16 CIR 461 (2011)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 Entered February 17, 2011.

APPEARANCES:

Before:  Commissioners McGinn,  Orr,  Blake, Burger and Lindahl (En Banc).  Burger dissenting.

MCGINN, C.

The Commission entered its Findings and Order on January 4, 2011. 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). A Post-Trial Conference was held on January 26, 2011.

            The Petitioner’s and the Respondent’s Request for a Post-Trial Conference raised several areas of concerns about the Commission’s Order of January 4, 2011. Those areas are dealt with as follows:

1.  Array–Exclusion of Cincinnati, Ohio   

The issue presented at the Post-Trial Conference was whether the exclusion from the array of the City of Cincinnati, Ohio was appropriate. The Petitioner argued vigorously that Cincinnati should be included. The Petitioner also stated that it introduced evidence addressing both of the Respondent’s objections to Cincinnati in the pretrial order. The Petitioner stated that those objections were “double dipping” and that Cincinnati was not very geographically proximate to Omaha.

Neb. Rev. Stat. § 48-816(7)(d) allows the Commission to hear from the parties on those portions of the recommended Findings and Order which are not based upon or which mischaracterize evidence in the record. Generally, array choice is not a proper subject for discussion at a post-trial conference. See District 8 Elementary Teachers Ass’n v. School Dist. No. 8, 8 CIR 136 (1985).

However, if a party challenges array choice on the basis that the Commission mischaracterized or did not base its choice on the evidence presented, the Commission can correct any such error, if one exists. In the Commission’s Findings and Order, the Commission found that the weight of evidence rested on the side of excluding Cincinnati, Ohio. The Commission did consider all the evidence presented at trial, in looking at Dr. Robert Otteman’s testimony, the testimony of Ursula McDonnell, Loren Muschall, and Paul Essman and both the Petitioner’s and Respondent’s exhibits. The Commission still finds the record lacks the evidence necessary to include Cincinnati, Ohio in the array.

Since the Commission can find no mischaracterization of the evidence, our previous findings shall stand as issued by the Commission on January 4, 2011. After reviewing the evidence, we again conclude that the array determined to be appropriate in the original Findings and Order reflects the most appropriate array for comparison to the City of Omaha. Therefore, Cincinnati, Ohio will not be included in the array.

            2.  Lead Medic- Compensation

            The Petitioner argued that the Commission should clarify that, based on the array selected by the Commission, lead paramedics should be compensated at a higher rate of pay. The Respondent argues that the Commission should not change the rate of pay because the Petitioner did not present any quantifiable data as to whether increased compensation should be paid and, if so, what should be the amount of that additional pay.

            At the Post-Trial Conference the Petitioner presented the Commission with rates to determine the pay for lead paramedics. While the Commission does not dispute the accuracy of these figures, the Commission cannot determine whether those rates are based in the evidence presented at trial. Therefore, the Commission declines to order a rate of pay for lead medics since the Commission cannot base the rate from evidence presented at trial.

3.  Pay Administration- Paramedic Shift Supervisor, Drill Master, and Assistant Fire Marshal

The Petitioner requests that the Commission clarify the pay administration for the Paramedic Shift Supervisor, Drill Master and Assistant Fire Marshal positions, because the Commission did not directly do so in its original Findings and Order issued on January 4, 2011. The Respondent does not dispute this issue. Therefore, in order to clarify the previous order we will align the Paramedic Shift Supervisor and the Drill Master positions with the Captain pay administration as seen in the Revised Table 11 below and the Assistant Fire Marshal will be aligned with the Battalion Chief position as seen in the Revised Table 12 below. 

            4.  Vacation Accumulation

The Petitioner is requesting the Commission to clarify that to the extent vacation carryover from year to year is not a prevalent practice, any vacation earned by the employees prior to the time of the Commission’s decision be credited to those employees who accumulated and carried over the vacation in previous contract years.  Alternatively, the Respondent argues this issue is moot and that the Respondent is entitled to an offset for the vacation accumulation if the Commission determines the issue is not moot.

We have clearly found the benefit of vacation leave carryover not moot in past cases. See General Drivers & Helpers Union Local 554 v. County of Gage, 14 CIR 170 (2003) (sick leave maximum accumulation and vacation leave carryover found not moot). See also General Drivers and Helpers Local Union No. 554 v. Darlene Robertson and the City of Scottsbluff, 12 CIR 120 (1995) (vacation leave carryover determined not moot).

While the Commission also does not have jurisdiction over previous or future contract years, the Respondent is entitled to an offset. We find that vacation accumulation should be retroactively calculated from the beginning of the year as an offset in determining the total amount due to the employee. Therefore, the Respondent is entitled to an offset.

            5.  Sick Leave Payout Upon Retirement – Percentage of Sick Leave

            The Petitioner argues that a midpoint can be determined between the three cities that provide sick leave payout, allowing a percentage conversion at retirement.  The Respondent argues the issue is moot because the year in question is over.

            In the Commission’s January 4, 2011 decision the Commission determined sick leave pay out upon retirement was moot. We have held that sick leave pay out upon retirement is moot in the past. See Nebraska Public Employees Local Union 251 v. Otoe County, 12 CIR 177 (1996).      The Petitioner also argues that in the Commission’s decision in the 2008 case between the parties we determined this benefit. However, in 2008 the Commission’s decision was implemented prior to the expiration of the contract year and therefore was not moot. Sick leave payout upon retirement will remain moot as previously determined by the Commission in its Findings and Order, January 4, 2011.

            6.  Pay Administration for the Battalion Chief

            The issue here is whether the Commission correctly rounded the median in the pay administration steps for the battalion chief’s position. The Petitioner argues the median should be 7 rather than 9 as provided and that the midpoints should be 8 rather than 9 accordingly. The Respondent simply asks that the Commission follow its past practice– whatever that may be. The Commission has consistently rounded 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). The rounding will remain as previously ordered. Therefore, the median should remain a 9, as does the midpoint of the steps.

            7.  Holiday Pay

            The Petitioner requests that the Commission order additional hours paid to employees who actually work holidays.  See Table 13. The Respondent argues that the Commission correctly determined that “regular pay” is the appropriate mode.

            In arriving at the figures in Table 13, the Commission used Petitioner’s Exhibit 30 and Respondent’s Exhibit 198. While both exhibits 30 and 198 do state that some shifts at St. Paul receive 3 to 6 hours for working a holiday, even if the Commission were to place “3 to 6 hours” in the line for St. Paul, no clear mode exists.  However, after reviewing the evidence established at trial again, the Commission still determines that the indicated “regular pay rate” for St. Paul is the appropriate rate to be placed in the line for St. Paul. Therefore, the Commission finds no mischaracterization of the evidence and the mode should remain regular pay rate.

8.  Vacation Accrual

Both parties agree that the Commission incorrectly ordered the mean, median and midpoint in year six (6) for Vacation Accrual in Table 14. After reviewing Table 14, the Commission’s original order does in fact incorrectly state the mean, median, and midpoint at year six (6). We will revise the table with the corrected mean, median and midpoint. See Revised Table 14.

           9.  On-Call Pay

Both the Respondent and the Petitioner request the Commission to clarify this issue. The Petitioner requests that the Commission clarify that the employer should provide additional compensation if it places employees in an on-call status and leave the matter in the hands of the parties to negotiate in the future.  Whereas, the Respondent suggests the Commission’s decision is unusual and suggests that the Commission’s order should have been that no change with regard to on-call pay should take place.

In the Commission’s Findings and Order dated January 4, 2011, the Respondent was ordered to provide on-call pay at a guaranteed rate at an amount negotiated to by the parties because the result had no clear prevalent amount. See Table 31. It is clear, based upon the evidence presented at trial, that on-call pay was indeed a prevalent practice. However, at trial neither party presented the Commission with quantifiable data to determine the rate of on-call pay. Without the quantifiable data, the Commission cannot order a rate. Therefore, the Commission orders that on-call pay is prevalent but cannot order what amount the Respondent should pay on-call employees.

            10.  Longevity Pay

            The Petitioner requests that with respect to year 10 for Madison, the Petitioner believes that instead of $1,535, the figure for longevity pay after year 10 should be $3,069 and that the mean, median and midpoint should be adjusted accordingly with the new figure. The Petitioner also requests that the Commission determine that maximum in Exhibit 20 means after the 26^th year of service. The Respondent argues that longevity pay is pay and not a benefit and the Commission should include zeros in arriving at the amounts of longevity pay offered to employees.

            With regard to the Petitioner’s first issue, after reviewing Petitioner’s Exhibit 20, it is clear the Commission incorrectly placed the figure $1,535 in Madison’s line for year 10 and the figure will be adjusted to the correct figure of $3,069. The Commission will revise the table with the correct figures and recalculate the mean, median and midpoint. See Revised Table 33.

            With regard to the Petitioner’s second issue, the Commission must consider the evidence presented at trial to determine the proper meaning of “max”.  The Commission’s Table 33 lists the last year of longevity pay as ”max”. In reviewing exhibits of the parties, a reasonable interpretation of “max” implies after the 26^th year of service. Therefore, the Commission will revise the table accordingly. See Revised Table 33.

With regard to the Respondent’s issue, the Commission has consistently not included zeros in its calculation of longevity pay in the past.  See Professional Firefighters Ass’n of Omaha, Local 385 v. City of Omaha, 16 CIR 35 (2008) and International Union of Operating Engineers, Local Union 571 v. Cty. of Douglas, 15 CIR 203, 208 (2006). The Commission can find no mischaracterization of evidence. The table calculating longevity pay will remain as previously determined by the Commission in its Findings and Order.

            11.  Payout Wait Period for Sick and Annual Leave Accrued Banks

            The Petitioner is requesting that the Commission determine how long the union members must wait for the payout of their sick and annual leave accrued banks. The Respondent argues that this issue is moot because the year in question is over. The Petitioner argues that the payout is also moot if the wait period is moot.

            The Commission determined the issue of payout moot in its January 4, 2011 decision. The Commission declines to determine the payout wait period because sick and annual leave accrued banks are moot.

            12.  Probationary Period

             The Petitioner requests that the Commission clarify when the probationary wage stops for newly employed firefighters. The Respondent argues the Commission does not have sufficient evidence in the record to make such a determination. After a review of the Petitioner’s wage surveys, a prevalancy analysis can be done accurately to calculate the length of months a probationary firefighter should be paid his or her probationary wage. See Revised Table 1. The Respondent will decrease its current 14-month probationary period for trainees to a 6-month probationary period.  

13.  Hazardous Materials Unassigned Certification Pay

The Petitioner requests that the Commission clarify whether hazardous materials certification pay is applicable to all bargaining unit employees who hold hazardous materials certification rather than the “special operations” designation required by the City of Omaha before employees are allowed to receive unassigned hazardous materials certification pay.

After reviewing the testimony and exhibits, the Commission determines there is a lack of evidence regarding unrelated disciplines and how the City of Omaha or any of the other array members consider unrelated disciplines in paying hazardous materials certification pay. Without this evidence, the Commission is unable to determine the prevalent practice. Therefore, the Commission is unable to order the parties as to how unassigned hazardous materials certification pay should be paid to the bargaining unit employees and cannot order any change to how the Respondent currently considers offering unassigned hazardous materials pay.

14.  Staffing

The Respondent requests that the Commission clarify its decision with regard to daily staffing, staffing by rank and overall staffing. Specifically the Respondent would like to understand which staffing issues are management prerogatives and which staffing issues relate to safety and are mandatory subjects of bargaining. The Petitioner argues the Commission ordered no change because the Commission does not have jurisdiction over the subject matter. The Petitioner further argues that Fiberboard v. N.L.R.B, 379 U.S. 203 (1964), states that even when management topics touch on public safety, those issues must be bargained.

Staffing proposed bargaining topics such as “daily staffing”, “staffing by rank”, and “overall staffing” are management prerogatives as stated previously in the Commission’s Findings and Order, issued on January 4, 2011.  The Commission does not have jurisdiction over management prerogatives. Nebraska Dept. of Roads Emp. Ass’n v. Dept. of Roads, 189 Neb. 754, 205 N.W.2d 110 (1973); IBEW v. City of Fairbury, 6 CIR 205 (1982).  The Commission cannot order any change because the Commission lacks the authority to do so. “Daily staffing”, “staffing by rank”, and “overall staffing” determinations are management prerogatives, properly within the City of Omaha’s prerogative to make changes accordingly.

IT IS THEREFORE ORDERED that the Petitioner’s and the Respondent’s requests to amend the Order of January 4, 2011 are sustained in part, and overruled in part, as stated herein. It is the Final Order of the Commission that:

1.      The Respondent shall align the Paramedic Shift Supervisor and the Drill Master positions with the Captain pay administration as seen in the Revised Table 11 below and the Assistant Fire Marshal will be aligned with the Battalion Chief position as seen in the Revised Table 12 below.

2.      The Respondent shall receive an offset for vacation accumulation.

3.      The Respondent shall increase annual vacation accrual for 24-Hour Employees in Year 6 from 168 hours to 187 Hours.

4.      The Respondent shall now pay $1,162 for Firefighter longevity pay after the 10^th year of service.

5.      The Respondent shall now pay $2,855 for Firefighter longevity pay after the 26^th year of service.

6.  The Revised Tables 1, 11, 12, 14, and 33 all reflect the corrections made in this Final Order.

7.  All other terms and conditions of employment for the 2008-2009 contract year shall be as previously established by the agreement of the parties and by orders and findings of the Commission.

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

Commissioners Orr, Blake and Lindahl join in the entry of this order.  Commissioner Burger dissents.

           G. Peter Burger, Dissenting:

I continue to believe  Cincinnati should have been included, and renew my dissent.

To request copies of the Revised Tables, call (402) 471-2934 or e-mail your request to industrial.relations@nebraska.gov