16 CIR 189 (2009)

After the trial of this matter, the Commission entered a Findings and Order on December 18, 2008. The Petitioner and the Respondent both timely filed requests for a Post-Trial Conference 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 findings and order which are not based upon or which mischaracterize evidence in the record. A Post-Trial Conference was held on January 9, 2009.

The Petitioner’s and the Respondent’s Request for a Post-Trial Conference raised several areas of objection to the Commission’s Order of December 18, 2008. Those areas are dealt with as follows:

1. Retirement Offset − Employee Contribution

In our Findings and Order filed on December 18, 2008, we ordered, “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.” The Petitioner in its Post-Trial Conference request seeks clarification with respect to the employee’s percentage offset for retirement. The Petitioner argues the Commission has never in the past considered offsetting for both the employer and employee contributions for retirement.

The Commission has in the past considered offsetting retirement for both employer and employee contributions. See Nebraska Pub. Employees Union Local 251 v. County of Otoe, 15 CIR 236 (2008); and International Ass’n of Firefighters Local 324 v. City of Grand Island, 15 CIR 324 (2007). Accordingly as stated in our Findings and Order, the employee should be credited with a .1% offset.

2. Retiree Benefits – Health Insurance

The Petitioner and the Respondent both request clarification on the issue of employee retiree benefits. The Petitioner asks the Commission to clarify whether the provision of retiree health benefits for those not yet retired remains a part of the benefits covering bargaining unit employees, and thus subject to the Commission’s status quo order. The Respondent also requests the Commission clarify how the basis should be calculated for the COBRA rates, namely whether that rate should include retirees or just active police officers as part of the calculation, arriving at the rate.

In the Commission’s Findings and Order, the Commission determined that it could not address benefits for those employees retiring or retired in the current year in dispute because the Commission lacked jurisdiction over retirees not in the bargaining unit. Without jurisdiction, the Commission’s order does not and cannot address retiree benefits. Therefore, a calculation of health insurance rates can only be done with currently employed members of the bargaining unit as the Commission’s order governs only members in the bargaining unit.

3. Health Insurance Deductible Amounts

With respect to the Health Insurance Deductible Amounts, the Petitioner requests clarification of the Commission’s Findings and Order. The Order states: “The Petitioner shall also keep its deductible increasing the amount for individual coverage from a $100 deductible to a $300 deductible and shall maintain its family deductible of $200.” The Petitioner seeks to clarify whether the old deductibles remain or the new deductibles should be implemented.

The Commission’s previous statement was unclear and will now read, “The Petitioner shall continue to have a deductible included in its insurance plan. With regard to individual coverage, the deductible shall increase from $100 to $300, the most prevalently occurring deductible amount. With regard to family coverage, since the result was bimodal, the deductible shall remain at $200.” While the result certainly places a higher dollar deductible in the individual plain than in the family, the Commission does not control the result generated through a mode of all the array cities and the Commission has in the past determined deductibles by mode. See Coleridge Educ. Ass’n v. Coleridge Comm. Schools, 13 CIR 376, 389 (2001).

4. Uniform Allowance

The Petitioner argues that the while the quartermaster system is prevalent, there is no indication that additional compensation beyond the quartermaster system is necessary. The Petitioner argues that St. Paul shows a quartermaster system, which offers a voucher rather than a cash payment, as does Wichita.

The Respondent argues that, like the City, the Commission should specify how much additional uniform allowance is required above and beyond the quartermaster system. The Respondent argues the midpoint of the amount should be $533. The Respondent argues further that whether it is in a voucher or cash, it does not matter which the employee uses, as it is still compensation for the employee.

After a review of Table 15 and all the applicable exhibits, the Commission finds a correction to Table 15 is in order. The evidence demonstrates that the midpoint is a quartermaster system plus $533 dollars. Since the testimony shows that vouchers and cash compensation can be both termed “compensation” due to the employee, the Commission orders the additional compensation of $533 should be given to the employees in the form of a voucher. See Revised Table 15. The rest of Table 15 will remain unchanged.

