16 CIR 120 (2008) 

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 APPEARANCES:

Entered December 18, 2008.

This action was brought by the City of Omaha (hereinafter, “Petitioner” or “City”) pursuant to Neb. Rev. Stat. §48-818. The Petitioner is an employer within the meaning of Neb. Rev. Stat. §48-801(4) (Reissue 2004). The Omaha Police Union Local No. 101, AFL-CIO – I.U.P.A. (hereinafter, “Respondent” or “Union”) is a labor organization as defined by Neb. Rev. Stat. §48-801(6) (Reissue 2004) and is the duly recognized collective bargaining representative of a bargaining unit consisting of employee classifications of police officers, sergeants, lieutenants, and captains. The Petitioner seeks the resolution of an industrial dispute over wages and other terms and conditions of employment for the December 31, 2007 to December 30, 2008 contract year.

Under Neb. Rev. Stat. §48-818 the Commission is charged with determining rates of pay and conditions of employment which are comparable to prevalent wage rates paid and conditions of employment maintained for the same or similar working conditions. In accomplishing this, the Commission is presented with an array by each of the parties. The Commission must first choose the array entities which are the same or similar to the entity in question. The Commission is not required to consider every possible array which is sufficiently representative so as to determine whether the wage paid or benefits given are comparable.  See Lincoln Co. Sheriff’s Emp. Ass’n v. County of Lincoln, 216 Neb. 274, 343 N.W.2d 735 (1984). Once the array is chosen, the Commission then establishes prevalent wage rates paid and conditions of employment, determining the overall compensation

ARRAY:

The parties have agreed on three array cities. These cities are: St. Paul, Minnesota; Tulsa, Oklahoma; and Oklahoma City, Oklahoma. Regarding additional array cities proposed, the Petitioner argues that the Respondent’s cities of Denver, Colorado; Fort Worth, Texas; Cincinnati, Ohio; and Columbus, Ohio are not comparable and desires to include the cities of Wichita, Kansas; Kansas City, Missouri; Lincoln, Nebraska; Des Moines, Iowa; and Madison, Wisconsin in the array. The Respondent argues that Petitioner’s cities are not comparable.

Neb. Rev. Stat. § 48-818 gives the Commission discretion in its determination of what is comparable to the prevailing wage rate. See Lincoln Fire Fighters Ass’n v. City of Lincoln, 198 Neb. 174, 252 N.W.2d 607 (1977). While the Industrial Relations Act §§ 48-801 to 48-838, does not define comparable nor specifically direct the Commission in the manner and process of its determination, the Commission has received some guidance from the Nebraska Supreme Court. In Omaha Ass’n of Firefighters v. City of Omaha, 194 Neb. 436, 440-41, 231 N.W.2d 710, 713-14 (1975), the Supreme Court found that “a prevalent [sic] wage rate to be determined by the Court of Industrial Relations must almost invariably be determined after consideration of a combination of factors…. Under Section 48-818, R.R.S. 1943, in selecting cities in reasonably similar labor markets for the purpose of comparison in arriving at comparable and prevalent wage rates the question is whether, as a matter of fact, the cities selected for comparison are sufficiently similar and have enough like characteristics or qualities to make comparison appropriate.”

As a general rule, the factors most often used to determine comparability are geographic proximity, population, job descriptions, job skills and job conditions. Douglas Cty. Health Dept. Emp. Ass’n v. Douglas Cty., 229 Neb. 301, 427 N.W.2d28 (1988); AFSCME Local 2088 v. County of Douglas, 208 Neb. 511, 304 N.W.2d 368 (1981), modified in 209 Neb. 397, 309 N.W.2d 65. Which employers should be included in an array is dependent upon the issues in the case in question; for it does not necessarily follow that the use of an array in a particular case requires that it be used in a subsequent case involving the same parties. Id.

The cities of St. Paul, Minnesota, Tulsa, Oklahoma, and Oklahoma City, Oklahoma are agreed to by both parties and shall be included in the array. However, three employers is not a statistically sufficient array. In numerous past cases, the Commission has expressed its preference for arrays containing more than four (4) or five (5) members whenever possible. Grand Island Educ. Ass’n v. Hall County School Dist. No. 0002, 11 CIR 237 (1992); International Ass’n of Firefighters, Local No. 1575 v. City of Columbus, 11 CIR 267 (1992); Douglas County Health Dept. Employees Ass’n v. County of Douglas, 9 CIR 219 (1987). The Commission has held that arrays consisting of six (6) to eight (8) members are appropriate. O’Neill Educ. Ass’n v. Holt County School Dist. No. 7, 11 CIR 11 (1990); Red Cloud Educ. Ass’n v. School Dist. of Red Cloud, 10 CIR 120 (1989); Logan County Educ. Ass’n v. School Dist. of Stapleton, 10 CIR 1 (1988); Trenton Educ. Ass’n v. School Dist. of Trenton, 9 CIR 201 (1987). A thorough analysis of each of the array cities proposed by the parties is necessary to obtain a sufficient array.

The Commission does not control which array cities are presented to us in evidence by either party. The Commission’s statutory charge is to review the array and choose employers which are the same or similar under the same or similar working conditions.  Under Neb. Rev. Stat. §48-817:

In the making of any findings or orders in connection with any such industrial dispute, the commission shall give no consideration to any evidence or information which it may obtain through an investigation or otherwise receive, except matters of which the district court might take judicial notice, unless such evidence or information is presented and made a part of the record in a hearing and opportunity is given, after reasonable notice to all parties to the controversy of the initiation of any investigation and the specific contents of the evidence or information obtained or received, to rebut such evidence or information either by cross-examination or testimony.

The Commission under Neb. Rev. Stat. §48-818 is not deciding a “legal question” of whether or not the array cities are the same or similar. Instead, the Commission is deciding a question of fact, with the burden of proof resting on one side to prove whether a particular array should or should not be included.

