15 CIR 140 (2005) (Appealed Jan. 11, 2006. Appeal dismissed at request of appellant May 24, 2006)
|INTERNATIONAL BROTHERHOOD OF ELECTRICAL||)||CASE NO. 1083|
|WORKERS, LOCAL UNION NO. 1597,||)|
|v.||)||FINDINGS AND ORDER|
|THE CITY OF GERING, NEBRASKA,||)|
Filed November 3, 2005
|For Petitioner:||Dalton W. Tietjen|
|200 Haymarket Square|
|808 P Street|
|Lincoln, Nebraska 68508|
|For Respondent:||Jerry L. Pigsley|
|Harding, Shultz, & Downs|
|800 Lincoln Square|
|121 S. 13th Street|
|P. O. Box 82028|
|Lincoln, NE 68501-2028|
Before: Judges Orr, Blake, and Burger
NATURE OF THE PROCEEDINGS:
action was brought by International Brotherhood of Electrical Workers, Local
Union No. 1597 (hereinafter, “Petitioner” or “
The Respondent argues that the Commission lacks jurisdiction or
authority to establish wage rates and fringe benefits for a fiscal year which
has already elapsed. In Crete Educ.
Ass’n v. School District of Crete, 193
Petitioner filed on the last day of the contract year. Accordingly, since the
dispute was submitted properly, the Commission clearly has authority and
jurisdiction in the instant case to establish wage rates and fringe benefits
for a fiscal year which has already elapsed.
Effective Date of
Respondent also argues that the Commission lacks jurisdiction or authority to
establish wage rates and fringe benefits for the period prior to the
Petitioner’s certification. The Respondent further argues that even though
the Commission has held contrary to Respondent’s argument in the past, the
issue has yet to be addressed by the appellate courts. The Petitioner, citing
numerous cases, argues that the Commission has repeatedly held that
certification of a bargaining unit during the fiscal year under consideration
in § 48-818 wage cases does not bar an order beginning on the first day of
the fiscal year.
Commission has found that where a bargaining unit is certified at some date
between the beginning date and ending date of the contract year, the
Commission will establish wages, hours, and working conditions for the period
prior to the Petitioner’s certification. See
The parties agreed to seven
array cities. These cities are:
The Respondent argues
that the evidence does not support the Petitioner’s alignment for the two
bargaining unit positions of Electric Meter/Serviceman and the Landfill Crew
Meter/Serviceman and Landfill Crew Leader
The Petitioner aligned the Electric Meter/Serviceman with the Electric Journeyman Lineman position. The Respondent argues that this alignment is incorrect, and instead the Commission should align the position with the Electric Apprentice position since the Apprentice position is a natural progression from the Electric/Meter Serviceman position.
regard to the Landfill Crew Leader job position, the Petitioner aligned the
Landfill Crew Leader with the Wastewater Operator III and not with the
position of the Solid Waste Handler because the Wastewater Operator III is in
the same classification and the same pay range as the Landfill Crew Leader.
The Respondent argues that the Commission should instead compare the position
using a progression analysis.
comparing job duties, § 48-818 requires the Commission to consider “same or
similar work” and does not require perfection when comparing job duties. General
Drivers & Helpers Union Local 554 v.
the instant case, the Petitioner was unable to job match Gering’s Electric
Meter/ Serviceman position to the other array cities Serviceman positions
because the job duties were not similar to the duties performed in Gering.
When no match exists, the Petitioner’s expert witness testified that he
either aligns positions based on progression or based upon comparable pay
grades. In the case of the
Electric Meter/Serviceman, the Petitioner compared the position to the
Journeyman’s position. However,
the Petitioner used a different method in matching the position of Landfill
Crew Leader. After careful review, the Commission finds that the two job
positions should be compared to a job in their similar pay grade. Both the
Electric Meter/ Serviceman and the Landfill Crew Leader, according to Exhibit
217, are in Grade 14 at Gering. The Wastewater Operator III is also in Grade
14 at Gering. Therefore, both the Electric Meter/ Serviceman and the Landfill
Crew Leader shall be compared to the Wastewater Operator III.
WAGES AND PAY
Both parties in this case agree that reassigning the employees to a
step pay plan rather than a range pay plan is clearly prevalent. However, the
parties disagree as to the individual placement of each employee in the new
step plan and the number of years the employees have to move from minimum to
The Petitioner argues that the bargaining unit employees should be placed
on a step identical to their placement in Exhibit 1. In this Exhibit, the
Petitioner places each employee on the step that correlates with their total
years of service with the City. This placement does not reflect the
employee’s years of service within a particular job description nor does it
reflect any of the employee’s previous job performance evaluations. The
Petitioner also argues that the plan should have nine steps, with progression
completed by the average employee in 7.5 years. The Respondent argues that the
Commission should place the employees on the next highest step of the new pay
plan above their current wage so as not to result in a decrease in pay for any
employee and the Commission should adjust the period required to progress from
minimum to maximum pay to 8 years and indicate that such movement on the pay
lines should be based on performance.
