4 CIR 167 (1980)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

RETAIL AND PROFESSIONAL EMPLOYEES UNION, | CASE NO. 327
LOCAL 1015 AFL-CIO, |
|
Petitioner, |
|
V. | OPINION AND ORDER
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METROPOLITAN TECH COMMUNITY COLLEGE, |
a division of the State of Nebraska, |
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Respondent. |

Appearances:

For the Petitioner: William Stillmock.

For the Respondent: Robert T. Cannella.

Before: Judges Orr, Kratz, Gradwohl.

ORR, J.:

This case involves a determination of wages and other conditions of employment pursuant to Section 48-818 of the Reissue Revised Statutes of Nebraska, 1943. The Commission has jurisdiction of the parties and of the subject matter.

STIPULATIONS:

By stipulation, the parties agreed that Petitioner is a labor organization as defined in Section 48-801(6), R. R. S. 1943; and that Respondent, Metropolitan Technical Community College Area, is an employer as defined in Section 48-801(4), R. R. S. 1943. The parties stipulated that Petitioner was certified by the Commission as the exclusive bargaining agent for a bargaining unit of the Respondent's employees, identified as:

All regular full-time and regular part-time Security Officers and Guards, employed at the Metropolitan Technical Community College Area facilities, at 30th & Fort Streets and 132nd & "I" Streets, Omaha, Nebraska, excluding supervisory, confidential, and all other employees.

By stipulation, the parties agreed that there were six items in dispute, to-wit:

a.Base wages;

b.Amount of paid sick leave and accrual thereof;

c.Employer paid contributions for health insurance;

d.Employer paid contributions for dental insurance;

e.Number of holidays; and

f.Number and use of personal leave days.

Petitioner contends such industrial dispute as defined in Section 48-801(7), R. R. S. 1943, as to the above items exists for all time periods after July 1, 1978, to the date hereof. However, Respondent contends the industrial dispute exists as to the above listed items only as to the fiscal year July 1, 1978, through June 30, 1979. Except for the parties' respective contentions as to the fiscal years in dispute, all wage and non-wage economic benefits, other than those referred to in sub-paragraphs "a" through "f" hereof, were settled and agreed during bargaining between the parties.

The parties stated in their stipulation that teams representing Petitioner and Respondent effectively bargained from August 30, 1978, to July 25, 1979. Respondent contends that such negotiations and conferences were in regard solely to the fiscal year commencing July 1, 1978, and ending June 30, 1979, while Petitioner contends that such negotiations and conferences extended to all time periods after July 1, 1978.

Petitioner and Respondent stipulated that the security employees of the following employers, in comparison to the security employees of the Respondent, performed the same or similar work, or duties, under the same or similar working conditions, and exhibited like or similar skills from July 1, 1978, until the present date:

University of Nebraska at Omaha

University of Nebraska Medical Center

City of Omaha

Boys Town

Creighton University

Douglas County

(Omaha/Douglas Civic Center)

Omaha Public Schools

Respondent in the stipulation waived all foundational, hearsay, relevancy and materiality objections to Petitioner's exhibits, except that Respondent objected to the relevancy and materiality of all information contained in the exhibits with respect to security employees of Omaha Public Power District and the Omaha Airport Authority, and with the further exception that Respondent objected to the relevancy and materiality of the maximum wages shown on Respondents Exhibits l(a) (Array for period of July 1, 1978, to June 30, 1979) and 2(a) (Array for period of July 1, 1979, to June 30, 1980).

Petitioner in the stipulation wavied all foundational, hearsay, relevancy and materiality objections to Respondent's exhibits, except that Petitioner objected to the relevancy and the materiality of all information contained in such exhibits with respect to security employees of Security International and the

State of Nebraska.

Petitioner and Respondent stipulated and agreed that the two part-time security employees of the State of Nebraska, who work in the Omaha, Nebraska Metropolitan area, in comparison to the security employees of Respondent, performed the same or similar work, or duties, under the same or similar working conditions, and exhibited like or similar skills from July 1, 1978, until the present date.

ISSUES PRESENTED:

1.Whether an industrial dispute exists between Petitioner and Respondent with respect to the six items in dispute for Respondent's fiscal year July 1, 1979, through June 30, 1980.

II.With respect to the six items in dispute, what is the prevalent compensation for comparables during the time period in dispute.

ISSUE I: Years in Dispute

Whether an industrial dispute exists between Petitioner and Respondent with respect to the six items in dispute for Respondent's fiscal year July 1, 1979, through June 30, 1980.

