16 CIR 35 (2008) 

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 APPEARANCES:

Filed December 18, 2008

Before:  Commissioners Burger, Blake, and Lindahl

BURGER, C.

NATURE OF THE PROCEEDINGS:

    This action was brought by the Professional Firefighters of Omaha, Local 385 (“Petitioner” or “Union”) pursuant to Neb. Rev. Stat. §48-818 and is a labor organization as defined by Neb. Rev. Stat. §48-801(6) (Reissue 2004). The Petitioner is the duly recognized collective bargaining representative of a bargaining unit consisting of employee classifications of firefighter, fire apparatus engineer, fire captain, drill master, EMS shift supervisors, assistant fire marshal, and battalion chief of the City of Omaha (“Respondent or “City”). 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 29, 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 under the same or similar working conditions. In accomplishing this, the Commission hears evidence from each of the parties concerning the similarity and appropriateness of including the members of the array proposed by each of them. The Commission then chooses the array cities which are sufficiently the same or similar. This is a determination of fact, and made from the evidence on a case-by-case basis. The Commission is not required to consider every possible array, but, seeks one which is sufficiently representative so as to determine whether the wages 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 four array cities, which they agree are similar, and should be included in the array. These cities are: Lincoln, Nebraska; Milwaukee, Wisconsin; Madison, Wisconsin; and St. Paul, Minnesota. The Petitioner proposes including the additional cities of Toledo, Ohio; Cincinnati, Ohio; and Columbus, Ohio. The Respondent proposes instead to include the cities of St. Louis, Missouri; Des Moines, Iowa; and Memphis, Tennessee in the array.

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 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.

The cities agreed to by both parties will be included in the 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.

Array decisions are made on a case-by-case basis from the evidence received. See General Drivers & Helpers Union Local No. 554 v. County of Gage, 14 CIR 170 (2003). An array decision does not control the proper array in future cases, see Lincoln Firefighters Ass’n Local 644 v. City of Lincoln, 12 CIR 211 (1996).

St. Louis, Missouri

            The question of whether to include St. Louis, Missouri in our array is similar to the issue presented to the Commission in International Association of Firefighters, Local Union No. 647 v. City of Grand Island, 15 CIR 324 (2007). In City of Grand Island, the Petitioner sought to exclude Hastings, Nebraska because it did not perform the Advanced Life Support (hereinafter, “ALS”) transport function. The Commission found that the ALS function significantly impacted working conditions, job skills, and the operation of the department. The Commission declined to include Hastings because it did not have similar working conditions, even though Hastings was geographically proximate and within the Commission’s size guidelines.

In the instant case, the employees in St. Louis are a step short of Omaha in providing full EMS services. The operation of St. Louis’ fire department is much different than Omaha. St. Louis has a separate EMS division, leaving the ALS transport function to be performed by a distinct division within the fire department. While St. Louis does have an EMS service, the service is in a separate bargaining unit, under separate direction and supervision, and those employees are not required to be cross-trained as firefighters in St. Louis. The employees participate in a separate pension system. There is also very little employee interchange between fire suppression, and emergency services. For example, less than ten of the 164 full-time St. Louis EMS employees elect to work overtime shifts on transport rigs in the EMS bureau. The shifts are different between the two groups as well. EMS personnel work a 12-hour shift whereas the sworn suppression employees work a 24-hour shift. The EMS employees do not possess personal protective equipment as firefighters do, instead they have medic gear and wear medic coats. The EMS employees do not carry Self Contained Breathing Apparatuses or “SCBAs” as standard equipment. St Louis medic units are not always staffed by ALS medics and the EMS employees are not cross-trained in fire suppression nor are the St. Louis firefighters trained in ALS.

The evidence shows that while all firefighters in Omaha could do either the job of firefighter or paramedic in St. Louis, the vast majority of the firefighters in St. Louis are not qualified to perform the role of firefighter in Omaha. The evidence shows that there are substantial differences in the conditions of employment between St. Louis and Omaha. We will not include St. Louis.

Memphis, Tennessee

The issue of whether weather conditions impact working conditions is not an issue of first impression. See Lincoln Firefighters Ass’n Local No. 644 v. City of Lincoln, 12 CIR 211 (1996). Aff’d 253 Neb. 837, 572 NW2d 369 (1998) or Firefighters Ass’n, Local No. 644 v. City of Lincoln, 8 CIR 31 (1985). We have traditionally regarded with skepticism proffered comparables in the South in part because of the weather.  See Local No. 2088, American Federation of State, County and Municipal Employees v. County of Douglas, 4 CIR 76 (1979). 208 Neb. 511, 304 N.W.2d 368. Reversed and remanded with directions. Supplemental Opinion, 209 Neb. 597, 309 N.W.2d 65 (1981); or Omaha Police Union Local No. 1 v. City of Omaha, 3 CIR 8, 9 (1975).

