17 CIR 414 (2012)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

APPEARANCES:

Entered September 17, 2012

 Before:  Commissioners McGinn, Burger, and Spray

MCGINN, Commissioner

NATURE OF THE CASE

            On June 26, 2012, the Commission entered its Findings and Order regarding wages and terms and conditions of employment for the Washington County Police Officers Association/F.O.P. Lodge 36 (“Union” or “Petitioner”), the duly recognized collective bargaining representative for a unit of employees in the sheriff’s office of Washington County (“County” or Respondent”). The parties timely filed a joint motion requesting a post-trial conference pursuant to Neb. Rev. Stat. §48-816(7)(d), which was held on August 24, 2012. The parties sought correction of clerical and mathematical errors, as well as a resolution of disagreements on certain issues. The parties submitted a joint stipulation with proposed corrections to the stated composition of the bargaining unit, wage administration for Captain, maximum hourly wage for Captain, compensatory time maximum accumulation, and uniform allowance for sworn personnel. These proposed corrections shall be made and are noted below. Additionally, the Commission heard argument from the parties regarding other issues of concern. Those issues are also addressed below.

 Step Pay Plan Creation

            In its request for post-trial conference, Petitioner argues that the Commission failed to adequately address the creation of a pay scale and the placement of employees on the new pay scale, and requests in its post-trial brief that this Commission explicitly direct Respondent to develop a pay scale which utilizes both the prevalent minimum and maximum wages and market comparability to determine the length of time an employee must serve to advance along each step and the wage to be assigned to each step. Respondent contended at the post-trial conference that the Commission not alter its original Findings and Order because it already clearly states what must be done to create the appropriate pay scales and the Commission can only order what has been shown in evidence to be prevalent.

            Under Neb. Rev. Stat. § 48-818, we are charged with the duty to establish rates of pay which are comparable to the prevalent wage rates paid to employees performing same or similar work exhibiting same or similar skills under same or similar work conditions. In determining the prevalent minimum and maximum wage for each job classification we looked at the salary information submitted to us for each comparable job classification within the chosen array. Using this same method, we also determined the prevalent pay plan to be used for each job classification, the method of placement, as well as how an employee should progress through the newly ordered pay line. In this case, the evidence is unclear as to the market comparability of the length of time an employee could remain on a particular step and the wage to be assigned to each step.

            The Nebraska Supreme Court has upheld our authority to establish a wage-step progression schedule as a condition of employment. Douglas Cty Health Dept. Emp. Ass’n v. Douglas Cty., 229 Neb. 301, 422 N.W.2d 28 (1998); Plattsmouth Police Dept. Collective Bargaining Committee v. Plattsmouth, 205 Neb. 567, 288 N.W.2d 729 (1980). In AFSCME, Local 1109 v. City of Grand Island, 13 CIR 1 (1997), the Commission was faced with determining the length of time of each step within a prevalent step pay plan having not received any market survey data of the prevalent practice within the array. The Commission, using stipulated evidence from the parties and testimony from Respondent’s expert, concluded that the prevalent pay line steps for each job classification were an even dollar amount dividing the steps of each pay line equally between the prevalent minimum and maximum to incorporate the prevalent steps in each pay line over the prevalent years of service eligibility for progression through the pay line. Id. at 4-5. We utilized this method again in Int’l Bhd. of Elec. Workers Local Union 1597 v. City of Gering, 15 CIR 140 (2005) to find the length of time of each step within the new step pay plans found to be prevalent by the Commission.

Our Findings and Order in the instant case ordered that Respondent maintain the step pay plan currently in place for the Deputy Sheriff, Detective, Communications Officer, and Corrections employees. We find that clarification is necessary, and shall clarify our Findings and Order to find that it is prevalent in the array to place the Deputy Sheriff, Detective, Communications Officer, and Corrections employees on a step pay plan. Respondent shall create a step pay plan for the Deputy Sheriff employees containing 8 steps with 7 years between the prevalent minimum and maximum wage. Respondent shall create a step pay plan for Detectives and Communications Officers containing 8 steps with 8 years between the prevalent minimum and maximum wage. Respondent shall create a step pay plan for Corrections employees containing 9 steps with 7 years between the minimum and maximum wage. For each of these job classifications, the pay line within these new step pay plans shall be an even dollar amount dividing the steps of each pay line equally between the prevalent minimum and maximum to incorporate the prevalent steps in each pay line over the corresponding prevalent years of service.

