| FRATERNAL ORDER OF | | | CASE NO. 273 |
| POLICE, LODGE NO. 12, | | | |
| | | ||
| Plaintiff, | | | |
| | | ||
| v. | | | OPINION AND ORDER |
| | | ||
| COUNTY OF ADAMS, | | | |
| NEBRASKA, a Political | | | |
| Subdivision, | | | |
| | | ||
| Defendant. | | |
Appearances:
For the Plaintiff:Brock & Seiler
Les Seiler
For the Defendant: Nelson & Harding
William A. Harding
A. Stevenson Bogue
Before: Judges Green, McGinley and Gradwohl.
GRADWOHL, J.J.
Fraternal Order of Police, Lodge No. 12, Plaintiff, is the certified bargaining agent for employees in the Sheriff's Department of Adams County, Nebraska, Defendant. Fraternal Order of Police, Lodge No. 12, v. Adams County, et al., Case No. 249 (Representation Case No. 75), Certification Order, June 21, 1978. Following Adams County's refusal to bargain with the Plaintiff, Plaintiff instituted this suit pursuant to Section 48-818 for an award of this Court as to:
(1)Wages;
(2)Overtime pay;
(3)Holiday pay;
(4)Vacation benefits;
(5)Health insurance premiums;
(6)Sick leave accumulation;
(7)Tenure; and
(8)Clothing allowance.
Defendant's Answer prays that Plaintiff's Petition be dismissed in its entirety. This Court has jurisdiction of the parties and of the subject matter.
The controlling statute is Section 48-818, R.R.S. 1943, which provides:
"The findings and order or orders may establish or alter the scale of wages, hours of labor, or conditions of employment,or any one or more of the same. In making such findings and order or orders, the Court of Industrial Relations shall establish rates of pay and conditions of employment which are comparable to the prevalent wage rates paid and conditions of employment maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions. In establishing wage rates the court shall take into consideration the overall compensation presently received by the employees, having regard not only to wages for time actually worked but also to wages for time not worked, including vacations, holidays, and other excused time, and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees. Any order or orders entered may be modified on the court's own motion or on application by any of the parties affected, but only upon a showing of a change in the conditions from those prevailing at the time the original order was entered."
This matter was tried most expeditiously by agreement of the parties without entry of a "meet and confer order", pretrial conference, or other pretrial proceeding. The parties agree that employees in the Sheriffs' Departments in Hall County, Dodge County, Madison County, Buffalo County, and Platte County are similar workers exhibiting like or similar skills under the same or similar working conditions as required by Section 48-818. In addition, the Defendant has included Dawson County, Seward County, and York County in its comparisons and the Plaintiff has included Lincoln County and the Hastings City Police Department in some or all of its comparisons.
The Plaintiff objected to inclusion of Dawson County, Seward County, and York County for comparative purposes at the trial and in its post-hearing Brief on the basis that they are smaller counties without a first class city located within the county. The court now takes judicial notice that Lexington is a city of the first class located in Dawson County, Seward is a city of the first class located in Seward County, and York is a city of the first class located in York County. Nebraska Blue Book, 1976-1977, p. 591; Section 27-201, R.R.S. 1943. From the evidence in the record in this matter, we find the Sheriffs' Departments in Dawson County, Seward County and York County should be included in the comparative array.
The Defendant objected to inclusion of Lincoln County on the basis that its population is larger than Adams County, it is some distance removed from Adams County, its inclusion would tend to skew the array, and that the Plaintiff had not shown a similarity of work skills. The evidence with respect to the Sheriff's Department in Lincoln County indicates a high degree of similarity of characteristics to the Sheriffs' Departments in the other eight counties included in the comparative array and, from all of the evidence, we determine that the Sheriff's Department in Lincoln County should be included in the comparative array.
The Plaintiff also attempted to include employees of the Hastings City Police Department for some comparative purposes.The evidence does not establish, however, a similarity of work skills under the same or similar working conditions so as to justify inclusion of the Hastings City Police Department in the comparative array.
We find, therefore, that employees in the Sheriffs' Departments in Hall County, Doge County, Madison County, Buffalo County, Platte County, Dawson County, Seward County, York County, and Lincoln County, exhibit like or similar skills under the same or similar working conditions as employees in the Sheriff's Department in Adams County, Nebraska, on whose behalf Plaintiff has filed this action.
The contested items of wages, hours of labor, and conditions of employment are as follows:
(1) Wages.
