17 CIR 124 (2011)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 Entered June 23, 2011

APPEARANCES:

NATURE OF THE PROCEEDINGS:           

This action was brought by Fraternal Order of Police, Lodge 45B (“Petitioner” or “Union”) pursuant to Neb. Rev. Stat. § 48-818. The Petitioner is the duly recognized collective bargaining representative for a unit of employees of Gage County, Nebraska (“Respondent” or “County”). The bargaining unit includes employees in the following job classifications: Sergeant, Corrections Officer, Clerical Receptionist, Clerical Records Tech, Investigator, and Deputy Sheriff. The Petitioner seeks the resolution of an industrial dispute over wages and other terms and conditions of employment for the July 1, 2010 through June 30, 2011 contract year.

ARRAY:

The parties have six array counties in common. These counties are: Adams County, Dodge County, Otoe County, Platte County, Saline County, and York County. The Petitioner also argues for the addition of Cass County, Saunders County, Seward County, and Washington County.

Neb. Rev. Stat. § 48-818 gives the Commission discretion in its determination of what is a comparable array. See Lincoln Fire Fighters Ass’n v. City of Lincoln, 198 Neb. 174, 252 N.W.2d 607 (1977). 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).  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.

It is well-settled that the Commission consistently uses common array members for comparison purposes. See Local Union No. 571, IUOE v. County of Douglas, 15 CIR 203 (2006); General Drivers & Helpers Union, Local No. 554 v. County of Gage, 14 CIR 170 (203); Nebraska Public Employees Local Union 251, AFSCME v. County of Douglas, 11 CIR 189 (1992).

Cass County, Saunders County,  Seward County, and Washington County

The Petitioner proposes the inclusion of Cass County, Saunders County, Seward County and Washington County in the array. The Respondent argues that these counties should not be included within the array because they are within the Metropolitan Statistical Area of Omaha, Nebraska (Cass, Saunders and Washington) and within the Metropolitan Statistical Area of Lincoln, Nebraska (Seward). The Respondent also argues that the Commission has a sufficient array of six.

The threshold issue in any Neb. Rev. Stat. § 48-818 wage action is whether the proposed array employers presented by the parties will be determined to be comparable under the statute. In selecting employment units in reasonably similar labor markets for the purpose of comparison as to wage rate and other benefits, the question is whether, as a matter of fact, the units selected for comparison are sufficiently similar and have enough like characteristics or qualities to make a comparison appropriate. Lincoln Co. Sheriff’s Emp. Ass’n v. County of Lincoln, 216 Neb. 274, 343 N.W.2d 735 (1984). Furthermore, the Commission has previously found that larger arrays are more statistically sound than smaller arrays. Adams County Dist. No. 0060 Educ. Ass’n v. Adam County School Dist. No. 0060, 10 CIR 242 (1990).

The Commission has, in the past, used the fact that proposed array cities were located in Metropolitan Statistical Areas to eliminate such cities from the array. See Lincoln Firefighters Ass’n Local 644 v. City of Lincoln, 8 CIR 3l, 44 (l985); Grand Island Educ. Ass’n v. School Dist. of Grand Island, 9 CIR l88, l92 (l987), and Grand Island Educ. Ass’n v. Hall County School Dist., 11 CIR 237, 24l (l992).

In Nebraska Public Employees Union, Local 251 v. County of Otoe, 15 CIR 236 (2006), the Commission held that while being located in an MSA does not in itself require the elimination of a particular array city, it is a factor in considering the work, skills, and working conditions of the employees in the MSA, as compared to the subject array city. The Commission found that historically, the Commission had considered an MSA to comprise a single labor market and has declined to include multiple employers from a single MSA in an array because of concern that to do so would skew the data by using the same labor market twice, so-called “double-dipping”. See, Nebraska Pub. Employees Local Union 251 v. County of Douglas, 11 CIR 189 (1992), City of Omaha v. Omaha Police Union Local 101, 5 CIR 171, (1981).

