17 CIR 5 (2011)
NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS
Entered June 22, 2011
Before: Commissioners Lindahl, Burger, and Blake
NATURE OF THE PROCEEDINGS:
The Fraternal Order of Police, Lodge No. 32 (hereinafter, “Petitioner”) filed a wage petition on August 31, 2010, seeking resolution of an industrial dispute for the September 1, 2010 through August 31, 2011 contract period. The Association is a labor organization formed by certain employees employed by the County of Lancaster (hereinafter, “Respondent” or “County”) for the purpose of representation in matters of collective bargaining.
The parties submitted to the Commission a Joint Stipulation with regard to the array of counties to compare to the County of Lancaster. See Exhibit 1, including Exhibit A and Exhibit B. The parties used the seven-county array of Anoka County, MN; Douglas County, NE; Polk County, IA; Shawnee County, KS; Sedgwick County, KS; Scott County, IA; and Waukesha County, WI. The Commission does not set aside stipulations of the parties and certainly does not “seek” array members to supplement an agreed-to array by the parties. The parties have approved the above seven-county array; the wages that result from that array are agreed to by the parties. The Commission does not make any findings with regard to those increases or decreases in wages resulting from the parties’ agreement.
The parties agreed on many fringe benefits as seen in Exhibit 1, the parties’ Joint Stipulation. See Tables 1 through 32, attached to this Findings and Order. The parties, however, cannot come to agreement on one issue: compensatory time off in lieu of overtime. The three sub-issues with regard to compensatory time are as follows:
1. Whether the Commission of Industrial Relations has jurisdiction to require an employer to vary its legal requirement to pay overtime by providing compensatory time to employees in lieu of payment for overtime worked.
2. Whether a provision for a bank of compensatory time off to be used by the employee in lieu of the payment of overtime is a management prerogative or a subject of bargaining.
3. What is the prevalent practice in the market place with regard to the provision for a compensatory time bank?
Before the Commission can determine the prevalency of compensatory time, the Respondent argues the Commission lacks jurisdiction, and is therefore barred from any authority to issue a ruling on compensatory time bank. The Respondent argues the Fair Labor Standards Act preempts the Respondent from allowing compensatory time. The Respondent argues that because of this preemption that the language of the FLSA bars the Commission from making a determination of prevalancy on the issue.
The Respondent explains its argument stating that the FLSA statute states a public employer MAY provide compensatory time but the employer is not required to offer compensatory time. The Respondent reasons this language means that the Federal government intended for compensatory time to be a management prerogative. The Petitioner argues that the Fair Labor Standards Act does not jurisdictionally bar the Commission from addressing this matter. The Petitioner suggest that the plain language of the statutes states that Congress intended that the parties could collectively bargain regarding the provision of compensatory time in lieu of overtime.
The Fair Labor Standards Act requires that covered, nonexempt employees receive not less than one and one-half times their regular rates of pay for hours worked in excess of the applicable maximum hours standards. 29 U.S. C. § 207.
29 U.S. C. § 207 (o) states as follows:
(o) Compensatory time
The plain reading of the statute allows public employers to provide compensatory time in lieu of a payment of overtime. The Commission fails to see the relevancy of this statute on the proceedings before it. The Commission has jurisdiction to settle pending industrial disputes and establish or alter the scale of wages, hours of labor, or conditions of employment between public employers and a labor organization representing public employees. See Neb. Rev. Stat. § 48-818. The Commission finds the Fair Labor Standards Act does not preclude the Commission from jurisdiction over this case, nor does it state that compensatory time is a management prerogative. The Commission concludes there is no jurisdictional bar for it to address this matter.
Management Prerogative or Mandatory Subject of Bargaining
The Respondent argues that compensatory time is inseparable from overtime, and is, therefore a management prerogative. The Petitioner argues that the Commission has expressly held that compensatory time banks are mandatory subjects of bargaining and has repeatedly ordered compensatory time as a benefit for employees where it is prevalent in the market.
