognizing the Commission's authority to increase wages retroactive to the first day of the period in dispute. Evident from a reading of these cases (both the two Supreme Court and the two CIR cases) is the principle that when the Commission is asked to resolve an industrial dispute by establishing wage rates and conditions of employment, the order of the Commission shall be effective the first day of that period of dispute for the entire period. Indeed, by definition, the dispute exists during the entire period of dispute.
In the case at bar, the evidence is that the earliest authorization cards were collected on July 11, 1996, the representation petition was filed on September 23, 1996, and the unit was certified on December 30, 1996. For the cards to have been collected on July 11th, there obviously had to have been some contact prior to that time by the bargaining representative with the employees. Thus, a desire to unionize, and an industrial dispute regarding representation, did exist earlier than July 11, 1996. July 1, 1996 is the beginning of the fiscal year and we rule now, as we did in Nemaha and Otoe, that our wage order commences at the beginning of the fiscal year - in this case, July 1, 1996. It is, therefore, not unfair or unreasonable to follow the reasoning of our prior decisions in Nemaha and Otoe, in holding that any order adjusting wages in this case can apply effective to the first day of the period in dispute.
When the Commission is requested to do so, it must "establish rates of pay and conditions of employment which are comparable to the prevalent wage rates paid and conditions of employment maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions." Neb. Rev. Stat. §48-818 (1993). In determining the employment units which should be used for purposes of comparison, the Nebraska Supreme Court recently stated in Lincoln Firefighters Association v. City of Lincoln, 253 Neb. 837, 842, 572 N.W.2d 369, 373 (1998):
In selecting employment units in reasonably similar labor markets for the purpose of comparison as to wage rates and other benefits, the question is whether, as a matter of fact, the units selected for comparison are sufficiently similar and have enough like characteristics or qualities to make a comparison appropriate.Lincoln Co. Sheriff's Emp. Assn. v. Co. of Lincoln, 216 Neb 274, 343 N.W.2d 735 (1984).
The Supreme Court in Lincoln Firefighters went on to set out the factors which must be considered when determining comparability:
As a general rule, it may be said that the factors most often used to determine comparability are geographic proximity, population, job descriptions, job skills, and job conditions.
Lincoln Firefighters, 253 Neb. at 842, 572 N.W.2d at 373.
The parties agreed that seven (7) Nebraska counties are sufficiently similar to York that they may be used for comparison purposes in determining the prevalent wage rates and conditions of employment for the subject bargaining unit. These Nebraska counties are Butler, Gage, Hamilton, Jefferson, Saline, Saunders and Seward Counties. In addition, Petitioner urges that the four (4) counties of Otoe, Cass, Washington and Nemaha be included in the array for comparison purposes. Respondent proposed that the two (2) additional counties of Clay and Merrick be included in the array for comparison purposes. It was stipulated by both parties that all of the counties have similar work, skills, and working conditions.
The Commission has adopted guidelines for determining what is a comparable employment unit in terms of size. In Crawford Teachers Ass'n v. Dawes County School Dist., 11 CIR 254, 256 (1991) the Commission stated:
The Commission has often held that array members used to determine comparability should generally range from one-half to twice as large as the employer in question.
See also Nebraska Public Employees Local Union 251 v. Sarpy County, Nebraska, (Findings and Order dated February 16, 1998).
Although the Commission guidelines are useful for guidance, the Supreme Court recognized in Lincoln Firefighters, 253 Neb. at 843 that they do not carry the importance of statute:
We must not lose sight that the 'guidelines' used by the [commission] are not statutory requirements, and the failure of the evidence to strictly comply with the guidelines does not require us to find that the action of the [commission]...was arbitrary and capricious. Guidelines are nothing more than...a framework....
AFSCME Local 2088 , 208 Neb. at 523, 304 N.W.2d at 375.
