15 CIR 167 (2006)
| COUNTY OF HALL, NEBRASKA, | ) | CASE NO. 1095 |
| A Political Subdivision, | ) | |
| ) | ||
| Petitioner, | ) | |
| v. | ) | FINDINGS AND ORDER |
| ) | ||
| UNITED FOOD AND COMMERCIAL | ) | |
| WORKERS DISTRICT LOCAL 22, | ) | |
| ) | ||
| Respondent. | ) |
Filed July 31, 2006
APPEARANCES:
| For Petitioner: | Jerry L. Pigsley |
| Harding, Shultz & Downs | |
| 800 Lincoln Square | |
| 121 S. 13th Street | |
| Lincoln, NE 68508 | |
| For Respondent: | Michael J. Stapp |
| Blake & Uhlig, P.A. | |
| 753 State Avenue, Suite 475 | |
| Kansas City, KS 66101 | |
Before: Judges Burger, Blake, and Cullan
BURGER, J.
NATURE OF THE PROCEEDINGS:
On April 22, 2005, the County of Hall (hereinafter, “Petitioner” or “County”) filed a wage Petition pursuant to Neb. Rev. Stat. § 48-818. The Petitioner is a Nebraska political subdivision and an “employer” as defined in the Industrial Relations Act, Neb. Rev. Stat. § 48-801(4) (Reissue 2004). The Respondent is a certified “labor organization” as defined under Neb. Rev. Stat. § 48-801(6) (Reissue 2004). The Petition seeks the resolution of an industrial dispute over wages and other terms and conditions of employment for the July 1, 2004 through June 30, 2006 contract period. The United Food and Commercial Workers District Local 22 (hereinafter, “Respondent” or “Union”) filed an Answer, Motion to Dismiss and Counterclaim. The Respondent alleged that the Petitioner had not complied with the Commission’s ruling in United Food and Commercial Workers District Local 22 v. County of Hall, 15 CIR 55 (2005) (“Hall County I”), ordering “the Petitioner to bargain in good faith with the Union concerning the terms and conditions of employment. On May 31, 2005, the Commission heard the Respondent’s Request for Temporary Relief. The Commission again ordered the Petitioner to commence good faith face-to-face negotiations between authorized negotiators over terms and conditions of employment within 30 days of that date, continuing to impasse. The proceedings and discovery were then stayed until further order of the Commission, pending a filing by either party requesting the stay be lifted upon a showing of good cause. On September 20, 2005 the Respondent filed its Answer, First Amended Motion to Dismiss, and First Amended Counterclaim. In our Order of October 7, 2005, the Commission found that the Respondent’s Motion to Dismiss would require a determination of disputed facts at trial. Therefore, no pretrial ruling would be made.
FACTS:
On September 20, 2004, the Union filed its prohibited practice petition with the Commission. See Hall County I, 15 CIR 55 (2005). In its Findings and Order entered March 24, 2005, the Commission found that Hall County had committed a prohibited practice by failing to bargain in good faith with the Respondent. The Commission ordered the County to cease and desist from refusing to bargain in good faith, unilaterally implementing its final proposal without bargaining to impasse, unlawfully withholding benefits, and interfering, restraining, and coercing its employees in the exercise of their rights granted under the Industrial Relations Act. The Commission ordered the County to reimburse insurance premiums improperly withheld, and continue a two percent wage increase they had unilaterally implemented until a good faith agreement was reached. Finally, the Commission ordered the parties to recommence good faith negotiations to reach an agreement. This order was not appealed.
Before the wage petition in this case was filed, the Union made numerous attempts to ascertain dates upon which the parties could meet to negotiate. These requests can be seen in a letter dated March 29, 2005, a verbal request at the County Board of Supervisors Meeting held on April 5, 2005, a letter dated April 8, 2005 and a letter dated April 13, 2005. These requests were generally ignored. On or about April 15, 2005, the County sent a letter to the Union, stating that unless the Union accepted the County’s final offer from the pre-September 20, 2004 negotiating sessions, the County would file a wage case in the “next few days.” On April 22, 2005, the County filed this wage petition with the Commission to resolve the contract period of July 1, 2004 through June 30, 2006. On May 4, 2005, by letter, the County withdrew its final offer in light of filing its wage petition.
The Union filed an Answer, Motion to Dismiss, and Counterclaim requesting temporary relief through a bargaining order. The Commission conducted an evidentiary hearing. Pamela Lancaster, Chair of the County Board of Supervisors at the time of the initial negotiations, testified that while the County was willing to attempt any legal and normally practiced form of bargaining, it was not willing to sit down and conduct face-to-face negotiations to comply with the Commission’s order because the County felt there was “nothing left to bargain.” Ms. Lancaster also testified that the County believed there were other “options” than following the Commission’s previous order in Hall County I.
The Commission, after hearing the evidence, cautioned the County that continued repetition of a refusal to bargain could result in an assessment of attorney’s fees as a potential remedy. The Commission ordered the parties to again commence face-to-face negotiations.
Following this order, the County sought a timetable from the Union to complete negotiations by the end of July, 2005. In its letter, the County requested twice-weekly two-hour meetings between the week of June 20 through July 27, 2005. The parties conferred by responding letters and set the first negotiation session for June 20, 2005.
At the first negotiation session, the County and the Union exchanged proposals. The County’s proposal was more regressive than its final offer of June 22, 2004. The County’s new proposal eliminated six hours of overtime pay by altering the 40-hour work week to 86 hours in a two-week period, as well as eliminating seniority, the grievance procedure, third-step arbitration, bilingual pay, in-charge pay, call-in pay, dues check-off, the step program, tuition reimbursement, bidding rights, parental leave, longevity pay, and insurance pay. The proposal also decreased vacation time, funeral leave and increased the employee’s health insurance premium. The Union’s proposal was the same as the one that it had originally started with during the first round of negotiations, because it felt that the County had never considered its first proposal. At the June 20, 2005 meeting, the Union also attempted to discuss health insurance documents received by its bargaining unit members in their mailboxes, which purported to unilaterally alter the members’ health insurance.
The second negotiation session between the parties took place on June 27, 2005. The Union presented a proposal, modifying the County’s June 20, 2005 overtime proposal. The parties tentatively agreed to several items. The Union reviewed the County’s June 20, 2005 proposal, providing the County with a summary of the Union’s tentative agreements, rejections, and provisions in need of explanation. The County did not provide the Union with a new proposal.
