13 CIR 1 (1997)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Appearances:

For the Petitioner:Jane E. Burke

140 North 8^th St., Suite 250

Lincoln, Nebraska 68508

For the Respondent:William A. Harding

800 Lincoln Square

121 So. 13^th St.

P. O. Box 82028

Lincoln, Nebraska 68501-2028

Lisa R. Thayer

City of Grand Island

100 East 1^st St.

P. O. Box 1968

Grand Island, Nebraska 68802-1968

Before: Judges DeLay, Moore, and Cullan

DELAY, J:

NATURE OF PROCEEDINGS:

A petition was filed by American Federation of State, County, and Municipal Employees, Local ll09, AFL-CIO praying for resolution of an industrial dispute pursuant to Section 48-8l8 for the contract period August l, l995 through July 3l, l996, for the job classifications Maintenance Worker I, Maintenance Worker II, Senior Maintenance Worker, Equipment Operator, Senior Equipment Operator, Equipment Mechanic, Shop Attendant, Fleet Maintenance Technician, Horticulturist, and Grounds Maintenance Crew Chief. Respondent objected to the inclusion of job clarifications of Horticulturist and Ground Maintenance Crew Chief in the bargaining unit, and moved to strike such job classifications from the petitioner's bargaining unit for the reason that the petitioner had not been recognized by the city as the bargaining agent for such job classifications in the solid waste division of the Public Works Department, and the Parks and Cemetery Divisions of the Parks and Recreation Department. Upon hearing and offer of evidence, the motion to strike was sustained. The cause was bifurcated pursuant to the stipulation of the parties. The parties proceeded to pre-trial during which time, the parties stipulated that the petitioner could file a certification petition seeking to add additional job classifications to the bargaining unit, and if the affected employees elected to be represented by the bargaining unit, then the new job classifications could be included in this industrial dispute. As a result of the election in the cause entitled AFSCME, Local ll09 v. City of Grand Island, Case No. 907, and the stipulation of the parties hereto, additional job classifications were included in this bargaining unit. As a result of the above-noted changes and the stipulation of the parties in Exhibit 26, set forth below at (b) under the heading "Other Stipulations," the following job classifications are subject to this proceeding: Maintenance Worker I, Maintenance Worker II, Senior Maintenance Worker, Equipment Operator, Senior Equipment Operator, Equipment Mechanic, Shop Attendant, Fleet Maintenance Technician, and Horticulturist.

Trial was had on the issue of the array (phase I) and the Commission issued its decision on July 25, l996. The Commission selected as its array, the Cities of Hastings, Kearney, Fremont and North Platte, Nebraska.

The remaining issues tried, which are the subject of this Findings and Order, were the comparable wages and other terms and conditions of employment based on the Commission's array. Prior to trial the parties entered a written pre-trial stipulation, Exhibit 26, which was offered and received into evidence wherein the parties stipulated and agreed to the existence of certain facts (Table l), and stipulated that the sole matters of fact remaining for determination upon trial were:

a.The application of the offset of benefits and wages received as required by NE Public Empl., Local Union 25l v. Otoe Co., l2 CIR l77 (l996), and

b.The placement of employees on pay lines established by the Commission.

At the time of trial, the contract year in dispute, August l, l995 through July 3l, l996, had elapsed.

Other Stipulations:

In addition to the above, the parties further stipulated in Exhibit 26, that:

a.That the policies of the Respondent, City of Grand Island, pertaining to (a) equipment/mechanic tool policy, (b) clothing and cleaning allowance/shop Garage - Uniform Policy, and (c) the Health Insurance Prescription Card usage, should remain unchanged and the inclusion of said policies should be included in this order.

b.That the job positions of Administrative Secretary and Accounting Clerk I, previously included by the parties and found by the Commission as included in the bargaining unit, should be deleted and removed from the bargaining unit, and that the Commission issue an amended order in Case No. 907, deleting said job positions from the bargaining unit in this case. Pursuant to said stipulation of the parties [Exhibit 26, para B(2)], the Commission deletes the job positions of Administrative Secretary and Accounting Clerk I from consideration as job positions within the bargaining unit in this Findings and Order, and shall issue an Amended Certification Order in Case No. 907.