Lincoln, Nebraska

            The Petitioner included the city of Lincoln, Nebraska in its proposed array of comparable employers, arguing that Lincoln should be included in the array chosen by the Commission. The Petitioner contends that geographic proximity and population by nature establish a framework for determining the comparability of working conditions. Accordingly, the Petitioner states that since Lincoln is so proximate it is more likely to have similar working conditions. The Petitioner further maintains that all work done by all police officers is similar.

            The Respondent instead argues that all police officer work is not similar and that while Lincoln is clearly proximate, its working conditions and general job duties do not prove it to be a comparable employer to Omaha, Nebraska. The Respondent further asserts the gang activity and crime levels are much lower in Lincoln than Omaha.

In this case, the Petitioner did not present any statistical data to support or eliminate an array city based upon working conditions. Instead the Petitioner relied on Lincoln’s geographical proximity as sufficient evidence to include Lincoln in the array. While only 49 miles from Omaha, Lincoln’s police officers do different work and their working conditions are not similar to Omaha. Lincoln organizes its department differently from Omaha. The City of Lincoln’s police department decided that because of the city’s size, crime rate, and number of employees, their department could function more efficiently if the majority of their officers performed a “patrol” function without employing those officers in specialized units. Alternatively, the City of Omaha uses specialized units to increase officer productivity because of the heavy volume of crime the officers must respond to.

 Lincoln police officers on a daily basis investigate crimes differently than Omaha because of the nature of their department’s organizational structure. Lincoln officers function as a “generalist” taking the case from the incident to resolution. Conversely, Omaha patrol officers turn the crime scene over to the specialized units. 

 Not only do Lincoln officers perform more functions in the department on a daily basis, but the Lincoln Police Department also does not have the same number of job positions and the positions they do have perform different functions. Lincoln does not have a Lieutenant position.  In Lincoln, the Captains are at the crime scene, engaging in investigation and are staffed on more than one shift. Omaha captains, however, perform administrative functions in the office and do not perform field work on regular basis. Omaha captains are also not staffed in the Omaha Police Department on a multi-shift basis. Omaha has four ranks, all of which are in the bargaining unit. Lincoln only has three ranks; of which only two are in the bargaining unit.

The Respondent presented considerable evidence with regard to the difference in working conditions between Lincoln and Omaha. The Respondent relied heavily upon the opinion of Deputy Chief Mary Schindler, a recent retiree with the City of Omaha Police Department. With 34 years of experience in police work, Captain Mary Schindler testified with considerable authority. With her knowledge of police work, she developed Exhibit 225, which is a statistical analysis of working conditions to compare array cities to Omaha. The Petitioner relied on testimony from Paul Essman, an expert consultant, who admitted that he gave no consideration to the working conditions under which officers perform their duties. Mr. Essman solely based his decision from the proximity and size of Lincoln as compared to Omaha. The Petitioner also sought testimony from Chief Casady of the Lincoln Police Department. Chief Casady testified that violence affects working conditions. On direct examination, Chief Casady stated that the best way to compare jobs between an array city and Omaha is to actually look at what the officers on those departments do for the majority of their time on their typical workdays. Chief Casady stated that the type of crime was different between Lincoln and Omaha, stating that Omaha has significantly more shootings whereas Lincoln has more aggravated assaults. Chief Casady also testified that based upon his experience, officers become more sensitized when they have been exposed to more gang violence, armed robberies, and seen officers killed in the line of duty. While Chief Casady did testify that several of his Lincoln officers have transferred to Omaha, those transfers do not prove that the working conditions are the same between the two cities, only that the training is similar.

  Exhibit 225 and the testimony elicited from Deputy Chief Schindler and Bruce Ferrell, a specialist in the area of gang activity, illustrated the vast differences in working conditions (specifically the types and amount of crime) between Lincoln and Omaha. Lincoln does not have a significant presence of housing projects. The Petitioner argues that the evidence presented in Exhibit 225 does not prove what “type of crime” should be measured or if a type of crime is “measured similarly” by each array member, in order to compare the working conditions of a police officer. The Petitioner relies upon the testimony from the Petitioner’s witness Dr. Klinger. We reject this argument. Chief Casady, Deputy Chief Schindler and Bruce Ferrell all testified that the type of violence impacts the working conditions of police officers. The Commission and the Nebraska Supreme Court have consistently used working conditions to include and reject proposed array cities in the past. See Metropolitan Technical Community College Educ. Ass’n v. Metropolitan Community College Area, 14 CIR 111 (2002); International Ass’n of Firefighters, Local No. 647 v. City of Grand Island, 15 CIR 324 (2007); and Lincoln Firefighters Ass’n Local 644 v. City of Lincoln, 12 CIR 221 (1996), aff’d 253 Neb. 837, 572 N.W.2d 369 (1998).  The Commission based these decisions off of the requirements set forth in Neb. Rev. Stat. §48-818, which charges us to consider similar array cities that have similar working conditions.

 Omaha has a significant number of housing projects which require policing. Deputy Chief Schindler did extensive research at each of the cities and found that housing projects are dangerous hot spots, affecting safety concerns for the officers and working conditions. For example, Deputy Chief Schindler testified that some areas need to be patrolled by two-man cruisers because of the increased danger in housing projects, which show a direct correlation with an increase in open air drug sales and an increase in open air prostitution. Lincoln does not have a significant open-air drug sales condition in their community. She also testified that Lincoln also has excelled in cleaning up their blighted areas which significantly reduce the danger to police officers. Blighted areas are extremely dangerous for officers to chase criminals through the dark. Lincoln has only had six homicides as compared to 42 in Omaha in 2007. Lincoln had one officer involved shooting in the previous year, whereas Omaha has had ten officers injured in violent shootings. Lincoln has not had any officers murdered in the past 15 years, whereas Omaha has had two. Officer shootings significantly impact officer protocol and procedure. Testimony also indicated that while Lincoln does have gang activity; Lincoln does not have significant gang activity, such to rise to a level even remotely comparable to Omaha.

In light of the above presented evidence, especially with regard to the job duties and working conditions, the Commission will not include the city of Lincoln in this array. We are mindful of the strong preference of including in-state employers, however, because Omaha police work is significantly more dangerous and both the daily job duties and the internal design of the department are significantly different. The two cities are not currently similar with regard to police.

