15 CIR 236 (2006)
|NEBRASKA PUBLIC EMPLOYEES UNION, LOCAL NO. 251,||)||CASE NO. 1110|
|affiliated with THE AMERICAN FEDERATION OF STATE, COUNTY||)|
|AND MUNICIPAL EMPLOYEES, an International Union,||)||OPINION AND ORDER|
|COUNTY OF OTOE, NEBRASKA and DANIAL GIITTINGER, JOY||)|
|SCHRODER, and HENRY STRATKER, THE COUNTY BOARD||)|
|OF OTOE COUNTY, NEBRASKA, In Their Official Capacity,||)|
Filed July 18, 2006
|For Petitioner:||M. H. Weinberg|
|Weinberg & Weinberg, P.C.|
|9290 West Dodge Road-suite 201|
|Omaha, Nebraska 68112|
|For Respondents:||Jerry L. Pigsley|
|Harding, Shultz & Downs|
|121 S. 13th Street|
|800 Lincoln Square|
|P. O. Box 82028|
|Lincoln, Nebraska 68501-2028|
OF THE PROCEEDINGS:
This action was
brought by Nebraska Public Employees Union, Local No. 251 (hereinafter,
“Petitioner”) on December 16, 2005 pursuant to Neb.
Rev. Stat. § 48-818. Petitioner is the collective bargaining
agent for the bargaining unit consisting of road crew employees of the County of
The Petitioner offers seven counties for its array. The Respondents offer
eight counties for their array. The common counties include Cass, Gage,
issue in any § 48-818 wage action is whether the proposed array employers
presented by the parties will be determined to be comparable under the statute.
In selecting employment units in reasonably similar labor markets for the
purpose of comparison as to wage rate and other benefits, the question is
whether, as a matter of fact, the units selected for comparison are sufficiently
similar and have enough like characteristics or qualities to make a comparison
appropriate. Lincoln Co. Sheriff’s Emp.
Ass’n v. County of Lincoln, 216
state that the inclusion of Washington County would be “triple dipping”
since Washington County, Saunders County and Cass County are all part of the
Omaha metropolitan statistical area (MSA). The Respondents argue that the
Commission should decline to include
located in an MSA does not in itself require the elimination of a particular
array city, it is a factor in considering the work, skills, and working
conditions of the employees in the MSA, as compared to the subject array city.
Historically, the Commission has considered an MSA to comprise a single labor
market and has declined to include multiple employers from a single MSA in an
array because of concern that to do so would skew the data by using the same
labor market twice, so-called double dipping. See,
There is no
evidence in the record which compels us to find that a public employer’s
inclusion in an MSA has a direct effect on wages or work, skills and working
conditions. In fact, the evidence is to the contrary. The record establishes
that all counties, including
The Petitioner argues that the Commission need not include every
comparable when there are sufficient comparables. Likewise, the Petitioner
argues the Commission should exclude
It is clear from the record that
WAGES AND PAY
Retroactive Establishment of Wage
The Respondents argue that the Commission lacks jurisdiction or authority to establish wage rates and fringe benefits for a fiscal year which has elapsed. Respondents maintain that such an order would be contrary to Neb. Rev. Stat. § 48-817.
The Nebraska Supreme Court and the Commission have both ruled on numerous
occasions that the anti-retroactivity provisions of Neb.
Rev. Stat. § 48-817 do not apply to wages and working conditions
of the year in dispute. See Crete Educ.
The Petitioner filed its Petition well before 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 just elapsed.
The Petitioner and the
Respondents disagree as to how to properly categorize the type of pay plans at
the various counties in the array. The Petitioner argues that the Counties of
Gage County has an entry rate
with the employee receiving a 50 cent raise after six months; an additional 25
cents at the end of the ninth month; and finally at the end of the twelfth
month, another 25 cents per hour increase. These raises are probationary and all
occur within the first twelve months of employment. Likewise,
The evidence shows that all the
raises in Gage,
With regard to
After calculating the prevalent practice by determining the above counties as flat rate plans, the Commission will order a flat pay plan, with probationary steps, with a 13 month interval between the minimum (hiring) rate and the maximum rate (increased from three months between minimum and maximum), and with automatic progression between the minimum and maximum rates. See Table 1.
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 just past, and the impossibility or impracticability of retroactively
changing fringe benefits for an expired contract year is well recognized.
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 – Family or Funeral Usage;
5) Funeral Leave Days;
6) Vacation Leave Schedule – Years 1-14;
7) Vacation Leave Schedule – Years 15-MAX.