The third negotiation session occurred on July 5, 2005. The Union offered a counterproposal to the County. The parties caucused for about 40 minutes. The parties then discussed vacation scheduling and accumulation of sick-leave hours. The County desired to reduce the sick-leave accumulation from 720 hours to 480 hours. The parties then had a heated discussion about whether extra benefits, other than wages and health insurance, which were divisively termed “fluff,” were essential to the agreement. After this discussion, the Union requested that the parties reconvene at a later date.
The fourth negotiation session occurred on July 18, 2005. The Union presented several proposals more favorable to the County than their previous proposals. The County also presented a proposal to the union. The proposal the County presented was better than the County’s July 5, 2005 proposal but, worse than the Hall County I final offer. After the County distributed its proposal, the parties caucused. Upon returning to the bargaining table, the parties tentatively agreed upon 600 hours of accumulated sick leave, as opposed to the previous 720 hours of accumulation. The Union then attempted to discuss frozen steps, officer-in-charge pay, seniority language, wages, and health care. The Union proposed to spread the general increase in cost of health insurance over all employees, rather than just employees who elected to take family coverage.
The fifth and final negotiation session occurred on July 25, 2005. The County presented a written proposal. The County told the Union that the offers were “going south” and the Union should have taken the proposal it was given initially and not proceeded to the Commission of Industrial Relations.
After the County explained their proposal, the Union then called a caucus to review the proposal. Overall, the County’s proposal was still far worse than the final offer before Hall County I. The Union inquired into several provisions in the County’s July 25, 2005 proposal, tentatively agreeing to one of the items, and then called another caucus. The Union then came back to the bargaining table, proposed changes to wages, overtime, health insurance, and then accepted the County’s proposal on FMLA, officer-in-charge pay, and bilingual pay. The County then called a caucus. After the caucus, the County informed the Union that it would agree to reinstate tuition reimbursement, as well as FMLA, officer-in-charge pay, and bilingual pay. The County then stated that it would send the Union its final offer. The County also requested a final response by the Union to the County’s final offer on August 4, 2005.
The Union unanimously rejected the County’s final offer and sent a letter dated August 4, 2005, requesting resumption of negotiations. On August 23, 2005, the County declared impasse in negotiations between the County and the Union. On August 26, 2005, the County filed a Motion to Lift the Stay of Proceedings.
DISCUSSION:
The Respondent argues that the acts of Petitioner violated §§ 48-824(1) and 48-824(2)(a), (e), and (f) (Reissue 2004) by repeatedly refusing to bargain in good faith. The Petitioner denies that its conduct and actions constitute a prohibited practice under the Industrial Relations Act. The Petitioner also argues that the parties were at impasse when the County filed its request to lift the stay of the wage proceedings in this case.
In numerous past cases, the Commission has found comparisons between the National Labor Relations Act, (hereinafter, “NLRA”) and the Nebraska Industrial Relations Act, (hereinafter, “NIRA”). See Communication Workers of America, AFL-CIO v. County of Hall, 15 CIR 95 (2005); Crete Education Ass’n v. Crete Public Schools, 13 CIR 361, 364-365 (2001), Fraternal Order of Police, Lodge 41 v. The County of Scotts Bluff, et. al., 13 CIR 279 (2000); Nebraska Public Employees Local Union 251 v. Otoe County, 13 CIR 79, 90-91 (1998); and Ewing Education Ass’n v. Holt County School Dist. No. 29, 12 CIR 242 (1996). Section 8(a)(5) of the NLRA is nearly identical to Neb. Rev. Stat. § 48-824(2)(e). The Commission has also found several cases where the NLRA and Neb. Rev. Stat. § 48-824(2)(a) are similar. See Crete Education Ass’n v. Crete Public Schools, 13 CIR 361, 364-365 (2001), affirmed in relevant part, 265 Neb. 8, 654 N.W.2d 166 (2002) and Nebraska Public Employees Local Union 251 v. Otoe County, 13 CIR 79, 90-91 (1998), affirmed, 257 Neb. 50, 595 N.W.2d 237 (1999). While the Commission has found in the past that the NLRA does not contain a similar statute to Neb. Rev. Stat. § 48-824(2)(f), the Commission has relied upon NLRB cases in interpreting Neb. Rev. Stat. § 48-824(2)(f) because the concept of exclusive representation was common between both Acts. In examining this past case law, the Commission determines it is appropriate to refer to NLRB case law. Therefore, the Commission will refer to both NLRB precedent, and its own decisions in analyzing whether the Petitioner’s actions constitute a prohibited practice under the Industrial Relations Act.
Good Faith Bargaining and Impasse
In NLRB v. Insurance Agents’ Union, 361 U.S. 477, 485, 486 (1960), the United States Supreme Court recognized that “collective bargaining … is not simply an occasion for purely formal meetings between management and labor while each maintains an attitude of take it or leave it; it presupposes a desire to reach ultimate agreement, to enter into a collective bargaining contract;” though, “the parties need not contract on any specific terms … they are bound to deal with each other with a serious attempt to resolve differences and reach a common ground.”
Similarly in NLRB v. Katz, 369 U.S. 736, 7474 (1962), the United States Supreme Court held that the parties must refrain not only from behavior “which reflects a cast of mind against reaching agreement,” but from behavior “which is in effect a refusal to negotiate or which directly obstructs or inhibits the actual process of discussion.”
A genuine impasse in negotiations is synonymous with a deadlock; i.e. the parties have discussed a subject or subjects in good faith, and despite their best efforts to achieve an agreement with respect to such, neither party is willing to move from its respective position. In following its own decisions and decisions of the NLRB, the Commission will consider the totality of circumstances reflecting the parties’ bargaining frame of mind to determine if the parties are in fact bargaining in good faith. See Fraternal Order of Police, Lodge 41 v. The County of Scotts Bluff, et al., 13 CIR 270 (2000); Aero Alloys and Warehouse, Processing & Distribution Workers’ Union, Local 26, 289 NLRB 497, 130 L.R.R.M. 1383 (1988).
Collective bargaining is a practice illustrated by power and rationality. Through the exercise of economic power and rational discussion, the parties are able to narrow their differences and reach settlement upon the range of issues in the workplace. In erecting the framework for hammering out agreements, both the NLRA and the NIRA seek only to keep the parties faithful to the attempt of reaching an agreement by their own efforts. An agreement contemplated under the statutes is a function of the parties’ interests, bargaining skills, and economic power. The parties’ mutual obligation to bargain in good faith is the central component of the statutory framework. Good faith contemplates a sincere desire, an open mind, and a genuine effort to arrive at an agreement.