Omaha firefighters are taught skills to keep fire hoses running in freezing conditions, finding fire hydrants buried in snow, advancing on an ice-packed roof, warming fluids for EMS emergencies, and carefully monitoring respiratory emergencies. There was no testimony presented at trial about whether Memphis firefighters’ must learn similar cold weather skills. However, the Memphis’ Collective Bargaining Agreement states that in inclement weather conditions, daily work is significantly limited. Specifically, Memphis firefighters do not have to train outside, perform “plug flushing,” or maintain outside buildings or grounds when temperatures are above 90 degrees or below 40 degrees Fahrenheit. While emergency work, emergency training, and cleaning of fire hoses are excluded, general company and individual inspections are not conducted during hazardous weather conditions. This limitation of duty distinguishes Memphis from Omaha, and it is not sufficiently similar with regard to work, skills, and working conditions. The Commission will not include Memphis in its array.

Des Moines, Iowa

            Des Moines firefighters perform similar work, have similar skills and work in similar working conditions to Omaha’s firefighters. Des Moines firefighters, like Omaha firefighters, staff their medic units with ALS medics, have their engines function as ALS, BLS First Responders, cross-train as ALS transport personnel, have their paramedics trained in fire suppression, and dispatch ALS transport units to suppression incidents. Both Des Moines firefighters and ALS personnel, like Omaha, wear all of the same gear. The Petitioner’s witness admitted that while he did not perform job matching at the City of Des Moines, there were in fact good job matches between Des Moines and Omaha. Des Moines is also geographically proximate to Omaha.

Even though Des Moines is clearly comparable as to work, skill and working conditions, the Petitioner argues that it falls outside our size guidelines based on the 2007 population estimate. Using the 2000 census, the population of Des Moines falls clearly within the size guidelines used by the Commission to filter array members. The ultimate question is comparability, and we find the evidence supports the inclusion of Des Moines as a member of the array.

Cincinnati, Ohio; Toledo, Ohio; and Columbus Ohio

The Petitioner testified that, in choosing its array, it employed the concepts of geographic proximity, weather conditions, and whether the array city was cross-trained in ALS. Relying on a Supreme Court decision in Lincoln Firefighters Ass’n v. City of Lincoln, 198 Neb. 174, 252 N.W.2d 607 (1977), which affirmed the Commission’s previous selection of an array consisting of cities in the West North Central region to compare to the city of Lincoln, the Petitioner also used the concept of comparing Omaha to cities only within the West North Central region. Inclusion within the West North Central region alone does not make a city within the region comparable to Omaha. The determination of an array is a case by case factual question. It is well established that the use of a particular array in one case does not require that the same group of employers would be appropriate in a different case. See International Ass’n of Firefighters v. City of Grand Island, 9 CIR 43 (1987); Lincoln Firefighters Ass’n Local 644 v. City of Lincoln, 12 CIR 211 (1996).

The Respondent argues that using multiple cities from Ohio essentially “triple-dips” into the Ohio labor market. Much of the testimony from the Respondent’s expert on this issue can be disregarded, but, some of it does bear on this issue. He testified that the three cities proposed ought to be considered one labor market, and the contract terms of each of them are moving incrementally closer and closer over time, due to being continually compared with each other. These statements were not rebutted. We do not find it appropriate to include all three cities.

If, however, the Commission were to choose one array member from Ohio, it should choose the one most similar to Omaha. Cincinnati has the most similar number of stations, engine companies, truck companies, hazardous materials and heavy rescue units. Cincinnati also has the same requirements for minimum number of firefighters on duty. Cincinnati fits within the Commission’s size guidelines. Cincinnati has similar weather conditions and is a fully integrated ALS provider. The Commission will include Cincinnati in its array.

Commission’s Array

            The Commission shall include the four common array cities of Lincoln, Nebraska; St. Paul, Minnesota; Milwaukee, Wisconsin; and Madison, Wisconsin, plus Des Moines, Iowa and Cincinnati, Ohio.

FRINGE BENEFITS:

Longevity Pay

            The parties dispute 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 five of the six cities, provide longevity pay.

The Respondent further argues that the Commission should use zeros in calculating longevity pay. In 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 found that comparability should be determined by eliminating the array employers which are not among the prevalent. The Commission opined that if a particular fringe benefit is not offered by a majority of the array of compared-to employers, then that benefit is eliminated. In doing so, the Commission reasoned that no value should be given for the fact that a minority of the array employers provide this benefit; or conversely, when a majority of the array employers provide a benefit, no value should be given for the minority of array employers which do not provide the benefit.