8) Vacation Leave – Cash Conversion;
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) Health Insurance – Providing Pay for Taking other Health Insurance;
20) Longevity Plan;
21) Overtime – Vacation, Sick Leave, and Holidays;
22) Compensation Time Bank;
23) Equipment – Uniforms and Equipment Furnished;
25) Pay Periods;
26) Retirement Plan and State Pension;
27) CDL Reimbursement;
28) Payroll Deductions;
29) Written Grievance Procedure;
31) Work Out of Class;
32) Work Time – After 40 Hours and Comp Time;
33) After Duty Pay − Stand-by and Call Back and Minimum Time;
34) Work Time - Comp Time Maximum (1)
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.
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
The following benefits will not be considered according to the above rule:
1) Health Insurance – Family Premium Payment (Total Premium);
2) Health Insurance – 2/4 Party Premium Payment (Total Premium);
3) Health Insurance – Single Premium Payment (Total Premium);
4) Health Insurance – Actual Dollar Cost for Employer (Family, 2/4 Party and Single);
5) Health Insurance – Actual Dollar Cost for Employee (Family, 2/4 Party and Single);
6) Dental Insurance – Single and Family Premium in Dollars;
7) Life Insurance – Monthly Premium Amount.
Insurance Percent Paid by Employee
The Respondents argue that the percentage paid by the employee for family, 2/4 party and single health insurance in 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 for family, 2/4 party, and single health insurance. See Table 2.
Insurance Percent Paid by Employee
The Respondents argue that the percentage paid by the employee for family dental insurance in 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 for family dental insurance. See Table 3.
fringe benefits should remain unchanged because they are comparable:
Life Insurance – 100% Employer Paid;
Pay on Holidays – Scheduled 2.5;
Work Time – Cash Rate 1.5 and Comp Time Rate at 1.5;
Retirement – (no offset required) − Employer’s 6.75% and
Dental Insurance – Employer Single 100% and Employee Single 0%;
6) After Duty Call Back Pay – Minimum Amount 1.0 times the regular rate because of bimodal result.
The following fringe benefits should change because they are not comparable to the prevalent practice:
1) Pay on Holidays − Called decrease from 3.0 to 2.5;
2) Health Insurance – Single decrease from 100% to 99% for Employer. See Table 2.
3) Health Insurance – 2/4 Party decrease from 83% to 72% for Employer. See Table 2.
4) Health Insurance – Family decrease from 81% to 69% for Employer. See Table 2.
5) Vacation Carry Over − Increase from 0 hours to 60 hours. See Table 4.
6) Maximum Accumulation of Sick Leave – Decrease from 960 hours to 712 hours. See Table 5.
7) Dental Insurance − Family decrease from 66% to 37% for Employer.
IT IS THEREFORE ORDERED that for the fiscal year 2005-2006, the following shall be effective as of July 1, 2005.
1) The Respondents shall continue to pay 100% of its life insurance plan.
2) The Respondents shall continue to pay 2.5 times the regular rate for scheduled work on holidays and shall decrease their pay for call in work on holidays from 3.0 times the regular rate to 2.5 times the regular rate.
3) Petitioner’s wages for the fiscal year 2005-2006 shall be as follows:
Road Crew $11.62 $14.82 See Table 6.
4) The Respondents shall maintain a flat pay plan, with probationary steps, but increasing the number of months between moving from the minimum wage rate (entry wage rate) and the maximum wage rate from 3 months to 13 months, and with also maintaining automatic progression to move between the minimum and maximum wage rates.
5) The Respondents shall pay 99% of the single monthly premium for health insurance. The Respondents shall pay 72% of the 2/4 party monthly premium. The Respondents shall pay 69% of the family monthly premium.
6) The Respondents shall increase vacation carry over from zero hours to 60 hours.
7) The Respondents shall decrease the maximum accumulation of sick leave from 960 hours to 712 hours.
8) The Respondents shall keep the minimum after duty call back pay at 1.0 times the regular rate.
9) The Respondents shall maintain the work time rate of cash at 1.5 times the regular rate and the comp time rate at 1.5 times the regular rate.
10) The Respondents are not required to offset the percentage of contributions for retirement as those percentages are comparable.
11) The Respondents shall continue to pay 100% of the single premium for dental insurance for the entire year.
12) The Respondents shall decrease the percentage paid for family dental insurance from 66% to 37% percent for the entire year.
13) 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 such employee, however, any employee reimbursement shall not exceed the amount of compensation owed to the employee from the Petitioner.
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.
15) All other terms and conditions
of employment are not effected by this Order.
1) This benefit is found moot because there is insufficient evidence to determine whether comp time maximum numbers can be carried over from year to year.
Copies of Tables may be obtained by calling the Commission of Industrial Relations, (402) 471-2934.