Of the six additional counties proposed for inclusion in the array of comparable counties, all except Clay meet the size guideline of the Commission. However, there was sharp disagreement on many issues (including proximity, influence of nearby metropolitan statistical areas, balance, total miles of roads) regarding the usefulness of including the counties in the array for comparison purposes with York County. In Douglas Co., 229 Neb. at 308, 427 N.W.2d at 34, the Supreme Court stated:
The CIR need not consider every conceivable comparable, but only has to consider a sufficient number in a representative array so that it can determine whether the wages paid or the benefits conferred are comparable.
The Commission finds that the counties of Butler, Gage, Hamilton, Jefferson, Saline, Saunders and Seward are sufficiently comparable and sufficient in number to constitute the array (See Table 1). No others need be considered.
CALCULATION OF VALUE OF FRINGE BENEFITSIn determining the numerical value of prevalent fringe benefits, the Commission follows the practice of eliminating data from the non-prevalent counties in calculating the mean, median and midpoint value of fringe benefits. This practice was summarized in Lincoln Firefighters, 12 CIR 248, 257 (1997), aff'd, 253 Neb. 837 (1998):
[T]he Commission shall first determine whether the particular benefit is prevalent, and then determine comparability among those who offer the prevalent benefit.
The reasoning for the Commission's practice is first, that the language of Neb. Rev. stat. §48-818 requires the Commission to establish rates of pay and conditions of employment "which arecomparable to the prevalent wage rates paid and conditions of employment...". Lincoln Firefighters, 12 CIR at 257 (emphasis added). Second, fairness requires that "comparability should be determined by eliminating the array employers which are not among the prevalent." Id. No value is given when a minority of employers is providing a benefit nor is a value given to the employer who is not providing the benefit. The majority rules. On appeal, this practice was specifically approved by the Nebraska Supreme Court:
[T]he commission concluded that if a majority of the array does not offer a benefit, it is not prevalent, even if Lincoln offers such a benefit. The commission gave no value for a benefit offered by only a minority of cities in the array and concluded that no value should be given to the minority of cities not offering a prevalent benefit. We cannot say that the matching of similar fringe benefits provided in order to determine a prevalent level for each separate benefit is not supported by substantial evidence or is arbitrary, capricious, or unreasonable; thus, there is no merit to this assignment of error.
Lincoln Firefighters, 253 Neb. at 849, 427 N.W.2d at 377.
Although the expert witnesses for both the Respondent and the Petitioner testified that they were not in agreement with this approach for calculating the value of fringe benefits, the Commission continues to believe that this practice is the most logical and the most fair. We will adhere to this practice.
The Petitioner sought establishment of wage rates for the 14 job classifications described in the bargaining unit certified December 30, 1996 . The parties filed a joint stipulation before trial stating that these positions have been grouped into three (3) job categories for purposes of determining the appropriate wage rates in this case. The expert witness for both the Petitioner and Respondent testified that the 14 job classifications should be grouped into three (3) job categories for purposes of determining the appropriate wage rates in this case.
The three job classifications agreed to by the parties and their expert witnesses are Mechanic, Foreman, and Road Crew, with the majority of workers being in the Road Crew.
The job positions of Shop Foreman, Grading Crew Foreman and Bridge Crew Foreman are grouped as "Foreman." The remaining positions with the exception of Mechanic which stands alone, are grouped into the classification of "Road Crew." The Commission will utilize these three (3) job classifications to determine the comparable wage rates.
A. Pay Plans
There are three different ways to conduct wage administration at the comparable counties: a flat rate (a single rate after completion of probation); a traditional step pay plan; and a ranged plan with minimum and maximums, but no established wage progression. Respondent currently is paying the Foreman and Mechanic classifications on a flat rate plan, and the Road Crew on a ranged plan. For the Mechanic and Foremen classifications, Petitioner and Respondent both agree, and Table 2 shows, that the flat rate is the prevalent wage plan. Respondent introduced no exhibit showing wage plans for any job classification among the comparable counties. Therefore, the prevalent pay plan for these two (2) positions should be a flat rate.
Determination of a pay plan for the Road Crew is more difficult. Table 2 shows that the prevalent pay plan is bi-modal: either a flat rate or a ranged pay plan, with each having 3 array members. A step pay plan is not the prevalent practice. Since there is no clear prevalent, we will leave things as they are, and retain the ranged pay plan which Respondent currently follows. Although both Respondent and Petitioner discourage adoption of a ranged pay plan for the Road Crew, we are asked to determine the prevalent practice. Should the parties disapprove of our finding, power to agree otherwise is in their hands. The Commission finds that the pay plan for the Road Crew should remain the ranged pay plan.
B. Pay Rates
The comparable rate of pay for the Mechanic and Foreman positions is the flat rate shown on Table 3. The rates for Foreman and Mechanic were agreed upon by the parties. The rate for Foreman is $11.93, an increase from the current rate of $9.80 minimum and $10.80 maximum. The rate for Mechanic is $10.28, a decrease from the current rate of $10.80.
The range of wages for Road Crew members is determined by the minimum and maximum wages paid to Road Crew members in the array Counties as shown in Table 4. Because several different job positions are included within the Road Crew classification, the minimum and maximum wages shown on Table 4 were taken by the parties from the minimum paid in each county for the lowest paid of those three job descriptions and maximum paid in each county for the highest paid of those three job descriptions (T28). Table 4 shows the comparable minimum for the Road Crew to be $9.18 per hour and the maximum to be $10.34 per hour. Although placement upon a step plan is not necessary, initial placement of current employees within the range of minimum and maximum is necessary. Respondent did not address this issue, while Petitioner did. We shall adopt the Petitioner's methodology, without using the individual job descriptions as suggested in P30, because we have utilized job class rather than job description in setting wages herein. Thus, for a Road Crew employee who is currently being paid the minimum or the maximum wage under the current pay plan, that worker will be paid the minimum or maximum as the case may be under the ranged wage plan ordered herein. For all other employees who are being paid somewhere between the minimum and maximum points in the range, Respondent shall calculate the historical relationship that the non-probationary Road Crew member is currently making to the maximum of the Road Crew classification, i.e. $9.50 per hour (See Table 4). This percentage shall then be applied to the new maximum of $10.34 to determine this Road Crew worker's individual wage rate within the range.
The Commission practice is for wage increases to be effective on the first day of the period in dispute, but for decreases to be effective prospectively from the date of the Commission order. Otoe Co., 12 CIR at 188. The Mechanic will not have to reimburse the Respondent for the resulting overpayment. The only exception arises when Respondent's underpayment of fringe benefits creates the opportunity for an offset, to reduce the net amount due from Respondent to the employee. Id.
C. Probationary Rate
We next must determine the probationary rate for the Mechanic, Foreman and Road Crew. Respondent currently pays each classification $0.25 per hour less than regular wages. We rely on Petitioner's Exhibit P5 as restated in Table 5 to determine prevalent practices. Respondent submitted no contrary information. For the Foreman, the response that appears most frequently is "experience and work skills". We interpret this to be entirely discretionary with the employer. The present practice is within the prevalent practice. No change is necessary for Foreman. The probationary Foreman shall continue to be paid $0.25 per hour less than the minimum of $11.93 per hour which equates to $11.68 per hour.
For the Mechanic position, there is a bimodal response for wages during probation: either based on "experience and work skills" or 95% of the wage rate. The present practice is consistent with the "experience and work skills" technique, therefore, no change is necessary for the Mechanic. The probationary Mechanic shall continue to be paid $0.25 per hour less than the minimum of $10.28 per hour which equates to $10.03 per hour.
For the Road Crew the mode is 95% of the wage rate. We will establish the probationary rate for the Road Crew at 95% of the minimum rate of pay of $9.18 per hour which equates to $8.72 per hour. The prevalent length of time on probationary status for all three job classifications is seven (7) months, according to the data shown on Table 6.