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).  We will 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.

Step Placement

Based upon the array chosen, it is prevalent to place employees based upon a combination of time and performance under all four of the job classifications. See Tables 9 through 12. Drawing upon the performance evaluations of each firefighter, which are in the custody of the Respondent, the Respondent should place each officer using both time and performance since a combination of the two is the prevalent practice.  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.

We find that each employee should be placed on the appropriate new pay plan (Tables 9-12) 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.

The Petitioner suggests that the Commission should use the effective reality of minimums paid upon promotion versus the structural minimums suggested by the Respondent. The Petitioner argues this is true for the array city of St. Paul (placing both the positions of Captain and Battalion Chief at the structural rather than promotional minimums) and for the array city of Des Moines (Fire Engineer). According to both the St. Paul Collective Bargaining Agreement and wage tables and the Des Moines Collective Bargaining Agreement and wage tables, the listed wages are structural. The Commission has ordered to the firefighters to be placed based upon both years of service and successful performance evaluations. This placement already utilizes the promotional minimums, allowing the parties to place employees above the structural minimum if the facts provide for such a placement.

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.

In Plattsmouth Police Dept. Collective Bargaining Committee v. City of Plattsmouth, 205 Neb. 567 205 Neb. 567; 288 N.W.2d 729 (1980), the Nebraska Supreme Court, reversed the Commission in its decision of ordering changes in the pension plan. The Commission in its decision ordered the City to amend its pension plan to provide a 12 percent or 6 and 6 pension plan. In City of Plattsmouth, the Supreme Court held that a pension plan is in the nature of a long-term contract which extends beyond the 2-year period over which the Commission had jurisdiction in that case. The Supreme Court concluded that the part of the order which directed the defendant to amend its pension plan was beyond the jurisdiction of the Commission and must also be vacated.

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).  The Commission, however, cannot offset pension contributions if such an adjustment rests on speculation, surmise, or conjecture. In Lincoln Firefighters Ass’n Local 644 v. City of Lincoln, 12 CIR 248 (1997), aff’d 253 Neb. 837 (1998), the Commission offset wages only after an actuary arrived at a theoretical cost of the benefits, equalizing the percentage of contributions.

In this case, an actuary called by Petitioner outlined the process she believed necessary to evaluate the Omaha pension to comparable cities. She did not perform the complete analysis necessary, and only highlighted the weakness of comparing defined benefit pension plans based on a single factor, such as employer contribution rates.

The Respondent’s expert testified that … “all things being equal in the market, which they are not, Omaha appears to be greater than the market. His recommendation was to make the changes he termed definitions to the time period benefits are calculated on, and the elements of pay included. When asked what recommendations he had as a result of Omaha employer’s contribution being significantly higher than the midpoint, he replied that he had none. He testified that the contribution rates are the result of a number of factors, including funding levels and benefits.” “Unlike a defined contribution plan, I don’t think you can draw any conclusions from the percentage itself.”

The state of the evidence leaves the Commission in a difficult position. The city proposes changes to the definitions which we conclude are actually structural, and which we cannot make. The Commission in the past has ordered an offset of pension benefits which are above the prevalent against wage increases. In this case, both experts acknowledge that we cannot rely simply upon the employer contribution rates in evidence. Although it appears that the City is contributing at a higher rate than the array, we do not have the evidence upon which we could quantify that benefit without engaging in the speculation that we can simply rely on the contribution rates; which the testimony says we cannot. Unable to reliably quantify the disparity between the defined benefits plans, we cannot devise an offset, and decline to order one.

Dental Insurance

            Madison, Wisconsin provides dental insurance separate from their health insurance policies. Madison requires 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 21.

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.

Basic Emergency Medical Technician Pay at Cincinnati, Ohio

            The Petitioner is asking the Commission to add $0.92 an hour to each wage classification of minimum and maximum at Cincinnati, Ohio, since those employees are paid $0.92 per hour as a result of having their basic emergency medical technician certification which is required as a condition of their employment. As it is a required condition of their employment, the Petitioner argues the $0.92 should be treated as part of the wage rate.

Dr. Ottemann stated at trial that basic emergency medical technician certificate is a condition of a firefighter’s employment in Cincinnati and all employees receive the extra compensation, except probationary employees. All employees in Omaha are required to be at least trained as a basic emergency medical technician, holding such a certification. Since the certification is a condition of a firefighter’s employment in Cincinnati, the Commission will include the supplement as part of the minimum and maximum of the wages of firefighter, fire apparatus engineer, fire captain, drill master, EMS shift supervisors, assistant fire marshal, and battalion chief.

Management Prerogatives

            There are certain fringes which we believe are management prerogatives and we will not address the following in this Order: Hours of Work; Transfer Shifts; Set Shifts; and Work Time.