A. Statute :

The controlling statute is Section 48-801(7), R. R. S. 1943, which states:

"Industrial dispute shall include any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange items or conditions of employment, or refusal to discuss terms or conditions of employment."

B. Stipulation :

As stipulated the Petitioner was certified by the Commission on June 21, 1978, and that an "industrial dispute" exists between Petitioner and Respondent. Respondent contends that such industrial dispute exists only to the fiscal year July 1, 1978, through June 30, 1979. However, Petitioner contends the industrial dispute exists for all time periods after July 1, 1978, to the date hereof (Exhibit 3, Paragraph 3 and 4).

C. Facts :

Parties continued to have bargaining sessions from the first fiscal year (August 30, 1978) into the next fiscal year (July 25, 1979). The Petitioner was interested in negotiating for more than one fiscal year, but the Respondent was not prepared to negotiate the second year (1979-80) until the first year (1978-79) was resolved.

D. Conclusion :

From the evidence in this case we find there exists an industrial dispute as to the fiscal year July 1, 1979, through June 30, 1980, in addition to fiscal year June 30, 1978, to July 1, 1979, already stipulated to by the parties. There is an industrial dispute since there is a "controversy concerning terms, tenure or conditions of employment" for period June 1, 1978, to July 30, 1980, and an additional controversy as to "refusal to discuss terms or conditions of employment" for period June 1, 1979, to July 30, 1980.

ISSUE II: Determination of Wages and Conditions

of Employment

With respect to the six items in dispute, what is the prevalent compensation for comparables during the time period in dispute.

A. Statute :

The controlling statute is Section 48-818, R.R.S. 1943, which states:

"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 Commission 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 commission 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 commission'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."

B. Employees :

The single job classification involved in this industrial dispute is "Security Officer". There are eight employees in this job classification (Exhibit 26).

The duties, skills, and working conditions of these workers is described in Metropolitan Technical Community College Job Description for Security Officer (Exhibit 4) and the Metropolitan Technical Community College Notice of Vacancy (Exhibit 5). The testimony of Mr. Hayduska, Respondent's former Personnel Assistant, however, described several inaccuracies as to the work actually performed and the skills required (T44-59, 72-81).

The exhibits and the testimony concerning them reflect the following actual job description of Security Officer:

The Security Officers work directly under the supervision of the Chief Security Officer and on some campuses report directly to the campus director or vice president of that campus (T47-48); handles all security matters such as disturbances; some money runs; building security; student, staff and faculty safety.

The major duties and responsibilities of the Security Officer is to patrol grounds in order to maintain physical security of buildings and facilities. Reports fire and safety violations when observed on building patrol (T49). Conducts money runs limited to $500 and between campuses (T50-51). Monitors traffic and provides traffic control for special events. Assists and directs operations in emergencies. Locks and unlocks buildings during regular hours. Writes reports on investigations of fire and safety hazards, disturbances, and thefts.

The Security Officer must have the following abilities: ability to administer first aid; ability to qualify to handle firearms if the employee wishes to carry a firearm; ability to handle extremely stressful situations with tact and courtesy; ability to communicate clearly and concisely both orally and in writing; ability to relate to all individuals within a multi-cultural campus of an urban community college; and an ability to use a standard two-way radio system.

The Security Officer must have the following knowledge: knowledge of traffic control and regulation; and knowledge of accident and disturbance investigation and reporting procedures.

The Security Officer's minimum qualifications are: three years of education in criminal justice field or high school graduate with prior experience in criminal justice field or military security experience or other guard duty-type experience (T75). The Security Officer must also possess a valid Nebraska driver's license.

C. Comparables :

Section 48-818, R. R. S. 1943, mandates that wages and conditions of employment ordered by the Commission be comparable to those "maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions." This is a factual determination to be made upon the evidentiary record presented in this case. See Crete Educ. Ass'n v. School Dist. , 193 Neb. 245, 253-258, 226 N. W. 2d 752, 757-760 (1975).

In Fraternal Order of Police, Lodge No. 12 v. County of Adams , 205 Neb. 682, 684-685, 289 N. W. 2d 535, 536-537 (1980), the Supreme Court approved the rejection by the Commission of Industrial Relations of evidence pertaining to other employments when the evidence did not establish a similarity of work skills under the same or similar working conditions. The Adams County opinion emphasizes that the Commission must make a factual determination after a consideration and comparison of all of the evidence "whether, as a matter of fact, the units selected for comparison are sufficiently similar and have enough like characteristics or qualities to make comparisons appropriate."