c.That the pay line for the position of Fleet Maintenance Technician (Garage) and Shop Attendant (Garage) should be based upon the historic relationship between such positions and the position of Equipment Mechanic (Garage), and that the calculations of such historic relations are set forth by the parties in page 9 and l0 of Exhibit 26. The parties further stipulated and agreed that the Commission may order the mean historic relationship, as computed by the parties, in establishing the pay line for the positions of Fleet Maintenance Technician (Garage) and Shop Attendant (Garage) as against the prevalent established for Equipment Mechanic (Garage).

WHEREUPON, hearing on the stipulated facts and stipulated issues was held; that opening statements were made; that the Petitioner offered evidence and rested; that the Respondent offered evidence and rested; that no rebuttal evidence or testimony was offered, and the parties rested. The parties waived oral argument, and offered to deliver written argument and briefs to the Commission, and the Commission took this matter under advisement pending the receipt of briefs and written argument.

NOW THEREFORE, on this ___ day of June, l997, having taken this matter under advisement, and being fully advised in the premises, the Commission finds:

WAGE ISSUES:

l.Prevalent wages, benefits and working conditions established:That the evidence has established that the rates of pay and conditions of employment of the bargaining unit for same or similar work of workers exhibiting like or similar skills under same or similar working conditions were not comparable to the prevalent, and that the Petitioner has sustained its burden of proof in establishing prevalent rates of pay and conditions of employment for same or similar work of workers exhibiting like or similar skills under same or similar working conditions.

2.Wage Rates:

The hourly wages for the job classifications involved in this proceeding are set forth in Table 2. The Commission finds that the prevalent wages are the comparable figures at minimum and maximum as identified on this table. Table 2 also includes the job classifications of Fleet Maintenance Technician (Garage and Shop Attendant (Garage) which were calculated pursuant to the stipulation of the parties.

3.Economic Variables:No evidence of economic variables was offered by the parties. Therefore, no adjustment was made to the prevalent wages based upon economic variables.

4.Step Pay Plans:The Commission finds from the evidence that the Respondent used a step pay plan which included eight (8) steps, and required six years for an employee to travel horizontally through the step pay plan from entry level, minimum pay to maximum pay. The initial step was a probationary step for six months, then the employee moved to step 2 for a six month period. Each step thereafter required one year eligibility before the employee was eligible for transfer to the next higher step. If the employee had a satisfactory performance evaluation in February of each year, the employee advanced one step on the payline (T25:l3-25).

The Commission finds that the prevalent step pay plan (Table 3) consisted of eight (8) steps, with a minimum and maximum wage rate for each job classification, and requires eight and one-half years (8 l/2) years in service eligibility period for an employee to traverse horizontally from minimum to maximum wage on the step pay plan. Transfer from one step to the next higher step is based on years of service eligibility and job performance. No market survey data of a prevalent practice among the array was offered by either party to base a determination of the length (period of time) of each step within the prevalent step pay plan from minimum wage rate to maximum wage rate. The parties, however, during trial stipulated and agreed that Respondent's exhibits l77 through l9l could be offered in evidence which exhibits set forth the Respondent's proposed prevalent pay line for each job classification based on stipulated data of the prevalent step pay plans. The proposed prevalent pay lines included eligibility periods of one to one and one-half years for each step. The Respondent's expert testified that the prevalent mid-points of minimum and maximum wages for each job classification were determined from survey data, the prevalent pay line steps for each job classification were an even dollar amount dividing the steps of each pay line up equally between the prevalent minimum and maximum to incorporate the prevalent eight steps in each pay line over the prevalent eight and one-half years of service eligibility for progression through the pay line. The Petitioner's expert conceded that management could, in this case, space the steps along the pay line (27:23 to 28-l0) as a prerogative of management, but argued that the first step should be a probationary step with six months eligibility time span, with the remaining steps divided evenly between one to one and one-half year intervals. The Commission does not agree that spacing of the eligibility time periods is a management prerogative. The Court in Douglas Cty. Health Dept. Emp Assn. v. Douglas Cty, 229 Neb. 30l, 427 N.W.2d 28 (l988) held that the "manner in which an individual moves from the minimum to the maximum salary rate of a job classification is a timing difference in the salary schedule, which must be adjusted to reach a comparability determination. IBEW Local l536 v. City of Fremont, 2l6 Neb. 357, 345 N.W.2d 29l (l984). This condition of employment is another way of defining experience in employment." Id. at page 3l4. The Court also held that upon establishing a minimum and maximum salary to be paid on a wage-step progression schedule, the CIR has statutory authority to establish a wage-step progression schedule as a condition of employment. See also, Plattsmouth Pol. Dept. Coll. Barg. Comm. v. City of Plattsmouth, 205 Neb. 567, 228 N.W.2d 729 (l980). In this case, however, the evidence offered during trial of the pay step intervals as included in the testimony of the experts and exhibits l77 through l9l, which were offered and received into evidence pursuant to the stipulation of the parties, supports a finding by the Commission that the pay step time intervals on the prevalent pay step lines as reflected in Respondent's Exhibits l77 through l9l are reasonable and appropriate.