Des Moines, Iowa

            Using different population figures, the parties disagree as to whether Des Moines falls within the Commission’s general population guideline of not less than half or not more than twice the size of Omaha. The Petitioner argues for the inclusion of Des Moines and the Respondent disagrees, arguing that the working conditions at Des Moines are not similar.

            Des Moines is very similar to Lincoln’s working conditions but not similar to Omaha’s working conditions. Des Moines does not have housing projects, significant open-air drug sales, or significant open-air prostitution. Des Moines has a low number of gangs, a low level of gang activity, a low level of violent crime attributable to gangs, and does not have a dedicated gang unit. Des Moines has only had two officer shootings in the previous year as compared to ten in Omaha. Des Moines has only had four homicides as compared to 42 in Omaha. Des Moines also does not utilize a specialized Homicide Unit. Des Moines has not had any officers murdered in the past 15 years. Even Petitioner’s witness, retired Chief Moulder, admitted that violence and gang activity affect an officer’s working conditions.

            In light of the above presented evidence, especially with regard to the working conditions, the Commission will not include the city of Des Moines in this array. We are mindful of the strong preference of including geographically proximate employers, however, because Omaha police work is significantly more dangerous, the two cities are not currently similar with regard to the police.

Kansas City, Missouri

            The Petitioner argues that Kansas City, Missouri should be included in the Commission’s array. The Respondent argues the control of the Kansas City police department does not rest with the city but instead with the mayor and five commissioners selected by the Missouri governor.

            Kansas City is not a comparable employer. It is not controlled by the city like all of the other proposed cities in the array. Wages and benefits are secured through lobbying efforts as opposed to the collective bargaining process. The Commission has held that this criterion is a significant enough difference to exclude Kansas City from past arrays. See Omaha Police Union Local No. 1 v. City of Omaha, 3 CIR 356 (1977). The process of selecting salaries in Kansas City is apparently political rather than an economic process. In addition to the divergent structure of the government, Kansas City also does not have a Lieutenant position. Therefore, Kansas City is not comparable and will not be used in the Commission’s array.

Madison, Wisconsin

            The Petitioner argues that Madison, Wisconsin is a comparable employer to Omaha and should be included in the Commission’s array. The Respondent argues that the working conditions in Madison are not similar to Omaha and the Commission should not include Madison in its array.

            Relying on Exhibit 225, which we find is a credible aid, the Commission concludes that Madison is very similar to Lincoln’s working conditions, but again it is not similar to Omaha’s working conditions. While Madison does have housing projects, those projects have been cleaned up so that there is a low level of crime, no significant open-air drug sales, and no significant open-air prostitution. Madison has a low number of gangs, a low level of gang activity, a low level of violent crime attributable to gangs, and does not have a dedicated gang unit. Madison has only had one officer shooting in the previous year as compared to ten in Omaha. Madison has only had eight homicides as compared to 42 in Omaha. Madison also does not utilize a specialized Homicide Unit. Des Moines has not had any officers murdered in the past 15 years.

            In light of the above presented evidence, especially with regard to the working conditions the Commission will not include the city of Madison in this array. We are mindful of the strong preference of including geographically proximate employers, however, because Omaha police work is significantly more dangerous, the two cities are not currently similar with regard to the police.

Wichita, Kansas

            The Petitioner contends that Wichita, Kansas should be included in the Commission’s array. The Respondent argues that Wichita should not be included in the array as Wichita does not fit the fine screens of crime and gang activity as well as their proposed array cities.

            Wichita is geographically proximate and within the Commission’s population guidelines. The Respondent agrees with the Petitioner that the command structure in Wichita matches the command structure in Omaha. While there was some testimony that Wichita uses a system where 76 percent of their officers are signed to patrol and they do not have a lot of support units, Wichita does have a homicide unit, an air unit, and an accident unit. The testimony indicated that Wichita is similar to the agreed to array city of Oklahoma City on how they report crime. Wichita’s gang activity is medium and higher than the level of gang activity reported at Lincoln, Madison, and Des Moines.

            While Wichita does not have a significant violence problem in housing projects, it does have significant open-air drug sales and significant open-air prostitution. Wichita compares to Omaha in the ratio of officers per 1000 citizens. Wichita had 39 homicides in 2007 as compared to a similar amount of 42 homicides in Omaha. As compared to the other cities offered by the Petitioner, Wichita reports a level of crime similar to Omaha, affecting the officer’s working conditions much like those officers in Omaha. Therefore, Wichita shall be included in the Commission’s array.

Cincinnati, Ohio

            The Respondent argues that the Commission should include the city of Cincinnati, Ohio in its array. Cincinnati’s command structure is similar to Omaha. Cincinnati has a specialized department design like Omaha. Cincinnati has housing projects and blighted areas with a significant level of violence, as well as significant open-air drug sales and open-air prostitution. Cincinnati has a high level of gang activity and has had six officer shootings between January of 2007 and July of 2008 as compared to ten in Omaha. Cincinnati has had 62 homicides in 2007. Cincinnati also has had a comparable number of officers murdered in the past 15 years, having three officers killed as compared to two in Omaha.

            The Petitioner suggests that the Commission should not include the city of Cincinnati, Ohio because it is not as geographically proximate as the proposed array cities offered by the Petitioner. While Cincinnati is not the most proximate city offered by the parties, it does have a very similar level of violence and gang activity as compared to Omaha. Therefore, since the officers working conditions are similar, the command structure and department design are all similar to Omaha, the Commission shall include Cincinnati in its array.

Denver, Colorado

            The Respondent argues that the Commission should include the city of Denver, Colorado in its array. Denver is geographically proximate to Omaha and has similar department design which is sectioned into specialized departments. Denver has housing projects and significant blighted areas with violence. Denver also has significant open-air drug sales and significant open-air prostitution. Denver, identical to Omaha, has had ten officer shootings between January 2007 and July 2008. Denver has had 47 homicides compared to 42 in Omaha. Denver has had three officers murdered as compared to two in Omaha in the past 15 years. Denver has dedicated gang intelligence, dedicated gang investigation and a dedicated gang suppression unit.

