|GENERAL DRIVERS & HELPERS|||||CASE NO. 445|
|UNION, LOCAL NO. 554 affiliated||||
|with INTERNATIONAL BROTHERHOOD OF||||
|WAREHOUSEMEN & HELPERS OF AMERICA,||||
|v.|||||OPINION AND ORDER|
For the Petitioner: David D. Weinberg
Weinberg & Weinberg, P.C.
For the Respondent: Roger J. Miller
Nelson & Harding
Before: Judges Kratz, Gradwohl, and Davis.
The petition herein requests the Commission to determine wages and conditions of employment for the certified bargaining unit of the Saunders County Highway Department. The Respondent claims (1) the Commission has no authority to issue an order herein because the Petitioner has failed to meet its burden of proving comparability; (2) the Respondent's methodology of comparison should be applied and the employees' wages, based on that comparison, should be decreased; and (3) the bargaining unit improperly includes supervisors.
Petitioner and Respondent are covered by a collective bargaining agreement for the period from September 1, 1980, to June 30, 1982. Pursuant to its terms, that agreement was reopened for negotiation of wages and insurance coverage for the period from July 1, 1981, to June 30, 1982. Unable to reach agreement on these two items, the Petitioner filed this action. A labor dispute exists and the Commission of Industrial Relations has jurisdiction.
Respondent argues that this determination should not apply to the two bridge foremen, the road foreman, and the special foreman because they are supervisors and therefore not a part of the bargaining unit. At the hearing, the Union argued that the industrial dispute, under Section 48-818, should be limited to the issues of wage rates and dependent health insurance coverage, and the supervisor issue should instead be clarified in a representation proceeding. We disagree. We are asked here to determine wages and conditions for employees within a certified bargaining unit and we need to determine, therefore, whether or not these disputed individuals are a part of that unit.
In N.A.P.E. v. Nebraska Game and Parks Commission , 197 Neb. 178, 247 N.W.2d 449 (1976), the Supreme Court held that supervisory or managerial personnel may not enter into a bargaining unit with rank and file employees and may not retain the same bargaining agent. In City of Grand Island v. A.F.S.C.M.E., IBEW and IAFF Local 647 , 186 Neb. 711, 715, 185 N.W.2d 860 (1971), the Supreme Court stated that supervisors were any individuals having authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgement.
The evidence shows that the two bridge foremen 1 and the road foreman have the authority to (1) assign, train, and discipline employees, (2) authorize overtime, and (3) effectively recommend the hiring and firing of employees. The supervisory status of the special foreman is no longer in dispute inasmuch as the Petitioner agreed, at the hearing, that he exercised sufficient supervisory duties so as to be excluded from the bargaining unit. Appendix G of Petitioner's Exhibit #1 includes certain supervisory duties in the model job descriptions for each of these four positions. The Commission finds that the bridge foremen, road foreman, and special foreman are supervisors. These employees, therefore, should be excluded from the collective bargaining unit and the determination of wages and conditions herein shall have no application to them.
With regard to the issue of wages and insurance coverage, the applicable statute is Section 48-818, R.R.S., 1943, which says as follows:
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 tie, and all benefits received, in eluding 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.
In selecting employment units in reasonably similar labor markets for the purpose of comparison as to wage rates and other benefits, pursuant to Section 48-818, the question is whether, as a matter of fact, the units selected for comparison are sufficiently similar and have enough like characteristics of qualities to make comparisons appropriate. Fraternal Order of Police v. County of Adams , 205 Neb. 682, 685, 289 N.W. 2d 535, 537 (1980); Omaha Ass'n of Firefighters v. City of Omaha , 194 Neb. 436 444, 231 N.W. 2d 710, 713 (1975); Crete Educ. Ass'n v. School Dist. of Crete , 193 Neb. 245, 255, 226 N.W. 2d 752, 758 (1978). Since this is a factual determination, the use of a particular array in one case does not require that the same array be appropriate in a different case. Crete Educ. Ass'n v. school Dist of Crete , 193 Neb. 245, 255, 226 N.W. 2d 752, 758 (1975).