Comparable Fringe Benefits

The following fringe benefits received by the Omaha firefighters shall remain unchanged because they are comparable to those received by firefighters in the array:

1)      Pay Administration Firefighter/Senior Firefighter Steps  Provided. See Table 9.

2)   Pay Administration Firefighter/Senior Firefighter Movement  Performance and Time. See Table 9.

3)       Pay Administration Fire Apparatus Engineer  Provided. See Table 10.

4)   Pay Administration Fire Apparatus Engineer Movement  Performance and Time. See Table 10.

5)   Pay Administration Fire Captain  Provided. See Table 11.

6)   Pay Administration Fire Captain Movement  Performance and Time. See Table 11.

7)   Pay Administration Battalion Chief  Provided. See Table 12.

8)   Pay Administration Battalion Chief Movement  Performance and Time. See Table 12.

9)      Work Out of Class Policies  Provided. See Table 13.

10) Work Out of Class How Compensated  After 24 Hours rate of higher classification. See Table 13.

11)  Vacation Leave Bidding  Provided. See Table 14.

12) Unit Staffing Requirements  Engine Companies and Truck Companies assigned and in-service all at the rate of 4 staff members. See Table 15.

13) Special Compensation Practices Union Time for Business or Conferences  Provided. See Table 16.

14) Special Compensation Practices Full Time Union Representative  Not Provided. See Table 16.

15)  Union Dues Check Off  Provided. See Table 17.

16)  Fire Bunker Gear  Provided. See Table 18.

17)  Uniform Allowance  Provided. See Table 18.

18) Uniform Allowance Annual Maintenance and Cleaning Allowance  Not Provided. See Table 18.

19)  Uniform Allowance Replace Personal Items  Provided. See Table 18.

20) Overtime  Vacation Hours, Sick Leave Hours, and Compensatory Time Hours not included in computation. See Table 42.

21) Overtime How Compensated  Time and ½ and not Double Time or Other. See Table 19.

22) Bank Compensatory Time  Allowed. See Table 19.

23) Educational Assistance  Provided. See Table 20.

24) Education Assistance  100% Tuition. See Table 20.

25)  Dental Insurance  Provided. See Table 21.

26)  Health Insurance Single  100%. See Table 22.

27)  Health Insurance Major Medical  Provided. See Table 23.

28)  Health Insurance Maximum Benefit  Unlimited. See Table 23.

29)  Health Insurance Employee  Deductible Allowed. See Table 23.

30)  Health Insurance Single Deductible Amount  $150. See Table 23.

31)  Health Insurance Family Deductible Amount  $300. See Table 23.

32)  Health Insurance Stop-Loss  Provided. See Table 24.

33)  Health Insurance Percent Co-Pay  90/10. See Table 24.

34)  Health Insurance Prescription Drug Plan  Provided.

35)  Annual Sick Leave Allowance  Provided. See Table 25.

36)  Sick Leave Family Illness  Allowed. See Table 25.

36) Sick Leave Conversion  Resignation, Retirement, or Death Allowed. See Table 39.

37)  Injured on Duty Leave  Provided. See Table 26.

38)  Injured on Duty Leave Maximum Amount  365 days. See Table 26.

39)  Life Insurance  Provided. See Table 27.

40)  Life Insurance Amount of Coverage  $50,000. See Table 27.

41)  Life Insurance Percentage Paid by Employer  100%. See Table 27.

42)  Employer Paid Disability Plans Long Term  Not Provided. See Table 28.

43)  Employer Paid Disability Plans Short Term  Not Provided. See Table 28.

44)  Employee Assistance Program  Provided. See Table 29.

45)  Call In Pay Minimum Amount of Paid Time Guaranteed  Yes. See Table 30.

46)  Call In Pay Hours Paid  4. See Table 30.

47)  Call In Pay  Maintain Hours Merged with Normal Shift. See Table 30.

48)  Call In Pay  Maintain Called in During Off Duty Time. See Table 30.

49)  Longevity Pay Plan  Provided. See Table 31.

50)  Paid Vacation Policies  Accumulation Allowed. See Table 32.

51) Paid Vacation Policies Maximum Number of hours Carried Over  360, can cash in 72 hours annually. See Table 32.

52) Paid Vacation Policies Unused Vacation Can Be Converted To Cash Upon  Resignation, Dismissal, Retirement and Death. See Table 32.

53) Specialty Pay Not Provided  Bomb Disposal, Swift Water Rescue, Dive Team Rescue, EMT-I, and EMT-A.  See Table 33.

Non-Comparable Benefits

The Commission finds the following fringe benefits to be non-comparable to the array cities, order the following adjustments:

1)  Pay Administration Firefighter/Senior Firefighter  Number of Steps from 3 to 7. See Table 9.