The Petitioner's evidence consisted of comparisons with employees of University of Nebraska at Omaha, University of Nebraska Medical Center, Omaha Municipal Airport Authority, Omaha Public Schools, Omaha Public Power District, and Douglas County (Omaha-Douglas Civic Center). The Respondent's evidence consisted of comparisons with employees of University of Nebraska at Omaha, University of Nebraska Medical Center, City of Omaha, Boys Town, Creighton University, Douglas County (Omaha-Douglas Civic Center), Security International, Omaha Public Schools, Omaha Airport Authority, State of Nebraska, Omaha Public Power District. There were, therefore, six common employers: University of Nebraska at Omaha, University of Nebraska Medical Center, Omaha Public Schools, Douglas County (Omaha-Douglas Civic Center), Omaha Municipal Airport Authority, and Omaha Public Power District. In paragraph ten of the parties' stipulation, the Petitioner and Respondent stipulated that the security employees of the following employers, in comparison to the security employees of Respondent, performed the same work or duties, under the same or similar working conditions, exhibiting the like or similar skills, from July 1, 1978, until the present date:

University of Nebraska at Omaha

University of Nebraska Medical Center

City of Omaha

Boys Town

Creighton University

Douglas County (Omaha/Douglas Civic Center)

Omaha Public Schools

State of Nebraska (part-time security employees)

Whether with respect to the period from July 1, 1978, until the present, the security employees of Security International, Omaha Airport Authority, and Omaha Public Power District, when compared with the security employees of respondent Metropolitan Technical Community College Area, performed the same or similar work or duties, under the same or similar working conditions, and exhibited like or similar skills, are issues of dispute between the Petitioner and Respondent. Petitioner offered Omaha Airport Authority and Omaha Public Power District and Respondent offered Security International.

Mr. Russell Klay, Director of Administrations, testified that all guards at the Omaha Airport Authority carry firearms and, therefore, must have the ability to qualify to handle firearms (T34). The guards have the authority to issue citations for any violation of traffic and parking rules (T33). As to training, the guards undergo formalized training conducted by supervisory personnel of the Airport Authority with the assistance of FBI personnel. The training involves 110 hours, of which 85% is in the classroom (T40).

Mr. Richard Noland, President of Local 1483 of the International Brotherhood of Electrical Workers and an employee of the Omaha Public Power District, testified that the security guards employed by Omaha Public Power District are located at their Fort Calhoun Nuclear Power Plant. The security guards employed by OPPD must carry firearms (T25). The guards must be qualified to carry firearms (T26). The guards qualify annually at the firearm range of the police academy (T25).

Mr. Marion Dishong, Uniform Division Manager for Security International, Incorporated, testified that Security International at one time had a subcontract with OPPD to supply security for Fort Calhoun power plant (Tll8). The nuclear power plant security personnel have to meet a fairly rigid training schedule as established by the Nuclear Regulatory Commission according to Mr. Noland (T27-28). Mr. Dishong stated that 144 hours of training is required under the federal guidelines (Tl2l). The guards are trained on how to repulse an armed attack by an armed force (Tl2l). The security officers are under a standard operating procedure to shoot somebody without asking any questions, if the guards see the person in a certain area of the facility (Tl20-l2l).

Mr. Marion Dishong, Uniform Division Manager for Security International, Incorporated, testified as to the work, skills, and working conditions of Security International's security guards. Security International guards, according to Mr. Dishong, do not do all of the duties that are assigned to Metropolitan Technical Community College Security Officers at all times in a particular position (Tl26). Dishong stated that they may perform some of the functions some of the time, but they may not perform all of the functions all of the time (Tl28). The number of the duties that is required of a particular guard will determine what is charged the customer for Security International's service (Tl28). The job locations are different and the duties are different depending

on what the client requests or desires (Tl27-128). Differences appear in the work and skill requirements. The guards routinely inspect the buildings for fire and safety violations (Tl27). As to minimum qualifications: no high school education is required nor prior experience in the area (TlO6). As to training, there is an inservice training program that teaches first aid and utilizes training films as well as an orientation in traffic control and regulations (T111).

We find from the entire evidence that the following security officer employments are sufficiently similar or have enough likeness in the determination of this matter:

University of Nebraska at Omaha

University of Nebraska Medical Center

City of Omaha

BoysTown

Creighton University

Douglas County (Omaha/Douglas Civic Center)

Omaha Public Schools

State of Nebraska (part-time employees)

We find further that Security officer employments of Omaha Airport Authority, Omaha Public Power District, and Security International are not sufficiently similar or have enough likeness in the determination of this matter and therefore, are excluded from the array of comparables.