5. Court Pay

The Petitioner is seeking clarification in Table 30 of how court pay is to be paid when an employee is “off the clock.” The Petitioner argues the Commission ordered in its Findings and Order that court pay for employees would be regular pay until the employee reached the level of 171 hours in a 28 day span, and then any additional time, including court time, is overtime.

Currently, when an employee is performing court duty functions within his regular shift, no additional compensation is due. However, when an employee must come in when he or she is not on their regularly scheduled shift and the employee is paid a minimum four hours straight time or time and a half the actual time appeared whichever is greater. After review of Table 30, the Commission finds some of its order mischaracterizes the evidence presented at trial and will change Table 30. The Commission concludes that employees who are “off the clock” should be paid a minimum of 3 hours worked at regular pay for the actual time appeared, or the overtime rate, whichever is greater.

6. Assignment of Officers

The Petitioner argues that the Commission should determine whether it is a management prerogative for the Petitioner to assign officers, when necessary, to respond to problems. See Exhibit 214(e). The Petitioner requests the Commission to review the issue in Exhibit 214(e) and to conclude that the ability to assign officers was a right that management could exercise.

After a review of Exhibit 214(e) and the record, it is clear that it is a prevalent practice for management to assign officers when necessary to respond to a problem. Absent any evidence to the contrary in the record, the Commission finds it is a management prerogative and a prevalent practice for the City to assign officers when necessary to respond to a problem. See Table 44.

7. Specialty Pay

The Petitioner argues that the Commission should have broken down the pay for specialty positions through each of the different ranks. The Petitioner requests that the Commission determine whether certain job rankings affected specialty pay.

The Respondent argues the Commission erred in calculating the specialty pay positions of ERU and Helicopter Pilot. The Respondent argues that the City of Wichita should be listed as a “yes” rather than a “no,” which changes the resulting mode. The Respondent also argues that the Commission incorrectly considered in its calculations the cities of Fort Worth, Cincinnati and St. Paul which do not have helicopter pilots employed within their respective cities.

Given the information provided to the Commission at trial, the calculations specific as to the amount or to the rank was either not sufficiently different or the Commission was provided insufficient information to make any calculations or arrive at specific conclusion. The Commission, however, did have sufficient information to determine whether it was prevalent to generally provide specialty pay in the various specialties. The parties will maintain the amount of specialty pay already given for those positions listed in Table 42(a) and 42(b). However, we find after reviewing the evidence, the positions of ERU and Helicopter Pilot should be changed. See Revised Table 42(a) and 42(b).

8. Lump Sum Payment - Wording

The Respondent correctly points out in paragraph 2 on page 27 of the Commission’s Findings and Order states that it requires: “the Respondent to determine the net lump sum overpayment or underpayment…”. The Petitioner is the City of Omaha in this case and all references to the Respondent instead of “Petitioner” will be changed to read Petitioner as it is a clerical error warranting correction.

9. Educational Assistance Plan

While it is prevalent to provide a tuition stipend, there was insufficient information provided at trial to quantify the dollar figure of the tuition stipend. While both Fort Worth and Oklahoma City have dollar figures provided, the Commission finds that two dollar figures are insufficient to use in calculating a mode. Without dollar figures at Cincinnati or Denver, the Commission has an insufficient number of comparables with which to calculate a dollar figure. Therefore, Table 40 does not warrant changing.

10. Pay Structure for Sergeants, Lieutenants and Captains

The Petitioner argues that with regard to Denver for the Sergeants, Lieutenants and Captains, the Commission erred in not treating Denver as a “0” instead of a N/A. The Petitioner also argues the Commission incorrectly rounded the steps.