Petitioner invites us to determine the prevalent value of fringe benefits notwithstanding that the year in dispute has passed and that they are moot. The values would be used as the basis for bargaining for future contracts. We have stated in the past that we will not rule on issues which are moot because this would be an advisory opinion.Otoe Co., 12 CIR at 194. We adhere to that ruling, and decline Petitioner's invitation.
A. Moot Issues
The Commission finds the following issues to be moot: number of sick leave days earned per year, sick leave conversion to vacation, sick leave conversion to cash upon resignation, dismissal, retirement or death, use of sick leave for family illness or funeral leave, funeral leave (whether it is allowed and the number of days), vacation days earned per year, conversion of vacation to cash upon resignation, dismissal, death, and retirement, # of holidays/personal days, dental insurance (whether it is provided), health insurance policy provisions, including optical and prescription cards, life insurance policy amount, disability (whether it's provided), work hours and overtime, employer assistance program, and union dues check off.
B. Comparable Benefits
In determining whether or not the benefits are comparable or not, all means, medians, and midpoints have been calculated by the Commission and rounded. If an array member did not provide a benefit, it was excluded from the calculations in determining comparability. The Commission finds the following benefits to be comparable and so there shall be no change: sick leave conversion to cash (Table 7), vacation leave conversion to cash (Table 8), longevity pay (Table 9), commercial drivers license provision (Table 10), Non-job related educational assistance (Table 10), health insurance monthly premium towards single (Table 11), life insurance contribution (Table 12), retirement contribution (Table 13), vacation, sick leave and holiday hours considered towards overtime (Table 14), premium pays of standby, call-back, and shift differential (Table 15), items provided or clothing and cleaning allowances (Table 16).
C. Non-Comparable Benefits
The Commission makes the following findings as to non-comparable fringe benefits:
1) Maximum sick leave accumulation days (as it effects carryover) should be decreased from 90 days to the comparable of 67 days (Table 7).
2) Maximum vacation carryover days should be increased to 7.5 days from the current 5 days (Table 8).
3) Percentage of health insurance contribution by the employer should be increased to 56% and 61% for family and two-party coverage respectively, from the current 43% and 49.5% respectively (Table 11).
4) Holiday hours actually worked should be paid at the increased rate of 1.5 + holiday from the current 1.0+ (Table 9).
IT IS, THEREFORE, ORDERED that for the fiscal year 1996-1997, the following shall be effective commencing July 1, 1996:
1. York County shall pay the Mechanic position the hourly flat rate of $10.28 per hour and the Foreman position an hourly flat rate of $11.93 per hour.
2. York County shall pay the Road Crew position an hourly rate within a range of $9.18 to $10.34 per hour in the same proportion to the maximum wage as the present wage bears to the present maximum wage being paid Road Crew workers. (For example, a Road Crew worker presently being paid the minimum or maximum of non-probationary Road Crew workers shall be paid the minimum or maximum ordered herein. A Road Crew member presently paid within the range, eg. $8.00 per hour, which is 84% of the current maximum of the range, shall be paid $8.69 per hour, which is 84% of the $10.34 per hour maximum hourly rate of the range.)
3. Any probationary Road Crew employee shall be paid $8.72 per hour; the probationary Foreman shall be paid $11.68 per hour; and the probationary Mechanic shall be paid $10.03 per hour.
4. York County's length of probationary period shall be increased to 7 months.
5. Maximum sick leave accumulation days (as it effects carryover) should be decreased to 67 days.
6. Maximum vacation carryover days should be increased to 7.5 days.
7. The Percentage of health insurance contribution by the employer towards family shall be increased to 56% and increased for two-party coverage to 61% of the monthly premium.
8. Holiday hours actually worked shall be paid at the increased rate of 1.5 + holiday.
9. Any additional compensation due to an employee shall be offset by all overpayments received by that employee during the fiscal year for early advancement from probationary status. Such reimbursement shall be capped by and limited to the amount of increases due to the employee from the employer.
10. All pay adjustments shall be made by payment of a single sum with a payroll check issued on or before 45 days after the final order entered herein.
11. All other terms and conditions of employment are not effected by this Order.
Entered March 11, 1998.