15 CIR 236 (2006) 

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 Filed July 18, 2006

APPEARANCES:

Before:  Judges Lindahl, Burger, and Cullan

LINDAHL, J.

NATURE 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 Otoe , Nebraska (hereinafter, “Respondents”). Petitioner seeks the resolution of an industrial dispute over wages and other terms and conditions of employment for the July 1, 2005 through June 30, 2006 contract year. Upon the Petitioner’s Motion for Mediation, the Commission ordered the parties to mediation on December 29, 2005. Even though the parties went to mediation on January 13, 2006, the parties continued to set the case for trial and pretrial. The parties conducted a Pretrial conference on March 17, 2006. The Trial was held on April 10, 2006. The Petitioner submitted its Brief on May 4, 2006 and the Respondents’ Brief was submitted on May 10, 2006. The Petitioner submitted its Reply Brief on May 22, 2006.  

ARRAY:

            The Petitioner offers seven counties for its array. The Respondents offer eight counties for their array. The common counties include Cass, Gage, Richardson , Saline, Saunders, and Seward. The Petitioner offers Washington County in addition to the common six and the Respondents offer Butler County and Jefferson County in addition to the common six.

The threshold 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 Neb. 274, 343 N.W.2d 735 (1984). 

The Respondents 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 Washington County in comparison to the non-metropolitan statistical area of Otoe County . Alternatively, the Petitioner argues that the Commission can include Washington County with both Saunders County and Cass County within the proposed array, even though all three counties are from the Omaha MSA, because all three counties are comparable to Otoe County .

While being 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, Nebraska Pub. Employees Local Union 251 v. County of Douglas , 11 CIR 189 (1992), City of Omaha v. Omaha Police Union Local 101, 5 CIR 171, (1981). Yet, the Commission has not uniformly adopted Metropolitan Statistical Area (MSA) population as a criterion in selecting or rejecting array members. Indeed, the Commission has, on occasion, rejected the use of MSA as a selection criterion. See Douglas County Health Dept. Employees Ass’n v. County of Douglas, 8 CIR 208 (1986), aff’d, 229 Neb. 301 (1988); Lincoln Police Union v. City of Lincoln, 5 CIR 134 (1981); Lincoln Firefighters Ass’n, Local 644 v. City of Lincoln, 3 CIR 130 (1976), aff’d in part and rev’d in part, 198 Neb. 174 (1976).

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 Washington , perform rural road work, sharing similar work, skills and working conditions such as bridge work. There is no direct evidence that the nature of county road work is impacted by being located in an MSA. The Petitioner’s expert witness stated that the definition of an MSA only states that 25% or greater of the workforce commutes to the principal city. The Respondents presented no evidence as to how a commuting workforce altered the work, skills and working conditions of the road crew employees in Washington County , so that including an additional county within the MSA would skew the results of this wage study. Furthermore, the Respondents were willing to stipulate to include both Cass County and Saunders County , both of which are part of an MSA and have similar work, skills, and working conditions to Otoe County . Therefore, the Commission finds that Washington County should be included in the array.

The Petitioner argues that the Commission need not include every comparable when there are sufficient comparables. Likewise, the Petitioner argues the Commission should exclude Butler County and Jefferson County . The Respondent argues that both Butler County and Jefferson County are comparable to Otoe County .

It is clear from the record that Butler County is comparable in size and proximity and the Petitioner has stipulated to work, skills and working conditions of the two counties. Therefore, Butler County should be included in the array, along with Washington County and the six other common array counties. While Jefferson County is similar in size, proximity, and working conditions, it is unclear from the record whether the bottom wage rates are current numbers. Furthermore, the Commission need not consider every conceivable comparable, but only “a sufficient number in a representative array so that it can determine whether the wages paid or the benefits conferred are comparable.” Nebraska Pub. Employees Local Union 251 v. County of York , 13 CIR 157 (1998). Therefore, the Commission will not include Jefferson County in the array. The Commission’s array shall consist of Cass, Gage, Richardson , Saline, Saunders, Seward , Washington , and Butler .

WAGES AND PAY PLAN:

Retroactive Establishment of Wage Rates

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. Ass’n v. School District of Crete , 193 Neb. 245, 226 N.W.2d 752 (1975); General Drivers & Helpers Union Local 554 v. County of Gage , et. al., 14 CIR 170 (2003); and International Brotherhood of Electrical Workers Local Union 1597 v. City of Gering , 15 CIR ____ (2005) (Appealed, Jan. 11, 2006. Appeal dismissed, May 24, 2006).  

            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.

Pay Plan

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, Richardson , Saline, and Washington have flat pay plans and not step pay plans. The Respondents argue that the pay plans at the various counties are step pay plans and not flat pay plans.

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, Richardson County has a hiring rate, a six month rate and a one year rate. These raises are all probationary and all occur within the first twelve months of employment. Similarly, Saline County has an entry rate, and every month for the first six months the employee receives a ten cent per hour pay increase. These raises are all probationary and all occur within the first twelve months of employment.

The evidence shows that all the raises in Gage, Richardson and Saline Counties are intended as probationary increases and not as traditional length-of-service increases, since all three plans have increases only within the first twelve months. Logically, the evidence presented at trial indicates that the plans are flat pay plans and not step pay plans. Therefore, for the purposes of calculations, Gage, Richardson , and Saline counties will be labeled as flat rate plans. See Table 1.

With regard to Washington County , the evidence indicates that the county has an entry rate, a 6 ½ percent increase after the first year, and then a 6 ½ percent increase after the second year. The progression occurs in a period of 24 months. The evidence on Washington County also demonstrates that after the second year of service, no matter how many years of service and/or the level of performance, an employee would receive the maximum rate. While this plan is longer and more like a step plan, the facts still indicate that the “so-called steps” in the plan are probationary and not really akin to steps in a traditional step pay plan. Therefore, for the purposes of calculations, Washington County will be labeled as a flat pay plan. See Table 1.

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.

FRINGE BENEFITS:

Moot Fringe Benefits

            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.  See Lincoln Fire Fighters v. City of Lincoln , 12 CIR 248 (1997), aff’d 253 Neb. 837, 572 N.W.2d 369 (1998). The Commission determines that the following fringe benefits are moot because the year 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 – 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;

24) Tools;

25) Pay Periods;

26) Retirement Plan and State Pension;

27) CDL Reimbursement;

28) Payroll Deductions;

29) Written Grievance Procedure;

30) Arbitration;

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)

Management Prerogatives

            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.

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. See 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 – 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.

Health 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.

Dental 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.

Comparable Fringe Benefits

The following fringe benefits should remain unchanged because they are comparable:  

1)      Life Insurance – 100% Employer Paid;  

2)      Pay on Holidays – Scheduled 2.5;  

3)      Work Time – Cash Rate 1.5 and Comp Time Rate at 1.5;  

4)      Retirement – (no offset required) − Employer’s 6.75% and Employee’s 4.5%;  

5)      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.

Non-Comparable Benefits

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:

Job Classification                                     Minimum        Maximum

                  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.