The Respondent is correct that generally overtime is a management prerogative, for example as it relates to the scheduling of hours. See Lincoln Firefighters Ass’n, Local Union No. 644 v. City of Lincoln, 12 CIR 248 (1997). However, the Commission has determined that parts of overtime are instead mandatory subjects of bargaining. Fraternal Order of Police Lodge 41 v. County of Scotts Bluff, 13 CIR 270 (2000). The issue in this case whether compensatory time in lieu of overtime is more akin to a management prerogative or more akin to a mandatory subject of bargaining. The Commission has consistently in the past found that compensatory time in lieu of overtime is indeed a mandatory subject of bargaining. See also Fraternal Order of Police Lodge 41 v. County of Scotts Bluff, 13 CIR 270 (2000) and Professional Firefighters Association of Omaha, Local 385 v. City of Omaha, 16 CIR 94 (2008). In Firefighters Ass’n of Omaha, Local 385, the Commission stated that compensatory time reflects an agreement between the parties to vary from the City’s legal requirement to pay overtime, and to accept compensatory time in lieu thereof. The Commission concluded in Firefighters Ass’n. of Omaha, Local 385, that compensatory time was a vested right and should not be reduced retroactively.
The Commission has also consistently ordered compensatory time as a benefit in wage cases. See e.g. Omaha Police Union, Local 101 v. City of Omaha, 11 CIR 114 (1991); Professional Firefighters Association of Omaha, Local 385, 16 CIR 94 (2008); International Association of Firefighters, Local No. 1575 v. City of Columbus, 11 CIR 267 (1992); City of Omaha v. Omaha Police Union Local 101, 16 CIR 120 (2008); Fraternal Order of Police Lodge 12 v. County of Adams, 3 CIR 585 (1978). In Omaha Police Union, Local 101, the Commission states that while the city of Omaha did not allow compensatory time, all the array cities allowed compensatory time. 11 CIR at 128. Based on the array presented, the Commission then ordered Omaha to provide compensatory time, arriving at a rate of up to a maximum of 237 hours. Id.
In Metropolitan Technical Community College Educ. Ass’n v. Metropolitan Technical Community College Area, 203 Neb. 832, 281 N.W.2d 201 (1979), the Nebraska Supreme Court stated that a balancing test is needed in determining whether a certain subject is a condition of employment or a prerogative of management. The Court must balance whether the issue is predominantly one of “educational policy” or “the employer’s mission” versus whether the issue relates primarily to the wages, hours or working conditions of the employees.
The evidence in the instant case demonstrates the economic impact upon an employee. The Respondent did not provide evidence that the issue of compensatory time was related to its mission to better operate the Lancaster County Corrections facility. Instead, the Respondent argues it cannot provide compensatory time under its interpretation of the Fair Labor Standards Act. The Commission has consistently found compensatory time is a mandatory subject of bargaining and under the facts presented in this case, it remains a mandatory subject of bargaining. Therefore, the Commission shall determine the prevalency of compensatory time in the instant case.
The Petitioner argues that there is a prevalent practice in the market for the Respondent to provide compensatory time in the amount of a maximum of 76 hours. The Respondent currently does not provide compensatory time, but instead pays cash overtime. As seen in Exhibit 37, the counties of Douglas, Shawnee, Sedgwick, Scott and Waukesha all provide compensatory time banks. Therefore, five of the seven array members provide compensatory time banks, making compensatory time prevalent in the market at a midpoint rate of 76 hours. The Respondent should allow these employees to bank compensatory time up to a maximum of 76 hours. See Table 33.
IT IS THEREFORE ORDERED THAT:
1. The Respondent shall allow these bargaining unit employees to bank compensatory time up to a maximum of 76 hours. See Table 33.
2. The Commission received Exhibit 1, the Parties’ Joint Stipulation, including the details itemized by the parties in Exhibits A and B, and approves the same. See Tables 1 through 32.
3. Any adjustments in compensation resulting from this order shall be paid in a single lump sum payable within thirty (30) days of this final order, if possible.
4. All other terms and conditions of employment are not affected by this Order.
All 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 firstname.lastname@example.org.