             The Petitioner suggests that the Commission should not include the city of Denver because it is not as comparable as the proposed array cities offered by the Petitioner. The Petitioner further argues that the job matches and command structure are somewhat dissimilar in Denver. While the job matches and command structure are not identical, the testimony of the Respondent’s expert witness indicates the jobs and structure are at least above the 80% mark. In addition, the evidence shows that the working conditions in Denver are comparable and Denver is geographically proximate. Therefore, Denver shall be included in the Commission’s array.

Fort Worth, Texas

            The Respondent requests that the Commission include the city of Fort Worth, Texas in its array. Fort Worth matches Omaha in jobs, specialized department design and similar command structure. Fort Worth also is similar with regard to working conditions. Fort Worth has housing projects and blighted areas with significant levels of violence. Fort Worth has had nine officer shootings as compared to ten in Omaha between January 2007 and July 2008. Fort Worth also has significant open-air drug sales and significant open-air prostitution, comparable to Omaha. Fort Worth had 58 homicides as compared to 42 in Omaha in 2007. Fort Worth has significant gang activity, with dedicated gang investigation and gang suppression. The working conditions in Fort Worth are comparable to Omaha and we shall include Fort Worth in our array.

Columbus, Ohio

Columbus, Ohio is the least geographically proximate city to Omaha, offered by the Respondent. Columbus is a significantly more dangerous city for police officer work than Omaha. In 2007 Columbus had 79 homicides which is nearly double the homicides in Omaha. Columbus had 35 officer shootings from January of 2007 through July of 2008, which is over triple the number of officer shootings in Omaha. Columbus has had the most officers murdered in the past 15 years offered by the Respondent. The Commission has already included seven other array cities in its array. Columbus’s working conditions are more dangerous and not similar to Omaha. Columbus shall not be included in the Commission’s array.

Commission’s Array

            The Commission shall include the three common array cities of St. Paul, Minnesota, Tulsa, Oklahoma, and Oklahoma City, Oklahoma. Since using only the three common employers is not a statistically sufficient array, we find that Wichita, Kansas; Denver, Colorado; Fort Worth, Texas and Cincinnati, Ohio are also suitable for comparison purposes and shall be included in our array for a total of seven comparable employers.

FRINGE BENEFITS:

Longevity Pay

            The issue presented is whether longevity pay is a fringe benefit or wages for the purposes of calculating comparability under the statute. The Respondent argues that longevity is a fringe benefit and cites International Union of Operating Engineers, Local Union 571 v. County of Douglas, 15 CIR 203, 208 (2006) to support its contention. Whether longevity is “pay” or a “benefit” is really an argument of semantics. The affect of longevity pay simply provides additional compensation for years of service without regard to performance. Longevity pay is “pay” that is bargained for as a “benefit” that may or may not be provided at a particular array city. The Commission is charged with considering prevalent wages and conditions.

Based upon the chosen array in the instant case, it is prevalent to provide “longevity pay” as a benefit. At least six of the seven cities, provide longevity pay. There was disagreement between the parties at trial as to whether the city of St. Paul does in fact have a longevity plan.  Exhibit 327, which is the St. Paul Collective Bargaining Agreement, does not designate steps 7, 10, 15 and 20 as “longevity” steps. Nowhere does the contract specifically mention “longevity”. Therefore, St. Paul will not be included in our prevalency analysis of longevity.

The Petitioner argues that zeros should count in calculating longevity pay. As stated above by following Lincoln Firefighters Ass’n Local 664 v. City of Lincoln, 12 CIR 248 (1997), Affirmed. 253 Neb. 837, 572 N.W.2d 369 (1998), the Commission will not use zeros in calculating longevity when an array does not start longevity pay until after a certain number of years of service. The use of zeros should indicate that a benefit “is provided but not paid for”. Likewise, longevity pay is not provided until a specific year at any given array city. During the years longevity pay is not provided, we have used the term “not applicable.”

The Commission has frequently calculated fringe benefits in this manner. See also Omaha Police Union Local 101 v. City of Omaha, 11 CIR 114 (1991); Nebraska Pub. Employees Local Union 251 v. County of Douglas, 11 CIR 189 (1992); Neligh-Oakdale Educ. Ass’n v. Antelope County School Dist. 0009, 12 CIR 21 (1993); General Drivers & Helpers Local Union No. 554 v. Robertson, 12 CIR 120 (1995).

 In the instant case, we therefore shall first determine whether longevity pay or any other fringe benefit is prevalent among the array of compared-to employers and then determine comparability among those providing the prevalent benefit.

Finally, the Commission notes that on the issue of whether St. Paul and Fort Worth have longevity pay plans, we find that Fort Worth does have a plan for longevity. See Exhibit 385. However, we do not find that St. Paul has a longevity pay plan. Mr. Essman, expert for the Petitioner, states that St. Paul does not have a longevity pay plan, whereas Dr. Ottemann, expert for the Respondent states that St. Paul has a longevity plan. While some of St. Paul’s evidence suggests a longevity plan, as it provides for a significant number of steps, the contract is silent as to whether a longevity plan exists. Without a witness testifying as to why the contract is silent, the Commission concludes that St. Paul does not have a longevity pay plan.  

Step Placement

Based upon the array chosen by the Commission, it is prevalent to place employees based upon a combination of time and performance under all four of the job classifications. See Tables 6-9. Drawing upon the performance evaluations of each officer, which are in the custody of the Petitioner, the Petitioner should place each officer using both time and performance since a combination of the two is the prevalent practice. While the Petitioner argues that the Commission should only place the officers at the next highest step on the new pay plan, such placement would not take into account a favorable or unfavorable performance review. As previously cited, the Supreme Court in Douglas Cty. Health Dept. Emp Assn. v. Douglas Cty, 229 Neb. 30l, 427 N.W.2d 28 (l988) specifically held that the “manner in which an individual moves from the minimum to the maximum salary rate of a job classification is a timing difference in the salary schedule, which must be adjusted to reach a comparability determination” is a condition of employment which the Commission has statutory authority to establish. See also, Plattsmouth Pol. Dept. Coll. Barg. v. Plattsmouth, 205 Neb. 567, 288 N.w.2d 729 (l980). Furthermore, in AFSCME v. City of Grand Island, 13 CIR 1 (1997), the Commission placed employees both by time of service and successful completion of performance evaluations.