2)   Pay Administration Firefighter/Senior Firefighter Years to Maximum from 3 to 7. See Table 9.

3)   Pay Administration Fire Apparatus Engineer  Number of Steps from 2 to 6. See Table 10.

4)   Pay Administration Fire Apparatus Engineer  Years to Maximum from 1 to 7. See Table 10.

5)   Pay Administration Fire Captain  Number of Steps from 2 to 6. See Table 11.

6)   Pay Administration Fire Captain  Years to Maximum from 1 to 7. See Table 11.

7)   Pay Administration Battalion Chief  Number of Steps from 2 to 6. See Table 12.

8)   Pay Administration Battalion Chief  Years to Maximum from 1 to 7. See Table 12.

9)   Trade Time  Discontinued. See Table 34.

10)  Special Compensation Practices Number of Paid Union Hours  Decreased to 1148 Hours. See Table 16.

11) Work Time Court Duty Minimum Hours  Decrease to 3 hours minimum. See Table 35.

12)  Work Time Court Duty Amount—1.5 Times the Rate. See Table 35.

13)  Incentive Pay for a Degree  Discontinued. See Table 20.

14)  Paid Holidays Hours per Year  Decrease to 110. See Table 36.

15)  Personal Leave  Not Provided. See Table 36.

16)  Dental Insurance Employer Family  Increased to 80%. See Table 21.

17)  Dental Insurance Employer Single  Decreased to 86%. See Table 21.

18)  Health Insurance Family  Decreased to 96%. See Table 22.

19)  Health Insurance 2/4 Party  Decreased to 96%. See Table 22.

20) Funeral Leave Definition of Immediate Family  Spouse, Child, Mother, Father, Brother, Sister, Grandparent, or Grandchild. See Table 38.

21)  Funeral Leave Other Relatives Hours Allowed  Decreased to 15. See Table 38.

22)  Funeral Leave Immediate Family Hours Allowed  Decreased to 45. See Table 38.

23) Annual Sick Leave Allowance Family Defined  Spouse, Child, Mother, Father, Brother or Sister. See Table. 25.

24)  Sick Leave Immediate Family  Unlimited Hours. See Table 25.

25)  Sick Leave Applied to Vacation  Not Allowed. See Table 39.

26)  Sick Leave Converted to Cash  Not Allowed. See Table 39.

27)  Sick Leave Converted upon Dismissal  Not Allowed. See Table 39.

28)  Injured on Duty Pay How Compensated  Receive Full Pay. See Table 26.

29)  Honor Guard Special Compensation  Discontinued. See Table 40.

30)  Call In Pay Rate  Increased to 1.5. See Table 30.

31) Union Business Number of Hours Paid  Decreased from 1500 to 1148. See Table 16.

32) Sick Leave Hours Earned 24 Hour Employees  Decreased to 148 from 216. See Table 41.

33) Sick Leave Hours Earned 8-10 Hour Employees  Decreased to 104 from 144. See Table 41.

34) Sick Leave Maximum Accumulation 24 Hour Employees  Unlimited. See Table 41.

35) Sick Leave Maximum Accumulation 8-10 Hour Employees  Unlimited. See Table 41.

36) Overtime/Compensatory Time Number of Hours Banked  Decreased from 480 to 120. See Table 19.

37) Longevity Pay Years of Eligibility – Decreased to 6 years.

38) Longevity Pay Firefighter/Senior Firefighter  Starting in Year 6, increased and decreased where necessary. See Table 43.

39) Longevity Pay Fire Apparatus Engineer  Starting in Year 6, increased and decreased where necessary. See Table 44.

40) Longevity Pay Fire Captain  Starting in Year 6, increased and decreased where necessary. See Table 45.

41) Longevity Pay Battalion Fire Chief  Starting in Year 8, decreased where necessary. See Table 46.

42) Vacation Annual Accrual 24 Hour Employees  increased and decreased where appropriate. See Table 47.

43) Vacation Annual Accrual Day Employees  increased and decreased where appropriate. See Table 48.

44) Specialty Pay Not Provided  Arson Investigation, Medical Unit Driver, and High Angle Rescue. See Table 33.

45) Specialty Pay Provided at Different Rate  $0.67 per hour rather than $1.65 for hazardous materials pay and $1.77 per hour rather than $1.65 for EMT-P certification. See Table 33.

