15 CIR 251 (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,||)||FINAL 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 August 14, 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|
After the trial of this matter, the Commission entered an Opinion and Order on July 18, 2006. The Respondents filed a Request and a Supplemental Request for Post-Trial Conference on July 28, 2006 as provided for in Neb. Rev. Stat. § 48-816(7)(d), which allows the Commission to hear from the parties on those portions of the opinion and order which are not based upon or which mischaracterize evidence in the record. The Petitioner filed its response on July 31, 2006, commenting on the Respondents’ requests and proposing a request of its own. The Commission waived the requirement that the conference be held within ten (10) days of the filing of the Post-Trial Conference Request for good cause shown. A Post-Trial Conference was held telephonically on August 9, 2006. The Petitioner was represented by its attorney, M. H. Weinberg. The Respondents were represented by their attorney, Jerry L. Pigsley.
The Respondents’ and Petitioner’s Request for Post-trial Conference raised three areas of objection to the Commission’s Opinion and Order. Those areas are dealt with as follows:
1. Fringe benefit and wage offset error
The Respondents argue that on page 12 of the Commission’s Opinion and Order in the paragraph numbered 13, that the word “Petitioner” should be replaced with the word “Respondents” three times. The Petitioner agrees to this specific change in wordage.
Therefore, the Commission orders that Paragraph (13) of the Recommended Opinion and Order should be edited to reflect the substitution of the word “Respondents” in place of the word “Petitioner”.
2. Jefferson County
The Respondents argue that the Commission erred in finding that Jefferson County should be excluded from the array. The Respondents also argue that the Commission did not consider the evidence from the record for the bottom wage rate numbers for Jefferson County. The Petitioner argues that Jefferson County should not be included in the array because the Commission had sufficient comparables in the array that it chose and the wage rates were not clear on the record.
Generally, array choice is not a proper subject for discussion at a Post-trial Conference. See District 8 Elementary Teachers Ass’n v. School Dist. No. 8, 8 CIR 136 (1985). However, if a party challenges array choice on the basis that the Commission mischaracterized or did not base its choice on the evidence presented, the Commission can correct any such error, if one exists. In the Commission’s Opinion and Order, the Commission found that the weight of evidence rested on the side of excluding Jefferson County. The Commission did consider all the evidence presented at trial, in looking at both Paul Essman’s testimony and Exhibits 67 and 107. The Commission still finds confusion as to what the actual wage rates were at Jefferson County. Since the Commission can find no mischaracterization of the evidence, our previous findings shall stand as issued by the Commission on July 18, 2006. Therefore, Jefferson County will not be included in the array.
The Petitioner requests the Respondents submit an itemized computation of the sums owed to the employee for the Commission’s oversight of the Respondents’ computations. The Respondents argue that this request is inappropriate in that the Commission’s order would not be final and that the Commission lacks jurisdiction and enforcement must be sought with the district court.
The Commission has directed the Respondents to make calculations based upon the prevalancy and array chosen by the Commission in its Opinion and Order dated July 18, 2006 in the form of a lump sum payment to the employees represented by Petitioner. The Commission does not have jurisdiction to enforce the accuracy of the Respondents’ computations. Therefore, the Petitioner’s request should be overruled.
IT IS THEREFORE ORDERED that Respondents’ request and supplemental request to amend the order of July 18, 2006 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. Paragraph (13) of the Recommended Opinion and Order should now read as follows:
(13) The fringe benefit and wage offset, as found herein, shall be calculated on an individual employee basis. The Respondents 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 Respondents to each such employee; however, any employee reimbursement shall not exceed the amount of compensation owed to the employee from the Respondents.
2. All other terms and conditions of employment for the 2005-2006 contract year shall be as previously established by the agreement of the parties and by orders and findings of the Commission.
3. Adjustments and compensation resulting from this Order shall be paid in a single lump sum payable within thirty (30) days of this Final Order.
4. The Petitioner’s request for computation submission is overruled.