In the instant case, the Commission finds that each employee should be placed on the appropriate new pay plan (Tables 6-9) at a step for which each such employee has qualified by time in service as of the contract date, December 31, 2007, and the number of performance evaluations each employee has successfully completed to the date of the contract, whichever is the lesser number of steps. This placement on the new step pay plans gives credit to the employees for their time in service, and gives credit to each such employee for previously demonstrated job performance.

Pension Plan

The Petitioner argues the Commission should order changes to the pension plan definitions. While the Petitioner recognizes that the Commission has no authority to make structural changes to pension plans, the Petitioner nevertheless argues the Commission should be able to order “non-structural or definitional changes” in the pension plan.  

The pension plan is in the nature of a long-term contract which extends beyond the 1-year period over which the Commission had jurisdiction in this case. The Commission has no general jurisdiction over contractual disputes. See Transport Workers of America v. Transit Auth. of City of Omaha, 205 Neb. 26, 286 N. W. 2d 102. Although the Commission does not have jurisdiction over the pension plan of the employees to order a change in the pension plan, the Commission does have jurisdiction to offset favorable and unfavorable comparisons of current to prevalent when reaching its decision establishing wage rates. Douglas Cty. Health Dept. Emp. Ass’n v. Douglas Cty., 229 Neb. 301, 422 N.W.2d 28 (1998). Definitional changes, such as in the pay subjects used to calculated the rate of contribution, whether a plan is set up as a defined benefit or a defined contribution, age of retirement, and measurement period would all clearly have a structural impact on the pension plan and according to previous case law decided by the Nebraska Supreme Court are not under the statutory framework of the Commission.

The Commission has in the past cases utilized the percentage of employer and employee contribution to offset wage increases. See International Brotherhood of Elec. Workers, Local Union No. 1597 v. City of Gering, 15 CIR 140 (2005); Local Union 571, Int’l Union of Operating Engineers v. County of Douglas, 15 CIR 203 (2006) and International Ass’n of Firefighters, Local Union 647 v. City of Grand Island, 15 CIR 324 (2007).  In this case, both parties have requested an offset in their briefs. Following the above cited decisions allowing offsets, the Commission performs the offset by increasing or decreasing overall compensation by the percentage contributed by the employer and employee, without ordering the parties to actually adjust those percentages to the prevalent percentages provided.

Based upon the evidence offered by the parties in this case, the Commission finds that under the current pension plan the percentage contribution made to the plan by the City is currently at 20.2%, and should be reduced to 13.8%, whereas the percentage contribution made by the employee is currently 14.6% and should be reduced to 8.1% by offsetting overall compensation. The dollar value of the difference between the contributions made to the current plan during the contract year and the prevalent as found herein, shall be used in computing the fringe benefit offset.

Therefore, Respondent is above the comparable in that it contributes 20.2% to the employee’s pension plan. It should decrease its percentage of contribution to the pension plan from 20.2% to 13.8% for the entire year, using the decrease in the fringe benefit offset. Likewise, the employees should decrease its percentage of contribution from 14.6% to 8.1 %. These decreases should be used as an offset. See Table 43. The Respondent also argues that in its Exhibit 223, the union is entitled to a pension credit from “20 years” through “Over 30 years”. We find that the percentages contained in Exhibit 223 are akin to ordering changes in the structure of the pension plan and not akin to percentage of contribution whereby offsetting is required.

Dental Insurance

            Both Wichita, Kansas and Fort Worth, Texas provide dental insurance separate from their health insurance policies. Both array cities require their employees to pay 100%, requiring the employer to pay 0%. Since dental insurance is provided for employees who must bear 100% of the cost, the Commission will use 0% to calculate the amount paid by the employer. See Table 18.

Retiree Benefits

            In Lincoln Firefighters Ass’n, Local 644 v. City of Lincoln, 12 CIR 248, 266 (1997), the Commission refused to address insurance benefits for all non-bargaining unit members, namely retirees. The Petitioner in this case suggests that we alter health insurance coverage offered to retirees from the year in dispute and forward. For those employees retiring or retired in the current year in dispute, the Commission found in Lincoln Firefighters that those retirees were not in the bargaining unit and therefore the Commission could not address their benefits. Furthermore, any forward application of this year – to future years in dispute – would be speculative and the Commission does not have jurisdiction to order elimination of health insurance benefits for retirees for future years. Therefore, the Commission will not determine the issue of whether health insurance benefits for retirees shall change, increase, decrease, or be eliminated.

Management Prerogatives

            There are certain fringes which we believe are management prerogatives and we will not address the following in this Order: Work Schedule; Work Time; and Paid Lunch Break.

Comparable Fringe Benefits

The following fringe benefits currently received by the Respondent’s members shall remain unchanged because they are comparable to the prevalent fringe benefits received by comparable members in the array cities:

1)      Officer Pay Structure Basis for Progression – Combination. See Table 6.

2)      Officer Pay Structure – Pay Range. See Table 6.

3)      Sergeant Pay Structure – Pay Range. See Table 7.

4)      Sergeant Pay Structure – Length of Probationary Period. See Table 7.

5)      Lieutenant Pay Structure – Pay Range. See Table 8.

6)      Lieutenant Pay Structure – Length of Probationary Period. See Table 8.

7)      Captain Pay Structure – Length of Probationary Period. See Table 9.

8)      Captain Pay Structure – Pay Range. See Table 9.

9)      Prescription Drug Plan – Provided. See Table 10.

10)  Shift Differential Pay – Provided. See Table 11.