Although the Petitioner argued that the Commission should adopt a step pay plan which included a probationary term or step of six (6) months because the step pay plan previously adopted by the Respondent included the same, both parties agreed that no market date or other evidence existed of a prevalent probationary period. The petitioner was the moving party on the issue of adoption of a probationary period within the prevalent step pay line. Without any evidence of a prevalent practice in regard to a probationary period on the step pay plan, the Petitioner has failed in its burden of proof. Any determination by the Commission of a specific probationary period on the prevalent step pay plan adopted by the Commission would be mere speculation. Lincoln Fire Fighters Assn. v. City of Lincoln, l98 Neb. l74, 252 N.W.2d 607 (l977), and Douglas Cty. Health Dept. Emp. Assn. v. Douglas Cty., 229 Neb. 30l, 427 N.W.2d 28 (l988).

5.Placement on the Step Pay Line:Initial placement on the prevalent step pay lines for each job classification was one of the contested issues. No evidence or market survey was offered of a prevalent method of initially placing of employees on the new prevalent step pay lines. The Petitioner argued and offered expert testimony that, although no market or survey data was available to determine a prevalent method of initial placement of the employees on the prevalent step pay line, the Commission should place the employees on the prevalent pay line at the same step that the employees were currently positioned on the Grand Island step pay line. The Petitioner argued that due to the fact that the employees had advanced horizontally on step pay lines based on a combination of longevity and job performance, and the current step pay line had an equal number of steps to that of the prevalent step pay line (eight), a simple transfer to the same step on the prevalent step pay line was simplest, most logical and expeditious method of placement. The argument of the petitioner is fallacious for the reason that the existing pay line required six years to transfer from the entry point to maximum pay, and the prevalent step pay line requires eight and one-half years to transfer from the entry point to maximum pay. A simple transfer to the same pay step would unreasonably reward the petitioner's members by allowing a transfer without regard for time in service.

The Respondent argued that the Commission had three alternatives in placement of employees on the new pay line. The Respondent argued and presented expert testimony that the Commission could determine, in the absence of evidence of a prevalent method of transferring from the current step pay line to the prevalent step pay line, that the Petitioner, the moving party, had failed in its burden of proof, and the placement on the new step pay line was a management prerogative. The Commission disagrees. As previously cited, the Supreme Court in Douglas Cty. Health Dept. Emp Assn. v. Douglas Cty, 229 Neb. 30l, 427 N.W.2d 28 (l988) specifically held that the "manner in which an individual moves from the minimum to the maximum salary rate of a job classification is a timing difference in the salary schedule, which must be adjusted to reach a comparability determination" is a condition of employment which the Commission has statutory authority to establish. See also, Plattsmouth Pol. Dept. Coll. Barg. v. Plattsmouth, 205 Neb. 567, 288 N.w.2d 729 (l980).

