16 CIR 94 (2008)
NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS
Filed February 18, 2009.
Before: Commissioners Burger, Blake, and Lindahl
The Commission entered its Findings and Order on December 23, 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). A Post-Trial Conference was held on January 15, 2009.
The Petitioner’s and the Respondent’s Request for a Post-Trial Conference raised several areas of concerns about the Commission’s Order of December 23, 2008. Those areas are dealt with as follows:
1. Array–Exclusion of Toledo and Columbus, Ohio
The issue presented at the Post-trial conference was whether the exclusion from the array of cities of Toledo and Columbus, Ohio was appropriate. The Petitioner argued vigorously that the testimony of the Respondent’s expert was in fact rebutted by the exhibits reflecting the collective bargaining agreements, and other documentary evidence of the wages and benefits in the three cities. We concede that the Petitioner presented competent evidence concerning the issue.
Nevertheless, the evidence in the record supports a finding that the three cities may reflect a single labor market, and that the weight of the evidence supports our conclusion not to include all three proposed cities.
After reviewing the evidence, we again conclude that the array originally determined to be appropriate in the original findings and order reflects the most appropriate array for comparison to the city of Omaha.
2. Promotional Minimums
The issue presented is whether pay structure should continue to be calculated pursuant to the reported amounts set forth in the array contracts or the actual promotional minimums set forth by the Petitioner in testimony. We find that the evidence from the contracts is the best evidence of what the minimum and maximum pay ranges are at the various array cities. While practice may suggest that those minimums are not usually used in promotional placement, they are nevertheless the agreed for minimums in the contracts. This is not a mischaracterization of the evidence.
With regard to placement for promotions, we did find additional evidence in the various array contracts with regard to how personnel are promoted at the various array cities. In the city of Cincinnati, see Exhibit 72, promoted personnel in the fire department shall be immediately advanced to the highest pay rate available for the classification to which the members are promoted. In the city of Milwaukee, see Exhibit 113, most employees, with the exception of a promotion for Firefighter to Heavy Equipment Operator (this promotion goes to the highest step) are promoted to Step 4 in the new classification. In the city of Lincoln, see Exhibit 100, employees are promoted pursuant to the City’s Personnel Rules (which are not in evidence). In Des Moines, see Exhibit 359, promoted employees pay is increased equal to one step or the 1st step of the newly assigned range, whichever is greater. The contracts of Madison and St. Paul do not address this issue. In three contracts, the employees are given an increase in salary due to their promotion. However, because we do not have Lincoln’s personnel rules in evidence or testimony regarding promotions at Madison or St. Paul, we are unable to determine the prevalent practice among the array members. The Petitioner offered testimony that the current practice in Omaha is to award a 5 percent increase upon promotion as contained in Omaha’s, but, these personnel rules are also not in evidence. Omaha shall retain its current practice of promotions, whatever is the existing practice. We previously held that all other terms and conditions of employment, not specifically changed on account of our order shall be maintained. Promotional placement will be according to the current practice Omaha has in place.
3. EMT Basic Certification Pay at Cincinnati, Ohio: Fire Apparatus Engineer, Fire Captain, Drill Master, EMS Shift Supervisor, Assistant Fire Marshall and Battalion Chief.
In the Commission’s December 23, 2008 Findings and Order, we found that the basic emergency medical technician pay at Cincinnati, Ohio should be added to the minimum and maximum pay because the Cincinnati employees are required to have the certification as a condition of their employment. We included this pay in both the minimum and maximum pay for Cincinnati on the Firefighter wage Table 2; however, we neglected to include the additional .92 cents for the positions of Fire Apparatus Engineer, Fire Captain, Drill Master, EMS Shift Supervisor, Assistant Fire Marshall and Battalion Chief. We will amend our Findings and Order to reflect this additional pay. See Revised Tables 3-8.
4. Probationary Firefighter
The Petitioner is requesting the Commission to clarify when this probationary wage stops for newly employed firefighters. At Des Moines, Milwaukee, St. Paul and Lincoln there is no difference between the base wage of the firefighter and the probationary firefighter and the Petitioner argues it is prevalent to start paying a firefighter wage once they are assigned to a 56-hour week. The Respondent argues there is no evidence upon which to base a conclusion that there ought to be a certain period of time during which one stays in probation, and argues that the current practice indicates that the candidate’s probationary period in Omaha consists of time spent in the training academy, and one year of actual employment in suppression duties.
After a closer review of the various contracts and wage surveys, a prevalancy analysis can be done to accurately calculate the length of months a probationary firefighter should be paid his or her probationary wage. See Table 49. The Respondent will have a 14-month probationary period for trainees, from the inception of their employment.
5. Calculation of Firefighter, Fire Apparatus Engineer, Fire Captain, and Battalion Chief
The issue here is whether we incorrectly rounded in determining the steps in the firefighter’s pay step plan in our Findings and Order. 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. With regard to the question of whether we correctly treated Cincinnati and Madison for the positions of Fire Apparatus Engineer, Fire Captain, and Battalion Chief, we agree with the Respondent that in the instant case flat pay plans do not have any steps and should not be included in determining the amount of steps for an array, where a step pay plan is prevalent. The Tables will remain as previously determined by the Commission in its Findings and Order.
6. Out-of-Class Pay
The issue here is whether the Commission correctly determined how employees should be compensated for working out-of-class pay. The Commission determined that the result was bi-modal based upon the language presented in Exhibit 351. At trial the Respondent did not present a separate hour and rate calculation for the individual out-of-class pay provisions. After careful review of the contracts, we determine that it is prevalent to compensate out-of-class work for all such hours worked at the rate of the higher classification. If we were to leave the result as bi-modal, such a result is clearly inconsistent with the prevalent market practice. See Revised Table 13.
7. Compensatory Time
The Petitioner requested clarification on the treatment of compensatory time accrued by employees in excess of the maximum found to be prevalent in the Findings and Order. The Respondent argues that a reduction in the amount is what the Commission ordered; however if there is any payout of compensatory time, the Respondent requests that any payout should occur at the 2008 rate rather than the 2009 rate. Compensatory time is not a benefit. It is not analogous to sick leave. Compensatory time reflects an agreement between the parties to vary from City’s legal requirement to pay overtime, and to accept compensatory time in lieu thereof. As such, we conclude that accrued compensatory time is a vested right, and should not be reduced retroactively. Accordingly, the Commission’s order on compensatory time allowed will only operate prospectively from the December 23, 2008 order. Implicit in the agreement of the parties is the fact that compensatory time is compensable at the rate of pay effective at the time taken. As such, we decline to impose a complicated formula to deal with that portion of an employee’s accrued compensatory time that exceeds the prevalent.
8. Specialty Pay
Both parties would like the Commission to revisit the issue of specialty pay, specifically the positions of EMT-P(assigned and not assigned) and the position of Hazard Materials (assigned and not assigned). After hearing further explanation by the parties, the Commission finds that both EMT-P and Hazard Materials specialty pay need two categories, one for assigned and one for not assigned and those categories should be calculated on a percentage basis. See Revised Table 33.
9. Offsetting Personal Leave Hours
In its Findings and Order, the Commission ordered the Respondent to reduce the number of personal leave hours from 156 hours to 110 hours. The Petitioner is requesting that the Commission’s order not retroactively impact an employee having taken leave in excess of 110 hours. He or she could have taken another form of leave, or just worked. In Nebraska Public Employees Union, Local 251 v. County of York, 13 CIR 128 (1998), we found that the decision in Crete Educ. Ass’n v. School Dist. of Crete, 193 Neb. 245, 226 N.W.2d 752 (1975), held that the provisions of §48-818 do not preclude an order of the Commission setting rates of pay and terms of employment for the year in dispute. The Commission’s order runs throughout the entire year. Unlike compensatory time, the employees do not have a vested right in personal leave hours. We find that personal leave hours should be retroactively calculated from the beginning of the year as an offset in determining the total amount due to the employee.
10. Retirees Health Insurance, Sick Leave Payout and Advance Notice
The Petitioner requests that the Commission enter an order pursuant to Exhibits 57 and 58 that the mandatory waiting period for retirees to receive annual sick leave pay-outs is not prevalent and should be discontinued (see Exhibit 57), and that the practice of requiring advance notice of 90 days prior to retirement be discontinued (see Exhibit 58). In our 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. We do not have jurisdiction to determine whether retirees mandatory waiting periods and notice periods are prevalent under the array presented. The Commission’s order only governs active members of the bargaining unit.
11. Longevity Pay
The Commission’s original order incorrectly stated the amounts at the 25-year level in Lincoln and Des Moines in Tables 43, 44, and 45. The Commission also incorrectly stated the amount for the 25-year level for Des Moines in Table 46. We will revise the tables with the correct figures and recalculate the mean, median and midpoint. See Revised Tables 43, 44, 45, and 46.
12. Transfer Shifts
The Respondent requests that the Commission clarify whether or not it has the management right to transfer shifts on a temporary basis. In order to clarify the Commission’s order requiring a bid system for shift transfers, we find that while bidding is a prevalent practice, a temporary transfer by management is a right within its control. Our order does not affect the benefits of the bid system on a permanent basis.
The Respondent requests the Commission to order that it is the prevalent practice to have no special requirements with regard to ambulance staffing. The Petitioner requests the Commission to keep the current practice in place where a Captain is staffed on ambulance. According to our new Table 50, it is clear that ambulances should be staffed with 2 employees. The remainder of the staffing requirements are management prerogative and will not be ordered. See Table 50.
14. Union Time
The Respondent requests that the commission should clarify whether the 1,148 hours are the maximum number of hours paid for union business. The Petitioner argues that the maximum number of hours for Omaha is 3,000 and the Commission should use Exhibit 17 in creating a table for the maximum number of hours. After a careful review of the exhibits, the Commission finds that the maximum number of hours should decrease from 3,000 hours to 1,200 hours as recalculated. See Revised Table 16.
15. Uniform Allowance
Both the Respondent and the Petitioner request the Commission to calculate the amount of uniform allowance, however the parties disagree as to what that amount refers to. The evidence is ambiguous as to whether the cash amounts contained within the array contracts apply to replacement cost, cleaning, or cash. Omaha, therefore, will retain its current practice of how the annual amount is applied or given as cash, but, decrease the amount to $461. See Revised Table 18.
16. Sick Leave
The Respondent requests that the Commission determine the amount of sick leave payout. Madison pays out at 100 percent, and Cincinnati, Des Moines, and Lincoln pay out at 50 percent. After calculating the mean, median and midpoint, sick leave payout for resignation, retirement or death will now be at the rate of 57%. See Table 51.
17. Call-Back Pay
Both parties would like the Commission to calculate the number of hours for call-in time. We find that call-in time should be calculated at three hours paid. The Respondent would also like the Commission to clarify whether the Respondent can continue to use, where appropriate, compensatory time to compensate for call-in time. The Petitioner argues the current practice should not be changed. We cannot find from the evidence a clear prevalency in the array. The Respondent will maintain its current practice allowing employees to be compensated for call-in time with compensatory time.
18. Extension of Time
The Respondent 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 Petitioner does not object. 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 Respondent.
IT IS THEREFORE ORDERED that the Petitioner’s and the Respondent’s requests to amend the Order of December 23, 2008 are sustained in part, and overruled in part, as stated herein. It is the Final Order of the Commission that:
1. The Respondent shall maintain its current practice of promotional placement.
2. The Respondent shall change its pay plan to include the additional .92 cents for the positions of Fire Apparatus Engineer, Fire Captain, Drill Master, EMS Shift Supervisor, Assistant Fire Marshall and Battalion Chief as follows:
3. The Respondent shall have a 14-month probationary period for trainees from the inception of their employment.
4. The Respondent shall compensate out-of-class work at the rate of all such hours worked at the rate of the higher classification.
5. The new maximum on accumulation of compensatory time shall only operate prospectively from December 23, 2008.
6. The Respondent shall have the right to transfer shifts on a temporary basis.
7. The Respondent shall provide specialty pay for the positions of EMT-P and Hazardous Materials both at different rates depending on whether the employee is assigned or not assigned. The amount of specialty pay shall be 4% for assigned hazardous materials and 2% for not assigned hazardous materials employees. The amount of specialty pay should be 10% for assigned EMT-Ps and 7% for not assigned EMT-Ps. Percentages should be calculated based upon the same rate Omaha currently pays specialty pay.
8. The Respondent shall calculate personal leave hours retroactively from the beginning of the year as an offset in determining the total amount due to the employee.
9. The Respondent shall now pay $2,314 for Firefighter longevity pay in the 25th year. The Respondent shall now pay $2,359 for Fire Apparatus Engineer longevity pay in the 25th year. The Respondent shall now pay $2,436 for Fire Captain longevity pay in the 25th year. The Respondent shall now pay $3,597 for Battalion Fire Chief longevity pay in the 25th year.
10. The Respondent shall decrease the maximum number of hours paid for union business from 3,000 to 1,200.
11. The Respondent shall provide call-in time at 3 hours paid. The Respondent shall maintain its current practice allowing employees to be compensated for call-in time with compensatory time.
12. The Respondent shall now pay out sick leave amounts upon resignation, retirement or death at the rate of 57%.
13. The Respondent shall retain its current practice for providing uniform allowance but decrease the amount to $461 provided yearly.
14. The Revised Tables 3, 4, 5, 6, 7, 8, 13, 16, 18, 33, 43, 44, 45, and 46, and the new Tables 49, 50 and 51 all reflect the corrections made in this Final Order.
15. 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.
16. 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 copies of the Tables, contact the Commission of Industrial Relations, (402) 471-2934