IT IS THEREFORE ORDERED that for the December 31, 2007 through December 29, 2008 contract year, the following shall be effective as of December 31, 2007:

1)  Petitioner’s wages for the December 31, 2007 through December 29, 2008 contract year shall be as follows:

JOB CLASSIFICATION                                      MIN                           MAX

Probationary Firefighter                                      $15.18

Firefighter/Senior Firefighter                              $15.17                         $21.43

Fire Apparatus Engineer                                    $18.60                         $22.76

Captain                                                                 $21.55                         $25.96

Drill Master                                                           $23.98                         $28.88

EMS Shift Supervisor                                         $23.98                          $28.88

Assistant Fire Marshall                                       $25.67                         $30.24

Bataillon Fire Chief                                             $27.56                          $32.47

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 Respondent to each such employee; however, any employee reimbursement shall not exceed the amount of compensation owed to the employee from the Respondent.

3)  The Respondent shall maintain a step pay plan for Firefighter/Senior Firefighter but shall increase the number of steps and years to maximum both from 3 to 7. The Respondent shall maintain movement on the pay plan with both performance and time.

4)  The Respondent shall maintain a step pay plan for Fire Apparatus Engineer but shall increase the number of steps from 2 to 6 steps and for years to maximum from 1 to 7. The Respondent shall maintain movement on the pay plan with both performance and time.

5)  The Respondent shall maintain a step pay plan for Fire Captain but shall increase the number of steps from 2 to 6 steps and for years to maximum from 1 to 7. The Respondent shall maintain movement on the pay plan with both performance and time.

6)  The Respondent shall maintain a step pay plan for Battalion Chief but shall increase the number of steps from 2 to 6 steps and for years to maximum from 1 to 7. The Respondent shall maintain movement on the pay plan with both performance and time.

7)  The Respondent shall continue to provide working out of class pay at the rate of after 24 hours, paid at the higher classification.

8)  The Respondent shall continue to have a system to bid vacation.

9)  The Respondent shall discontinue the practice of allowing trade time to take place between the employee and the City.

10) The Respondent shall continue to staff both engine companies and truck companies for both assigned and in-service at a rate of four staff members.

11) The Respondent shall continue to provide for union time for business or conferences. The Respondent shall decrease the number of paid union hours from 1500 hours to 1148 hours. The Respondent shall continue its practice of not provided for a full time union representative.

12) The Respondent shall continue to provide for a union dues check off.

13) The Respondent shall continue to provide fire bunker gear and shall also continue to provide a uniform allowance. The Respondent shall continue to not provide annual maintenance and cleaning allowance but shall replace personal items.

14) The Respondent shall continue to not include vacation hours, sick leave hours and compensatory time hours when computing overtime. The Commission shall not make any findings as to whether holiday hours shall be counted in computing overtime as the tables provided offer conflicting information and the Omaha contract is unclear.

15) The Respondent shall continue to compensate overtime at the rate of time and ½ rather than double time or another way of calculating the amount.

16) The Respondent shall continue to provide education assistance at the rate of 100% paid tuition. The Respondent shall discontinue its practice of providing educational incentive pay.

17) The Respondent shall decrease the number of paid holidays from 156 to 110 hours. The Respondent shall also discontinue its practice of allowing personal leave.

18) The Respondent shall continue to provide dental insurance. The Respondent shall increase the employer family amount from 76% to 80% and shall decrease the amount of employer single from 100% to 86%.

19) The Respondent shall continue to provide a stop-loss provision and a percentage co-pay of 90/10. The Respondent shall also continue to provide major medical with the maximum benefit being unlimited. The Respondent shall continue requiring an employee deductible at the rate of $150 for single and $300 for family. The Respondent shall decrease the percentage of monthly health care contribution from 100% to 96% for both family and 2/4 Party but shall maintain paying 100% of single coverage. The Respondent shall maintain a prescription drug plan.

20) The Respondent shall decrease the number of sick leave hours earned for 24 Hour employees from 216 hours to 148 hours and for 8 to 10 Hour employees from 144 to 104 hours. The Respondent shall increase the maximum accumulation of sick leave hours from 2400 to unlimited for 24 hour employees and from 1600 to unlimited for 8 to 10 hour employees. The Respondent shall continue to allow annual sick leave hours to be used for family but shall change the definition of family from spouse, child, or parent to spouse, child, mother, father, brother or sister. The Respondent shall increase the hours allowed per year from 40 hours to unlimited for family illness. The Respondent shall also discontinue the practice of allowing employees to convert sick leave upon dismissal. The Respondent shall also allow sick leave to be converted to cash upon resignation, retirement or death. The Respondent shall discontinue the practice of allowing an employee who accumulates maximum sick leave days to apply those additional earnings to vacation or to cash.

21) The Respondent shall decrease the amount of hours allowed for funeral leave from 48 hours to 45 hours allowed for immediate family and shall also decrease the amount from 24 hours to 15 hours for other relatives. The Respondent shall also change the definition of immediate family from spouse, child, mother, father, brother, sister, grandparent, grandchild, son-in-law or daughter-in-law to spouse, child, mother, father, brother, sister, grandparent, or grandchild.