Nonetheless, in County of Otoe, the Commission found that it had not uniformly adopted Metropolitan Statistical Area (MSA) population as a criterion in selecting or rejecting array members. Indeed, the Commission has on occasion, rejected the use of MSA as a selection criterion. See Douglas County Health Dept. Employees Ass’n v. County of Douglas, 8 CIR 208 (1986), aff’d, 229 Neb. 301 (1988); Lincoln Police Union v. City of Lincoln, 5 CIR 134 (1981); Lincoln Firefighters Ass’n, Local 644 v. City of Lincoln, 3 CIR 130 (1976), aff’d in part and rev’d in part, 198 Neb. 174 (1976).

In County of Otoe, the Commission found no evidence in the record which compelled the Commission to find that a public employer’s inclusion in an MSA had a direct effect on wages or work, skills and working conditions. In fact, the Commission found evidence to the contrary. The record established that all counties, including Washington, performed rural road work, sharing similar work, skills and working conditions such as bridge work. There was no direct evidence that the nature of county road work was impacted by being located in an MSA. In County of Otoe, the Petitioner’s expert witness stated that the definition of an MSA only states that 25% or greater of the workforce commutes to the principal city. The Respondents presented no evidence as to how a commuting workforce altered the work, skills and working conditions of the road crew employees in Washington County, so that including an additional county within the MSA would skew the results of this wage study. The evidence in this case is similar to that in County of Otoe.

In International Ass’n of Firefighters, Local Union No. 647 v. City of Grand Island, 15 CIR 324 (2007) the Commission found no evidence in the record which compelled the Commission to find that Council Bluffs’ inclusion in a Metropolitan Statistical Area had a direct effect on wages or work, skills and working conditions. In fact, the Commission determined that the evidence indicated just the opposite. The Commission held that the general principal of a Metropolitan Statistical Area’s impact on wages was not present. Furthermore, the Commission determined that there was no evidence in the record which compelled the Commission to find that including two public employers from a Combined Statistical Area had a direct impact on wages or work, skills and working conditions.

In the instant case, all ten counties are within the population parameters and all are geographically proximate to Gage County.  The Petitioner’s expert testified that the primary work of the bargaining unit membership is comparable between all of the ten counties in the array. The Petitioner’s expert testified that these are all rural counties with an agricultural base, with the deputies and correctional officers performing highly comparable work in all of the locations. The expert also testified that with the higher number of array members included, the lows and the highs do not have as great of an impact.

The Commission finds the Respondent did not present any evidence that links the impact of the bargaining unit work to the designation as a Metropolitan Statistical Area by the Office of Management and Budget. The evidence presented indicates that these counties and the work performed in them are primarily rural in character and there is no evidence that the counties are highly urbanized, or the working conditions in these counties are impacted by the metropolitan city in their core. The Petitioner’s expert also testified that he could find no data that stated Metropolitan Statistical Areas impacted working conditions of rural sheriffs’ departments.

While the six common array members meet the basic guidelines for an array, the Commission finds the Petitioner’s evidence carries the burden of persuasion on the four disputed counties. There is no direct evidence linking Metropolitan Statistical Areas and the impact those areas have on the working conditions of these rural sheriffs’ departments. All four of these additional counties are clearly proximate to Gage County, within 65 miles to 113 miles. All four county sheriff departments have similar work, skill, and working conditions.  The addition of four array members makes the high and low wage rates less significant and the Commission prefers larger arrays when appropriate. The Commission will also include the four non-common array counties of: Cass County, Saunders County, Seward County, and Washington County.

The array for this case will include: Adams County, Dodge County, Otoe County, Platte County, Saline County, York County, Cass County, Saunders County, Seward County, and Washington County

FRINGE BENEFITS:

Pay Plan Placement

Based upon the array chosen by the Commission, it is prevalent to place employees based upon a combination of time and performance under all four of the job classifications. See Table 7. Drawing upon the performance evaluations of each officer, 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 Respondent cites International Brotherhood of Electrical Workers, Local Union 1597 v. City of Gering, 15 CIR 140, 145 (2005) as the proper method for initial placement of employees on the pay-line. The Petitioner argues that its expert established that the prevalent manner of placement of employees on the pay plan in the market is based upon years of satisfactory performance for the County.

