15 CIR 140 (2005) (Appealed Jan. 11, 2006.  Appeal dismissed at request of appellant May 24, 2006)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

INTERNATIONAL BROTHERHOOD OF ELECTRICAL ) CASE NO. 1083
WORKERS, LOCAL UNION NO. 1597, )
)
                                  Petitioner, )
         v. ) FINDINGS AND ORDER
)
THE CITY OF GERING, NEBRASKA,  )
)
                                  Respondent. )

 Filed November 3, 2005

APPEARANCES:

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

ORR, J.

NATURE OF THE PROCEEDINGS:  

        This action was brought by International Brotherhood of Electrical Workers, Local Union No. 1597 (hereinafter, “Petitioner” or “ Union ”) pursuant to Neb. Rev. Stat. § 48-818. Petitioner is the certified collective bargaining agent for the bargaining unit consisting of sixteen job classifications in the City of Gering, Nebraska (hereinafter, “Respondent” or “City”). Petitioner seeks the resolution of an industrial dispute over wages and other terms and conditions of employment for the October 1, 2003 through September 30, 2004 contract year.             

Retroactive EstablishmenT:

NEB. REV. STAT. § 48-817  

            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 Neb. 245, 226 N.W.2d 752 (1975), the Supreme Court ruled that the anti-retroactivity provisions of Neb. Rev. Stat. § 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, NEB. REV. STAT. § 48-817. This has not been changed in material part since Crete ’s holding in 1975. Furthermore, if the Commission were unable to set wages applicable during the period in dispute, then either workers would never be paid the wage comparable to the prevalent wage rates paid for the same or similar work, or else the parties would have an incentive to prematurely declare an industrial dispute and the preference in this state for settlement of such disputes through collectively bargaining would be frustrated.  See General Drivers & Helpers Union Local 554 v. County of Gage , et. al., 14 CIR 170 (2003). 

The 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 Order

The 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.

The 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 Nebraska Pub. Emp. Local Union 251 v. Nemaha Co., 12 CIR 152, 153-155 (1995), Nebraska Pub. Emp. Local Union 251 v. Otoe Co., 12 CIR 177, 180-181 (1996) and Nebraska Pub. Emp. Local Union 251 v. County of York , 13 CIR 128, 133 (1998).

The Union, in its Petition, seeks relief for a fiscal year commencing October 1, 2003 through September 30, 2004. The Petitioner was certified as the exclusive collective bargaining agent on January 27, 2004. The Commission must establish wages, hours and working conditions, beginning on the first date of the contract year. Without this rule, unreasonable results could take place. The general length of time it takes a case to proceed through to certification and the dilatory nature of some parties would achieve only unfair results. In following past case decisions, the Commission encompasses its consideration for our entire statutory scheme. See Crete, 193 Neb. at 249-250. Indeed by definition, the industrial dispute exists during the entire contract period. Therefore, the Commission will consider wages and other terms and conditions of employment for the entire contract year - October 1, 2003 through September 30, 2004.  

ARRAY:

The parties agreed to seven array cities. These cities are: Alliance , Crete, Cozad, Fairbury, Holdrege, Lexington , and Sidney. Therefore, these seven array cities shall be used in our wage comparison.

JOB DESCRIPTIONS:

                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 Leader.

Electric 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.

With 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.

When 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. County of Gage , et. al. 14 CIR 170 (2003). When no exact comparison exists, the Commission has applied various methods presented by the parties to determine a particular job position’s pay. Often, the Commission makes the comparison using similar pay grades as seen in Fraternal Order of Police, Sarpy Lodge No. 3 v. County of Sarpy, 10 CIR 61 (1988).

In 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 PLAN:

Pay Plan

            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 maximum. 

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 Neb. , 12 CIR 32 (1993). The Supreme Court in Douglas Cty. Health Dept. Emp. Ass’n v. Douglas Cty., 229 Neb. 301, 427 N.W.2d 28 (1988) held that the manner in which an individual moves from the minimum to the maximum on a salary schedule is a benefit to be adjusted in reaching a comparability determination. In a comparability determination, the Commission has also used various methods for dividing steps in each pay line. In American Federation of State, Cty. and Municipal Employees, Local 1109 v. City of Grand Island, 13 CIR 1 (1997), the prevalent pay line steps for each job classification were an even dollar amount, arrived at by dividing the steps of each pay line equally between the prevalent minimum and maximum and incorporating the prevalent number of steps.

In the instant case, both Cozad and Lexington do not have step pay plans. Accordingly, we find that the flat pay plans of Cozad and Lexington will not be considered when determining the number of steps and number of years to move through the steps to reach maximum pay. Nor will Cozad and Lexington be considered when arriving at the prevalent method of advancement through the steps. Table 1 shows that the prevalent number of steps is 9. The table also indicates the average number of years between minimum and maximum is 7.5 and the prevalent practice method of placement on pay steps is a combination of longevity and performance. While the Respondent argues that the 7.5 number should be rounded to 8, we find that having an uneven number of steps is not rounded to the next number. This is evidenced by Sidney , as that city has 8.5 years between minimum and maximum. Therefore, 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.

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 Gering . Using solely the total number of years worked at the City of Gering could unfairly inflate the employee’s wages, since total years worked for some employees did not occur within the same job description. Likewise, using the total number of years worked in a particular job description would unfairly deflate an employee’s wages since it would not take into account some of the past years worked at Gering. The Commission was also not provided with any evidence as to rate of pay when the employees progressed to the next job description or whether or not their progression was a result of longevity or performance. Without such evidence, the Commission finds the 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 1) Further advancement, after the initial placement of the employee on the pay line, shall require utilization of both years of service and job performance.

FRINGE BENEFITS:

Retirement – 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 Neb. 301, 422 N.W.2d 28 (1998).

            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.

Health Insurance  

            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.

In Fraternal 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 Grand Island in the instant case, we make an apples-to-apples comparison of the array plans to Gering’s plan, using the percentages of the plans rather than the actual dollar amounts. A percentage comparison does not penalize the City of Gering for obtaining a health insurance package at a lower cost since the actual dollar amounts are not used. Therefore, the Respondent is below the comparable in that it pays for only 80% of family coverage from October 2003 through May 2004 and 83% from June 2004 through September 2004 and only 84% of single coverage from October 2003 through May 2004 and 89% of single coverage from June 2004 through September 2004.  It should increase its percentage of family coverage to 92% for the entire year, and increase its percentage of single coverage to 98% for the entire year. See Table 3.

Moot Fringe Benefits

            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 253 Neb. 837, 572 N.W.2d 369 (1998). The Commission determines that the following fringe benefits are moot because the year in dispute is over; see General Drivers & Helpers Union Local 554 v. County of Gage, et. al., 14 CIR 170 (2003):

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;

21) Overtime;

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.

Management Prerogatives

            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.

Benefits Not Considered

The 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. County of Gage , et. al, 14 CIR 170 (2003).

            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.

Comparable Fringe Benefits

The following fringe benefits shall remain unchanged because they are comparable:  

1) Holiday Compensation Rate − 1.5 plus 8 hours;  

2) Life Insurance Percentage of Premium Payment – 100 percent paid by employer;  

3) On-Call Pay – 4 Hours at Base Rate (Footnote 2)

4) Call-In 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%.

Non-Comparable Benefits

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:

Job Classification                                         Min                           Max

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

Landfill Crew Leader                                      $12.39                       $16.95  

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.

Copies of Tables  may be obtained by calling the Commission of Industrial Relations, (402) 471-2934.