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
In the instant case, both Cozad and
With regard to the initial placement of the employees, the parties did not
provide the Commission with any concrete evidence as to the past progression
of the employees by job performance. The Commission was provided with
longevity, as seen in the total number of years the employees have worked for
the City of
– Employer Contribution
Both parties have stipulated to a change in the percentage of salary
contribution paid by the City to the employee pension plan. Although the
Commission does not have jurisdiction over the pension plan of the employees
to order a change in the pension plan, 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. Ass’n v. Douglas Cty., 229
Based upon the stipulated evidence offered by the parties in this case,
the Commission finds that under the current pension plan the percentage
contribution made to the plan by the City is currently at 6%, and should be
reduced to 5%. The dollar value of the difference between the contributions
made to the plan under the current plan during the contract year and the
prevalent as found herein, shall be used in computing the fringe benefit
offset. Therefore, Respondent is above the comparable in that it contributes
6% to the employee’s pension plan. It should decrease its percentage of
contribution to the pension plan from 6% to 5% for the entire year, using the
decrease in the fringe benefit offset. See Table 2.
The Petitioner argues that Union employees are required to pay a
significantly larger portion of health insurance premiums than other array
employees. The Respondent argues that the City already provides a health
insurance package at a lower cost than any other of the array cities.
Order of Police Lodge 24 v. City of Grand Island, 14 CIR 81 (2002), the
Commission found the prevalence of the array’s health insurance by comparing
the percent of the premium to be paid by the employer and employee and not the
actual dollar amounts. In following the holding of City of
While the Commission is not deprived of jurisdiction to set
wage rates after the end of the bargaining year in question, a
dollar-for-dollar costing out of each benefit is not required where, as here,
the contract year in dispute is already past, and the impossibility or
impracticability of retroactively changing fringe benefits for an expired
contract year is well recognized. See
Lincoln Fire Fighters v. City of Lincoln, 12 CIR 248 (1997), aff’d
1) Sick Leave – Number of Hours Earned Per Year;
2) Sick Leave – Conversion Applied to Vacation and Converted to Cash;
3) Sick leave – Cash Conversion upon Resignation, Dismissal, Retirement or Death;
4) Sick leave – Family or Funeral Usage;
5) Funeral leave;
6) Vacation Leave Schedule – Years 1-7;
7) Vacation Leave Schedule – Years 8-14;
8) Vacation Leave Schedule – Years 15-21;
9) Vacation Leave Schedule – Years 22-Maximum;
10) Vacation Leave – Cash Conversion;
11) Holidays and Personal Days;
12) Disability Plans;
13) Health Insurance – Major Medical and Deductible;
14) Health Insurance – Prescription Drug Coverage;
15) Health Insurance – Stop-loss For Major Medical;
16) Health Insurance – Optical Care;
17) Health Insurance – Retiree;
18) Dental Insurance – Employer Paid;
19) Dental Insurance – Part of the Overall Health Premium;
20) Life Insurance – Amount of Basic Coverage;
22) Work Time for Overtime;
23) Equipment – Uniforms and Equipment Furnished;
24) Union Dues Check-off;
25) Work Out of Class;
26) Work Conditions – Contract/Bargaining Law;
27) Work Conditions – Grievance Procedure;
28) Work Conditions – Cause for Dismissal.
There are certain fringes which we believe are management prerogatives and we will not address the following in this Order:
1) Work Time – Scheduled Hours per Day;
2) Work Time – Scheduled Hours per Week.
Commission shall continue to determine comparability of health insurance,
dental insurance, and life insurance by comparing the percent of the premium
to be paid by the employer and employee. See also Lincoln Firefighters Ass’n Local 644 v. City of Lincoln, 12 CIR
248, 265 (1997); General Drivers &
Helpers Union Local 554 v.