Selection 48-818 provides 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 requires that the overall compensation be "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." 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 may, therefore, vary from case to case depending upon the evidence.
The jobs in the bargaining unit appear in the evidence under somewhat different titles and Respondent's expert witness translated county job titles to titles of a broader nature, referred to as "class titles". For the purpose of this Opinion and Order the Commission uses the county job titles found in Respondent's Exhibit #19, Appendix E. We find the following jobs to be those presently included in the bargaining unit:
Heavy Equipment Mechanic II
Heavy Equipment Mechanic I
Equipment Operator III
Equipment Operator II
Equipment Operator I
Bridge Construction and Maintenance Worker
Road Construction and Maintenance Worker
Highway Safety Analyst
The Petitioner introduced evidence of same and similar work and current wages paid applicable to Heavy Equipment Mechanic II, and Equipment Operator II and III by Haulaway, Inc. Evidence was also offered by Petitioner as to wages paid for work similar to the positions of Heavy Equipment Mechanic II, Equipment Operator II, Equipment Operator III, and Road Construction and Maintenance Worker by members of the Heavy Highway Contractors Association (Association) under agreement with the Operating Engineers, Local No. 571, for work performed in the Saunders County area. The Commission finds that Haulaway, Inc. and the Association should be included as employers for wage comparisons. The members of the Association are included as a single employer because all employees work under the same contractual provisions. Petitioner also submitted comparables for the position of Equipment Operator I for Herman Brothers, Inc. and the Association. However, the Respondent did not submit any comparables for this position and the Commission, therefore, cannot make a wage determination for an Equipment Operator I because two employers are not sufficient to provide adequate data for determining a prevalent wage.
In addition to showing wages paid by employers under the Operating Engineers Union agreement, Petitioner's evidence included testimony of wages paid in the Saunders County area under collective bargaining agreements between area employers and the Laborers Union of North America, Local 1140, and the Iron Workers Union, Local 21. Business representatives of these two unions testified that unemployment among their members was significantly higher during the winter season, and two trust fund administrators testified that contributions to their funds in behalf of employees of these trades were substantially less during the winter months. According to Section 48-818, the Commission must take into consideration "the continuity and stability of employment enjoyed by the employees." In General Drivers & Helpers Union, Local $554 v. Douglas County , 3 CIR 504, 508 (1978), this Commission held:
[T]here was no evidence showing "continuity of employment" which has a very definite bearing on the comparison of wages between the public and private sectors, particularly in those instances where the private sector is off work and drawing unemployment during a portion of the year during adverse weather conditions or a general shutdown of employment.
In the case of General Drivers & Helpers Union, Local 554 v.Douglas County , Case #444, Opinion and Order entered July 15, 1982, this same Petitioner offered this same type of evidence for unskilled laborers. The Commission found the work was seasonal and held that "it is not appropriate to compare wages paid by employees for highly seasonal work with wages paid for year round employment."
Respondent's expert witness selected the following county employers on the basis of 1980 population compared to Saunders County population of 18,716) and the distance from the county seats of those counties to the county seat of Saunders County (Wahoo).
1980 Distance from County
County Population Seat to Wahoo
Cass 20,297 38
Cuming 11,664 42
Dodge 35,847 46
Otoe 15,183 51
Platte 28,852 40
Saline 13,131 51
Seward 15,789 30
Washington 15,508 33
In addition, Respondent submitted the following three employers who perform work in Saunders County: Nebraska Department of Roads (Wahoo), Farmer's Union Cooperative Association, and City of Wahoo.
In his job matching, Respondent's expert witness translated job titles to class titles, which resulted in the renaming of some positions and combining of two or more county job titles where he considered they involved the same or similar levels of skills and work (see Respondent Exhibits #1C, 1D). The evidence shows a clear similarity of work and skills within the class titles used by this witness and this translation from job titles to class titles is therefore accepted by the Commission. In determining the wages herein, the Commission will therefore use the job titles as implemented by the employer in its final offer to the union. We find that the county employers and the three additional employers proposed by the Respondent should all be included in the array for the jobs surveyed.