The Respondent argued and offered expert testimony that, in the alternative, the Commission could place employees on the next higher step of the new pay plan above their current wage, or place employees in the bargaining unit on the step of the new pay plan which corresponded to their years of service. The Respondent correctly argued that placement on the new pay line which corresponded solely and exclusively to each such employee's years of service was an incorrect practice because such a method of placement would disregard the job performance criteria which together with years of eligibility is a prevalent practice. The Respondent argued that the Commission should place the employees of the bargaining unit on the next higher step of the new pay plan above their current wage. Respondent cited State Law Enforcement Bargaining Council v. State of Nebraska, l2 CIR 32 (l933) as authority for such practice. The Respondent's reliance on said case is misplaced. In Bargaining Council, supra, the Commission was limited to selecting which final offer of the parties was most comparable. The standard of review was limited to comparability of the final offers of the parties. By choosing one last final offer over the other based on the standard of comparability, the Commission did not adopt a "common practice" of placement of employees on a new pay line by placement on the next highest step of the new plan above their current wage. See also, Lincoln Firefighters Association Local 644 v. City of Lincoln, Nebraska, Case No. 90l, (January, l997). In addition, such a placement on the next higher step of the new pay line solely based on the current wage rate of the employee fails to satisfy the requirements of Section 48-8l8, ie., establishment of wage rates according to prevalent wage rates. The wage rate for employees would be established, if such a practice were adopted by the Commission, not on prevalent pay rates, but upon current pay rates. Such a practice would also disregard the years in service eligibility criteria and job performance criteria which the Commission has found is prevalent for movement between steps on the new pay line.

The Commission finds that each employee of the bargaining unit has progressed to a certain step on the current step pay plan based on a combination of years of eligibility and job performance. The employees should be given credit for job performance in progressing on the current pay line, however, the years of eligibility and the eligibility time of each step must be changed to correspond to the years of eligibility and time in each step provided by the new step pay plan which provides eight and one-half years from entry to maximum pay versus six years in the current plan. The Commission finds that each employee should be placed on the appropriate new pay plan (Table 4) at a step for which each such employee has qualified by time in service as of the contract date, August l, l995, and the number of performance evaluations each employee has successfully completed to the date of the contract, whichever is the lesser number of steps. This placement on the new step pay plans gives credit to the employees for their time in service, and gives credit to each such employee for previously demonstrated job performance.

Upon placement on the new step pay plan, progression through the new pay line shall be based on service eligibility time as set forth in the new pay step plan, and job performance. In the event any employee has progressed during the contract year to another step on the current pay plan by reason of service eligibility time and job performance, and has satisfied the service eligibility time as set forth in the new step pay plan for progression to the next higher step of the new step pay plan, then each such employee should be given credit for such progression on the new pay line in computing wages due and payable for the contract year.

FRINGE BENEFITS:

The parties have stipulated and agreed that the economic values of each of the fringe benefits were as stated in the parties' exhibits as identified in paragraph "A" of joint exhibit no. 26, as "Agreed Upon Items," and that the Commission should include the facts and matters stated therein, including the economic values of the fringe benefits, in the findings and orders of the Commission.

In this case we are not faced with the usual problems of proof concerning the economic values of the fringe benefits listed in Paragraph A of Joint Exhibit 26 because of the stipulation of the parties as to these facts. Also, because of the parties' stipulation, we are not faced with many of the usual difficult implementation and policy questions which abound in attempting to make adjustments to issues normally made moot by the passage of time. The parties' stipulation as to such facts, especialy as to such complex facts which are usually hotly and extensively contested, serves the interest of judicial efficiency, conserves the resources of the parties, promotes the policies of the Commission and the purposes of collective bargaining and is to be encouraged.

Based on the stipulated facts and matters, the Commission finds that the prevalent fringe benefits, and economic values of the same are as established by the parties in such stipulation, and that the fringe benefits for the contract year, August 1, 1995 through July 31, 1996 should include the following:

1.Sick Leave Accumulation and Conversion to Vacation or Cash: The Commission finds that the comparison of the current policy of the Respondent to prevalent for sick leave--accumulation rate, requires no change. The current policy is prevalent. The Commission finds, however, that the current policy for sick leave--maximum accumulation of sick leave days, is not prevalent. The prevalent sick leave--maximum accumulation of sick leave days is 121 days. See Table 5. The Commission finds that the current policy of the Respondent for sick leave conversion to cash or vacation should be retained. There is no prevalent policy for conversion of sick leave to cash and the Respondent's policy is prevalent for conversion of sick leave to vacation.

