14 CIR 81 (2002).  Appealed September 23, 2002. Appeal dismissed January 27, 2003.

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

APPEARANCES:

    This matter came on for hearing before the Honorable Jeffery L. Orr upon both Respondent’s Request for Post-trial Conference and Petitioner’s Request for Post-trial Conference. This hearing was held in the Commission’s offices on July 30, 2002, with Judge Orr present by telephone. The Petitioner was represented by its attorney, Gary Nedved. The Respondent was represented by its attorney, William Harding. Both parties seek to have the Commission revise the Findings and Order issued in this case July 10, 2002.

    Neb. Rev. Stat. § 48-816(7)(d) (Reissue 1988) provides that the Commission shall, in a wage case filed pursuant to Section 48-818, issue a recommended decision and order which shall become final within ten days of entry unless one of the parties requests a post-trial conference. The Respondent and Petitioner filed their respective requests within the ten-day statutory period. At the post-trial conference, both parties waived the statutory requirement to render a decision within ten (10) days.

    The Respondent contends that the Commission was remiss in either failing to address or incorrectly addressing six issues. The Petitioner argues the Commission also erred in their findings on the issue of health and dental insurance and the issue of court attendance pay.

    Respondent contends that the Commission erred in listing the effective date of the Order, in that January 1, 2001 should be changed to October 1, 2001. We find the date should be changed from January 1, 2001 to October 1, 2001 under the Order Section, Paragraph 1.

    The Respondent also argues that the Commission’s reference to Personal Days under Comparable Fringe Benefits, Item No. 4, is incorrect in that the number of personal days given is in fact not comparable, as the Commission in its Findings and Order decreased the personal days from two personal days to one personal day under Non-Comparable Benefits, Item No. 13, and under the Order Section, Item No. 19. In re-examining Exhibit 60, the Commission was asked to determine if "having" personal days was a prevalent practice. We find that the Commission in its original order was correct in finding that while having personal days was in fact prevalent, the number of days given by the Respondent to the employees was not comparable. However, in order to clarify the Findings and Order, the Commission will delete the reference under the Comparable Fringe Benefits, Item No. 4.

    The Respondent contends that the Commission’s reference to Overtime Practices, under the Fringe Benefit Section, limits the Respondent’s management prerogative in issuing overtime. The Commission agrees with the Respondent that overtime practices are indeed management prerogative and likewise did not intend to limit the Respondent’s authority. See Lincoln Firefighters Ass’n Local 644, v. City of Lincoln, 12 CIR 248, 259 (1997). We will delete any reference to the Overtime Practice Section under Fringe Benefits and the Order Section, Item 5.

    The Petitioner contends that the Commission erred in calculating family and single health insurance coverage and the percentage paid by the employer/employee under the Fringe Benefit Section, Sub-section Health and Dental Insurance. They also contend that the Commission erred in applying the percentage of the premium to the midpoint rather than the actual health insurance premium currently paid by Grand Island. The Respondent agrees with the Petitioner with respect to the single health insurance coverage and disagrees with the Petitioner with respect to family coverage, arguing that the Commission determines general health insurance coverage based on prevalence and has issued health insurance orders based upon both actual dollar amounts and percentages, because the Commission is obligated to order the prevalent market practice.

    In comparing health insurance providing differentiated coverage, the Commission will consider the effect of each plan in its entirety. See Nebraska Public Employees Local Union 251 v. Nemaha County, 12 CIR 152 (1995). Even though the employer’s health plan may be above prevalent in some areas and below prevalent in other areas, if, in its entirety, the health insurance plan offered by the employer is comparable to the plans offered by other employers in the array, no change will be ordered in the basic plan designed. See generally Lincoln Firefighters Ass’n, Local 644 v. City of Lincoln, 8 CIR 31, 67 (1985); Omaha Police Union Local 101 v. City of Omaha, 11 CIR 114, 127 (1991). We find from the evidence presented that the coverages of the health insurance plans provided by the Respondent are comparable overall to the coverages of the health insurance plans provided by the members of the array. While the Respondent’s health insurance plan is above prevalent in employee deductible and stop-loss and below prevalent in percentage of co-pay and major medical, we find that no change is required in the basic health insurance plans provided by the Respondent because the provisions off-set one another. Therefore, the Respondent shall retain its current health and dental care plan.

    Although the evidence revealed both the average premium paid by the City for family and single coverage, and the percentage of premium paid, using both the dollar amount of the premium and the percentages would be redundant. While the Commission has on certain occasions determined both the percentage and the dollar figure, those cases are usually for school districts, which for the most part provide common health care plans through the Nebraska State Education Association. The Commission shall continue to determine comparability of the health insurance by comparing the percent of the premium to be paid by the employer and employee. See Lincoln Firefighters Ass’n Local 644 v. City of Lincoln, 12 CIR 248, 265 (1997); General Drivers & Helpers Local Union No. 554 v. Robertson, 12 CIR 120, 125 (1995); International Ass’n of Firefighters, Local No. 1575 v. City of Columbus, 11 CIR 267, 273 (1992); Nebraska Pub. Employees Local Union 251 v. County of Douglas, 11 CIR 189, 195 (1992); Fraternal Order of Police Lodge No. 23 v. City of Holdrege, 9 CIR 257, 263 (1988). Therefore, the Commission will remove Table 6 and Table 7 and replace them with Table 6A and Table 7A, listing the applicable percentages as applied to the current plan retained by the Respondent. The Commission will leave only the references to percentages in the Findings and Order and remove all references to actual dollar figures regarding health and dental insurance.