The Nebraska 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), City of Omaha v. Omaha Police Union Local No. 101, 16 CIR 120 (2008) and Professional Firefighters Ass’n Union Local 385 v. the City of Omaha, 16 CIR 35 (2008), the Commission placed employees both by time of service and successful completion of performance evaluations.

In the instant case, we find that each employee should be placed on the appropriate new pay plan (Table 7) at a step for which each such employee has qualified by time in service as of the contract date, July 1, 2010, 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.

Management Prerogatives

            There are certain fringes which we believe are management prerogatives and we will not address the following in this Order:

1)      Overtime Work Cycle after Hours and After Days.

Benefits Not Considered

The Commission shall continue to determine comparability of health insurance and life insurance by comparing the percent of the premium to be paid by the employer and employee. See also Lincoln Firefighters Ass’n Local 644 v. City of Lincoln, 12 CIR 248, 265 (1997); General Drivers & Helpers Union Local 554 v. County of Gage, et. al., 14 CIR 170 (2003).

            The following benefits will not be considered according to the above rule: 

1)      Health Insurance Dollar Amounts.

2)      Life Insurance Dollar Amounts.

Comparable Fringe Benefits

The following fringe benefits shall remain unchanged because they are comparable:  

1)      Sick Leave Payout – Upon Resignation, Continue to provide. See Table 9.

2)      Sick Leave Payout – Upon Dismissal, Continue to not provide. See Table 9.

3)      Sick Leave Payout – Upon Retirement, Continue to provide. See Table 9.

4)      Sick Leave Time Off – Family, Continue to provide. See Table 10.

5)      Sick Leave Time Off – For Funerals, Continue to not provide. See Table 10.

6)      Funeral Leave – Immediate Family, Continue to provide. See Table 11.

7)      Vacation Annual Accrual Days – Remain the same where appropriate. See Table 12.

8)      Holidays – Number of Days, 12 days continue to provide with no personal days. See Table 14.

9)      Holiday Pay- Scheduled Rate – 2.5 times the regular rate and called rate – 2.5 times the regular rate. See Table 15.

10)  Call in Pay – Continue to provide, guaranteed at a minimum of 2 hours paid. See Table 18.

11)  Court Pay – Continue to provide at a minimum of 2 hours paid. See Table 19.

12)  Life Insurance – Continue to provide with 100% employer paid, 0% employee paid. See Table 20.

13)  Overtime Rate – 1.5 times the regular rate. See Table 21.

14)  Compensatory Time – 1.5 times the regular rate. See Table 21.

15)  Sworn Deputies Uniform Allowance – Continue to provide. See Table 22.

16)  Corrections Officers Uniform Allowance – Continue to provide. See Table 23.

17)  Equipment Furnished – All necessary equipment except boots. See Table 24.

18)  Equipment Furnished – Includes badge, brass, night stick, handcuffs, case, flashlight, batts, weapon, ammo clips, shotgun, holster, magazine holder, belt and vest. See Table 25.

19)  Union Dues Check Off – Continue to provide. See Table 27.

20)  Specialty Pay – Continue to not provide for Bomb, Haz Mat, Accident, Training, Emergency Response, Firearms, Defensive, and Armorers. See Table 31.

21)  The Respondent should continue to provide similar health insurance coverage as seen in Table 35.

22)  The Respondent should continue to not provide a cleaning allowance. See Table 36.

23)  The Respondent should continue to not use vacation, sick leave, holidays, and compensatory time as leave time counted as time worked. See Table 37.

Non-Comparable Benefits

The Commission makes the following findings as to non-comparable fringe benefits:

1)      Wage Administration – Step Plan – Prevalent. See Table 7.

2)      Wage Administration – Number of Steps – Increase to 8. See Table 7.

3)      Wage Administration – Number of Years to Maximum – Increase to 11. See Table 7.

