13 CIR 50 (1998)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Before: Judges Cullan, DeLay and Anderson

CULLAN, J:

NATURE OF PROCEEDINGS

This action was brought by Nebraska Public Employees Local Union 251, AFSCME (hereinafter Petitioner) on June 27, 1996 pursuant to '48-818. Petitioner is the collective bargaining agent for a bargaining unit consisting of certain full-time and part-time employees of Sarpy County, Nebraska (hereafter Respondent). Petitioner seeks resolution of an industrial dispute over wages and other terms and conditions of employment for the contract year which commenced July 1, 1996 and ended June 30, 1997. Petitioner filed an Amended Petition on July 8, 1996. Respondent filed an Answer to the Amended Petition on August 12, 1996. At the Rule 15 B preliminary proceedings the parties elected not to bifurcate the case to hear the issue of the array separately and before determination of wages and terms and conditions of employment. After completion of discovery a pretrial conference was conducted on April 8, 1997. Trial was held on April 14 and 15, 1997.

ARRAY

The basis for selecting an array is set forth in '48-818 which provides in pertinent part as follows:

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.

The Nebraska Supreme Court has most recently interpreted this statutory language in Lincoln Firefighters Ass=n Local 644 v. City of Lincoln, 253 Neb. 837, 841, 572 N.W.2d 369 (1998). The Court held:

Simply put, '48-818 requires that the employers selected for the comparative array must be demonstrated to be similar.

As a general rule, it may be said that the factors most often used to determine comparability are geographic proximity, population, job descriptions, job skills, and job conditions. Douglas Cty. Health Dept. Emp. Assn. v. Douglas Cty., 229 Neb. 301, 427 N.W.2d 28 (1988); AFSCME Local 2088 v. County of Douglas, 208 Neb. 511, 304 N.W.2d 368 (1981), modified 209 Neb. 597, 309 N.W.2d 65. In selecting employment units in reasonably similar labor markets for the purpose of comparison as to wage rates and other benefits, the question is whether, as a matter of fact, the units selected for comparison are sufficiently similar and have enough like characteristics or qualities to make a comparison appropriate. Lincoln Co. Sheriff=s Emp. Assn. v. Co. of Lincoln, 216 Neb. 274, 343 N.W.2d 735 (1984).

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Of necessity, determining comparables requires the granting of some discretion to the commission, and unless there is no substantial evidence upon which the commission could have concluded that the factors it used resulted in an appropriate array, we may not as a matter of law disallow the commission=s determination. See, Douglas Cty. Health Dept. Emp. Assn. v. Douglas Cty., 229 Neb. 301, 427 N.W.2d 28 (1988); AFSCME Local 2088 v. County of Douglas, 208 Neb. 511, 304 N.W.2d 368 (1981), modified 209 Neb. 597, 309 N.W2d 65. Stated another way, determinations made by the commission in accepting or rejecting claimed comparables are within the field of its expertise and should be given due deference. AFSCME Local 2088, supra; Fraternal Order of Police v. County of Adams, 205 Neb. 682, 289 N.W.2d 535 (1980).

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We have held that where it is alleged that economic dissimilarities exist which have a bearing on prevalent wage rates, the burden is on the party making that allegation to establish that such is the case. See Douglas Cty. Health Dept. Emp Assn. v. Douglas Cty. , supra.

In selecting an array the Commission is required to select an array from reasonably similar labor markets which, based on the evidence offered by the parties, it deems appropriate for purposes of comparison. While no precise formula has been established for mechanical application in selecting an array, the guidelines generally applied by the Commission for such purposes include comparisons of size and geographic proximity. The guideline regarding size frequently involves a comparison of populations. Other indicia of size relevant to work, skills, and working conditions are also considered where appropriate. If the size of a proposed array member falls between one-half and double the size of the employer before the Commission the Commission=s size criteria are usually considered to been met.

