15 CIR 161 (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,||)|
|THE CITY OF GERING, NEBRASKA,||)|
Filed December 12, 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
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.
§ 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:
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
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
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
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.
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 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
All Benefits are Moot
The Respondent argues that in
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).
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.
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