11) Working Out of Class Pay – Provided on the sixth consecutive day, paid at the first step of higher rank. See Table 12.

12) Holiday and Personal Leave – Hours Counted for Overtime if Holiday Not Worked and Hours of Personal Leave. See Table 13.

13) Holiday and Personal Leave – Holiday Pay Rate at Straight Time Plus Time and a Half. See Table 13.

14) Annual Sick Leave Allowance – Can be converted to Cash/Vacation and can be converted to cash upon Resignation, Retirement and Death. See Table 14.

15) Uniform Allowance – Provided and Plainclothes Allowance of $480 per year provided.  See Table 15.

16) Take Home Cars – Provided for K-9 Handlers; Narcotics; Homicide Command Officers; Gang Unit Command; and UPB Captains. See Table 16.

17)  Sick Leave cannot be used for Funeral Leave. See Table 17.

18)  Dental Insurance – Provided. See Table 18.

19)  Disability Plans – Long Term and Short Term Not Provided. See Table 19.

20)  Life Insurance – Provided. See Table 20.

21)  Life Insurance – Amount of Coverage. See Table 20.

22)  Annual Sick Leave – Accumulation Allowed. See Table 21.

23) Annual Sick Leave Allowance – May be used for Family Illness up to 40 Hours for Spouse, Child, Mother, or Father. See Table 21.

24) Union Business – Release Time Allowed. See Table 22.

25) Health Insurance Deductible – Continued. See Table 23.

26)  Health Insurance Deductible Family – $200. See Table 23.

27)  Overtime – Provided. See Table 24.

28)  Overtime – Hours Can Be Banked. See Table 24.

29) Call In Pay Policies – Hours should Merge with Normal Shift. See Table 25.

30) Call In Pay Policies – Provided. See Table 25.

31)  In Pay Policies – Called in During Off-Duty Time. See Table 25.

32)  Union Dues Check Off – Provided. See Table 26.

33)  Health Insurance Stop Loss – Provided. See Table 27.

34)  Health Insurance Percent Co-Pay – 80/20. See Table 27.

35)  Employee Assistance Program – Provided. See Table 28.

36)  Injured on Duty leave – Provided. See Table 29.

37)  Court Pay – Provided. See Table 30.

38)  Court Compensation – 4 Hours Attended. See Table 30.

39) Court Attendance – Overtime Calculation Base Pay only Until Reach 171 Hours/28 days. See Table 30.

40) Paid Vacation Policies – Accumulation Allowed. See Table 31.

41)  Paid Vacation Policies – 320 Hours Maximum Number Carried Over. See Table 31.

42)  Incentive Pay – Provided. See Table 32.

43)  Longevity Pay – Provided. See Table 33.

44)  Shift Bidding – Allowed. See Table 34.

45)  Negotiations Hours[1] – Unlimited Hours not to exceed 7 on Duty Personal.

46) Specialty/Premium Pay – Narcotics K-9, Bomb K-9, Clandestine Lab, Bilingual, Canine, Bomb Disposal Squad, Narcotics Squad, Street Narcotics, Special Operations, Child Victim Sex Unit, Domestic Violence Unit, Crime Person Unit, Crime Property, Accident Investigation, Field Training Officer, Motorcycle, and Background. See Tables 42a and 42b.

Non-Comparable Benefits

The Commission determines that based upon the array the following findings on fringe benefits are sufficiently different from the fringe benefits currently received by Omaha Police Officers. These differences need to be adjusted in the following fringe benefits:

1)  Officer Pay Structure Number of Steps – Increase from 6 steps to 9 steps. See Table 6.

2)  Officer Pay Structure Years from Minimum to Maximum – Increase from 5 years to 13 years. See Table 6.

3)  Officer Pay Structure Years in Probationary Period – Decrease from 2 years to 1 year. See Table 6.

4)  Sergeant Pay Structure Number of Steps – Increase from 3 steps to 6 steps. See Table 7.

5)  Sergeant Pay Structure Basis or Progression – Change from Longevity to both Longevity and Performance. See Table 7.

6)  Sergeant Pay Structure Years from Minimum to Maximum – Increase from 1 year to 10 years. See Table 7.

7)  Lieutenant Pay Structure Basis for Progression – Change from Longevity to both Longevity and Performance. See Table 8.

8)  Lieutenant Pay Structure Number of Steps – Increase from 3 Steps to 4 Steps. See Table 8.

9)  Lieutenant Pay Structure Years from Minimum to Maximum – Increase from 1 year to 6 years. See Table 8.

10) Captain Pay Structure Years from Minimum to Maximum – Increase from 1 year to 8.5 years. See Table 9.

11) Captain Pay Structure Number of Steps – Increase from 3 Steps to 4 Steps. See Table 9.

12) Captain Pay Structure Basis or Progression – Change from Longevity to both Longevity and Performance. See Table 9.

13) On Call Pay – Provided. See Table 11.

14)  Holiday and Personal Leave – Decrease from 104 to 89 Hours/Year. See Table 13.

15) Annual Sick Leave Allowance – Cannot be Converted to Cash upon Dismissal. See Table 14.

16) Uniform Allowance – Increase from Quartermaster System to Additional Compensation for Uniforms plus Quartermaster System. See Table 15.

17) Union Business – Release Time Allowed for President. See Table 22.

18) Dental Insurance – Decrease from 100% paid to 70% paid for Individual Coverage and decrease from 75% paid to 38% paid for Family Coverage by the Employer. See Table 18.

19) Life Insurance – Decrease from 100% paid to 97% paid for by Employer. See Table 20.

20) Annual Sick Leave Allowance – Decrease from 143 hours to 108 hours allowed annually. See Table 21.

21) Maximum Accumulation of Sick Leave – Increase from 3200 hours to Unlimited hours. See Table 21.

22) Vacation Leave Hours Earned After 1 Year – Decrease from 119 hours to 109 hours. See Table 35.

23) Vacation Leave Hours Earned After 5 Year – Decrease from 169 hours to 128 hours. See Table 35.