From the outset of bargaining after the Commission’s May 31, 2005 Order, the County told the Union that this round of negotiations would be completed by the end of July, 2005. Notwithstanding the parties’ differences concerning what should be included in the contract, the parties must work together to schedule enough bargaining sessions to give the process a reasonable opportunity to succeed. The Petitioner’s unwillingness to schedule more sessions after the end of July, 2005, as the Union requested to continue, does not manifest the spirit of cooperation implicit in the duty to bargain in good faith. Indeed, the fact that the parties had yet to have a serious discussion on wages, exemplifies the shallow substance of the negotiation sessions between the parties.
The duty to bargain in good faith does not require the parties
to meet any preordained number of times. Rather, the law requires the
parties to meet a reasonable number of times and what is reasonable
will depend on the circumstances. When an existing bargaining schedule
proves inadequate, reasonable negotiators agree to change it. Considering
that the parties have been in litigation over this contract since September
of 2004, a few more sessions of bargaining would not have hindered the
resolution of this case, especially since the County was willing to take the
time for a resolution through the process of filing a wage case in front of
the Commission, which takes many months. In both the instant case and
Hall County I, the County’s timetable was a driving force in
negotiations. The County did not heed our previous directive against
following a pre-ordained timetable in bargaining.
Viewed in the abstract, the 2005 bargaining sessions might look defensible. In fact, the extensive efforts of counsel for the County to document efforts at bargaining in 2005, and shield his client from the consequences of the decisions of the governing body, are commendable. Unfortunately, for the Petitioner, the total picture does not show good faith bargaining.
The County essentially ignored the decision and findings in Hall County I. They declined all solicitations to bargain in compliance with the order entered by this Commission. Rather than appeal a decision that the former Chair of the County Board of Supervisors declared to be incorrect, the County’s choice was to simply not comply until directly ordered again by the Commission at the May 31, 2005 hearing.
The reality is that the negotiating sessions that followed were perfunctory, regressive, and conducted as an effort to create an appearance of compliance. The substantial efforts of the County’s counsel were undermined directly by the testimony of the same former Chair of the County Board, Pamela Lancaster. She testified at trial that although negotiating in response to Hall County I was an option, the County had no more money for salary and benefits. They had nothing more to offer; and by implication nothing to discuss.
When you view this testimony in conjunction with the regressive nature of the 2005 bargaining session, the strict timetable imposed by the County again, and the refusal to meaningfully deal with wages and benefits, we conclude that the actions of the County were simply a sophisticated charade intended to give the appearance, but not the substance, of good faith negotiations.
Hard Bargaining and Regressive Bargaining
The Respondent argues that in addition to generally acting in bad faith, the Petitioner has also used highly regressive bargaining tactics in violation of the Act. The Petitioner argues that its actions were lawful, and not violative of the Act.
We are mindful that good faith bargaining may be quite hard and still lawful. Hall County I, 15 CIR 55 (2005); Reichhold Chemicals, 288 NLRB 69, 69-70 (1988), aff’d in pertinent part sub nom; Teamsters Local 515 v. NLRB, 906 F.2d 719, 726 (D.C. Cir. 1990). In determining whether a party has bargained in good faith, making a genuine effort to reach agreement, we will seldom find direct evidence of a party’s intent to frustrate the bargaining process. Rather, we must review all of its conduct, both away from the bargaining table and at the table, including the substance of the proposals on which the party has insisted. Such an examination is not intended to measure the intrinsic worth of the proposals, but instead to determine whether, in combination and by the manner in which they are urged, they evince a mindset open to agreement or one that is opposed to true give-and-take.
The predominant theme in NLRB “regressive bargaining” decisions centers around an evaluation of the bargaining process and whether one party’s conduct is designed to frustrate the bargaining process. Chicago Local No 458-3M, Graphic Communications International Union, AFL-CIO v. NLRB, 206 F.3d22, 163 L.R.R.M. 2833, 340 U.S. App. D.C. 349 (2000). Furthermore, the Board has stated that it cannot force an employer to make a concession on any specific issue or adopt any particular position in the context of a prohibited practice case. See Health Care Service Group Inc. and United Food and Commercial Workers Union, Local 1444, 331 NLRB 333, 171 L.R.R.M. 1399 (2000). However, under the NLRB, the employer is required to make a reasonable effort to settle disparities with the union, if Section 8(a)(5) is to be read as imposing any substantial obligation at all.
In reviewing an alleged violation of 8(a)(5) for hard bargaining, the NLRB examines the employer’s overall conduct to establish whether the employer has bargained in good faith. In Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984), the Board summarized its position as: “From the context of an employer’s total conduct, it must be decided whether the employer is lawfully engaging in hard bargaining to achieve a contract that it considers desirable or is unlawfully endeavoring to frustrate the possibility of arriving at any agreement.” The Board also stated in Atlanta Hilton & Tower that a party is free to stand firm on a position if the party reasonably believes that it is fair and proper or that the party has sufficient bargaining strength to force the other party to agree. While an adamant insistence on a bargaining position is not of itself a refusal to bargain in good faith, under the NLRA other conduct has been held to be indicative of a lack of good faith. Such conduct includes, but is not limited to, delaying tactics, unreasonable bargaining demands, unilateral changes in mandatory subjects of bargaining, efforts to bypass the union, failure to designate an agent with sufficient bargaining authority, withdrawal of already agreed-upon provisions, and arbitrary scheduling of meetings.