Plaintiff conceded both at the trial and in its post hearing Brief that the minimum and maximum levels of the wage rates for employees of the Adams County Sheriff's Department are comparable to the wage rates of other Sheriffs' Departments. The only claim made by the Plaintiff is related to the placement of individual employees on the proper steps of the county's Pay Range Schedule. The authority of the Court in this matter is limited by the requirements of Section 48-818. The evidence does not establish any lack of comparability with respect to placement of individual employees on the steps of a Pay Range Schedule.
In entering any order under Section 48-818, the Court is required to take into consideration the overall compensation received by the employees, including fringe benefits. For that reason, it becomes necessary to consider the level of wage rates as well as the other items for which the Plaintiff seeks an Order of the Court in this matter. The employees of the Adams County Sheriff's Department presently receive the following wage rates (Exhibit 9):
NOTE: Table deleted.
The Court must base its decision on evidence in the record, employing both judicial and legislative judgment. The figures submitted by the parties are in general agreement. Since the Plaintiff has the burden of proof on these issues, where there is a difference in individual figures, the Defendant's figures have been used. The figures are adjusted to 40 hours per week. The figures have not been further adjusted, however, by "number of positions" as Defendant has contended because that factor has been considered in selecting the array for comparative purposes. The following comparisons for Jail/Dispatcher, Deputy I, and Deputy 11 in other comparable Sheriffs' Departments show (Exhibit 6; and the first four columns of Exhibits 18, 19, 20, 21#, 22, and 23):
NOTE: TABLE DELETED.
In making the statutory comparisons for the persons designated as "secretary", we reject Exhibits 14, 15, 24 and 25 for the reason that they do not reflect workers exhibiting the same or similar skills under the same or similar conditions as required by Section 48-818. Evidence as to local private sector employment may be used in a Section 48-818 case if relevant to the statutory requirements of that section. AFSCME v. City of Lincoln, 3 CIR Adv. 481 (Case No. 230, Opinion and Order, September 6, 1978). A local private sector pay survey which does not identify the employers and employees involved is inadmissible in a Section 48-818 case unless there is proof that "the same or similar work of workers exhibiting like or similar skills" is performed "under the same or similar working conditions." The survey submitted by the Defendant in this case did not take into account that the employees involved spend approximately 15% of their time in jail matron and law enforcement activities. (El6:10-22; 76:17-24) Additionally, there is no evidence that the work reflected in this survey was done under the same or similar working conditions. In fact, similarity of working conditions was not an element taken into account in conducting the survey. (E37:4 to 38-11; 39:7-17)
From Exhibits 8, 16 (substituted), and 17 (substituted) and other evidence in the record, we find that comparable pay levels for secretaries of the Hastings Sheriff's Department are:
NOTE: TABLE DELETED.
(2) Overtime Pay.
The Plaintiff requests that the Court order the Defendant to pay time and one-half for overtime in excess of 48 hours per week. The evidence is that Deputy I's have worked approximately 5.87 hours of overtime per month; Deputy II's approximately 63 hours per month; and jailers and dispatchers approximately 13.6 hours per month. The Defendant has appropriated enough funds to compensate these employees for roughly 30% of such overtime at time and one-half. Secretaries receive time and one-half over 40 hours per week. It must also be noted carefully that the basic wage rate comparisons above have, in accordance with the Defendant's computations, been weighted to a 40 hour work week. For that reason, the overtime issue is an important matter in effecting the statutory requirements pertaining to overall compensation.
With respect to this item, the comparable practices are ("CT" means compensatory time):
NOTE: TABLE DELETED.
The Plaintiff argues that the Court should order payment of time and one-half, since to order compensatory time off would be to reduce the law enforcement protection to residents of Adams County. That result does not necessarily follow. Section 48-818 requires the Court to follow prevalent practices. The Defendant's evidence (see testimony of Mr. Catherwood, E54:23 to 55:15, and Exhibit 26) as well as the Plaintiff's evidence (Exhibit 7) shows that compensatory time, rather than paid overtime, is the prevalent practice.
(3) Holiday Pay.
Plaintiff's request is that the county pay double time for employees working a holiday or when the holiday is the officer's normal day off, since the officers cannot schedule compensatory time off. The evidence does not establish any lack of comparability on this item with respect to employees in the Adams County Sheriff's Department. Adams, Buffalo, Hall, York, Madison, Platte, and Lincoln Counties have 11 holidays per year; Dawson County has six holidays; Dodge County has 7 holidays; and Seward County has 10 holidays. No entitlement to double time pay in any other county is shown in the evidence.
(4) Vacations.
Plaintiff requests a vacation benefit as follows:
After 1 year 2 weeks
2 years 3 workweeks
5 years 3 workweeks
15 years 4 workweeks
The present vacation policy is 10 days after 1 year and 15 days after 12 years of employment. The present vacation benefits are comparable to the prevalent benefits reflected in the evidence in this matter (Exhibit 27).