Placement on the New Pay Scale

            In its brief in support of the request for post-trial conference, Petitioner argued that the Commission give credence to the testimony of Washington County Sheriff Mike Robinson and order Respondent to use Sheriff Robinson’s trial testimony regarding observations as to job performance in determining an employee’s placement on the new pay plan. Respondent argued during post-trial conference that the Findings and Order were clear and that no clarification is necessary.

In Plattsmouth Police Dept. Collective Bargaining Committee v. Plattsmouth, 205 Neb. 567, 288 N.W.2d 729 (1980), the Nebraska Supreme Court affirmed our determination that employees within the same job classification with differing years of experience should be placed on different steps and paid different wages depending upon that experience. The Court stated that the Commission’s determination recognized that “experience and longevity in employment may provide a basis for an increase in compensation over the starting salary fixed for a particular job classification.” Id. at 569. Our recognition in Plattsmouth is still a valid one, and the parties should keep this in mind when working together to properly create a workable pay scale with comparable wages.

            According to testimony at trial, written performance evaluations were first performed in 2010. Sheriff Robinson testified that he was aware of the past performance of individuals listed in Exhibit 54 prior to 2010, and stated that none of the individuals listed in Exhibit 54 have had performance or discipline issues which would prevent progression along the pay line. (Trial Tr. Vol. I, 70:2 – 71:3, Feb. 16, 2012).

            In our Findings and Order, we ordered that the Deputy Sheriff, Detective, Communications Officer, Corrections employees be placed on a step pay plan using successful performance evaluations and the employee’s time in service as of the contract date, July 1, 2011, with placement not resulting in a decrease in pay for the employee. We shall further clarify our Order and find that placement in the new pay plan shall be consistent with Sheriff Robinson’s observations of an employee’s job performance since 2010, as well as an employee’s time in service as of the contract date, July 1, 2011. Progression along the pay line shall remain as previously ordered in our June 26, 2012 Findings and Order.

            We shall also clarify our previous Order in regards to the Captain, Sergeant, and Clerical employees to find that placement of these employees within the new pay range shall be based on Sheriff Robinson’s observations of an employee’s job performance as of 2010. Progression along the pay line shall be based on successful written performance evaluations only, and not a combination of performance evaluations and time in service.

Wage Overlap

            Wage overlap occurs when an employee in a subordinate rank earns a higher wage than an employee in the superior rank. This does create personnel issues for paramilitary organizations such as a sheriff’s department. To negate this potential conflict, Petitioner requests that the Commission order that the new pay scale specifically prohibit any wage overlap. Our determination must be made based on what is prevalent in the array. Petitioner argues that Officer Hanson’s unrefuted testimony during trial stated that is prevalent to not have wage overlap in the array based on the information presented in Exhibit 11. Respondent argues that the Commission must order what is shown by evidence, even if that results in an overlap of wages for Washington County.

We have examined Exhibit 11, and we note that the exhibit includes Harrison County, Iowa and Mills County, Iowa and excludes three Nebraska counties: York, Gage, and Otoe. Harrison County and Mills County were both excluded from the chosen array, and the three Nebraska counties were all included. Because Exhibit 11 does not show evidence of prevalence within the array chosen by the Commission, we must determine whether we have sufficient evidence on record to make a determination on wage overlap as requested by Petitioner.