    Respondent also contends that the Commission failed to address 2/4 party insurance in the Findings and Order dated July 10, 2002. After reviewing the evidence presented at trial, the Commission finds that while paying 2/4 party insurance is prevalent, we cannot determine the percentage of the premium to be paid by the employer and employee when 2/4 party health insurance is selected, because there is insufficient evidence to separate dental and health insurance premiums at Fremont and Norfolk. Therefore, the Respondent should maintain all of its current methods of providing 2/4 party insurance.

    Generally, array choice is not a proper subject for discussion at a Post-trial Conference. See District 8 Elementary Teachers Ass’n v. School Dist. No. 8, 8 CIR 136 (1985). However, if a party challenges array choice on the basis that the Commission mischaracterized or did not base its choice on the evidence presented, the Commission can correct any such error after having heard the matter in a conference setting with all parties being represented. The Respondent argues that the Commission did not consider evidence, namely Exhibit 214, in deciding that Bellevue was not a proper city to be included in the Commission’s array. After careful review of the evidence, the Commission does not find any such error. As initially stated in the Findings and Order, "While being located in an MSA does not in itself require the elimination of a particular array city, it is a factor in considering the work, skills, and working conditions of the employees in the MSA as compared to the subject array city." The Commission did not find and still does not find after reviewing Exhibit 214, that there is sufficient evidence to state that the mere fact that Bellevue is located in an MSA is enough to remove Bellevue from the array. The evidence presented at trial supports our findings on this issue. In fact, Respondent’s own expert, John Cripe, could not find any evidence that specifically stated that Bellevue was directly influenced by the Omaha MSA. Because we find no mischaracterization of the evidence, our previous findings shall stand as issued by the Commission on July 10, 2002.

    The Respondent asks the Commission to clarify its statement under the Non-Comparable Benefits Section, Item No. 16, and the Order Section, Item No. 22, as to whether the ordered payment of ninety percent (90%) applies to the current stair-step amounts set forth in Exhibit 29. After careful review of exhibits pertaining to Educational Assistance, we note Exhibit 216 states the Collective Bargaining Agreement for North Platte provides that employees can receive 50% reimbursement for all of their education courses, including books, tuition, and other course related materials that are job-related. This exhibit is inconsistent with Exhibit 84, which states that North Platte employees receive 100% of their tuition, books and lab fees. Since Kearney and Norfolk do not have written agreements, there was insufficient information regarding whether or not step-plans were used in those array cities. With such inconsistent and insufficient information, the Commission finds that it will not decide the issue of educational assistance and how it applies to the step-pay plan and the Respondent should maintain all of its current methods of providing educational assistance. Therefore, we will amend our Findings and Order by deleting Item No. 16 under the Non-Comparable Benefits Section, and Item No. 22 under the Order Section.

    Finally, Petitioner alleges that the Commission erred in calculating court attendance rate of pay, Item 15 under Comparable Fringe Benefits, stating that the midpoint was 1.3 on Exhibit 82. The Commission finds that Exhibit 82 does not show the midpoint rate to be 1.3, but instead Exhibit 82 shows that the midpoint was 1.1 times the regular rate. The Commission will change our Findings and Order under Non-Comparable Benefits Section, Item 15, from 1 times its regular rate to 1.1 times its regular rate and similarly change Order Section, Item 21. See Lincoln Firefighters Ass’n Local 644 v. City of Lincoln, 12 CIR 248 (1997).

IT IS THEREFORE ORDERED THAT the Findings and Order dated July 10, 2002 in the above-captioned case shall be modified as follows:

1. In the Order Section, Paragraph 1 shall be amended from January 1, 2001 to October 1, 2001.

2. In the Comparable Fringe Benefits Section, Item No. 4 shall be deleted.

3. The Overtime Practice Section under Fringe Benefits and Item 5 in the Order Section shall be deleted.

4. Item No. 16 in the Non-Comparable Benefits Section, and Item No. 22 in the Order Section shall be deleted.

5. Table 6 and Table 7 shall be replaced with Table 6A and Table 7A, listing the applicable percentages as applied to the current plan to be retained by Respondent. All references to actual dollar amounts for health and dental insurance shall be removed from the Findings and Order, only the percentages found in Table 6A and Table 7A shall remain.

6. The Non-Comparable Benefits Section, Item 15, and the Order Section, Item 21 are amended to read 1.1 times the regular rate instead of 1 times the regular rate.

To the extent delineated above, our Findings and Order is modified.

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

Entered August 26, 2002.