24) Vacation Leave Hours Earned After 6 Year – Decrease from 169 hours to 128 hours. See Table 35.

25) Vacation Leave Hours Earned After 10 Year – Decrease from 169 hours to 147 hours. See Table 35.

26) Vacation Leave Hours Earned After 15 Year – Decrease from 169 hours to 166 hours. See Table 35.

27) Vacation Leave Hours Earned After 20 Year – Increase from 169 hours to 189 hours. See Table 35.

28) Vacation Leave Hours Earned After 25 Year – Increase from 169 hours to 197 hours. See Table 35.

29) Health Insurance Maximum Benefit – Increase from $2,000,000 to Unlimited. See Table 23.

30) Health Insurance Deductible Amount Individual – Increase from $100 to $300. See Table 23.

31) Overtime Practices Number of Hours Banked – Decrease from 360 hours to 108 hours. See Table 24.

32) Definition of Immediate Family for Funeral Leave – Spouse, Child, Mother, Father, Brother, Sister, Grandparent, Grandchild and In-laws. See Table 36.

33) Funeral Leave – Decrease from 5 days to 3 days for Immediate Family. See Table 36.

34)  Funeral Leave – Decrease from 3 days to 2 days for Other Relatives. See Table 36.

35) Health Insurance % Paid by Employer Individual – Reduced from 100% to 90%. See Table 37.

36) Health Insurance % Paid by Employer Family – Reduced from 100% to 85%. See Table 37.

37) Health Insurance % Paid by Employer 2 Party – Reduced from 100% to 86%. See Table 37.

38) Holiday and Personal Leave Hours Per Year – Decrease from 104 hours to 89 hours. See Table 13.

39)  Call In Pay Hours Paid – Greater of 4 or Actual changed to 4. See Table 25.

40)  Call In Pay Rate of Pay – 1.5 times pay rate. See Table 25.

41)  Vision Insurance – Employer Paid Provided. See Table 38.

42)  Court Attendance and Training – Overtime Rate. See Table 30.

43)  Overtime Computation – Vacation No. See Table 39.

44)  Overtime Computation – Sick Leave No. See Table 39.

45)  Overtime Computation – Holidays Yes. See Table 39.

46)  Overtime Computation – Compensatory Time No. See Table 39.

47)  Incentive Pay AA – Compensate at $608 rather than zero. See Table 32.

48)  Incentive Pay BA/BS – Compensate at $1,410 rather than $860.34. See Table 32.

49)  Incentive Pay MA/MS – Compensate at $1,545 rather than $1,003.86. See Table 32.

50)  Educational Assistance – Provided at the rate of a Tuition Stipend. See Table 40.

51)  Annual Longevity Pay – Increased and Decreased Years 5 through 25. See Table 41.

52)  Longevity Pay Years for Eligibility – Decreased to after year 4. See Table 33.

53) Specialty/Premium Pay – for Chief Administration Assistant, Regional, Professional Standards, Prosecutor Liaison, Helicopter Pilot,  TEAM NE, CIB Investigator, Special Investigator, Arson Investigator, Crime Analysis, Public Information, Warrants Squad, Intelligence Squad, Gang Intelligence, Vice Squad, Fugitive Task Force, Polygraph, SOS Pilot, Helicopter Spotter, School Resource/ DARE, Mounted and Emergency Response ERU. See Tables 42a and 42b.

IT IS THEREFORE ORDERED that for the December 31, 2007 through December 30, 2008 contract year, the following shall be effective as of December 31, 2007:

1) Petitioner’s wages for the December 31, 2007 through December 30, 2008 contract year shall be as follows:

JOB CLASSIFICATION                                      MIN                           MAX

Probationary Officer                                               $18.47

Officer                                                                    $21.21                         $31.75

Sergeant                                                                 $31.71                         $35.48

Lieutenant                                                               $36.17                         $40.14

Captain                                                                  $40.93                         $47.30

2)  The fringe benefit and wage offset, as found herein, shall be calculated on an individual employee basis. The Respondent 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.

3)  The Petitioner shall maintain a pay range for Officers and increase the number of steps in that range from 6 to 9. The Petitioner shall maintain the basis for progression through those steps as a combination of longevity and job performance. The Petitioner shall increase the years from minimum to maximum from 5 years to 13 and should decrease its length of probation from 2 years to 1 year.

4)  The Petitioner shall maintain a pay range for Sergeants and increase the number of steps in that range from 3 to 6. The Petitioner shall change its basis for progression through those steps from longevity to a combination of longevity and performance. The Petitioner shall increase the years from minimum to maximum from 1 year to 10 years. The Petitioner shall maintain a 6 month length of probation.

5)  The Petitioner shall maintain a pay range for Lieutenants and increase the number of steps in that range from 3 to 4. The Petitioner shall change its basis for progression through those steps from longevity to a combination of longevity and performance. The Petitioner shall increase the years from minimum to maximum from 1 year to 6 years. The Petitioner shall maintain a 6 month length of probation.

6)  The Petitioner shall maintain a pay range for Captains and increase the number of steps in that range from 3 to 4. The Petitioner shall change its basis for progression through those steps from longevity to a combination of longevity and performance. The Petitioner shall increase the years from minimum to maximum from 1 year to 8.5 years. The Petitioner shall maintain a 6 month length of probation.

7)  The Petitioner shall maintain its practice of providing a prescription drug plan.

8)  The Petitioner shall maintain its practice of providing shift differential pay.

9)  The Petitioner shall now provide on-call pay.

10) The Petitioner shall continue to provide working-out-of-class pay on the sixth consecutive day, paid at the first step of higher rank.

11) The Petitioner shall continue to convert sick leave to cash and vacation upon resignation, retirement and death.

12) The Petitioner shall not continue the practice of converting sick leave to cash upon dismissal.

13) The Petitioner shall continue to provide a uniform allowance with a quartermaster system and shall now provide additional compensation for uniforms. The Petitioner shall also continue to provide $480 dollars a year for plainclothes.