4)      Wage Administration – Progression- Change to Performance and Time. See Table 7.

5)      Sick Leave – Number of Hours Earned Per Year – Increase from 96 to 98. See Table 8.

6)      Sick Leave Payout – Upon Death- Prevalent. See Table 9.

7)      Funeral Leave – Immediate Family, Increase from 3 days to 4 days. See Table 11.

8)      Vacation Annual Accrual Days – Increasing and decreasing where appropriate. See Table 12.

9)      Vacation Carryover – Now provide at the amount of 84 hours. See Table 13.

10)  Health Insurance – Family – Decrease from 78% paid by the employer to 71% paid by the employer. See Table 16.

11)  Health Insurance – 2/4 Party – Decrease from 77% paid by the employer to 73% paid by the employer. See Table 16.

12)  Health Insurance – Single – Decrease from 100% paid by the employer to 99% paid by the employer. See Table 16.

13)  Health Insurance – Increase employee percentages from 22% to 29% for Family Health Insurance, from 24% to 27% for 2/4 Party Health Insurance and 0% to 1% for Single Health Insurance. See Table 17.

14)  Call In Pay – Decrease rate from 1.5 times the regular rate to 1.0 times the regular rate. See Table 18.

15)  Court Pay – Decrease rate from 1.5 times the regular rate to 1.0 times the regular rate. See Table 19.

16)  Compensatory Time – Now Provide. See Table 21.

17)  Compensatory Time Maximum – 252 Hours. See Table 21.

18)  Sworn Deputies Clothing Allowance – Now Provide at the rate of $715 dollars annually. See Table 22.

19)  Corrections Officers Clothing Allowance – Now Provide at the rate of $692 dollars annually. See Table 23.

20)  Equipment Furnished – Whistle will not be provided. See Table 25.

21)  Holiday Pay – Discontinue the practice of paying holiday pay for only up to 8 hours and instead pay holiday for just hours worked. See Table 27.

22)  Cellular Phone Reimbursement – Should not be provided. See Table 28.

23)  Maximum Accumulation of Sick Leave – Reduced from 960 hours to 831 hours. See Table 29.

24)   Shift Differential – Should not be provided. See Table 30.

25)   Specialty Pay – Discontinue providing for FTO and K-9. See Table 31.

26)  Working Out of Classification Pay – Discontinue paying. See Table 32.

27)  Residency Requirement – Change from “up to sheriff” to “live in County”. See Table 33.

28)  Probationary Period – Should be increased from 6 months to 12 months, which can be extended. See Table 34.

IT IS THEREFORE ORDERED that for the July 1, 2010 through June 30, 2011 contract year, the following shall be effective as of July 1, 2010:

1) Petitioner’s wages for the July 1, 2010 through June 30, 2011 contract year

shall be as follows:

JOB CLASSIFICATION                                    MIN                           MAX

Sergeant                                                                $ 19.26                        $ 22.58

Investigator                                                           $ 17.70                        $ 22.75

Deputy Sheriff                                                      $ 16.19                        $ 21.12

Clerical Receptionist                                             $ 11.17                        $ 14.95

Clerical Records Tech                                           $ 10.57                        $ 17.19

Correctional Officer                                              $ 13.04                        $ 16.21

2) The Respondent shall change its current pay plan to a step pay plan. The Respondent shall also increase its number of steps to 8 steps with 11 years from minimum to maximum and shall start movement within the steps based upon a combination of performance and time.

3) The Respondent shall increase its number of hours earned per year for sick leave from 96 hours to 98 hours.

4) The Respondent shall continue to provide sick leave payout upon resignation and retirement. The Respondent shall maintain not providing sick leave payout upon dismissal and the Respondent shall now provide sick leave payout upon death.

5) The Respondent shall continue to provide sick leave time off for family members but shall continue to not provide it for funerals.

6) The Respondent shall continue to provide funeral leave for immediate family and the Respondent shall increase the number of days provided from 3 days to 4 days.