(5) Health Insurance Premiums.
The County currently pays the entire medical insurance premium for employees, $34.77 per month, and $3.11 toward family coverage. As reflected in Exhibit 26 and Defendant's evidence at the trial, the Defendant is currently paying approximately $3.00 per month more than the prevalent amount toward the employee coverage and approximately $45.00 per month less than the prevalent amount toward the family coverage. Exhibit 26, which does not include Lincoln County, shows:
NOTE: TABLE DELETED.
(6) Sick Leave Accumulation.
The County presently allows a sick leave accumulation of 12 days per year up to a total of 60 days. Plaintiff requests that the maximum accumulation be increased to 120 days. Adams County is the only County except Dodge County (pays 25%) in the comparative array that pays any sick leave accumulation upon separation. The annual/accumulation sick leave benefits shown in the evidence are: Lincoln County, No Policy; Platte County, 30/30; Dawson County, 12/90; Dodge County, 12/60; Madison County, Unlimited; York County, 12/60; Hall County, 12/Unlimited; Seward County, 12/60; and Buffalo County, 12/60.
(7) Tenure.
Plaintiff requests "tenure" for employees after six months of employment. There is no evidence in the record that any Department in the comparative array has this condition of employment. Plaintiff has not sustained its burden of proof on this issue.
(8) Clothing Allowance.
Plaintiff requests a clothing allowance to cover maintenance of clothing and all equipment and uniforms except footwear. No such benefit is currently being paid by Adams County. The other counties (Exhibits 11 and 26) pay:
NOTE: TABLE DELETED.
In establishing wage rates, hours of labor, and conditions of employment under Section 48-818, R.R.S. 1943, the Court of Industrial Relations is required to take into consideration the overall compensation received by the employees, including fringe benefits. See Lincoln Firefighters Association, Local 644, v. City of Lincoln, 198 Neb. 174, 252 N. W. 2d 607 (1977). The burden is on the moving party in Section 48-818, R.R.S. 1943, case to demonstrate that existing wage rates, hours of labor, and conditions of employment are not comparable to the prevalent wage rates, hours of labor, and conditions of employment. The burden of proof is satisfied by actual proof of the facts, of which proof is necessary, regardless of which party introduces the evidence.
From the evidence, the rates of pay for employees in the Adams County Sheriff's Department are comparable to the prevalent wage rates within the meaning of Section 48-818. Plaintiff has not sustained the burden of proof that the rates are too low and Defendant has not sustained the burden of proof that the rates are too high. Actually, the proof of both parties was in terms of minimums and maximums for the workers in other Countries. The evidence shows that the actual wages paid by Adams County are within the range of wages paid by the other Counties. For Jail/Dispatchers, the evidence indicates that the average minimum is $696.25 and the average maximum is $764.00. Adams County's average is $763.60. For Deputy I, the average minimum is $749.11 and the average maximum is $892.83 (ignoring Platte County's longevity pay). Adams County's average is $837.50. For Deputy II, the average minimum is $876.57 and the average maximum for the only two counties reporting is $895.50. Adams County's average is $915.66. For Secretary (Matron), the average minimum is $539.77 and the average maximum is $678.33. Adams County's average is $546.00 for 35 hours, which adjusts to $624.00 for 40 hours.
The evidence establishes that compensatory time for overtime work is a prevalent practice within the comparative array. Since neither party desires that compensatory time off be initiated in the Adams County Sheriff's Department, the Court will not enter an order as to compensatory time.
The evidence establishes that Adams County's holiday pay, vacation benefits and sick leave accumulation policy are comparable (on the high side) to the prevalent benefits and that no order should be entered by the Court as to these items.
The Plaintiff has not sustained its burden of proof on the "tenure" item.
The evidence establishes that Adams County's contribution to health insurance premiums and clothing allowance practice are substantially less than the prevalent benefits within the meaning of Section 48-818. Taking into consideration the overall compensation presently received by the employees as required by Section 48-818, the County should be ordered to contribute an additional $39.00 per month to the family medical insurance coverage of employees within that program and the uniformed employees should receive a clothing allowance of $25.00 per month. In making these determinations, the Court has taken into consideration all of the criteria of Section 48#-818 and all of the evidence in the record.
It is, therefore, Ordered that the Defendant pay to employees of the Sheriff's Department within the appropriate unit for which the Plaintiff is the representative an additional amount of $39.00 per month (making the total County contribution $42.11 per month) to the family medical insurance coverage of employees within that program and pay to each uniformed employee a clothing allowance of $25.00 per month. This Order shall be effective for the period from September 1, 1978, to August 31, 1979.
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