In Providence Journal Company and Providence Newspaper Guild, TNG-CWA, Local 31041, AFL-CIO, 2002 WL 31059774 (N.L.R.B. Div. of Judges), the NLRB judge found the Respondent unlawfully threatened to make, and did make, regressive bargaining proposals because the employees engaged in protected concerted activity. In Providence Journal Co., the Union urged consumers to sign pledge cards agreeing to boycott the newspaper at a future time when the Union called for the boycott. The consumer boycott that the Union contemplated was protected by the NLRA. See Highland Superstores, 314 NLRB 146 (1994). The NLRB judge found that the Respondent’s withdrawal of its proposed wage increase was in direct response to the consumer boycott and while the Respondent was free to exert its own economic pressure designed to force the Union to agree to its bargaining proposals, the Respondent’s actions were not designed to pressure the Union to accept its bargaining proposals. Rather in Providence Journal Co., the NLRB judge determined that the Respondent’s regressive proposal was designed to punish the Union for engaging in protected concerted activity. The NLRB judge concluded that even though employers are free to alter bargaining proposals after a union has engaged in economic pressure under circumstances where the employer perceives it has gained bargaining power, the employer’s action in Providence Journal Co. was not connected to any perceived change in its bargaining power. Therefore, in Providence Journal Co. the NLRB judge held that by making a regressive bargaining proposal to punish the employees for engaging in protected concerted activity, the Respondent had violated Section8(a)(5) and (1) of the NLRA.
In the instant case, the County’s regressive bargaining is another clear indication of bad faith and the lack of any intention of reaching agreement with the Union. The County’s proposal on June 20, 2005 was more regressive than its final offer, dated June 22, 2004, from the previous round of negotiation sessions. During negotiations, the County told the Union that the offers were “going south” and the Union should have taken the proposal it was given initially and not sought relief from the Commission of Industrial Relations. Statements such as these completely frustrate the possibility of the parties arriving at any agreement. Here, as in Providence Journal Co., the Petitioner’s regressive proposal was designed to punish the Union for filing a prohibited practice case – a protected, concerted activity. The County suggests in its testimony that economic pressure from limited tax resources, and its array study shows that it is justified in offering a more regressive proposal. We find that the evidence does not support such a suggestion. The Petitioner was willing to give the parties a more substantial raise and certainly a much better benefits package in the first round of negotiation sessions. Even after the County was ordered to commence face-to-face negotiations with the Union, those negotiations resulted in a final offer that was worse than the final offer presented to the Union in Hall County I.
We conclude the County Board had no intention of bargaining in good faith. We are not convinced that the array proposed by Petitioner retroactively explains the County’s actions in negotiating. Respondent apparently made a decision to challenge the Petitioner’s array, but, offer none of its own. The adversary system has failed in part to identify the best array through this decision, but, the totality of the circumstances support the finding that the regressive bargaining in 2005 was driven by factors other than the array data presented at trial. We find the County committed a prohibited practice under Neb. Rev. Stat. § 48-816(5), § 48-424 (1), (2)(a), (e), and (f) through regressive bargaining.
The Respondent seeks to have the Commission conclude that the County violated §§ 48-816(5), 48-824(1), (2)(a), (e) and (f); order the Petitioner to cease and desist from engaging in the prohibited practices; order the Petitioner to engage in good faith negotiations with the Respondent; order the Petitioner to make the Respondent and all bargaining unit employees whole for any loss and expense incurred by them including, but not limited to, reimbursement of attorney’s fees and costs; and finally, to order the Petitioner to award the Union such other and further relief as justice requires.
Under the NLRB, a common remedy for an employer’s refusal to bargain in violation of Section 8(a)(5) is an order (1) to cease and desist from refusing to bargain, and (2) upon request, to bargain collectively regarding rates of pay, hours, and other conditions of employment. See e.g. Power Inc., 311 NLRB 599, 145 LRRM 1198 (1993), enforced, 40 F.3d 409, 147 LRRM 2833 (D.C. Cir. 1994); Burgie Vinegar Co., 71 NLRB 829, 19 LRRM 1055 (1946).
The Supreme Court has interpreted the Commission’s remedial authority broadly. In IAFF Local 831 v. City of North Platte, 215 Neb. 89, 337 N.W.2d 716 (1983), the Court upheld the Commission’s award of interest against a party who had bargained in bad faith. In its original opinion, the Commission compared §§ 48-816(1), 48-819.01, and 48-823 to NLRA 10(c), finding that a violation of Section 8(a)(5) was sufficiently similar to a violation of § 48-824(1) and using the NLRB decision as guidance. The Supreme Court upheld this comparison, by stating that § 48-819.01 provided the Commission’s authority to award interest even though the Commission’s statutes do not specifically mention awarding interest. In International Operating Engineers Local 571 v. City of Plattsmouth, 265 Neb, 817 (2003), the Supreme Court found that the Commission was correct in returning the union employee to the status quo by ordering reinstatement and the payment of his normal wages, including interest from the date he was laid off, less any net interim earnings.
The Commission has authority to issue status quo orders under §§ 48-816, 48-819.01, 48-823 and 48-825(2) and to issue a remedy following a finding of a violation of the duty to bargain in good faith. These statutes authorize the Commission to issue appropriate remedies that will effectuate the policies of the Industrial Relations Act, adequately provide relief to the injured party, and lead to the resolution of the industrial dispute. An order requiring that the offending party cease and desist from committing the prohibited practice found by the Commission is clearly within its authority, and will be therefore ordered.
The Respondent also requests attorney’s fees from the Petitioner. The Petitioner argues that attorney’s fees in a prohibited practice case are appropriate only where the employer’s misconduct was flagrant, aggravated, persistent, and pervasive. The NLRB also awards attorney’s fees in cases where it finds a party has bargained in bad faith. Alwin Mfg. Co. (Alwin I), 314 NLRB 564 (1994), enfd. 78 F.3d 1159 (7th Cir. 1996). In awarding litigation costs, the NLRB relies on both Section 10(c) of the Act and the NLRB’s inherent authority to control their own proceedings through an application of the “bad-faith” exception to the American Rule. Frontier Hotel & Casino, 318 NLRB 857 (1995), enf. denied in part sub nom. Unbelievable, Inc. v. N.L.R.B., 118 F.3d 795 (D.C. Cir. 1997). Furthermore, the United States Supreme Court has sanctioned awards of attorney’s fees where a party exhibits bad faith in actions leading to the lawsuit or in the conduct of litigation. See Lake Holiday Associates, 325 NLRB 469 (1998).
In Alwin Manufacturing Co., Inc. (Alwin II), 326 NLRB 646, 162 L.R.R.M. 1120 (1998), the Board found that the Respondent employer had demonstrated bad faith in its action giving rise to the instant litigation by its own failure to remedy the unfair labor practices of Alwin I and by its insistence on maintaining the terms it unlawfully instituted. In awarding attorney’s fees, the Court stated that the Respondent had also demonstrated bad faith in the conduct of Alwin II by forcing the Union to prepare and try a matter that concerns, in large part, conduct that was adjudicated in Alwin I. Accordingly, the Board concluded that, under the bad-faith exception to the American Rule, the judge was warranted in ordering the Respondent to reimburse the Union for their litigation costs, including attorney’s fees.
We are mindful that in Nebraska the Supreme Court has stated that the general rule in this jurisdiction is that attorney’s fees may be recovered only when provided by statute, or where the uniform course of procedure has been to allow recovery. See Quinn v. Godfather’s Investments, 217 Neb. 441, 348 N.W.2d 893 (1984). The practice in Nebraska follows the “American Rule,” where a prevailing party may not recover an attorney’s fee from his opponent, because a defendant should not be unduly influenced from vigorously contesting claims made against him. However, Nebraska also recognizes a general exception to the American Rule, whereby that attorney’s fees may be “shifted” to an opponent when conduct exists during the course of litigation which is vexatious, unfounded, and dilatory, such that it amounts to bad faith. See Alyseka Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S. Ct. 2455, 65 L.Ed.2d 488 (1980); and In Re Boston & Providence Railroad Corp., 501 F.2d 545 (1st Cir. 1974). Nebraska also limits this exception by requiring attorney’s fees to be limited in amount so as to relate only to that part of the action necessitated by the misconduct. See Holt County Co-op Ass’n. v. Corkle’s, Inc. 214 Neb. 762, 336 N.S.2d 312 (1983), citing Richardson v. Communications Wrks. of America, 530 F.2d, reh’g and reh’g en banc denied (8th Cir. 1976), cert. denied 429 U.S. 824, 97 S.Ct. 77, 50 L.Ed.2d 86.
The Commission has discussed the award of attorney’s fees in several recent cases as a remedy for a violation of bad faith bargaining. In International Union of Operating Engineers, Local 571 v. Cass County, et. al., 14 CIR 259 (2004), the Commission in ordering an appropriate remedy pursuant to Neb. Rev. Stat. § 48-825, noted that Rule 42 of the Commission was recently amended to authorize an award of attorney’s fees when the Commission finds that a prohibited practice has occurred. The Commission found that such an award would not be appropriate in all cases, but should be reserved for cases where the employer’s misconduct was flagrant, aggravated, persistent, and pervasive. J.P. Stevens & Co., 244 NLRB 407, 102 LRRM 1039 (1979), enforced and remanded, 668 F.2d 767, 109 LRRM 2345, 2352 (4th Cir. 1982); J.P. Stevens & Co. v. NLRB, 458 US 1118, 110 LRRM 2896 (1982). In Cass County, while the evidence showed that Respondents’ attempts to unilaterally withdraw recognition from the Petitioner may have risen to this standard; the Petitioner had not requested such relief in its Petition nor at the Pretrial conference.
The Commission also addressed the issue of attorney’s fees in Hall County I. See United Food and Commercial Workers District Local 22 v. County of Hall, 15 CIR 55 (2005). The Commission found that with regard to the issue of attorney’s fees, the Respondent’s misconduct was not flagrant, aggravated, persistent, and pervasive. The facts in the first hearing demonstrated that the County sought timely commencement of negotiations and was responsive to the Union. The Commission determined based on the facts presented at trial, that the County’s actions did not rise to the level of flagrant bad faith to justify an award of attorney’s fees. Accordingly, attorney’s fees were not awarded in Hall County I.
The County’s actions since Hall County I now reflect a persistent, pervasive and aggravated refusal to bargain in good faith. As stated in the above cited cases, the Commission’s authority to issue a remedy after finding a failure or refusal to bargain in good faith may be found in § 48-816(1) which provides in pertinent part:
In the event of an industrial dispute between an employer and an employee or a labor organization when such employer and employee or labor organization have failed or refused to bargain in good faith concerning the matters in dispute, the Commission may make any such order or orders as may be appropriate to govern the situation pending such bargaining. The Commission shall require good faith bargaining concerning the terms and conditions of employment of its employees by any employer.
Additionally, § 48-819.01 provides:
Whenever it is alleged that a party to an industrial dispute has engaged in an act which is in violation of any of the provisions of the Industrial Relations Act, or which interferes with, restrains, or coerces employees in the exercise of the rights provided in such act, the Commission shall have the power and authority to make such findings and to enter such temporary or permanent orders as the Commission may find necessary to provide adequate remedies to the injured party or parties, to effectuate the public policy enunciated in Section 48-802, and to resolve the dispute.
Furthermore, § 48-823 states:
The Industrial Relations Act and all grants of power, authority, and jurisdiction made in such act to the Commission shall be liberally construed to effectuate the public policy enunciated in Section 48-802. All incidental powers necessary to carry into effect the Industrial Relations Act are hereby granted to and conferred upon the Commission.
Finally, Rule 42 (B) of the Commission of Industrial Relations states:
1. A request for a cease and desist order; 2. A request for attorney’s fees; a. Attorney’s fees may be awarded as an appropriate remedy when the Commission finds a pattern of repetitive, egregious, or willful prohibited conduct by the opposing party. b. Attorney’s fees are a remedy used to reimburse the injured party’s costs caused by the opposing party’s conduct. An award of fees shall be granted in an amount sufficient to make whole the injured party, and shall not be construed as a sanction against the opposing party; 3. A request to reimburse the fees withheld; 4. Reinstatement; 5. Payment of lost back wages; and, 6. Such other relief as may be deemed appropriate by the Commission.
The Nebraska Supreme Court has found that the three statutes above are sufficiently similar to the NLRA’s Section 10(c). The NLRB awards attorney’s fees through Section 10(c) of the Act and the NLRB’s inherent authority to control their own proceedings. Like Alwin I and Alwin II above, the instant case was in a substantial part previously litigated in Hall County I. The Petitioner in this case chose not to appeal our decision in Hall County I, but instead ignored the order to bargain, and avoided bargaining by filing a wage case. The Petitioner, after a hearing on a request for temporary relief, was then again ordered to face-to-face negotiation sessions on May 31, 2005. The Petitioner was cautioned at the hearing for temporary relief that continued repetition of the same acts could lead the Commission to find that its actions were flagrant, aggravated and persistent. The Petitioner did sit down to negotiate with the Respondent after our May 31, 2005 temporary order. The question of whether these regressive sessions were good faith bargaining efforts, or an elaborate show, was decided adversely to the County earlier in this order.
Although we refer to the NLRB decisions for guidance on an appropriate remedy, and the standards for imposition, our remedy is based upon the broad statutory remedial authority discussed above, and specifically Neb. Rev. Stat. § 48-819.01. The only remedy that directly addresses the impact to Respondent of the County’s refusal to bargain in good faith appears to be reimbursement of costs, including attorney fees, incurred as a direct result of the County’s actions. The Respondent is directed to submit within ten (10) days of this order an affidavit of costs, expenses, and fees incurred by Respondent after the decision in Hall County I. This affidavit should reflect the costs, work, time, fees, rates, reasonableness of such rates, and expenses claimed by Respondent in sufficient detail to be reviewed by the Commission. It should be executed by a person with personal knowledge of the facts, which may include counsel for the Respondent if necessary, and will be received in evidence solely for the purpose of determining an appropriate remedy. Opposing counsel shall be served with a copy, and it shall be treated as a motion to be ruled upon subsequently by the Commission. This filing shall be treated as a motion under Rule 20, and ruled upon in a supplemental order without further hearing unless a hearing is requested by Petitioner or Respondent in the manner provided by Rule 20.
WAGE CASE:
Jurisdiction
Even though the Petitioner has not bargained to impasse in good faith as described in the findings above, the Petition seeks resolution of an industrial dispute over wages, hours and working conditions for the July 1, 2004 through June 30, 2006 contract period. The Respondent’s First Amended Counterclaim, First Amended Motion to Dismiss and Answer denies that the Commission has jurisdiction at this time to establish wages and conditions of employment, and requests that the Commission dismiss the Petitioner’s Petition for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. The Petitioner argues that impasse is not mandatory and that only an industrial dispute is required under the Industrial Relations Act. Furthermore, the Petitioner argues that the Petition does indeed plead an “industrial dispute” as required under Neb. Rev. Stat. § 48-810 (Reissue 2004).
The Industrial Relations Act defines an industrial dispute as follows:
“Industrial dispute shall include any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, or refusal to discuss terms or conditions of employment.”
Neb. Rev. Stat. § 48-801(7) (Reissue 2004).
It is clear that formal impasse has never been a prerequisite of jurisdiction. In International Brotherhood of Electrical Workers, Local No. 1536 v. City of Fairbury, 9 CIR 317 (1988), the Respondent argued that the parties had not yet reached impasse. In City of Fairbury, the two parties had been attempting to negotiate a contract for over two years, including meeting to bargain on ten separate occasions. In City of Fairbury, the Commission found that it generally should encourage parties to bargain and settle disputes themselves, finding that if it appears that further bargaining would be fruitful, the Commission should send them back to the bargaining table, as we are authorized to do under Section 48-816(1). However, the Commission commented that bargaining cannot continue beyond a reasonable time period and still adhere to the public policy of resolving disputes in a timely fashion. Tekamah-Herman Educ. Ass’n v. School Dist. of Tekamah-Herman, 9 CIR 78 (1987). After negotiating for two years, the Commission determined that the filing of the wage case by the Petitioner was appropriate because the parties devoted a reasonable amount of time to resolving their differences.
In International Brotherhood of Electrical Workers, Local Union 1536 v. McCook Public Power District, 3 CIR 117, 120 (1976), the Plaintiff filed a wage case requesting that the Commission determine wages, hours and working conditions. The Plaintiff also argued that the Defendant had failed to bargain in good faith. While the facts showed that the Defendant’s negotiator was rather inflexible on its proposal for compensation in the event of a strike (reimbursement clause), the Commission ultimately determined that no bad faith bargaining had occurred. The Commission then turned to the determination of the wage case.
In McCook Public Power District, the Commission found that the record demonstrated clearly that the parties were unable to agree on wages and conditions. Consequently, the Commission determined that a “controversy concerning terms, tenure, or conditions of employment” existed as an industrial dispute, in accordance with Section 48-801 (7). The Commission had ordered the parties to commence bargaining on June 7, 1974. When the case was filed, the parties had been negotiating for 18 months, without success, with the record indicating that the parties were far apart on several items. Even though the Defendant argued that the parties had not reached impasse and should therefore be allowed to continue to bargain without interference from this Commission, the Commission found that the argument was without merit. In doing so, the Commission stated that, “the statute does not specifically require an impasse in bargaining before this Court can entertain jurisdiction, and if it did, the condition precedent has been met.”
In the instant case, the Respondent bases its argument on the Commission’s preference for the parties to resolve their differences through good faith negotiations rather than supplementing litigation in front of the Commission. The Respondent also argues that, in light of the Commission’s March 24, 2005 Order, the County’s conduct in this case would undermine the Commission’s purpose and authority. However, the Respondent does not address the clear direction of the statute. Neb. Rev. Stat. § 48-801(7) only requires an industrial dispute as a prerequisite to filing a case under Neb. Rev. Stat. § 48-818. The Act makes no mention of impasse. Although the statute seems inconsistent with the prohibited practices that the County committed, the Commission is nevertheless still bound by the statutory declaration of jurisdiction. While the Commission prefers parties to sit down at face-to-face negotiations to arrive at resolution of their differences, the parties have been in a bargaining dispute for well over a year and bargaining cannot continue beyond a reasonable time period and still adhere to the public policy of resolving disputes in a timely fashion. With the Petitioner’s flagrant and continued violation of Neb. Rev. Stat. §§ 48-816(5), 48-824(1), (2)(a), (e) and (f), it is extremely doubtful that if the Commission sent the parties back to the bargaining table, such bargaining would ever be fruitful. The Commission finds that while the parties are not at impasse, an “industrial dispute” exists between the parties in this case and that the Commission has jurisdiction to settle the dispute.
Prima Facie Case
The Respondent also argues that the Petitioner has failed to establish its prima facie case because the proposed array is inadequate. The Nebraska Supreme Court has stated that the Commission of Industrial Relations cannot, in a Section 48-818 case, obtain evidence on its own motion unless the moving party has first made a prima facie case of non-comparability with prevalent conditions. See General Driver and Helpers Union v. City of West Point, 204 Neb. 238, 281 N.W.2d 772 (1979). While it is clear from evidence at trial that there might be additional comparable counties in the state of Nebraska, such evidence was not presented at trial. Certainly the evidence presented, for the most part, establishes a prima facie case on the part of the Petitioner. Therefore, the Commission conducted a § 48-818 proceeding with the evidence presented.