14) The Petitioner shall continue providing take home cars for K-9 Handlers, Narcotics, Homicide Command officers, Gang Unit Command and UPB Captains.

15) The Petitioner shall continue not allowing the use of sick leave for funeral leave.

16) The Petitioner shall continue to provide dental insurance and shall decrease the percent it pays for individual dental insurance from 100% to 70% and decrease the percent it pays for family dental insurance from 75% to 38%.

17) The Petitioner shall continue to not provide long-term and short-term disability plans.

18) The Petitioner shall maintain life insurance coverage in the amount of $40,000 but the Petitioner should decrease the percent it pays for life insurance from 100% to 97%.

19) The Petitioner shall continue to allow annual sick leave to be used for family illnesses, up to 40 hours defined as: spouse, child, mother, or father; and continue to provide accumulation of sick leave. The Petitioner shall decrease the hours allowed annually from 143 hours to 108 hours and shall increase the maximum accumulation of hours from 3200 to unlimited number of hours.

20) The Petitioner shall decrease the number of vacation hours earned annually after one year from 119 hours to 109 hours; after five years from 169 hours to 128 hours; after 6 years from 169 hours to 128 hours; after 10 years from 169 hours to 147 hours; and after 15 years from 169 hours to 166 hours. The Petitioner shall increase the number of hours earned annually for vacation leave after 20 years from 169 hours to 189 hours and after 25 years from 169 hours to 197 hours.

21) The Petitioner shall continue to allow release time for union business and the Petitioner shall change its practice of not allowing release time for the union president to allowing release time for the union president.

22) The Petitioner shall offset any percentages of employer and employee contributions to the retirement plans as follows: from 20.2% to 13.8% of the Petitioner’s contribution to retirement and from 14.6% to 8.1% of the employee’s contribution to retirement.

23) The Petitioner shall increase the maximum benefit of its health insurance from $2,000,000 to Unlimited. The Petitioner shall also keep its deductible increasing the amount for individual coverage from a $100 dollar deductible to a $300 dollar deductible and shall maintain its family deductible of $200.

24) The Petitioner shall continue providing overtime at a different work cycle. The Petitioner shall continue allowing compensatory time to be banked but should reduce the number of hours from 360 to 108.

25) The Petitioner shall decrease the number of funeral days used for immediate family from 5 days to 3 days and shall decrease the number of days used for other relatives from 3 days to 2 days. The definition of family shall now become Spouse, Child, Mother, Father, Brother, Sister, Grandparent, Grandchild and In-laws.

26) The Petitioner shall decrease the amount it pays for individual health insurance from 100% to 90%, for family health insurance from 100% to 85%, and for 2-party coverage from 100% to 86%.

27) The Petitioner shall decrease the hours per year for holiday and personal leave from 104 to 89. The Petitioner shall continue to not count hours for overtime if the holiday was not worked by the employee. The Petitioner shall also continue to use the holiday pay rate of straight time plus time and a half.

28) The Petitioner shall continue to provide call-in pay and change the hours paid from greater of 4 or actual to 4 hours paid. The Petitioner shall change the rate of pay for call-in from 4 hours worked at 1 times the rate or actual at one and one half times the rate, to one and one half times the rate of pay. The policy of the Petitioner shall continue to apply when hours are merged with normal shift and called in during off-duty time.

29) The Petitioner shall continue to provide union dues check off.

30) The Petitioner shall continue to provide stop loss in health insurance and the percentage co-pay shall remain at 80/20.

31) The Petitioner shall continue to provide an employee assistance program.

32) The Petitioner shall now provide an employer paid vision insurance program.

33) The Petitioner shall continue to provide injured on duty leave.

34) The Petitioner shall continue to provide court pay. The Petitioner shall continue to compensate at a rate of 4 hours attended but shall change its rate of compensation to the overtime rate. The Petitioner shall calculate overtime as it currently does at the base pay only until it reaches 171 hours/28 days.

35) The Petitioner shall continue to allow accumulation of vacation that is carried over at a maximum rate of 320 hours per year. The Petitioner shall continue the practice of converting unused vacation to cash upon resignation, dismissal, retirement, death and not at years end. 

36) The Petitioner shall compute overtime differently by not including vacation, sick leave or compensatory time but including holidays.

37) The Petitioner shall continue to provide incentive pay but change the rate of AA from zero dollars provided to $608. The Petitioner shall also change the rates of BA/BS from $860.34 to $1,410 and for MA/MS from $1,003.86 to $1,545.

38) The Petitioner shall now provide education assistance plan which shall be paid as a tuition stipend.

39) The Petitioner shall continue to have a longevity plan but instead of 7 years of eligibility the employees shall now become eligible after 4 years. The Petitioner shall change the longevity pay rates in years 5 through 25 increasing and decreasing where necessary. See Table 41.

40) The Petitioner shall continue to allow shift bidding.

41) The Petitioner shall continue to allow unlimited hours for negotiations not to exceed 7 hours on duty personal.

42) The Petitioner shall continue to provide premium/specialty pay for Narcotics K-9, Bomb K-9, Clandestine Lab, Bilingual, Canine, Bomb Disposal Squad, Narcotics Squad, Street Narcotics, Special Operations, Child Victim Sex Unit, Domestic Violence Unit, Crime Person Unit, Crime Property, Accident Investigation, Field Training Officer, Motorcycle, and Background. The Petitioner shall not continue to provide premium/specialty pay for Chief Administration Assistant, Regional, Professional Standards, Prosecutor Liaison, Helicopter Pilot, TEAM NE, CIB Investigator, Special Investigator, Arson Investigator, Crime Analysis, Public Information, Warrants Squad, Intelligence Squad, Gang Intelligence, Vice Squad, Fugitive Task Force, Polygraph, SOS Pilot, Helicopter Spotter, School Resource/ DARE, Mounted and Emergency Response ERU.

43) Any adjustments in compensation resulting from the final order rendered in this matter will be made by lump sum payment within 45 days of the Final Order.

All other terms and conditions of employment are not affected by this Order.

All panel commissioners join in the entry of this order.