7) The Respondent shall decrease annual vacation accrual as follows in year: 1 from 8 days to 7 days; 13 from 20 days to 17 days; 14 from 20 days to 18 days; shall maintain 20 days in years 15 and 20; and shall increase annual vacation accrual in the following years: 2 from 8 days to 10 days; 5 from 8 days to 11 days; 7 from 11 days to 12 days; 8 from 11 days to 13 days; 9 from 11 days to 14 days; 10 from 11 days to 15 days; 11 from 11 days to 15 days; 12 from 11 days to 16 days and MAX from 20 days to 21 days.

8) The Respondent shall now provide vacation carryover at a rate of 84 hours.

9) The Respondent shall continue to provide 12 holidays per year with no personal days.

10) The Respondent shall continue to pay holidays at 2.5 times the regular rate when the employee is both scheduled to work and called into work.

11) The Respondent shall reduce the amount of percentage it pays for Family Health Insurance from 78% paid to 71% paid. The Respondent shall reduce the amount of percentage it pays for 2/4 Party Health Insurance from 77% paid to 73% paid. The Respondent shall reduce the amount of percentage it pays for Single Health Insurance from 100% paid to 99% paid. The Petitioner shall likewise increase the amounts it pays to 29% for Family Health Insurance, 27% for 2/4 Party Health Insurance and 1% for Single Health Insurance.

12) The Respondent shall continue to provide guaranteed call-in pay at a minimum of  2 hours paid but the Respondent shall decrease the rate for 1.5 times the regular rate to 1.0 times the regular rate.

13) The Respondent shall continue to provide court pay at a minimum of 2 hours paid but shall decrease the rate from 1.5 times the regular rate to 1.0 times the regular rate.

14) The Respondent shall continue to provide 100% paid life insurance by the employer (0% by the employee).

15) The Respondent shall continue to allow overtime rate and compensatory time rate at 1.5 times the regular rate. The Respondent shall now provide compensatory time at a maximum of 252 hours.

16) The Respondent shall continue to provide a uniform for the sworn deputies. The Respondent shall also now provide a clothing allowance at the amount of $715 dollars annually for the sworn deputies.

17) The Respondent shall continue to provide a uniform for the corrections officers. The Respondent shall also now provide a clothing allowance at the amount of $692 dollars annually for the corrections officers.

18) The Respondent shall continue to provide all necessary equipment except boots. The Respondent shall also discontinue to provide a whistle, but continue to provide a badge, brass, night stick, handcuffs, case, flashlight, batts, weapon, ammo clips, shotgun, holster, magazine holder, belt, and vest.

19) The Respondent shall continue to provide union dues check off.

20) The Respondent shall discontinue its practice of providing $25 dollars a month for cellular phone reimbursement.

21) Holiday Pay – The Respondent shall discontinue its practice of paying holiday pay for only up to 8 hours and instead pay holiday pay for just hours worked.

22) The Respondent shall decrease the number of maximum accumulation of sick leave hours from 960 to 831.

23) The Respondent shall no longer pay for shift differentials at an additional rate of $0.25 per hour.

24) The Respondent shall discontinuing providing specialty pay for FTO and K-9. The Respondent shall continue to not provide specialty pay for Bomb, Haz Mat, Accident, Training, Emergency Response, Firearms, Defensive, and Armorers.

25) The Respondent shall discontinue providing working out of classification pay.

26) The Respondent shall now require the employees to live inside the county.

27) The Respondent shall increase its probationary period from 6 months to 12 months, which may be extended.

28) The Respondent shall continue to provide the same health insurance coverage type including major medical, maximum benefit, deductible, co-insurance, family stop loss and single stop loss amounts.

29) The Respondent shall continue to not provide a cleaning allowance.

30) The Respondent shall continue to not use vacation, sick leave, holidays and compensatory time as leave time counted as time worked.

31) 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.

32) Any adjustments in compensation resulting from this Order shall be paid in a single lump sum within 60 days of this order.

All other terms and conditions of employment are not affected by this Order.

All panel commissioners join in the entry of this order.

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