In this case the parties proposed Pottawattamie County, Iowa; Clay County, Missouri; and Washington County, Wisconsin as three common array members. They stipulated that the work, skills, and working conditions of bargaining unit employees at Sarpy County are sufficiently similar to those employees at the common array members to satisfy '48-818 standards.

Each party proposed several array members in addition to the common array members. Petitioner=s proposed array also included Jefferson County, Missouri, and Washington County, Minnesota; plus a local array composed of the cities of Omaha and Bellevue, Nebraska, and Douglas County, Nebraska. The common array members and Leavenworth County, Kansas; Pueblo County, Colorado; and Story County, Iowa constituted Respondents proposed array. Witnesses for each party testified that the work, skills, and working conditions of employees in their proposed arrays also satisfied the comparison standards of '48-818. Respondent conceded at trial that in terms of size, geographic proximity, and similar work, skills, and working conditions Jefferson County, Missouri, is appropriate for inclusion in the array. The parties are thus in agreement that the three common array members and Jefferson County, Missouri, are appropriate for inclusion in the Commission=s array.

Both parties sought to select their proposed array members from a Metropolitan Statistical Area (MSA) or Standard Metropolitan Statistical Area (SMSA). An MSA or SMSA is an economic group designated by the federal government consisting of a central city with strong economic and social ties to the surrounding designated area. Single county MSAs and multi-county MSAs include one or more counties as their titles imply. Petitioner selected only employers from multi-county MSAs. Respondent=s criteria included single county MSAs.

There is no evidence in the record which compels us to find that a public employer=s inclusion in an MSA has a direct effect on wages or work, skills and working conditions. However, because both parties considered this factor significant in their array selection processes, the Commission will consider MSA information along with other evidence of comparability such as job descriptions and other evidence affecting work, skills and working conditions.

Historically the Commission has considered an MSA to comprise a single labor market and has declined to include multiple employers from a single MSA in an array because of concern that to do so would skew the data by using the same labor market twice, so-called Adouble dipping.@ See, Nebraska Pub. Employees Local Union 251 v. County of Douglas, 11 CIR 189 (1992), City of Omaha v. Omaha Police Union Local 101, 5 CIR 171,171 (1981).

Sarpy County is included in a multi-county MSA where Omaha is the central city. The Omaha MSA also includes Pottawattamie County, Iowa, one of the common array members, in addition to the cities of Omaha and Bellevue, Nebraska and Douglas County, Nebraska, proposed by Petitioner as local comparables. Clay County, Missouri, one of the common array members, is in a multi-county MSA where Kansas City, Missouri is the central city. Leavenworth County, Kansas, a county in Respondent=s proposed array, is also in the Kansas City MSA. Jefferson County, Missouri, acknowledged by Respondent to be an appropriate comparable, is in an MSA where the central city is St. Louis, Missouri. Pueblo County, Colorado, an array member proposed by Petitioner, is a single county MSA where the City of Pueblo is the central city. Story County, Iowa, another of the counties in Respondent=s proposed array, is not included in any MSA.

The three common array members are all counties in multi-county MSAs adjacent to a county with a central city. So too are Jefferson County, Missouri and Washington County, Minnesota. As noted above, Pottawattamie County, Iowa is in the Omaha MSA. Clay County, Missouri; Washington County, Wisconsin; Jefferson County, Missouri; and Washington County, Minnesota are all adjacent to counties with central cities which, when compared to Omaha, meet the Commission=s size guidelines. All five of these counties also meet the size guideline when compared to Sarpy County (see Table 1) and are appropriate for inclusion in the Commission=s array.

While Leavenworth County, Kansas also meets the Commission=s size guidelines as applied to the five counties just discussed, to include it in the Commission=s array would run afoul of the Commission=s concern that inclusion of two employers in a single labor market would tend to skew the data. We decline to include Leavenworth County to avoid double dipping into a single labor market.