The following benefits will not be considered according to the above rule:
1) Health Insurance – Total Monthly Premium;
2) Health Insurance – Family Premium Payment;
3) Health Insurance – 2/4 Party Premium Payment;
4) Health Insurance – Single Premium Payment;
5) Dental Insurance – Actual Dollar Cost for Employer;
6) Dental Insurance – Employee’s Monthly Cost;
7) Life Insurance Monthly Premium per Employee.
following fringe benefits shall remain unchanged because they are comparable:
Compensation Rate − 1.5 plus 8 hours;
Insurance Percentage of Premium Payment – 100 percent paid by employer;
3) On-Call Pay – 4 Hours at Base Rate (Footnote 2);
Pay – 1.0 Hourly Paid time at 1.0 Rate;
5) Educational Assistance Plan – Tuition shall be reimbursed at the rate of 100%, Books shall be reimbursed at the rate of 100% and Lab Fees shall be reimbursed at the rate of 100%.
The Commission makes the following findings as to non-comparable fringe benefits:
1) Sick Leave – Maximum Accumulation of Sick Leave – Respondent is below the comparable in that it allows the maximum accumulation of 720 hours of sick leave. It should increase its maximum accumulation of sick leave days to 900 hours. See Table 4;
2) Vacation Accumulation – Respondent is below the comparable in that it allows the maximum accumulation of 10 carry-over vacation days. It should increase its maximum accumulation of vacation carry-over to 30 days. See Table 5;
3) Health Insurance – See above and see Table 3;
4) Retirement – See above and see Table 2.
IT IS THEREFORE ORDERED that for the fiscal year 2003-2004, the following shall be effective as of October 1, 2003:
1) The job positions of
Electric Meter/Serviceman and Landfill Crew Leader shall be compared to the
job position of Water/Wastewater Operator III.
2) Petitioner’s wages for the fiscal year 2003-2004 shall be as follows:
Water/Wastewater Operator III $12.39 $16.95
Water/Wastewater Operator II $11.27 $15.42
Water/Wastewater Operator I $10.20 $14.06
Electric Journeymen Lineman $14.24 $18.71
Electric line Apprentice $11.12 $15.89
Electric Meter/Serviceman $12.39 $16.95
Storekeeper/Purchasing Agent $11.65 $15.26
Meterman Reader $ 9.52 $12.46
Park Crew Leader $10.52 $13.92
Park Caretaker $ 9.15 $12.16
Park Laborer $ 5.88 $ 7.33
Master Mechanic $12.38 $16.58
Solid Waste Handler $10.56 $14.21
Heavy Equipment Operator $10.49 $14.41
Equipment Operator $ 9.78 $13.57
Crew Leader $12.39
See Table 6.
3) The Respondent shall create
a step pay plan containing 9 steps, with 7.5 years between the minimum and
maximum step, arriving at each step between minimum and maximum by dividing
the steps of each pay line equally between the prevalent minimum and maximum
and incorporating the prevalent number of steps.
4) Respondent shall initially place each bargaining unit member on the next step up from his or her current wage. Such placement shall not result in a decrease in pay for the employee. (Footnote 3) Further advancement, after the initial placement of the employee on the pay line shall require utilization of both years of service and job performance.
5) Respondent shall pay 98% of the single monthly premium for health insurance. Respondent shall pay 92% of the family monthly premium for health insurance.
6) Respondent shall retain its holiday compensation rate.
7) Respondent shall continue its current practice of paying 100% of the life insurance premium.
8) Respondent shall continue to pay employees four hours at the base rate for on-call pay.
9) Respondent shall continue its current practice of call-in pay.
10) Respondent shall continue its current practice in the employee assistance plan.
11) Respondent shall increase the maximum accumulation of sick leave from 720 hours to 900 hours.
12) Respondent shall increase its maximum accumulation of vacation carry-over from 10 days to 30 days.
13) 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 underpayment for the contract year for each employee. The Respondent shall also 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. Any net lump sum underpayment for any employee shall be paid by the Respondent to each such employee. The employer’s offset shall not exceed the amount of compensation owed to the employee from the Respondent.
14) Any adjustments in compensation resulting from this Order shall be paid in a single lump sum with the payroll checks issued next following the expiration of this Final Order’s time for appeal or sooner.
All other terms and conditions
of employment are not affected by this Order.
1. One employee in the job position of Park Laborer and one employee in the position of Heavy Equipment Operator currently makes more than the maximum of the newly created step pay plan. These employees shall be placed on Step 9 of the new step plan, but will continue to be paid at their current rates of pay even though these amounts exceed the maximum pay in their job classifications.
2. No prevalent practice or modal result, therefore Gering's practice will remain the same.
3. One employee in the job position of Park Laborer and one employee in the position of Heavy Equipment Operator currently makes more than the maximum of the newly created step pay plan. These employees shall be placed on Step 9 of the new step plan, but will continue to be paid at their current rates of pay even though these amounts exceed the maximum pay in their job classifications.
of Tables may be obtained by calling the Commission of Industrial
Relations, (402) 471-2934.