            During trial, Officer Hanson testified that Gage County does have wage overlap, York County does not have wage overlap, and Otoe County would be not applicable because there is no sergeant and no command ranks. (Tr. 177:17-25 - 178:1). Using both Officer Hanson’s testimony as well as the relevant information in Exhibit 11, we have enough evidence to determine whether wage overlap is prevalent in the chosen array. Based on our examination of the evidence, we find that four counties do not allow wage overlap, four counties do allow wage overlap, and two counties are not applicable, making the mode bi-modal for the array. Therefore, we shall not order a change in Washington County’s current practice of allowing wage overlap in the wage administration of sworn command. Our finding shall be illustrated in what is entitled Table 54.

 Bargaining Unit

            Both parties agree that the Commission incorrectly stated the composition of the bargaining unit to include three job classifications that are not actually in the bargaining unit: Dispatch Supervisor, Communications Director, and Food Management. After reviewing the record, we find that the bargaining unit was misstated, and we therefore amend the third sentence of the first paragraph on page 1 of the Findings and Order to read: “The bargaining unit includes the classifications of Deputy Sheriff, Investigator, Sergeant, Captain, Corrections Officer, Clerical, Dispatcher, and excluding Sheriff, Chief Deputy, and Reserve Deputy.” 

Wage Administration- Captain

            The parties agree that the Commission incorrectly stated the wage administration for Captain. We agree. We find that page 9 of the Findings and Order shall be amended to read:

“4) Wage Administration Captain- Elimination of Step Plan and Progression based on Performance instead of Longevity. See Table 11.”

Captain- Maximum Hourly Wage

            The parties agree that the maximum hourly wage for Captain on page 11 of the Findings and Order is incorrect. We agree, and shall amend the Order at page 11, paragraph 1 to read that the maximum wage for the Captain classification shall be $24.71.

Compensatory Time Maximum Accumulation

            The parties agree that three paragraphs regarding maximum accumulation of compensatory time should be corrected. We agree, and order the following corrections:

1.      Page 10, first paragraph numbered “12” should read: “12) Other Overtime Sheriff’s Department- Establish Compensatory Time Rate and increase Compensatory Time Max Accumulation from 60 to 257. See Table 25.”

2.      Page 13, first paragraph numbered “20,” second sentence should read: “20) Respondent shall continue to allow employees to earn and accumulate compensatory time and increase the maximum accumulation of compensatory time from 60 hours to 257 hours.”

3.      Table 25 misstates the maximum amount of compensatory time accumulated in Dakota County as 200 hours instead of 80 hours. This amount shall be corrected on Revised Table 25. This shall require a recalculation of the mean, median, and midpoint of the benefit. Based on the corrected hours for Dakota County, the mean shall change from 287 to 273, the median shall remain unchanged at 240, and the midpoint shall change from 264 to 257. See Revised Table 25.

Uniform allowance- Sworn Personnel

            The parties agree that the paragraph numbered “38” on page 14 of the Findings and Order misstates the determination of the uniform allowance for sworn personnel as that we are ordering no change to the current uniform allowance instead of ordering a decrease as shown in Table 43. After reviewing Table 43, we find that the paragraph numbered “38” on page 14 of the Order shall be amended to read: “38) Respondent shall continue to provide Sworn Personnel a uniform allowance but shall decrease the amount from $1,264 to $597.” 

Vacation Hours Accrual

            In its brief in support of its request for post-trial conference, Respondent stated that the vacation hour accrual for Cass County after years 6, 8, and 9 in Table 32 were incorrect because the numbers used were referenced from an exhibit which was not offered into evidence. Upon review, we find that the vacation hour accrual for Cass County after years 6, 8, and 9 are incorrect and should be amended to state that years 6, 8, and 9 are 96 hours in Table 32.

            By amending Years 6, 8, and 9 for Cass County in Table 32, we must amend the mean, median and midpoint for each year. Therefore, we find that Table 32 should be further amended as follows: Year 6: mean- 92, median- no change, midpoint- 94; Year 8: mean- 98, median- 96, midpoint- 97; Year 9: mean- 99, median- 96, midpoint- 98. See Revised Table 32.

            Finally, the Findings and Order at page 13 should be amended to read: “27) Respondent shall increase annual vacation accrual after Year…6 from 80 hours to 94 hours…Respondent shall decrease annual vacation accrual after Year…8 from 120 hours to 97 hours; 9 from 120 hours to 98 hours…” 

Health Insurance- Percent Employer Paid

            In its brief in support of its request for post-trial conference, Respondent contended that it is entitled to an offset for its contributions to the employee Health Savings Account (“HSA”) for family and 2/4 party coverage, as these employer contributions are not prevalent in the array. Petitioner contended at the post-trial conference that the Commission’s decision to determine prevalence based on the percentage of employer contributions to the primary PPO plan is correct, as no evidence was presented to compare an employer’s contribution to a PPO to an employer’s contribution to a HSA.

            In determining the prevalence of health insurance contributions, the Commission has consistently made an “apples to apples” comparison of health plans when determining the prevalence of the percentage of contributions paid by employers to health insurance plans for employees. See Int’l Bhd. of Elec. Workers Local Union 1597 v. City of Gering, 15 CIR 140 (2005). Although we were provided evidence as to whether a county within the array does or does not make a HSA contribution, we were not given evidence as to how these plans compare to one another. We shall therefore make no determination as to the prevalence of HSA contributions within the array, and we will not order any offset for contributions made by Respondent during the contract year.

Maximum Accumulation of Sick Leave

            Petitioner argues that the Commission erred in assigning a value of “unlimited” instead of a numerical value for the maximum accumulation of sick leave in Platte County in Table 28. Respondent argues that the use of the term “unlimited” was used for Platte County because a dollar amount is too difficult to determine. No evidence was given regarding a dollar value for Platte County, and therefore the Commission shall not alter Table 28 by adding a dollar value for Platte County.

            During the post-trial conference, Respondent argued that, based on the use of “unlimited” for Platte County, the midpoint for the array should be 874 instead of 894 as ordered by the Commission in its Findings and Order. Because we are making no change to the value input on Table 28 for Platte County, we find that the midpoint should be amended to 874 instead of 894 on what will now be Revised Table 28. We shall also amend page 10, paragraph number “15” of the Order to read: “15) Sick Leave- Max Accumulation decreased from 1200 hours to 874 hours. See Table 28.” Additionally, paragraph number “23” on page 13 of the Order should be amended to read: “23) Respondent shall decrease the maximum number of sick leave hours accumulated from 1,200 hours to 874 hours.”

Uniform & Equipment Allowance and Conversion of Sick Leave to Cash

            In its brief in support of its request for post-trial conference, Petitioner argued that Table 45, Uniform and Equipment Communications- Dispatcher, and Table 30, Sick Leave- Conversion to Cash Policy (upon Resignation), each should have been found to be bimodal and that the Commission should have therefore ordered no change for either benefit. Respondent argued at the post-trial conference that the Commission make no change to the Findings and Order or Tables 45 and 30.

            A two-prong analysis was used in making our determinations for both Tables 30 and 45. First, we set out to determine whether the benefit was prevalent in the array, and found that each benefit was bi-modal. Since the benefits were found to be bi-modal, we ordered Washington County to continue to offer each benefit to its employees. After determining that the benefits would continue to be offered, we looked at each array member which offered the benefit to make a determination as to the amount allowed. Per our prevalence analysis of determining midpoints of those amounts reported for the counties offering the benefit, we calculated the midpoint for each benefit for those array members offering the benefit to their employees. Those midpoints are illustrated in Tables 30 and 45. We shall remain consistent in our fringe benefit determinations, and we therefore find that no changes shall be made to our Findings and Order or Tables 30 and 45. 

            IT IS THEREFORE ORDERED that Petitioner’s and Respondent’s requests to amend the Findings and Order of June 26, 2012, are sustained in part and overruled in part and such Order shall be as stated herein. It is the Final Order of the Commission that:

1.      Respondent shall create step pay plans in the following manner:

a.       Respondent shall create a step pay plan for the Deputy Sheriff employees containing 8 steps with 7 years between the prevalent minimum and maximum wage.

b.      Respondent shall create a step pay plan for Detectives and Communications Officers containing 8 steps with 8 years between the prevalent minimum and maximum wage.

c.       Respondent shall create a step pay plan for Corrections employees containing 9 steps with 7 years between the minimum and maximum wage.

d.      For each of these job classifications, the pay line within these new step pay plans shall be an even dollar amount dividing the steps of each pay line equally between the prevalent minimum and maximum to incorporate the prevalent steps in each pay line over the corresponding prevalent years of service.

2.      Regarding pay plan placement, we shall clarify that the Deputy Sheriff, Detective, Communications Officer, Corrections employees in the new pay plan shall be consistent with Sheriff Robinson’s observations of an employee’s job performance since 2010, as well as an employee’s time in service as of the contract date, July 1, 2011. Captain, Sergeant, and Clerical employees shall be placed within the new pay range based on Sheriff Robinson’s observations of an employee’s job performance as of 2010.

3.      Respondent shall not change its current practice of allowing wage overlap in the wage administration of sworn command. See Table 54.

4.      Page 1, first paragraph, third sentence shall be amended to read: “The bargaining unit includes the classifications of Deputy Sheriff, Investigator, Sergeant, Captain, Corrections Officer, Clerical, Dispatcher, and excluding Sheriff, Chief Deputy, and Reserve Deputy.”

5.      Page 9 shall be amended to read: “4) Wage Administration Captain- Elimination of Step Plan and Progression based on Performance instead of Longevity. See Table 11.”

6.      Page 11, paragraph 1 should be amended to read that the maximum wage for the Captain classification shall be $24.71.

7.      Page 10, first paragraph numbered “12” should be amended to read: “12) Other Overtime Sheriff’s Department- Establish Compensatory Time Rate and increase Compensatory Time Max Accumulation from 60 to 257. See Table 25.”

8.      Page 13, first paragraph numbered “20,” second sentence should read: “20) Respondent shall continue to allow employees to earn and accumulate compensatory time and increase the maximum accumulation of compensatory time from 60 hours to 257 hours.”

9.      Page 14, paragraph numbered “38” shall be amended to read: “38) Respondent shall continue to provide Sworn Personnel a uniform allowance but shall decrease the amount from $1,264 to $597.”

10.  Page 10, paragraph number “15” shall be amended to read: “15) Sick Leave- Max Accumulation decreased from 1200 hours to 874 hours. See Table 28.” Additionally, page 13 paragraph number “23” shall be amended to read: “23) Respondent shall decrease the maximum number of sick leave hours accumulated from 1,200 hours to 874 hours.” Finally, Table 28 shall be revised to illustrate that the midpoint should be amended to 874 hours instead of 894 hours.

11.  Table 25 shall be revised as follows: maximum amount of compensatory time accumulated in Dakota County shall be amended from 200 hours to 80 hours; the mean shall be amended from 287 hours to 273 hours, the median shall remain unchanged at 240 hours; and the midpoint shall be amended from 264 hours to 257 hours.

12.  Table 32 shall be revised to illustrate that Years 6, 8, and 9 in Cass County are 96 hours.  The mean, median, and midpoint for Years 6, 8, and 9 shall be amended as follows: Year 6: mean- 92, median- no change, midpoint- 94; Year 8: mean- 98, median- 96, midpoint- 97; Year 9: mean- 99, median- 96, midpoint- 98. Finally, the Findings and Order at page 13 should be amended to read: “27) Respondent shall increase annual vacation accrual after Year…6 from 80 hours to 94 hours…Respondent shall decrease annual vacation accrual after Year…8 from 120 hours to 97 hours; 9 from 120 hours to 98 hours…”

13.  All other terms and conditions of employment for the July 1, 2011 through June 30, 2012 contract year shall be as previously established by the agreement of the parties and by the Findings and Order of the Commission.

14.  Adjustments and compensation resulting from this Final 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.