The population of Pueblo County, Colorado is 123,051. Compared to the population of Sarpy County, this is within the Commission=s size criteria. However, these guidelines are not met when the populations of MSA central cities are compared. The central city in the single county Pueblo County, Colorado MSA is the City of Pueblo. We take judicial notice that Pueblo had a population of 101,686 according to the 1990 census as reported in the Rand McNally Atlas. This does not meet the size guideline when compared to Omaha, Sarpy County=s MSA central city, which has a population of 335,795. It must further be noted that the central city causing an impact on Pueblo County is itself a major portion of the County. This would seem to further frustrate any attempt to find comparability from comparison of central cities.

As evidence of a similarity of the labor markets in Sarpy County and Pueblo County, Respondent points to El Paso County, Colorado, for comparison to Douglas County, Nebraska. El Paso County is contiguous to Pueblo County and has a population of 397,014. Douglas County has a population of 416,444 and is contiguous to Sarpy County. While these populations fall within the Commission=s size guidelines, the evidence does not make a comparison of these contiguous counties useful.

It may be argued that while Sarpy and Douglas Counties are in the same labor market as evidenced by their inclusion in the same MSA, there is no parallel evidence from which it may be inferred that Pueblo and El Paso Counties also share a common labor market. A lack of common MSA membership may infer otherwise. Thus the evidence does not lend meaning to comparisons of Douglas County and El Paso County.

Both parties attributed meaning to MSA data in the selection of proposed array members. Both parties attributed significance to the proximity of Sarpy County to the City of Omaha and its impact on the Sarpy County labor market. From the evidence we do not find any similar metropolitan influence on Pueblo County, Colorado. We therefore decline to include Pueblo County in the Commission=s=s array.

We also decline to include Story County, Iowa in the Commission=s array for similar reasons. One of Respondent=s screening criteria for proposed array members was that they be a part of an MSA. Story County does not fulfill Respondent=s own requirement because it is not in any MSA. The evidence further fails to demonstrate that Story County is subjected to any metropolitan influence similar to that considered above. Story County was not shown by the evidence to be comparable.

The three local employers proposed by Petitioner for inclusion in the array also fail to meet '48-818 criteria. In connection with selection of local employers for inclusion in an array the Nebraska Supreme Court held in Local No. 2088 AFSCME v. County of Douglas, 208 Neb. 511, 519, 304 N.W.2d 368 (1981), that Awhere there are local comparisons which can and should be made, they may not be disregarded if in fact it appears from the evidence that the local employers are comparable in that they meet the requirements of '48-818.@

Noting the Supreme Court=s direction to consider local employers if they are comparable, the Commission has given consideration to local employers where appropriate. In City of Omaha v. Nebraska Public Employees Local No. 251, 10 CIR 191 (1990) and Nebraska Public Employees No. 251 v. County of Douglas, 11 CIR 189 (1992), the Commission declined to include local employers in its arrays. The Commission held in the City of Omaha case at page 194 that it Amust still determine that the local array members offered meet the criteria of '48-818 and the guidelines the Commission has established in determining comparability.@

The Commission finds that Douglas County and the City of Omaha are too large to meet the comparability guidelines established by the Commission and that the City of Bellevue is too small. We are not persuaded by the evidence in this case that these guidelines should have no application to local comparables.

Based on the record before us, we find that the Commission=s Array shall be comprised of the three common array members and two additional counties found comparable, i.e., Clay County, Missouri; Jefferson County, Missouri; Pottawattamie County, Iowa; Washington County, Wisconsin; and Washington County, Minnesota..

WAGES

Step Pay Plan

Three of the five counties in the Commission=s array have step pay plans while two do not. The prevalent practice is to have a step pay plan. Step pay plans are used in Pottawattamie County, Iowa; Washington County, Minnesota; and Washington County, Wisconsin. Clay County and Jefferson County, Missouri, have no such plans.

The particulars of each step pay plan are somewhat varied. (See Table 2) The three counties with step pay plans have more than one plan which vary in terms of number of steps and years to reach maximum. In the interest of uniformity in a relatively small bargaining unit, we will consider the average number of steps and average years to reach maximum for each county. This is the methodology used by Petitioner in its analysis. Based on this methodology, the prevalent practice is a step pay plan having six steps and nine years to reach maximum.

Progression on the pay plans in the array is also varied. Pottawattamie County, Iowa, and Washington County, Wisconsin, have requirements for satisfactory performance evaluations. Longevity is a factor for all three counties. However, there is no single prevalent practice for progression. For so-called highway positions, in two of these counties advancement is by seniority alone while for other positions two counties require satisfactory performance evaluations in addition to seniority. The prevalent practice for advancement in so-called highway positions is seniority. For advancement in other positions, the prevalent practice for advancement is a combination of seniority and completion of a satisfactory performance evaluation. Since this is the first year for a step pay plan for the collective bargaining unit herein, pay line placement shall be by seniority for highway positions. For other positions, pay line placement shall be by both seniority and successful performance evaluations where such evaluations were performed. See Lincoln Firefighters Ass=n. v. City of Lincoln, supra at 851.

Imputing Wage Rates

In determining wage rates, both parties relied on a methodology which determined prevalent wage rates for some positions directly when sufficient date was available and imputing wage rates for the remaining positions on the basis of historical relationships of the various positions. These historical relationships were determined by reliance on a pay grade system evaluations known as the Hayes System.

In 1985, Hayes Associates of Kansas City, a well-known consulting company, was contracted to set up a pay grade system of minimums and maximums for Sarpy County. Based on their analysis, each position was assigned to a pay grade on the basis of a point system used to evaluate the relative value of the various positions. Minimum and maximum pay for each pay grade was set. This pay grade system in Sarpy County is called the Hayes System.

Over the years since the Hayes System was developed, pay increases for bargaining unit positions have been implemented in a number of collective bargaining agreements which make no reference to the Hayes System. Sarpy County management has, however, updated the system with each pay increase for its own internal purposes. The Hayes System provides an appropriate basis for imputing wage rates where there are an insufficient number of job matches to determine prevalent wage rates for a particular position.

Job Matches

The parties disagree concerning job matches of four Sarpy County positions with comparable positions at Washington County, Wisconsin, and of one Sarpy County position with a comparable position at Clay County, Missouri. The parties were able to agree as to all other relevant job matches.

The four positions at issue with regard to Washington County, Wisconsin, are Heavy Equipment Operator I, Heavy Equipment Operator II, Heavy Equipment Operator III and Skilled Laborer. The problem is that seemingly comparable positions at Washington County have been combined into a single job classification. Petitioner matches all four Sarpy County positions to this single classification while Respondent matched it to only Heavy Equipment Operator II. We accept Respondent=s job match as the most appropriate.

Concerning the Building Maintenance and Repair II position, Petitioner found a match at Clay County, Missouri, while Respondent did not. We find Petitioner=s job match to be acceptable.

Other Matters

In some instances, the parties encountered matched jobs with a single wage rate rather than a pay range characterized by established minimums and maximums. The Commission has historically treated the single wage rate as both a minimum and a maximum in its analysis. We have done so in this case.

Wage Rates

Prevalent wage rates for positions included in the bargaining unit are set forth in Table 3 and Table 4. Where these wage rates have been imputed in reliance upon historical relationships as discussed above, the base position from which the rate was imputed is indicated.