22) The Respondent shall continue to provide injured on duty leave with the maximum amount at 365 days. The Respondent shall change how employees are compensated when injured on duty from 100% salary for a period of one year to receiving full pay.

23) The Respondent shall continue to have a longevity plan but instead of 7 years of eligibility the employees shall now become eligible after 6 years, except for the position of the Battalion Fire Chief which shall become eligible after 8 years. The Respondent shall change the longevity pay rates in after years 6 through 25 increasing and decreasing where necessary.

24) The Respondent shall start providing longevity pay after year 6 for the Firefighter/Senior Firefighter at the rate of $663. The Respondent shall decrease the rate of longevity pay for the Firefighter/Senior Firefighter after years: 7 from $1589 to $663; 8 from $1589 to $693; 9 from $1589 to $693; 10 from $1589 to $1011; 11 from $2059 to $1011; 12 from $2059 to $1011; 13 from $2059 to $1011; 14 from $2530 to $1164; 15 from $2530 to $1506; 16 from $2530 to $1556; 17 from $2530 to $1556; 18 from $3001 to $1659; 19 from $3001 to $1659; 20 from $3001 to $2091; 21 from $3472 to $2091; 22 from $3472 to $2144; 23 from $3472 to $2194; 24 from $3472 to $2194; and 25 from $3472 to $2194.

25) The Respondent shall start providing longevity pay after year 6 for the Fire Apparatus Engineer at the rate of $696. The Respondent shall decrease the rate of longevity pay for the Fire Apparatus Engineer after years: 7 from $1589 to $696; 8 from $1589 to $714; 9 from $1589 to $714; 10 from $1589 to $1032; 11 from $2059 to $1032; 12 from $2059 to $1032; 13 from $2059 to $1032; 14 from $2059 to $1192; 15 from $2530 to $1535; 16 from $2530 to $1587; 17 from $2530 to $1587; 18 from $3001 to $1695; 19 from $3001 to $1695; 20 from $3001 to $2130; 21 from $3472 to $2130; 22 from $3472 to $2186; 23 from $3472 to $2186; 24 from $3472 to $2186; and 25 from $3472 to $2186.

26) The Respondent shall start providing longevity pay after year 6 for the Fire Captain at the rate of $745. The Respondent shall decrease the rate of longevity pay for the Fire Captain after years: 7 from $1589 to $745; 8 from $1589 to $746; 9 from $1589 to $746; 10 from $1589 to $1069; 11 from $2059 to $1069; 12 from $2059 to $1069; 13 from $2059 to $1069; 14 from $2059 to $1243; 15 from $2530 to $1585; 16 from $2530 to $1643; 17 from $2530 to $1643; 18 from $3001 to $1760; 19 from $3001 to $1760; 20 from $3001 to $2199; 21 from $3472 to $2199; 22 from $3472 to $2259; 23 from $3472 to $2259; 24 from $3472 to $2259; and 25 from $3472 to $2259.

27) The Respondent shall start providing longevity pay after year 8 for the Battalion Fire Chief at the rate of $1092 (from $1589), eliminating the practice of paying longevity pay in the amount of $1589 after year 7. The Respondent shall decrease the rate of longevity pay for the Battalion Fire Chief after years: 9 from $1589 to $1092; 10 from $1589 to $1542; 11 from $2059 to $1542; 12 from $2059 to $1542; 13 from $2059 to $1542; increasing the rate of longevity pay after year 14 from $2059 to $2065; decreasing the rate of longevity pay after year15 from $2530 to $2133; 16 from $2530 to $2234; 17 from $2530 to $2234; 18 from $3001 to $2656; 19 from $3001 to $2656; 20 from $3001 to $2950; 21 from $3472 to $2950; 22 from $3472 to $3273; 23 from $3472 to $3273; 24 from $3472 to $3273; and 25 from $3472 to $3273.

28) The Respondent shall continue to provide life insurance coverage in the amount of $50,000, which shall continue to be 100% paid by the Respondent.

29) The Respondent shall continue to not to have a long term or short term disability plan.

30) The Respondent shall continue to provide an employee assistance program.

31) The Respondent shall discontinue the practice of paying extra for honor guard.

32) The Respondent shall continue to require that a minimum amount of time paid for call in be guaranteed at the 4 hours paid, increasing the rate from the regular rate to 1.5 times the regular rate. The Respondent shall continue the practice of call in pay hours merging with normal shift hours as well as applying the policy when an employee is called in during off-duty time.