2.Sick Leave used for family illness or used for funeral leave: The Commission finds that the current policy of the Respondent is prevalent. See Table 6.

3.Vacation Scheduled (Days): The Commission finds that the current practice of the Respondent is to allow a greater number of vacation days than the prevalent for employees with one year, five years, and fourteen years of employment, to allow a smaller number of vacation days than prevalent for employees with ten years of employment, and to allow a prevalent number of vacation days per year for employees with twenty or more years of employment. The Commission finds that the prevalent scheduled vacation days for one year time in service is 7.5 days; l2.5 days for five years time in service employees; l5.6 days for employees with ten years and fourteen years in service, and 20 days for employees with twenty or more years of service. See Table 7.

4.Vacation Days Carryover or Conversion to Cash: The Commission finds that the current policy of the Respondent for vacation carryover is prevalent, as is the current policy for vacation days conversion to cash. The Commission finds that the prevalent maximum number of vacation carryover days is 30 days. See Table 8.

5.Holidays: The Commission finds that the prevalent number of holidays is 9, and the prevalent compensation per hour for holiday compensation is 2.25 times the hourly wage. See Table 9.

6.Health Insurance: The stipulated evidence of the parties indicated that the payments made by the City for health insurance benefits exceeded the prevalent, and that the City paid the entire health insurance premium. The stipulated evidence also revealed that the prevalent practice was that the employer paid 83% of the family and 88% of the single health insurance premium, and the employees paid l7% of the family health insurance premium and single employees paid l2% of the health insurance premium (Table 10). Although the evidence reveals both the average premium paid by the City for family and single coverage, and the percentage of premium paid for family and single coverage by employer and employee, use of both the percentage of premium paid, and the dollar amount of the premium paid in calculating any fringe benefit offset, would be redundant. The Commission, therefore, finds that the prevalent practice is the percentage of premium paid by the employer and the employee, and this found prevalent practice may be used to the exclusion of the dollar amount found, in computing any fringe benefit offset to prevalent wages. The Commission also finds that a difference exists between current policy, and prevalent in regard to the amount of the family deductible, and amount of the stop loss for single and family policies. The prevalent practice is a deductible of $366 for family deductible, $l50 for single health insurance policy, and the prevalent stop loss is $3,294 for single health insurance policies and $4,5l8 for family health policies. The Commission also finds, however, that any difference between the prevalent deductible and stop loss between the current policy and prevalent for the contact year which has lapsed is now moot. The Commission's ruling on the same after the contract year was over would be merely advisory, and would have no effect on the contract year in dispute. City of Omaha, l0 CIR 233, 236 (l990).

7.Health Insurance for Two Married Employees: Although the parties stipulated and agreed on the facts and matters set forth in an exhibit pertaining to health insurance provided for two married employees (Table 11), no prevalent was included in the stipulation of the parties, and no other evidence was offered in the record concerning the same. Any finding of prevalent by the Commission in regard to this benefit would be based entirely upon speculation, surmise or conjecture, which is never sufficient to sustain a judgment. Therefore the Commission finds that the evidence was insufficient to establish a prevalent practice in this regard. Douglas Cty. Health Dept. Emp. Assn. v. Douglas Cty., 229 Neb. 30l, 427 N.W.2d 28 (l988).

8.Optical Card/Vision Insurance: The Commission finds that the current policy at Grand Island of not providing Optical Card/Vision Insurance is prevalent. See Table 11.

9.Dental Insurance: The Commission finds that dental insurance as a fringe benefit is a prevalent practice, and that the current practice of making dental insurance available should be retained. See Table 12.