The Petitioner argues that six counties are comparable under Neb. Rev. Stat. § 48-818. These counties are Buffalo, Dodge, Lincoln, Madison, Platte and Scotts Bluff. The Respondent did not offer any comparable counties to the Commission and argued that the Petitioner’s array was not sufficiently similar under § 48-818.
When choosing an array of comparable employers, the Commission applies a well-established size guideline of one-half to twice as large. See Scotts Bluff County School District No. 79-0064 v. Lake Minatare Education Ass’n, 13 CIR 256 (1999); Yutan Education Ass’n v. Saunders County School District No. 0009, 12 CIR 68 (1994); Crawford Teachers Ass’n v. Dawes County School District No. 0071, 11 CIR 254 (1991); Red Cloud Education Ass’n v. School District of Red Cloud, 10 CIR 120 (1989). Employers falling outside this guideline are often excluded from arrays; however, the size criteria used by the Commission is a general guideline and not a rigid rule. Nebraska Public Employees Local Union 251 v. Sarpy County, 13 CIR 50 (1998); Nebraska Public Employees Local Union 251 v. County of York, 13 CIR 128 (1998); 13 CIR 157 (1998); 12 CIR 309 (1997); 12 CIR 248 (1997). Nonetheless, since the size guideline is based on objective criteria, it provides predictability and should not be lightly disregarded when a sufficient number of comparables, which meet the guidelines, exist. See School District of West Point v. West Point Education Ass’n, 8 CIR 315 (1986); Richland Teachers Education Ass’n v. Colfax County School District No. 0001, 11 CIR 286 (1992). In the instant case, the Respondent argues that several of the jail populations are significantly smaller than the current jail population at Hall County. The Respondent also demonstrates that once the new jail is built, several current comparables will fall below the one-half to twice the size criteria. While the Commission has compared overall county populations in the past, a county jail could serve a larger or smaller population, much akin to a school district, depending on the facts in each given case. Here, the evidence demonstrates that the Hall County jail houses additional inmates such as INS holds and death row inmates. The population of the jail directly impacts work, skill and working conditions. However, the Respondent did not provide the Commission with any evidence verifying the population of the jails for comparison purposes. Therefore, the Commission must use the Petitioner’s evidence regarding the population of the counties presented in its array. All six counties meet the Commission’s size criteria.
The Commission, however, need not consider every conceivable comparable, but only needs to consider a sufficient number in a representative array so that it can determine whether the wages paid or the benefits conferred are comparable. General Drivers & Helpers Local Union No. 554 v. Darlene Robertson and Scotts Bluff, County, Nebraska, 12 CIR 120 (1995)(citing Douglas County Health Department Employees Ass’n v. County of Douglas, 229 Neb 301, 308, 427 N.W.2d 28, 35 (1998)). Five of the six counties are clearly proximate to Hall County and the work, skill and working conditions of these counties are sufficiently similar. These counties are Buffalo, Dodge, Lincoln, Madison, and Platte. On the other hand, Scotts Bluff County is 284 air miles from Hall County, and is over twice the distance of the next furthest array county, Lincoln County, which is only 127 air miles away. Having five comparables is sufficient, and the Commission will not include Scotts Bluff County in its array. Therefore, the counties of Buffalo, Dodge, Lincoln, Madison, and Platte are all comparable under Neb. Rev. Stat. § 48-818 with respect to work, skill and working conditions and likewise should be included in the Commission’s array.
WAGES AND BENEFITS:
Dental Insurance
The Petitioner argues there should be a change in how dental insurance is provided for employees. Currently, the dental insurance is an indivisible part of the health insurance plan. Since the County does not carry a separate policy for dental insurance and it is past the expiration of the contract period, the current percentages paid by the employees or the employer are moot. Therefore, all dental insurance benefits will remain unchanged for both 2004-2005 and 2005-2006.
2/4 Party Coverage
The Petitioner argues that the percentage of 2/4 party insurance should be reduced for both 2004-2005 and 2005-2006, because having two-four party coverage is prevalent among the array members. Currently, the Petitioner does not have 2/4 party insurance. Therefore, the Commission will not reduce the percentage paid for 2/4 party, since the question of whether the Petitioner must even have 2/4 party coverage is moot.
Health Insurance Percent Paid by Employee
The Petitioner argues that the percentage paid by the employee for family insurance in 2004-2005 and 2005-2006 should be increased. The percentages of employer paid and employee paid do not equal 100% if added together. Therefore, for mathematical purposes the Commission will only order the percentage paid by the employer.
Moot Fringe Benefits
While the Commission is not deprived of jurisdiction to set wage rates after the end of the bargaining period in question, a dollar-for-dollar costing out of each benefit is not required where, as here, the contract period in dispute is just past, and the impossibility or impracticability of retroactively changing fringe benefits for an expired contract period 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). We recognize a number of factors, including the time necessary to prepare for, and try a case before the Commission contributing to the delay resulting in certain issues becoming moot. We find specifically that the single largest contributing factor to the delay was the decision of the County to refuse to bargain in good faith with the Union. Having been the primary cause of these issues becoming moot, the County should not complain of the impact.
The Commission determines that the following fringe benefits are moot because the contract period 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 – Payout upon Resignation, Dismissal, Retirement or Death;
4) Sick leave – Parental, Family, or Funeral Usage;
5) Funeral Leave for Immediate Family and Amount of Days;
6) Vacation Leave Schedule – Years 1-MAX;
7) Vacation Leave – Cash Conversion;
8) Vacation – Seniority Scheduling;
9) Holidays and Personal Days;
10) Health Insurance – Major Medical and Deductibles;
11) Health Insurance – Maximum Benefit;
12) Health Insurance – Stop-loss Amount and Co-Insurance;
13) Health Insurance – Prescription Benefit;
14) Health Insurance – Optical Care;
15) Life Insurance – Amount of Coverage;
16) Disability Insurance − Long-Term and Short-Term Disability;
17) Dental Insurance – Part of the Overall Health Premium;
18) Dental Insurance – Employer Paid Dental;
19) Union Dues Check Off;
20) Longevity Plan;
21) Overtime – Vacation, Sick Leave, Holidays, and Comp Time;
22) Seniority Affect Scheduling;
23) Probation Period;
24) Uniforms and Tools;
25) Shift Differential;
26) Employee Assistance Program;
27) Educational Incentive and Reimbursement;
28) Grievance Procedure;
29) Third Party Arbitration;
30) Work Out of Class;
31) Work Time – After Shift, After 40 Hours, and Comp Time;
32) After Duty Pay − On-Call and Call Back and Minimum Time;
33) Snow Policy;
34) Safety Committee;
35) Meal Time Considered Work Time.