33) The Respondent shall discontinue the practice of paying for court duty at 4 hours or actual to 3 hours and shall change the amount paid for working court duty from straight time to 1.5 times the regular rate to only 1.5 times the regular rate.

34) The Respondent shall continue to allow fire employees to bank compensatory time but decrease the number hours banked from 480 to 120.

35) The Respondent shall discontinue the practice of allowing holiday hours to be accumulated into a holiday and compensatory bank.

36) The Respondent shall decrease annual vacation accrual for 24 Hour Employees as follows in year: 1 from 144 hours to 135 hours; 2 from 144 hours to 135 hours; 3 from 144 hours to 135 hours; 4 from 144 hours to 143 hours; 5 from 240 hours to 148 hours; 6 from 240 hours to 168 hours; 7 from 240 hours to 187 hours; 8 from 240 hours to 191 hours; 9 from 240 hours to 192 hours; 10 from 240 hours to 192 hours; 11 from 240 hours to 196 hours; 12 from 240 hours to 217 hours; 13 from 240 hours to 229 hours; 14 from 240 hours to 231 hours; 15 from 240 hours to 231 hours; and shall increase annual vacation accrual for 24 hour employees in the following years:16 from 240 hours to 251 hours; 17 from 240 hours to 251 hours; 18 from 240 hours to 251 hours; 19 from 240 hours to 274 hours; 20 from 240 hours to 280 hours; 21 from 240 hours to 296 hours; 22 from 240 hours to 296 hours; 23 from 240 hours to 296 hours; 24 from 240 hours to 296 hours; 25 from 240 hours to 297 hours; 30 from 240 hours to 298 hours; and maximum from 240 hours to 298 hours.

37) The Respondent shall decrease annual vacation accrual for Day Employees as follows in year: 1 from 96 hours to 83 hours; 2 from 96 hours to 83 hours; 3 from 96 hours to 83 hours; 4 from 96 hours to 91 hours; 5 from 171 hours to 94 hours; 6 from 171 hours to 104 hours; 7 from 171 hours to 119 hours; 8 from 171 hours to 121 hours; 9 from 171 hours to 122 hours; 10 from 171 hours to 122 hours; 11 from 171 hours to 127 hours; 12 from 171 hours to 142 hours; 13 from 171 hours to 142 hours; 14 from 171 hours to 146 hours; 15 from 171 hours to 159 hours; 16 from 171 hours to 162 hours; 17 from 171 hours to 162 hours; 18 from 171 hours to 162 hours; and shall increase annual vacation accrual for day employees in the following years:19 from 171 hours to 175 hours; 20 from 171 hours to 193 hours; 21 from 171 hours to 195 hours; 22 from 171 hours to 195 hours; 23 from 171 hours to 195 hours; 24 from 171 hours to 195 hours; 25 from 171 hours to 198 hours; 30 from 171 hours to 198 hours; and maximum from 171 hours to 198 hours.

38) The Respondent shall continue to allow accumulation of vacation with a maximum number of 360 hours, allowing a cashing in of 72 hours annually. The Respondent shall continue to allow unused vacation to be converted to cash upon resignation, dismissal, retirement, and death.

39) The Respondent shall discontinue its practice of providing specialty pay for arson investigation, medical unit drivers, and high angle rescue. The Respondent shall continue to not provide specialty pay for bomb disposal, swift water rescue, dive team rescue, EMT-I and EMT-A. The Respondent shall reduce its hazardous material pay from $1.65 per hour to $0.67 per hour and shall increase its EMT-P pay from $1.65 per hour to $1.77 per hour.

40) 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.

Commissioner William G. Blake, Concurring:

I concur with the opinion of the Commission in this case, but I am somewhat troubled by the possible perception created by the different array approved by the Commission in this case and that approved in City of Omaha v. The Omaha Police Union Local No. 101, Case No. 1175, under consideration by the Commission at this same time. We include the cities of Lincoln and Des Moines in the array as to the Omaha Firefighters Association, but we did not include them in the array as to the Omaha Police Union. In both cases, we include Cincinnati in the array; a city over 600 miles from Omaha, while Des Moines is only 125 miles from Omaha and Lincoln is a mere 49 miles.

            This Commission is not free to simply pick an array in any case, and it is not within the authority of the Commission to base its decisions on whether an array employer has a similar ability to pay. This Commission must base its decisions within the statutory framework of Neb. Rev. Stat. §48-801 et seq. That framework and the decisions of the Nebraska Supreme Court require that our determination in each case must be based upon the legal issues raised by the parties including the factual stipulations of the parties, and the evidence presented in the case.  Thus, the arrays in two cases simultaneously proceeding before the Commission involving two different public safety bargaining units in the same city can be quite different.

For copies of the Tables, please contact the Commission of Industrial Relations, 402-471-2934.