10.Life Insurance: The Commission finds that life insurance as a fringe benefit was a prevalent practice, but the prevalent basic coverage was $l9,688, rather than the $30,000 basic coverage provided, and that the prevalent amount of the premium for such insurance paid by the employer was $6.77. See Table 12.

l1.Employer and Employee Contribution to Retirement: Although the Commission does not have jurisdiction over the pension plan of the employees to order a change of the pension plan (Plattsmouth Pol. Dept. Coll. Barg. v. Plattsmouth, 205 Neb. 567, 288 N.W.2d 729(l980), the Commission does have jurisdiction to offset favorable and unfavorable comparisons of current to prevalent when reaching its decision establishing wage rates. Douglas Cty. Health Dept. Emp. Assn. v. Douglas Cty., 229 Neb. 30l, 427 N.W.2d 28 (l988), and Crete Education Assn. v. School Dist. of Crete, l93 Neb. 245, 226 N.W.2d 752 (l975). In this regard, based on the stipulated and agreed evidence offered by the parties, the Commission finds that under the current pension plan the percentage contributions made to the plan by the Employer is 3% at low and 6% at high, and the Commission finds that prevalent contribution to the pension plan by the employer is 4.5% at low and 5.8% at high. See Table 13. That the dollar value of the difference between contributions made to the plan under the current plan during the contract year, and prevalent as found herein for the contract year should be used in computing the fringe benefit offset.

l2.Longevity Pay Plan: The Commission finds that the current practice of not providing a fringe benefit for longevity is prevalent. See Table 14.

l3.Standby Pay: The Commission finds that standby pay was not a prevalent practice, and payment for the same for the contract year should be deleted. See Table 14.

l4.Call-In Pay: The Commission finds that payment for call-in pay is a prevalent practice at one (l) hour guaranteed pay at straight time, and time plus one-half if over 40 hours per week. During the contract year, the Respondent paid the employees for actual hours for call-in pay, at l.5 the hourly wage. The fringe benefit offset during the contract year should reflect the prevalent practice. See Table 15.

l5.College Reimbursement: The stipulated evidence of the parties revealed that the prevalent practice included a fringe benefit of reimbursement of college tuition to employees of 75% of tuition. The City during the contract year reimbursed tuition at l00%. The fringe benefit offset should include the difference between prevalent and paid reimbursement for tuition. See Table 16.

l6.Overtime: The stipulated evidence revealed that the prevalent practice was to pay overtime after 40 hours in a workweek, at l.5 times hourly wage. In addition, the evidence revealed that the Respondent's current policy provided for payment of overtime in the streets division for hours of employment in excess of 8 hours per day, however, prevalent practice was not to pay overtime for hours in excess of 8 hours in a work day. Computation of overtime pay should conform to prevalent. See Table 17.

17.When Computing Overtime -- vacation, sick leave and holidays: The Commission finds that there is no prevalent practice for counting vacation or sick leave as hours worked when computing overtime pay and, therefore, the Respondent's policy should remain unchanged. The Commission further finds that it is prevalent to count holidays as hours worked when computing overtime pay and that the Respondent's policy is prevalent and should remain unchanged. Table 18.

l8.Compensatory Hours: The Commission finds that bankable compensatory time is a prevalent practice, and the maximum accumulation of bankable time is l68 hours. See Table 19. The Commission further finds, however, that during the contract year no compensable time was banked, but rather the same was paid at l.5 times hourly wage, which also was found to be a prevalent practice. Because the compensable time was in fact paid by the Respondent at the prevalent rate during the contract year, this fringe benefit is now moot.

19.Funeral Leave: The Commission finds that the prevalent fringe benefit for funeral leave is to provide three (3) days funeral leave for the death of an immediate family member. See Table 20. The current practice does not include a funeral leave policy separate from sick leave. The Commission finds that the prevalent practice should be included in the fringe benefit offset in the event any employee, during the contract year, used sick leave for funeral leave. The fringe benefit offset should provide for a cash pay back to the employee for sick leave time actually used for the prevalent three day funeral leave fringe benefit.