In our Findings and Order, we consistently rounded numbers and have rounded similar figures this way in the past. See International Brotherhood of Elec. Workers Local Union 1597 v. City of Gering, 15 CIR 140 (2005) and International Ass’n of Firefighters Local Union No. 647 v. City of Grand Island, 15 CIR 324 (2007). With regard to Denver, the error was made in including Denver in any of the calculations. Denver is the only array city that does not have a step pay plan. Instead, Denver has a flat pay plan and should have been a “no” under pay range on all three of the tables. Denver was incorrectly included as a “1” in the calculation of steps of Sergeants, Lieutenants and Captains. Therefore, the Commission will change Denver to “no” and not applicable throughout the tables for pay structure. See Revised Tables 7, 8 and 9. The Commission’s rounding is correct.

11. Dental Insurance

The Commission determined at trial that the evidence for Fort Worth and Wichita stated that while each provided dental insurance, they did not provide any contribution to help with the cost of their dental insurance. Therefore, since dental insurance is “provided” 0% must be included in the calculation. The Commission’s Findings and Order issued on December 18, 2008 is correct.

12. Overtime Practices

The Commission in its Findings and Order issued on December 18, 2008 did not give hourly credit to Cincinnati which had “unlimited” hours for overtime. The Petitioner argues that at the very least we should set those hours the same as Tulsa - or 240 hours. Currently, Omaha offers 360 hours of overtime. The Commission finds that because Omaha offers 360 hours, it will place 360 hours in the Cincinnati column to arrive at a more accurate calculation. Therefore, the Commission will now order 134 hours banked.

13. Extension of Time

The Petitioner requests an extension of time from 45 days to 90 days from the date of issuance of this order, in order to comply with the payment provisions. The Respondent does not object to such an extension of time. Therefore, any adjustments in compensation resulting from the Final Order rendered in this matter will be made by lump sum payment within 90 days by the Petitioner.

IT IS THEREFORE ORDERED that the Petitioner’s and the Respondent’s requests to amend the Order of December 18, 2008 is sustained in part and overruled in part and such Order shall be as stated herein. It is the Final Order of the Commission that:

1. The Petitioner’s employee should be credited with a .1% offset for Retirement.

2. The Petitioner shall calculate health insurance rates only with members of the bargaining unit. The Commission’s order does not govern retired bargaining unit employees.

3. The Petitioner shall continue to have a deductible included in its insurance plan. With regard to individual coverage, the deductible shall increase from $100 to $300, the most prevalently occurring deductible amount. With regard to family coverage, the deductible shall remain at $200.

4. The Petitioner shall pay additional compensation of $533 given to the employees in the form of a voucher for uniform allowance. The rest of the allowances given shall remain as stated in Revised Table 15.

5. The Petitioner shall pay employees who are “off the clock” a minimum of 3 hours worked at regular pay for the actual time appeared or the overtime rate, whichever is greater for court duty.

6. The Petitioner shall have the right to assign officers when necessary to respond to a problem.

7. The Petitioner shall provide specialty pay for the positions of ERU and Helicopter Pilot at the current rate. Specialty Pay shall be given to any rank performing the specialty work.

8. The Petitioner shall change the pay structure for Sergeants, Lieutenants and Captains as seen in Revised Tables 7, 8 and 9.

9. The Petitioner shall allow 134 hours banked for overtime.

10. The Revised Tables 7, 8, 9, 15, 24, 30, 32, 42(a) and 42(b) and the new Table 44 all reflect the corrections made in this Final Order.

11. The Commission requires that the Petitioner, not the Respondent, determine the net lump sum of overpayment or underpayment for the contract year for each employee.

12. All other terms and conditions of employment for the 2007-2008 contract year shall be as previously established by the agreement of the parties and by orders and findings of the Commission.

13. Adjustments and compensation resulting from this Order shall be paid in a single lump sum payable within ninety (90) days of this Final Order.

All panel commissioners join in the entry of this order.

[For a copy of the Revised Tables, please contact the Commission at (402) 471-2934.

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS