17 CIR 100 (2011)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 Entered September 13, 2011

APPEARANCES:

NATURE OF THE PROCEEDINGS:           

        This case was before the Commission on August 24, 2011 for hearing on the request of both parties for a post-trial conference.  The Petitioner appeared by its attorney John E. Corrigan.  The Respondent appeared by its attorneys William A. Harding and Kelly M. Ekeler.  Counsel argued their contentions on the record and the issues were submitted.

            The post-trial conference is a proceeding pursuant to NEB. REV. STAT. 48-816(7)(d) which allows the Commission to correct any portions of Commission’s Findings and Order of August 8, 2011 which are found to not be based upon or which mischaracterizes evidence found in the record.

            The Petitioner in its Motion for Post-Trial Conference filed August 15, 2011 contends that:

              I.  Step placement should be based on years of service and only limited by any year an employee was actually denied advancement on the pay line.

             II.  The Commission should clarify that the Sergeant’s wage is the appropriate match for Norfolk, rather than the Corporal.

            In the Respondent’s Response to the Petitioner’s Motion filed August 17, 2011,  the Respondent responds to the above stated contentions of the Petitioner and then contends that:

            III.  Maximum Education Reimbursement should be reduced.

             IV.  Overtime Work Cycle is a management prerogative and that

              V.  The decrease in annual Sick Leave Maximum Accumulation allowed should not be limited to the 2010-2011 contract year.

            Having considered the trial record and the arguments of counsel, the Commission now Finds and Orders as follows:

              I.  Step Placement:

  In its Findings and Order dated August 8, 2011 the Commission ordered that each employee should be placed on the appropriate new pay plan (Tables 6-9) at a step for which each employee was qualified by time in service as of the contract date, October 1, 2010 and the number of performance evaluations each employee has successfully completed to the date of contract, whichever is the lesser number of steps.

            The Commission now orders that each employee should be placed on the appropriate new pay plan, (Tables 6-9) at the next step above their existing salary.  There is a lack of evidence regarding what impact job performance evaluations should have on step placement.

             II.  Norfolk’s Corporal Wage and Fremont’s Sergeant Position:

            In its Findings and Order dated August 8, 2011 the Commission found that the Sergeant position in Fremont and the Corporal position in Norfolk were comparable and structured Table 3 of its Findings and Order accordingly.

            There is a conflict in the evidence regarding the comparability of these positions.  The Commission now finds that the greater weight of the evidence shows that the Corporal position in Norfolk and the Sergeant position in Fremont are comparable.  Therefore Table 3, page 29 of the Findings and Order dated August 8, 2011 will not be revised.  The Petitioner’s request that said Table 3 be revised is denied.

            III.  Respondent’s Contention that Maximum Education Reimbursement should be reduced:

            In its Findings and Order dated August 8, 2011, Table 20, page 46 stated that the maximum annual education assistance allowed is bi-modal.  See also page 15, paragraph 37 and page 24, paragraph 17 of the August 8, 2011 Findings and Order.  The Respondent argues that because there are five designated inputs of dollar amounts, it is possible to calculate a midpoint, and that the $1,000 currently shows on Table 20 should be reduced to $820.   The Commission agrees and Table 20 will be revised accordingly, along with page 15, paragraph 37 and page 24, paragraph 17.

            The Petition argues that if there is a recalculation and then a reduction in the dollar amount provided for Fremont, then there has to be a dollar value assigned to the unlimited maximum allowed in North Platte and Sioux City.  The Commission cannot comply with that request because there is no evidence regarding what maximum amounts should be assigned.

             IV.  Overtime Work Cycle:

            In the Findings and Order entered on August 8, 2011, page 19, paragraph 29 the Commission discussed and on page 24, paragraph 21 ordered that “the Respondent shall change the number of hours for overtime from 40 to 80 hours bi-weekly.  See Table 24”.  The Respondent argues that ruling was based on Exhibit 25 offered as a showing regarding similar working conditions and not regarding the prevalency of overtime work cycle and that this ruling is inconsistent with Commission precedent.  The Commission did not intend to overrule past precedent on this issue of overtime work cycle and it does appear that Exhibit 25 was misused.

            Paragraph 29 on page 19, and paragraph 21 on page 24 of the Findings and Order entered on August 8, 2011 will be revised by striking “the Respondent shall change the number of hours for overtime from 40 to 80 hours bi-weekly.  See Table 24”.  and substitute “The Respondent shall maintain the current overtime work cycle.”

              V.  Annual Sick Leave Allowance:

            The Findings and Order entered on August 8, 2011, page 18, paragraph 10 discussed and on page 22, paragraph 7 the Commission ordered a decrease in “the Annual Sick Leave Allowance – Maximum Accumulation allowed from 1,200 hours to 1,058 hours only for the 2010-2011 contract year.”  Paragraph 10, page 18 and paragraph 7, page 22 of the Findings and Order will be revised to read:  “Annual Sick Leave Allowance Maximum Accumulation allowed decreased from 1,200 hours to 1,058 hours.  See Table 10.”

            IT IS THERFORE ORDERED THAT the Petitioner’s and the Respondent’s requests to amend the Findings and Order of August 8, 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 place each employee on the appropriate new pay plan (Tables 6-9) at the next step above their existing salary.

            2.  The Corporal position in Norfolk and the Sergeant position in Fremont are comparable.  See Table 3.  The Petitioner’s request that Table 3 be revised is denied.

            3.  It is possible to calculate a midpoint regarding maximum education reimbursement.  The $1,000 shown on Table 20 shall be reduced to $820.  See Revised Table 20 below.

            4.  Paragraph 21, page 24 of the Findings and Order entered on August 8, 2011 shall be revised to order that “the Respondent shall maintain the current overtime work cycle.”  See revised paragraph 21 below.

            5.  Regarding annual sick leave allowance, paragraph 7, page 22 of the Findings and Order entered on August 8, 2011 shall be revised to strike the language “only for the 2010-2011 contract year.”  See revised paragraph 10 below.

            6.  All other terms and conditions of employment for the 2010-2011 contract year shall be as previously established by the agreement of the parties and Findings and Order of the Commission.

            7.  Adjustments in compensation resulting from the 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.

Revised Paragraph 21, page 24:

         21)  The Respondent shall continue to count vacation and holiday hours in overtime at time and one-half, without double time, and allowing compensatory time.  The Respondent shall maintain the current overtime cycle.

 Revised Paragraph 7, page 22:

         7) The Respondent shall increase the hours it allows annually for sick leave from 96 hours to 101 hours. The Respondent shall continue to allow sick leave accumulation but shall decrease its maximum accumulation allowed from 1200 hours to 1058 hours. The Respondent shall continue to grant leave for family illness at the rate of 120 hours allowed per year but shall change its definition of family from Spouse, Child, Mother, Father, Mother-in-Law, Father-in-law and Stepchild to Spouse, Child, Mother, Father, Brother, Sister, Grandchild, Mother-in-Law, and Father-in-law. See Table 10.

To obtain a copy of  the revised Table 20, please contact the Commission of Industrial Relations at (402) 471-2934 or by e-mail at industrial.relations@nebraska.gov.