A determination of the prevalent wages for the positions of Heavy Equipment Mechanic I, Equipment Operator I, and Highway Safety Analyst cannot be made due to insufficient data. There are no employers submitted for the Heavy Equipment Mechanic I and Highway Safety Analyst that have employees performing the same or similar levels of skills and work. For the Equipment Operator I position there were only two employers with employees performing same or similar work. However, as previously mentioned, the Commission does not consider two employers as a large enough array to provide adequate data for determining a prevalent wage rate.
Tables 1 through 4 show wage comparisons with other employers in the array for Heavy Equipment Mechanic II, Equipment Operator II and III, Bridge Construction and Maintenance Worker, and Road Construction and Maintenance Worker. These tables demonstrate that Saunders County is at or above the prevalent wage rate for all of the surveyed positions. Table 1 shows Saunders County is at the prevalent with respect to a Heavy Equipment Mechanic II and Table 2 shows Saunders County at the prevalent with respect to the positions of Equipment Operator II and III. Tables 3 and 4 demonstrate that the wages paid to the Bridge Construction and Maintenance Workers and the Road Construction and Maintenance Workers are clearly above the prevalent. The only area where Saunders County is below the prevalent is the area of Medical-Hospital Insurance coverage, especially dependent coverage. This is illustrated by Table 5, which sets out the array for insurance coverage.
In establishing rates of pay and conditions of employment, Section 48-818 requires that the Commission take into consideration the overall compensation received by employees. We find that the wage rates and insurance coverage for Saunders County should remain unchanged. The fact that Saunders County is slightly above the prevalent with respect to wages can be offset against the fact that Saunders County is slightly below the prevalent with respect to insurance coverage. Thus, the wage rates and insurance coverage should not be adjusted.
The following tables show the minimum and maximum monthly salaries of the positions in the bargaining unit (Tables 1 through 4), the insurance coverage comparison among the employers selected for the array (Table 5), Respondent's implemented wages (Table 6), and the placement of the employees in the bargaining unit by pay grade (Table 7).
We find that the last offer implemented by the Respondent on August 7, 1981, constituted a wage increase of approximately 6% for the members of the bargaining unit for the time period of July 1, 1981, to July 30, 1982. The heretofore listed tables demonstrate that the wages paid to the employees in the bargaining unit are at or above the prevalent and therefore no further change should be made regarding wages and conditions of employment. The parties were at impasse at the time of the wage implementation and the Union had not yet filed this action with the Commission. Therefore, Section 48-818, which provides in pertinent part that "the employment status of such employee shall not be altered in any way pending disposition of the petition by the Commission", was not violated. As had been previously mentioned, the implementated wages, which are the current Saunders County wages, are set out in Table 6, and Table 7 sets forth the placement of the employees in the bargaining unit by pay grade.
IT IS THEREFORE ORDERED THAT:
1. The positions of Bridge Foreman, Road Foreman and Special Foreman are supervisory positions and should therefore be excluded from the bargaining unit.
2. The wage rates, insurance coverage, and other conditions of employment shall remain unchanged for the period of July 1, 1981, to June 30, 1982. The wage rates for this period are set forth in Table 6, and the Commission adopts these wages as being comparable to the prevalent wage rates paid for the same or similar work of the members of the bargaining unit. The specific placement of the employees by pay grade is set forth in Table 7.
All Judges assigned to the panel in this case join in the entry of this Opinion and Order. Judge Gradwohl, however, (1) would order the wage rates, insurance coverage, and other conditions of employment to remain unchanged for the "supervisory" positions for the reason that the evidence does not warrant a change under the criteria or Sec. 48-818, and (2) agrees that on the record in this instance two other employments is not a large enough array to provide adequate data for determining prevalent wage rates and conditions of employment, but does not agree, as a proposition of law rather than a determination of fact, that a two employment array would in all instances be insufficient.
Filed September 27, 1982
1 Willis Hinrickson is one of the two bridge foremen. His testimony indicated he did not consider himself a supervisor. He nevertheless admitted that he and his 3 man crew construct the bridges without direction from anybody else, and the evidence also shows that his authority is very similar to that of the other bridge foreman, William Fuller.