D. Wage Comparisons and Other Conditions of Employment

The evidence in this case is that the security employees involved in this proceeding work a standard 40-hour work week (T79-80), except for the State of Nebraska (part-time employees only included). The Respondent presented, on an hourly basis: base wage, fringe benefits, and total compensation data to the Commission for employers selected for the appropriate comparison array (Exhibits: 8-14, 16, 18). The evidence presented by the Petitioner (Exhibits 1 and 2) fails to show benefits allowed or provided by the various employers with respect to course tuition remission, workmen's compensation, social security, and unemployment compensation.

Hourly rates may be used for purposes of making a comparison under Section 48-818, R. R. S. 1943, under appropriate circumstances. Omaha Ass'n. of Firefighters v. City of Omaha , 3 CIR 410 (1978); I.B.E.W., Local 763 v. Omaha Pub. Power Dist. , 3 CIR 554 (1978).

Thus, use of the Respondent's exhibits as to wage comparisons and other conditions of employment is appropriate.

1. Hourly Base Wage

The comparison used by the Respondent is based on the use of minimum salaries. The comparison used by Petitioner set forth minimum salaries and maximum salaries.

We find that it is appropriate to use the minimum salary figures. Seven of the eight employees in the Security Officer job classification are paid at the minimum. Evidence does not indicate how the maximum was obtained whether it be by merit, longevity, prior experience, education, or combinations of those or other factors. In addition the evidence does not indicate whether the employees of Respondent would have been at a different level than the minimum in another comparable employment situation.

The evidence shows that for the 1978-79 fiscal year, the wages were higher than five of the seven employers in the comparison array. In the 1979-80 fiscal year, the wages were higher than four of the eight employers in the comparison array.

2. Amount of Paid Sick Leave and Accrual

The evidence shows that three of the seven employers in fiscal year 1978-79 allowed more days in paid sick leave. In fiscal year 1979-80, three of the eight employers in the comparison array allowed more days earned in paid sick leave.

The evidence shows that four of the seven employers in fiscal year 1978-79 allowed more maximum accrual to paid sick leave. In fiscal year 1979-80, four of the eight employers in the comparison array allowed more days in maximum accrual of paid sick leave.

3. Employer Paid Contribution for Health Insurance

The evidence shows that four of the six employers with comparison data in fiscal year 1978-79 made a larger contribution to the health insurance of its employees. As to the 1979-80 fiscal year, five of the seven employers with comparison data made a larger contribution to the health insurance of its employees.

4. Employer Paid Contribution for Dental Insurance

Of the comparable employers, only Boys Town and Douglas County made a contribution for dental insurance during fiscal years 1978-79 and 1979-80.

5. Number of Holidays

No comparable employer offered more holidays than Metropolitan Technical Community College in fiscal year 1978-79 and 1979-80. There were two of the eight comparable employers who offered less holidays in fiscal year 1978-79 and in fiscal year 1979-80 two of the nine comparable employers offered less holidays.

6. Number of Personal Leave Days

None of the comparable employers offered in fiscal years 1978-79 and 1979-80 the benefit of personal leave days, per year, usable for any purpose, which are charged against sick leave.

E. Determination as to "Overall Compensation"

Section 48-818, R. R. S. 1943, states that "in establishing wage rates the commission 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." This rule of overall compensation does not require an identity of benefits, but that the overall compensation be "comparable to the prevalent wage rates paid and conditions of employment for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions." These determinations must be made on the basis of the evidence introduced by the parties in the trial of the case. The determinations under Section 48-818, R. R. S. 1943, may, therefore, vary from case to case depending upon the evidence introduced by the parties.

The evidence shows that for fiscal year 1978-79 the wages and conditions of employment were more favorable at Metro Tech than the other employments. For fiscal year 1979-80 the wages and conditions of employment for Metro Tech were lower than the other comparable employments. Applying the statutory requirements to the entire evidence in this case, we find that the wages and conditions of employment for fiscal year 1978-79 should remain unchanged; that the base wage for 1979-80 should be increased by $.30 per hour from $4.22 per hour to $4.52 per hour; and that the other conditions of employment for 1979-80 should remain unchanged.

IT IS THEREFORE ORDERED that for Security Officer, the base wage shall remain unchanged at $4.22 per hour for fiscal year 1978-79; and the base wage for fiscal year 1979-80 shall be increased from $4.22 per hour to $4.52 per hour (and from $4.70 per hour to $5.00 per hour for the Security Officer previously paid that amount). No other adjustment is ordered concerning the wages and conditions of employment for the employees represented by the Petitioner in this matter.

This Order shall be effective from the period July 1, 1978, through June 30, 1980.

All of the Judges assigned to the Panel in this matter join in the entry of this Opinion and Order.

Filed June 20, 1980.

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