In addition to those fringe benefits specifically found moot hereinabove, the following fringe benefits are moot because the year in dispute is over. See Nebraska Pub. Employees Local Union 25l v. Otoe County, l2 CIR l77, l94 (l996), and Lincoln Firefighters Association Local 544 v. City of Lincoln, Nebraska, case no. 90l, filed January 24, l997. A ruling as to moot benefits would be advisory only and would have no effect on the contract year in dispute. City of Omaha, l0 CIR 233, 236 (l990), and FOP v. County of Sarpy, l0 CIR 6l (l988):

l.Life Insurance (Amount of Coverage)

2.Sick Leave and Vacation Payoff Upon Retirement, Resignation or Termination and Death During the Contract Year.

3.Union Dues Checkoff and Employee Assistance Program.

Pursuant to the stipulation of the parties, the following fringe benefits will remain unchanged, (l) Equipment/Mechanic Tool Policy; (2) Clothing and Cleaning Allowance/Shop Garage - Uniform Policy, and (3) Health Insurance Prescription Card Usage. The Commission finds, however, that the Health Insurance Prescription Card Usage was not a prevalent fringe benefit, and the additional cost to the employer to provide prescription card usage to each employee during the contract year may be included in any fringe benefit offset.

FRINGE BENEFIT OFFSET

In establishing wage rates the Commission is required to take into consideration the overall compensation received by the employees, including all fringe benefits. Omaha Assn. of Firefighters v. City of Omaha, l94 Neb. 436, 23l N.W.2d 7l0 (l975). The Commission is required to offset possible unfavorable comparisons between employers with other comparisons which are favorable when reaching its decision establishing wage rates. Crete Education Assn. v. School Dist. of Crete, l93 Neb. 245, 226 N.W. 2d 752 (l975). The parties have agreed that the fringe benefits, other than the benefits which are moot, are capable of numerical valuation, and the parties have calculated the economic value of each such benefit (See Exhibits identified in joint exhibit 26, paragraph "A"). The parties disagree on the method used to apply any offset of fringe benefits to the wage package. The Petitioner's expert testified that upon placement of the employees on the new pay line, a lump sum difference in pay for the contract year may be determined for each employee for the contract year. If the lump sum difference in pay for the contract year is favorable to the employee, the economic benefit of the fringe benefits may be reduced to a numerical value for each employee, and deducted from the lump sum due from the employer to the employee by reason of any increase in wages and benefits. The Respondent's expert computed for the court the fringe benefit offset per pay line class, and individually for each employee. The Respondent argued that any fringe benefit offset should be deducted from the step pay plan for each job classification. The offset would be calculated for all employees in a particular job classification, and all employees within such job classification would share in the amount of money owed to the employer by receiving a lower hourly rate of pay. In other words, the offset would be used to reduce the prevalent step pay line for each job classification. The Respondent conceded, however, that the pay-line adjustment for fringe benefit offset would be inequitable to those employees who received little if any fringe benefits, and a reward to those who received many fringe benefits. The Respondent conceded that a fringe benefit offset computed on an individual employee basis would be most accurate, and would avoid the inequities built into a pay-line adjustment based on the average of the dollar amount of fringe benefits received by the employees. In fact both parties agreed that the most accurate and most desirable computation of fringe benefit offset was the computation on an individual basis. The Respondent, however, argued that the individual fringe benefit offset should be reduced from a lump sum to an hourly rate adjustment, and that the individual employees hourly rate as determined by the prevalent step pay plan should be adjusted to reflect the offset.

The Commission has previously determined the method and manner of fringe benefit adjustment to established prevalent pay scales in circumstances where the contract year has been completed prior to the filing of an order determining the prevalent wage rates and conditions of employment for the contract year. In NE Public Empl. Local Union 25l v. Otoe Co., l2 CIR l77 (l996), and in Lincoln Firefighters Association Local 644 v. City of Lincoln, Nebraska, case no. 90l, (Filed January 24, l997), the Commission, when faced with identical issues, held:

The offset shall be calculated on an individual employee basis, but shall not be deducted from each employee's hourly rate of pay. The Respondent shall determine the lump sum amount of overpayment received by each employee and this figure shall be deducted or offset from the lump sum amount of compensation due to that employee. . .the employee reimbursement shall not exceed the amount of compensation owed to the employee from the Respondent (employer).

Id. at page 25.

