13 CIR 202 (1999). Also see 13 CIR 230 (1999).

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Before: Judges Anderson, DeLay and Orr

ANDERSON, J:

NATURE OF PROCEEDING

General Drivers and Helpers (hereafter the "Petitioner") filed a Petition on June 12, 1998, seeking resolution of an industrial dispute, pursuant to §48-818, to establish wage rates and other conditions of employment for the period commencing July 1, 1997 through June 30, 1998. Pursuant to a request by the Petitioner, the Commission entered a status quo order and ordered the parties to mediation on June 22, 1998. Petitioner filed on August 26, 1998 a Motion to Proceed to Trial which was heard by the Commission on September 4, 1998, and at that time the parties agreed that additional time was necessary to explore settlement options. Respondents (hereinafter all respondents, including Douglas County, will be referred to as the "Respondent") filed its Answer on September 29, 1998. A pretrial was held on December 7, 1998 where the Petitioner listed its issues as all wages, benefits, terms and conditions of employment and Respondent's listed issues included hours of work, overtime, break and meal periods. It was agreed that Thomas Doyle, Douglas County Engineer would be made an additional respondent party to the dispute, and trial was held on December 14, 1998. After the trial, the parties filed a Joint Stipulation on December 29, 1998 which corrected certain exhibits given to the Commission at trial. The Stipulation is received as evidence.

ARRAY

The parties stipulated at trial that the appropriate array for resolving this industrial dispute atthis time consists of the Counties of Lancaster, Nebraska; Kent, Michigan; Dane, Wisconsin; El Paso, Colorado; Ramsey, Minnesota; Polk, Iowa; and Sedgwick, Kansas and the City of Omaha. The Commission finds that the above array is appropriate pursuant to the parties' stipulation.

WAGES AND STEP PAY PLAN

The evidence is undisputed that a step pay plan is prevalent among members of the array. Of the eight (8) comparable employers, five (5) employers have step pay plans. Table 1.Respondent presently has a step pay plan. A step pay plan will be retained.

There is disagreement regarding the form of the prevalent step pay plan in the number of steps, years to cross, and basis of progression. The basis of the disagreement is whether the pay plans of Kent and Ramsey Counties are step pay plans or merely flat rate plans with an initial probationary rate.

Respondent characterizes this type of plan as a step pay plan, with the probationary rate as step one and the remaining flat rate as step two. Petitioner claims this is a flat rate pay plan with a initial probationary rate for new employees. For example, an employee classified as an Equipment Operator I is paid the same rate of pay as any other employee in that classification, regardless of seniority, ability or any other such factor. A newly hired employee coming from outside of the system receives the probationary wage until completing a probationary period. Upon promotion, the employee within the system receives the flat rate for the new class, not a probationary rate for that class.

A step pay plan typically has a minimum and a maximum rate of pay with a number of steps in between, years to reach maximum pay, and some method of getting from minimum to maximum, be it by seniority, performance or a combination of each. See, State Law Enforcement Bargaining Council v. State of NE, 12 CIR 32 (1993). The Kent and Ramsey County pay plans do not have any of these indicia of a step pay plan.⁽¹⁾ Accordingly, we find that the pay plans of Ramsey and Kent counties are flat rate pay plans with an initial probationary rate, and not step pay plans. Therefore, Ramsey and Kent counties will not be considered when considering the number of steps and number of years to move through the steps to reach maximum pay, and the method of advancement through the steps prevalent in the comparable step pay plans. Lincoln Firefighter Ass'n Local 644 v. City of Lincoln, 12 CIR 248, 258, affirmed 253 Neb. 837, 845 (1998).

Respondent's present step pay plan provides for progression by seniority through the 5 steps over 4 years. Considering those counties in the array that maintain a step pay plan, the prevalent number of years to reach maximum is 7, the prevalent number of steps is 8 and the method of progressing through the pay plan is based on seniority (See Table 1). Respondent's step pay plan shall be changed to provide for progression through eight(8) steps over seven(7) years to reach the maximum pay rate, retaining seniority as the method of progression.

To determine the minimum and maximum wages for Respondent's positions, we look to the minimum and maximum wages paid by members of the array. In examining the array, the counties of Ramsey and Kent have a flat rate with a lower probationary rate. We must, therefore, determine whether the minimum rate of pay for each position in Ramsey and Kent Counties is the probationary rate or the same as the maximum. Petitioner argues that the Commission's precedent is to exclude the probationary wage as a minimum rate of pay, and to treat the flat rate as both the minimum and the maximum rate of pay. Petitioner cites NE Public Employees Local Union 251 v. Nemaha Co., 12 CIR 152 (1995); NE Public Employees Local Union 251 v. Otoe Co., 12 CIR 177 (1996); NE Public Employees Local Union 251 v. York Co., 13 CIR 128 (1998) (currently on appeal) in support of this argument. We do not agree thatNemaha and Otoesupport this position. In both Nemaha and Otoe the minimum was determined by looking to the probationary rate of pay. This was based upon the evidence presented by the parties through their joint expert witness. We will adhere to this approach in this case, without persuasive evidence to find otherwise. Therefore, the probationary rate shall be recognized as the minimum rate of pay for wages paid in both Kent and Ramsey counties. The highest rate of pay for each position shall be recognized for the maximum paid for each position in Kent and Ramsey counties.

To determine the correct minimum for Kent County, special computations will need to be made using the information in the exhibits. Since Respondent's fiscal year spanned over two of Kent County's fiscal years, adjustments will be made to determine the correct minimum wage rate for Kent County.

Several positions require comment. Neither Petitioner nor Respondent surveyed for the Respondent's position of Communication Operator. Therefore, we have no data for this position. There is no data for the positions of Parks/Trails Maintenance Technicians I and II in El Paso and Polk Counties. Without data to the contrary, and since the parties have generally agreed to the data submitted by the other, we will use the data submitted by the Petitioner for these positions.

The Commission finds that the midpoint wages set forth in Table 2-A through 2-G are the prevalent wages to be paid for the various positions in the bargaining unit.

We shall now turn to the fringe benefits in dispute.

FRINGE BENEFITS:

Longevity

Douglas County does not have a longevity pay plan. Such a plan is prevalent among a majority (5 of the 8) of the array members. Table 3 shows the members of the array with longevity pay plans and the amounts paid under such plans. The Commission finds that Respondent should adopt a longevity pay plan in the midpoint amounts shown in the columns on Table 3.

Disability Insurance

Respondent currently provides disability insurance for its employees but pays for it through the pension plan. Both the employer and the employees contribute to this plan. It is clearly prevalent to have a separate long term disability plan paid entirely by the employer. Table 4. Five (5) of the eight (8) array members do so. The mode for paying for that plan is for the employer to pay 100% but we cannot determine a midpoint because we cannot determine from the evidence the amount the employer is contributing to the disability plan portion alone. The contract year is over and it is impossible for the Commission to order a separate plan. This is, therefore, a moot item.

The Petitioner argues that we should make an adjustment to wages to compensate the employees for this omission. However, it is unknown how much is actually being contributed by an employee to the disability plan provided by Respondent because the disability plan funds are co-mingled with the pension funds. Petitioner's witness testified that there is no specific percentage allocable to disability and to retirement (T24:20-22), and that the income from investments in these funds could help fund the plan, and that the different plans have different terms and different standards which affects the cost of the plan (T53:16-25, 54:1-4). The evidence of the comparability of these plans is lacking. Any adjustment to wages would be based on mere speculation and conjecture. We decline to make an adjustment on this basis.

Pension Plan

We can neither amend a pension plan nor can we adjust wages according to the pension benefits received or contributions when it rests on speculation, surmise or conjecture. Douglas Co. Health Dept. Empl. Ass'n v. County of Douglas, 229 Neb. 301, 315 (1988). Petitioner's Exhibit 27 shows the percentage of contributions by the six of the eight array members to their pension plans. Respondent did not give us such a summary exhibit for the other two array members, neither of whom are Nebraska employers. Even if we could do so, we are reluctant to make any adjustment to wage rates based on pension contributions when we do not know the comparability of the plans. Likewise, because of the variety of factors involved, even the valuation of pension benefits is speculative and conjectural at best. Lincoln Firefighters Ass'n, Local No. 644 v. City of Lincoln, 8 CIR 31, 66 (1985). We find that we can not make any adjustment to the wages based on contribution rates nor make any change in the contribution rate itself .Lincoln Firefighters v. City of Lincoln, 8 CIR at 66 (1985).

Moot Fringe Benefits

We have previously held that fringe benefits may be moot when the contract year is over or retroactive change of the fringe benefit is either impossible or impractical. Lincoln Firefighter Ass'n Local 644 v. City of Lincoln, 12 CIR 248, 258, affirmed 253 Neb. 837, 845 (1998). We find the following benefits to be moot: amount of life insurance coverage; bereavement leave (funeral leave); dues check off; Employee Assistance Program; number of paid holidays; sick leave and vacation leave days earned per year; conversion of sick leave to vacation days; availability of sick leave to care for family members; conversion of sick and vacation leave to cash upon resignation; dismissal, retirement, and death, bankable compensatory time; number of personal leave days; prescription card; optical exam; work hours and overtime. We are considering insurance benefits for retirees to be a moot subject since retirees are not in the bargaining unit. Linocln Firefighters, 12 CIR 248 at 266 (1997).

Management Prerogatives

There are certain fringes which we believe are management prerogatives: lunch/break periods as it relates to when they are scheduled and for what length of time; and the employer's ability to institute a 10 hour workday.

Comparable Fringe Benefits

The following fringe benefits shall remain unchanged because they are comparable: injured in the line of duty pay; contribution to life insurance premium; vacation and holiday leave hours counted towards time worked for overtime; holiday pay; call in pay; sick leave conversion to cash; and higher education pay (Tables 5 and 6).

Non-Comparable Benefits:

The Commission makes the following findings as to non-comparable fringe benefits:

1) Shift Differential (Table 7) - Respondent is below the comparable in that it does not pay a shift differential. It should institute such a policy and pay the prevalent differential of .42/hr. for the shifts other than the first shift.

2) Health Insurance (Table 8) - Respondent pays below the prevalent. Respondent should increase its share of the HMO premiums to 99% and 87% for single and family respectively. It should increase its share of the PPO/POS premium to 97% and 88% for single and family respectively.

3) Dental Insurance (Table 9) - Respondent pays above the comparable on single dental and below the comparable on family dental. It should change its contribution amounts to the prevalent of 93% towards single and 82% towards family.

4) Tool Allowance (Table 10). Respondent is above the prevalent on tool allowance and should decrease its allowance to $158 per year.

5) Sick Leave Hours Counted Towards Time Worked for Overtime (Table 6). Although this benefit is prevalent, Respondent does not currently provide it. Respondent should introduce this benefit for the employees.

6) Sick and Vacation Leave Accumulation (Table 11). Respondent provides less than the prevalent sick leave and vacation accumulations. Respondent should increase its sick leave accumulation to 192 days. It should increase its vacation leave accumulation to 30 days;

7) Reimbursement for Tuition (Table 12). Although this benefit is prevalent, Respondent does not presently provide it. Respondent should initiate this practice and it should be paid at the rate of 93% or $434 maximum per year;

8) Working Out of Class Pay (Table 13). Respondent is above the prevalent and should decrease this benefit to become active when the employee has worked 3 consecutive days.

9) Standby Pay (Table 14). Respondent is above the prevalent in paying for standby pay. Respondent shall eliminate payment for standby pay to conform with the prevalent practice.

IT IS THEREFORE ORDERED that for the fiscal year July 1, 1997-June 30, 1998, the following shall be effective July 1, 1997:

1) Respondent shall change its step pay plan to reflect 8 steps, 7 years to reach maximum, with progression continuing to be based on seniority, and shall pay the prevalent midpoint wages set forth in Table 2 for the positions shown on Tables 2-A through 2-G. Any wage decreases shall be prospective only. Any overpayment may be used to offset any amounts due hereunder from Respondent in accordance with Paragraph 12 below.

2) A longevity plan shall be instituted which pays the midpoint amounts as set forth in Table 3.

3) Shift differential pay shall be instituted and shall be paid in the amount of .42/hr. for shifts other than the first shift.

4) Respondent's share of health insurance premium shall be increased to 99% and 87% for single and family HMO respectively and increased to 97% and 88% for single and family PPO/POS respectively.

5) Respondent's share of dental insurance premium shall be decreased to 93% from the current 100% for single and shall be increased from the current 39% to 82% for family.

6) Tool allowances shall be decreased from the current $208/yr. to $158/yr.

7) Respondent shall institute a policy of counting sick leave hours towards time worked in computing overtime.

8) Sick leave accumulation shall be increased to 192 days and vacation leave accumulation should be increased to 30 days.

9) Respondent shall reimburse for tuition in the amount of 93% up to a maximum reimbursement of $434/yr.

10) Respondent shall increase the number of days an employee works out-of-class in order to receive the rate of pay of the higher classification to 3 days from the current 1 shift.

11) Respondent shall eliminate standby payments.

12) Any amounts due employees hereunder shall be offset by any overpayments received during the fiscal year for any decrease in wages, single dental, tool allowance, and working-out-of-class and standby payments. Such reimbursement shall be capped by and limited to the amount of increases due to employees from Respondent.

13) Pursuant to the Pretrial Conference stipulation, all pay adjustments shall be made by payment of a lump sum payment within forty-five days of the final Order.

14) All other terms and conditions of employment are not effected by this Order.

Entered April 2, 1999.

1. Although some Ramsey County employees are covered by a step pay plan, the majority of comparable employees are covered by flat rate plan.