15 CIR 161 (2005) (Appealed Jan. 11, 2006.  Appeal dismissed at request of appellant May 24, 2006)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 Filed December 12, 2005

APPEARANCES:

       After the trial of this matter, the Commission entered a Recommended Findings and Order on November 3, 2005. The Respondent timely filed a Request for Post-Trial Conference as provided for in Neb. Rev. Stat. § 48-816(7)(d), which allows the Commission to hear from the parties on those portions of the recommended findings and order which are not based upon or which mischaracterize evidence in the record. A Post-Trial Conference was held on November 22, 2005. The Petitioner was represented by its attorney, Dalton W. Tietjen. The Respondent was represented by its attorney, Jerry L. Pigsley. The parties waived the time requirement for issuing a Final Order.

            The Respondent’s Request for Post-trial Conference raised six areas of objection to the Commission’s Order of November 3, 2005. Those areas are dealt with as follows:

1.  Long Term Disability − Employer Contribution   

            Prior to trial, the parties stipulated that the City would continue to provide its long term disability plan. The current long term disability plan is a more favorable plan than what would be found to be prevalent in the array presented at trial. The Respondent argues that the Commission should find the excess amount contributed by the City (above the prevalent amount) offsets the excess wages owed by the City to its employees in the Union . The Petitioner argues that the long term disability plan should not be used to offset the employees’ wages because it is a mandatory plan and there was no bargaining, nor were any options presented to the Union .

            In our original Findings and Order filed on November 3, 2005, the Commission did not expressly order any offset relating to long term disability. While the Commission has ordered an offset in long term disability in past cases, such an offset also considered the benefit’s prevalency. See Nebraska Public Employees Union Local 251 v. Otoe County , 12 CIR 177 (1996). The parties stipulated to the long term disability plan in the instant case and the Commission did not make any determination of prevalency. Therefore, the Commission will not order an offset to the employees’ wages from the long term disability plan.

1.      Unused Sick Leave – Cash Conversion

            Prior to trial, the parties also stipulated to the City’s current policy of converting any sick leave earned in excess of 720 hours to pay in the form of four hours of leave time to one hour of cash pay-out at the end of the year, even though this practice was not prevalent. The Respondent argues that, for these three employees, the amount they received for their sick leave over the 720 hours should be offset against any gain in wages.  The Petitioner argues that it was the Respondent’s decision not to allow accrual up to 900 hours. The Petitioner also argues that this may benefit the employer and it would be impossible for the Commission to calculate the benefit.

            The Commission did not expressly order an offset in our Findings and Order filed on November 3, 2005.  While the Commission has ordered an offset in cash conversion of unused sick leave in past cases, such an offset also considered the benefit’s prevalency. See Nebraska Public Employees Union Local 251 v. Otoe County , 12 CIR 177 (1996). The parties in the instant case did not have the Commission determine the prevalency of the cash conversion of unused sick leave. An offset would also require a calculation that the Commission is unable to set. Therefore, the Commission will not order an offset of the employees’ wages by the cash conversion of unused sick leave.

3.   Overtime Pay – Vacation and Comp Time Counted as Hours Worked

            The Respondent argues that the Commission should order an offset for any employees who received any excess overtime pay because of the City’s practice of counting vacation time and comp time as time worked. The Petitioner argues that this policy would be complicated to implement and the employees might have used time differently had a different provision been in place.

            The Commission found that this practice was moot in the instant case. Therefore, the Commission finds it cannot order an offset for overtime pay – vacation and comp time counted as hours worked.

4.      Life Insurance – City’s Premium Contribution

            Prior to trial, the Respondent stipulated to provide an amount of life insurance coverage above the prevalent. The Respondent requests that the Commission offset the amount of dollars owed to the employees for wages and benefits by the amount of life insurance premium paid for coverage above the prevalent. The Petitioner argues that there were no exhibits marked at trial to determine if the City’s life insurance premium contribution was comparable to the prevalent.

            The Commission did not order an offset in its Findings and Order filed on November 3, 2005. The parties did not provide the Commission with a comparative cost exhibit on employer contribution for life insurance premiums. Furthermore, while the Commission has ordered an offset in the percentage the employer pays to cover life insurance premiums in past cases, such an offset also considered the benefit’s prevalency as well. See Nebraska Public Employees Union Local 251 v. Otoe County , 12 CIR 177 (1996). Therefore, the Commission finds it will not order an offset for the City’s life insurance premium contribution.

5.      All Benefits are Moot

            The Respondent argues that in Hyannis we determined all benefits moot (except the salary schedule) and, like Hyannis , all Gering’s benefits should be moot as well. Respondent specifically adds emphasis that the benefits of health insurance, sick leave bank, and maximum carryover of vacation leave should be found moot.

            We have clearly found the benefits of health insurance (employer contribution), sick leave maximum accumulation and vacation leave carryover not moot in past cases. See Fraternal Order of Police Lodge 24 v. City of Grand Island, 14 CIR 81 (2002) (health insurance employer contribution found not moot) and General Drivers & Helpers Union Local 554 v. County of Gage, 14 CIR 170 (2003) (sick leave maximum accumulation and vacation leave carryover found not moot). Hyannis and Gering are factually distinct, as the benefits language in Hyannis was factually unique. Therefore, Hyannis cannot be used as a universal precedent in declaring all benefits moot.  In the instant case, all benefits are clearly not moot, only benefits which are impossible or impracticable to change retroactively for a contract year already expired. Therefore, the Commission did not err in its original Findings and Order. The Commission’s original Finding and Order filed on November 3, 2005 shall stand regarding the mootness of benefits.

6.      Vacation Leave Maximum Accumulation (Days)

            Respondent argues that the Commission should lower the maximum accumulation of vacation days from 30 to 29. The Petitioner argues that both methods of rounding could be used to calculate vacation days. The Respondent countered that the agreed to method was 29 days on the original exhibit.

            In the original Findings and Order filed on November 3, 2005, the Commission double rounded the figures on the Petitioner’s Exhibit 32, noting in the opinion that the figures had been incorrectly rounded. See Footnote 2 in Table 5 from the November 3, 2005 Findings and Order. Both methods of rounding can be used to arrive at the maximum number of days. However, both parties originally agreed to the figure presented in Petitioner’s Exhibit 32. Therefore, the Commission will correct its original Findings and Order entered on November 3, 2005 from 30 vacation days to 29 vacation days.

IT IS THEREFORE ORDERED that Respondent’s request to amend the order of November 3, 2005 is sustained in part and overruled in part and such Order shall be as stated herein.  It is the final order of the Commission that:

1.  After recalculation of the vacation leave maximum accumulation, Respondent shall allow the employees to carry-over a maximum of 29 vacation days each year.

2.  The Revised Table 5 reflects the corrections made in this Final Order.

3.  All other terms and conditions of employment for the 2003-2004 contract year shall be as previously established by the agreement of the parties and by orders and findings of the Commission.

4.  Adjustments and compensation resulting from this Order shall be paid in a single lump sum payable within thirty (30) days of this Final Order, if possible.

            For a copy of Revised Table 5, please contact the Commission of Industrial Relations, (402) 471-2934