15 CIR 197 (2006)
|COUNTY OF HALL, NEBRASKA,||)||CASE NO. 1095|
|A Political Subdivision,||)|
|v.||)||ORDER ON POST-TRIAL CONFERENCE|
|UNITED FOOD AND COMMERCIAL||)|
|WORKERS DISTRICT LOCAL 22,||)|
Filed October 31, 2006
|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
After issuing Findings and Order on July 31, 2006, the Petitioner timely filed a Request for Post-Trial Conference, which conference was conducted on the record.
A post-trial conference is provided for in Neb. Rev. Stat. § 48-816 for cases “…arising under Section 48-818”. This case is somewhat unique in that it was commenced as a Section 48-818 action, commonly referred to as a wage case. A counterclaim alleging a failure to bargain in good faith was filed by Respondent.
Many of the errors cited by Petitioner in the Request for Post-Trial Conference related to the finding of the Commission that the Petitioner committed a prohibited practice by failing to bargain with Respondent in good faith. The authority of the Commission to hear and determine these issues in the context of a post-trial conference was not raised, and Petitioner was afforded the opportunity to address all claimed errors. We need not decide at this time the question of whether or not “arising under Section 48-818” amplifies the authority of the Commission at post-trial conference to modify prohibited practice findings in a case initiated under 48-818. As discussed below, the findings that the Petitioner committed a prohibited practice are not modified by this Order.
Items 1 through 5 of the Request for Post-Trial Conference are all related to the finding of the Commission concerning the conduct of the 2005 bargaining sessions. We note that an unnecessary comma in our discussion of the grievance procedure left an inaccurate impression, and the Petitioner is correct that the County did not eliminate all health insurance payments; it eliminated its current policy for family health insurance in favor of a more regressive premium for family insurance.
The findings of a refusal to bargaining in good faith were made upon the totality of the conduct of the Petitioner, including the findings in Hall County I concerning the 2004 bargaining sessions. In addition, as discussed at the post-trial conference, the Commission, after observing the demeanor of a principle witness of Petitioner, a member of the County Board of Supervisors, uncategorically rejected her testimony of good faith intent as contrived, insincere, and incredible.
Determination of whether an employer has bargained in good faith must generally be inferred and discerned from conduct. Here, the entire course of conduct was considered. When viewing the entire course of conduct, we noted in the unappealed findings that Petitioner failed to bargain in good faith in Hall County I, 15 CIR 35 (2005). The Petitioner’s response was to impose a condition that Respondent make written concessions before agreeing to bargain as ordered in Hall County I. While it is true that the County declined to comply with Hall County I because there was “nothing left to bargain”, after being ordered a second time to commence good faith bargaining, the County submitted regressive proposals.
The regressive nature of the 2005 bargaining session is just one facet of the total conduct of the Petitioner, and is not explained away by the ultimate wage and benefit findings of the Commission.
The Respondent made a strategic decision to basically pursue a prohibited practice case, and offered no competing array members from which the Commission could make wage case findings, other than as proposed by Petitioner. The wage decision does not validate Petitioner’s conduct. Rather, the total conduct of Petitioner through the course of the negotiations leads to the conclusion that Petitioner never had the sincere intent to find a basis for agreement. The filing of this wage case was a device to avoid complying with the Commission’s order in Hall County I without the need to appeal. The finding that Petitioner committed a prohibited practice was correct, supported by the facts, and will not be revised.
WAGE CASE ISSUES:
The Petitioner argues it should be eliminated as not prevalent. The dental insurance plan is part of the health insurance plan, and indivisible from it. Further, it is moot. The dental insurance dollars cannot be separated out from a meaningful comparison. No change is ordered.
2/4 Party Coverage
The Petitioner argues they did not request any action on 2/4 party insurance coverage, and do not provide 2/4 party coverage. The Petitioner did introduce evidence on 2/4 party coverage. The findings in the order were that the Petitioner did not offer 2/4 coverage, and finds that the question of whether Petitioner must even have it is moot. The result is nothing but a discussion of 2/4 coverage, and not a substantive order. No change is ordered.
Health Insurance Share Paid by Employer
After recalculating the math, the evidence does show the impact of the calculations total 101%. In the past, we have simply used the employer’s share as the controlling number, Nebraska Public Employees Union Local No. 251 vs. County of Otoe, 15 CIR _____ (2006). No change is made to that portion of the order.