We reaffirm the holdings of the above two cases in this regard. The numerical value of fringe benefits paid or provided for the benefit of an employee and wages paid to the employee during the contract year shall be compared to the prevalent fringe benefits and wages for each employee as found herein. Fringe and wage underpayment for each employee should be offset against fringe and wage overpayment for each employee. In the event of any net lump sum underpayment for the contract year as found by said comparison for each employee, the same shall be paid by the employer (Respondent) to each such employee. Because we have previously found that employee reimbursement shall not exceed the amount of compensation owed to the employee from the employer, net lump sum overpayment for the contract year as found by said comparison for each employee, should not be paid by the employee to the employer.

COUNTERCLAIM

The Respondent filed a counterclaim praying that the Commission order the employees in the Petitioner's bargaining unit reimburse the Respondent for all sums paid by the Respondent to said employees from and after August l, l995 to the present time found to be in excess of prevalent. No facts were included in the counterclaim indicating any special circumstance or the existence of compelling evidence sufficient to overcome the extremely difficult implementation and policy questions involved in ordering employees to take from their pocket and pay back wages paid to them by employers. During trial, no evidence was offered by either party, nor testimony of any expert witness pertaining to a method of implementing a plan to require employees to pay back to the Respondent any overpayment of wages or benefits paid by the Respondent to employees during the contract year. All of the fringe benefit offset plans presented by the parties, and included in the evidence, assumed a cap for payment of reimbursements by employees to the Respondent to be limited to any amount found due and payable by the Respondent to the employees for the contract year. In Rodeo Telephone, Inc., Employees Association v. Rodeo Telephone, Inc., 9 CIR ll8 (l987), the Commission, upon identical issues, held that a requirement for repayment for compensation or benefits out of the employee's own pocket, subsequent to receipt of the benefits during the contract year, "would further strain the employee - employer relationship at Rodeo and is against public policy." Id. at l3l. In Douglas County Health Department Employees Association v. County of Douglas, 229 Neb. 30l, 427 N.W.2d 28 (l988), the Court found that the Commission had the authority to order a wage decrease, but held that the Commission did not act arbitrarily in failing to order a retroactive wage decrease in that case especially in light of difficult implementation and policy questions. In Otoe Co., supra, the Commission reviewed the history of the CIR orders and Supreme Court decisions in regard to this issue, and held:

We hold that absent compelling evidence to the contrary, because of difficult implementation and policy questions, wage reductions will not be retroactive, 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.

Id. at l88.

No evidence was offered during the time of trial by the movant, the Respondent, in this case, of any compelling reason or appropriate method to determine and implement a retroactive repayment plan of wages or fringe benefits in excess of prevalent. We have found hereinabove that any excess of fringe benefits or wages paid by the Respondent to the employees during the contract term may be offset on an individual basis against any lump sum found due and payable for said contract term by the Respondent to such employees.

For the reasons hereinstated, including the Commission's findings in regard to wage and fringe benefit offset, the Commission finds that the Counterclaim of the Respondent should be denied.

IT IS THEREFORE ORDERED, that for the contract year August l, l995 through July 3l, l996:

l.The pay lines for the job classifications in dispute shall be as set forth in Table 4.

2.The employees shall be placed on the new step pay lines in compliance with the findings of the Commission as heretofore set forth;

3.The Respondent shall provide the prevalent fringe benefits as found herein as the same are identified in Tables 5 to 20, both inclusive.

4.The following fringe benefits shall remain unchanged, (a) Equipment/Mechanic Tool Policy; (b) Clothing and Cleaning Allowance/Shop Garage -- Uniform Policy, and (c) Health Insurance Prescription Card Usage.

5.The fringe benefit and wage offset, as found herein, shall be calculated on an individual employee basis. The Respondent shall determine the net lump sum overpayment or underpayment for the contract year for each employee. Any net lump sum underpayment for any employee shall be paid by the Respondent to each such employee, however, any employee reimbursement shall not exceed the amount of compensation owed to the employee from the Respondent.

6.The counterclaim of the Respondent is dismissed.

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

Entered this 9^th day of July, l997.