Management Prerogatives
There are certain fringes which we believe are management prerogatives and we will not address the following in this Order:
1) Work Hours − Scheduled Hours Per Day;
2) Work Hours − Scheduled Hours Per Week;
3) Work Hours – Scheduled Work Cycle.
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 and not the actual dollar amount. 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 − Dollar amount paid by employer for 2004-2005 and 2005-2006;
2) Health Insurance – Dollar amount paid by employee for 2004-2005 and 2005-2006;
3) Life Insurance Monthly Premium in Dollars for 2004-2005 and 2005-2006.
Comparable Fringe Benefits
The following fringe benefits shall remain unchanged for 2004-2005 and 2005-2006 because they are comparable:
1) Retirement – Provided, Employer’s 6.75% and Employee’s 4.5%;
2) Holiday Pay − Scheduled Work, 2.5 hours and Call-in Work, 2.5 Hours;
3) Health Insurance Single Coverage – 100% Employer paid;
4) Overtime Cash Payment Rate at 1.5 times Regular Pay and the Compensatory Time rate of 1.5 times Regular Hours − Continued. See Table 1.
5) Life Insurance − Paid 100% by the employer.
Non-Comparable Benefits
The Commission makes the following findings as to non-comparable fringe benefits for 2004-2005 and 2005-2006:
1) Vacation Carry Over Days − Reduced from 25 days to 5 days.
2) Health Insurance Employer Paid Family Coverage − Reduced from 100% to 71% for 2004-2005 and from 100% to 73% for 2005-2006. See Table 3.
3) Overtime Compensatory Time − Increased from 100 hours maximum accumulation to 216 hours maximum accumulation. See Table 1.
4) Sick Leave Maximum Accumulation − Reduced from 720 hours to 504 hours in 2004-2005 and from 720 hours to 444 hours in 2005-2006. See Table 4.
5) On Call Pay and Call Back Pay –the minimum rate should be 1.1 times the regular wage rate. See Table 2.
6) Pay Plan Steps – Increased from 5 steps to 7 steps, with a 4% increase between steps, with 8 years instead of 4 years to move from minimum to maximum, and each employee placed based upon performance and time. See Table 5.
7) Bilingual Pay − Eliminated.
Overall Compensation
The Petitioner requests a reduction in wages for the 2004-2005 contract year and the 2005-2006 contract year. The Commission will not break with our previous holdings that wage reductions will not be retroactive and we will not order employees to repay any overpayment to the employer. See Fraternal Order of Police Lodge No. 23 v. City of Holdrege, 9 CIR 257 (1988). We find the Petitioner shall determine the net lump sum overpayment or underpayment for the contract year for each employee, including benefits. Any net lump sum underpayment for any employee shall be paid by the Petitioner to each employee; however, any employee reimbursement shall not exceed the amount of compensation owed to the employee from the Petitioner.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that:
The Petitioner, County of Hall, shall
1. Cease and desist from:
2. Pending receipt of an affidavit from the Respondent outlining the costs and fees incurred by them, the Commission will enter a subsequent order of reimbursement for expenses, including reasonable attorney fees, caused by the refusal of Petitioner to bargain in good faith.
a. Reimburse the United Food and Commercial Workers District Local 22 the costs and expenses incurred by them in the investigation, preparation, presentation, and conduct of this proceeding, including reasonable counsel fees, transcript and record costs, printing costs, travel expenses and per diem, and other reasonable costs to be determined in a subsequent order.
And, for the fiscal period of 2004-2006, the following shall be effective as of July 1, 2004, as referenced by years:
3. Respondent’s wages and benefits for the fiscal period of 2004-2005 and 2005-2006 shall be as follows:
1) JOB CLASSIFICATION MIN MAX
Corrections Corporal $14.33 $17.37 (2004-2005)
$14.70 $17.78 (2005-2006)
Corrections Officer $11.25 $14.22 (2004-2005
$11.52 $14.69 (2005-2006)
Correctional Industry Supervisor $14.33 $17.37 (2004-2005)
$14.70 $17.78 (2005-2006)
2) The Petitioner shall maintain 100% employer percentage paid for single coverage health insurance. The employee percentage shall remain at 0%.
3) The Petitioner shall reduce its percentage paid for family coverage health insurance from 100% to 71% in 2004-2005 and from 100% to 73% in 2005-2006.
4) The Petitioner shall change its step pay plan from 5 steps to 7 steps, with a 4% increase between steps, with 8 years instead of 4 years to move from minimum to maximum, and shall place each bargaining unit member on the step that correlates with their previous performance and years served.
5) The Petitioner shall continue to provide a retirement benefit at a rate of 6.75 % paid by the employer and at a rate of 4.5% paid by the employee and therefore no offset is required.
6) The Petitioner shall continue its current practice of paying for holidays at 2.5 hours when scheduled and when called in at 2.5 hours.
7) The Petitioner shall continue its current practice in overtime with a cash payment rate at 1.5 times regular pay and the compensatory time rate of 1.5 times regular hours.
8) The Petitioner shall continue to pay 100% of life insurance.
9) The Petitioner shall reduce its vacation carry-over days from 25 days to 5 days.
10) The Petitioner shall increase overtime compensatory time from 100 hours maximum accumulation to 216 hours maximum accumulation.
11) The Petitioner shall reduce the sick leave maximum accumulation from 720 hours to 504 hours for 2004-2005 and from 720 hours to 444 hours for 2005-2006.
12) The Petitioner shall increase the minimum rate of call back pay to be 1.1 times the wage rate.
13) The Petitioner shall eliminate bilingual pay.
14) The fringe benefit and wage offset, as found herein, shall be calculated on an individual employee basis. The Petitioner shall determine the net lump sum overpayment or underpayment for the contract year for each employee. Any net lump sum underpayment for any employee shall be paid by the Petitioner to each employee; however, any employee reimbursement shall not exceed the amount of compensation owed to the employee by the Petitioner.
15) 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 the Final Order’s time for appeal or sooner.
16) All other terms and conditions of employment are not affected by this Order.
Copies
of Tables may be obtained by calling the Commission of Industrial
Relations, (402) 471-2934.