Three exhibits addressed this issue, 34, 84, and 116. The first two address whether the array members have a longevity pay plan, not whether they pay longevity pay. Exhibit 116 shows the county pays longevity pay for service prior to July 1, 1999. The Commission found that the issue of longevity pay plan was moot, which was correct. The issue that Petitioner apparently intended to present was the question of longevity pay. The payment of longevity pay, as opposed to the plan, generally does not become moot. The only evidence appears to be the testimony of Petitioner’s expert that it is not prevalent, and should be eliminated. The recommended Findings and Order should be modified to eliminate longevity pay, however, it should also be treated as part of the fringe benefit offered, and an offset calculated as per paragraph number 14 of the order of relief.
In review of this, it appears that tuition reimbursement is more an aspect of pay, and not prevalent in the array. The Findings and Order should be amended to eliminate tuition reimbursement, subject to the same offset provisions and limitations set out for longevity pay.
Working Out of Classification
This is another element of compensation that has been the subject of conflicting decisions by the Commission on whether it is a moot fringe benefit, or an element of pay. We find upon further review that Working Out of Classification Pay should be treated as an item of pay that is not prevalent and eliminated subject to offset against overpayment in the same manner as above.
Call Back Pay
Further review of the evidence indicates that call back pay should be modified to 1.1 times the employees wage rate, times actual hours worked.
Wages/Pay Step Plan
After further review of the evidence, the language “with a 4% increase between steps” should be eliminated and replaced by “of equal length”.
PROHIBITED PRACTICE REMEDY:
The recommended Findings and Order directed the Respondent to submit evidence of the costs, including attorney fees, claimed to be incurred as a direct result of the County’s actions. That evidence was received at the post-trial conference, and the issues argued.
The Commission finds that the Petitioner’s lack of good faith in bargaining caused the Respondent to incur expenses in fruitless negotiating, and in prosecuting the prohibited practice claim. The Commission also finds that claims for salaries of Respondent’s employees should not be included, but, out-of-pocket expenses actually incurred should be reimbursed, such as mileage and hotel expenses. While the per diem rate is arrived at using federal tax guidelines, it does not calculate actual expenses incurred as a direct result of the prohibited practice litigation. The Commission further finds that the vast majority of the efforts of Respondent’s counsel in this case were directed to prosecuting the prohibited practice case to successful judgment, not in trying the wage case, and that the amount of time claimed, and rates charged were generally reasonable and necessary. The expenses of litigation incurred by Respondent in this case were caused by the Petitioner’s failure to bargain in good faith with the Respondent, despite both a final order, and an interlocutory order of the Commission to do so.
Although the recommended Findings and Order in this case ordered Petitioner to cease and desist from the refusal to bargain in good faith, that order is fairly illusory when the Petitioner’s actions have delayed resolution until after the end of the contract in question, and in light of Petitioner’s intransigence. The only remedial order of any impact is reimbursement of the costs Petitioner has needlessly caused Respondent to incur.
The Petitioner should be required to reimburse the Respondent $21,335.44 in expenses, which were incurred as a direct result of the Petitioner’s refusal to bargain in good faith with Respondent after being specifically ordered to do so.
IT IS THEREFORE ORDERED that Petitioner’s Post-Trial Conference request 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. The recommended Findings and Order shall be modified to eliminate longevity pay, however, it is to be treated as part of the fringe benefit offered, and an offset calculated as per paragraph number 14 of the order of relief.
2. The Findings and Order shall be amended to eliminate tuition reimbursement, subject to the same offset provisions and limitations set out for longevity pay.
3. Working Out of Classification Pay shall be treated as an item of pay that is not prevalent and eliminated subject to offset against overpayment in the same manner as above.
4. Call Back Pay should be modified to 1.1 times the employees wage rate, times actual hours worked.
5. The language “with a 4% increase between steps” shall be eliminated and replaced by “of equal length”.
6. All other terms and conditions of employment for the 2004-2005 and 2005-2006 contract years shall be as previously established by the agreement of the parties and by orders and findings of the Commission.
7. Adjustments and compensation resulting from this Order shall be paid in a single lump sum payable within thirty (30) days of this Final Order.
8. The Petitioner is ordered to reimburse the Respondent $21,335.44 in expenses.
 This figure is arrived at by taking $23,732.13 minus two 14 dollar charges for 10/21/05 and 10/25/05 and minus one 56 dollar charge for 11/04/05 for arbitration and FMCS matters, which equals $23,648.13. The Commission then takes 75% (the Commission’s approximation of the time spent by the Respondent on the prohibited practice case) of 23,648.13, which equals $17,736.10. This total is then added to mileage expenses for the union representatives for $1,854.11 plus the hotel expenses for the union representatives for $1,745.23 and then with both expenses added to the $17,736.10, arrives at the total attorney’s fees of $21,335.44.