MOOT FRINGE BENEFITS

The Commission determines that the following fringe benefits are moot because the year in dispute is over, see Nebraska Pub. Employees Local Union 251 v. Otoe County, 12 CIR 177, 194 (1996) and Lincoln Firefighters Ass=n. Local 644 v. City of Lincoln, 12 CIR 248 (1997) affirmed 253 Neb. 837, 572 NW2d 369 (1998):

- Number of sick days earned per year;

- Sick leave conversion to vacation;

- Sick leave conversion to cash upon resignation, dismissal, retirement or death;

- Usage of sick leave for family illness or funeral leave;

- Funeral leave (whether it is allowed and the number of days);

- Vacation days earned per year;

- Vacation conversion to cash at resignation, dismissal, retirement, or death;

- Number of holidays;

- Health insurance benefits and plan offered including prescription and optical cards;

- Life insurance (amount of coverage);

- Disability insurance (whether it is provided);

- Overtime;

- Bank compensating hours; and

- Dues checkoff.

Fringe Benefits That Will Remain Unchanged

The following fringe benefits will remain unchanged because the evidence concerning prevalent fringe benefits requires no change:

- Sick leave conversion to cash (See Table 5);

- Vacation leave conversion to cash (See Table 5);

- Whether holiday, vacation and sick leave count toward hours worked for overtime purposes (See Table 6);

- Life insurance percentage paid by employer (See Table 7);

- Percentage of disability insurance paid by the employer (See Table 7);

- Call in pay (See Table 8);

- Shift differential (See Table 8);

- Educational assistance (See Table 9);

- Equipment allowance (See Table 10); and

- Clothing and cleaning allowance (See Table 10).

NON-COMPARABLE FRINGE BENEFITS

The following fringe benefits provided by Sarpy County are not comparable to the prevalent:

Sick Leave Maximum Accumulation (Table 5)

The prevalent practice is to allow 126 days accumulation. Sarpy County allows only 120 days. The employer shall increase the number of sick leave accumulation days to 126 days.

Vacation Leave Carry-Over Days (Table 5)

The prevalent practice is to allow 23 days of vacation carryover. Sarpy County allows 25 days. The employer shall decrease the number of vacation carryover days to 23 days.

Rate of Compensation for Holidays Worked (Table 6)

The prevalent practice is to pay additional compensation for all holidays worked and to compute such additional compensation at a time and one-half rate. The contract herein provides for this rate of pay for only the seven major holidays listed. Any employee not paid at the prevalent rate for any holiday worked shall be compensated for the additional amount due under the prevalent practice.

Health Insurance Contributions (Table 7)

Sarpy County provides three different insurance plans to its employees - BC/B.S., HMO=s and P.O. Nebraska. Sarpy County contributes 75 percent of the premium for any of the offered insurance plans an employee may select whether single, family, or two-party.

The prevalent practice is for the employer to contribute the following percentages of premiums for the indicated coverage (See Table 7):

- 99% single coverage;

- 70% two-party coverage; and

- 72% family coverage.

The employer shall increase the amount that it contributes toward single health insurance coverage to 99% and shall decrease the amount that it contributes toward two-party coverage to 70% and family health insurance to 72%. The employer shall be entitled to use this overpayment on two party and family insurance as an offset.

Dental Insurance (Table 7)

The prevalent practice is for the employer to contribute 84% and 29% respectively toward single and family dental insurance. Sarpy County now contributes 100% and 74% respectively toward such coverage. Thus, Sarpy County shall decrease the amount that it contributes toward single dental insurance to 84% and toward family dental insurance to 29%. The employer shall be entitled to use this overpayment on single and family dental insurance as an offset.

Longevity (Table 8)

The prevalent practice is to not provide longevity pay. Sarpy County does have longevity pay and shall eliminate this practice. The employer shall be entitled to use this overpayment as an offset.

Stand-By Pay (Table 8)

The prevalent practice is to not provide stand-by pay. Sarpy County does provide stand-by pay and shall eliminate this practice. The employer shall be entitled to use this overpayment as an offset.

IT IS THEREFORE ORDERED that for the 1996-1997 fiscal year commencing July 1, 1996:

1) The number of sick leave accumulation days shall be increased to 126 days.

2) The number of vacation carryover days allowed shall be decreased to 23 days.

3) Any employee who worked on a non-major holiday per the contract shall be reimbursed for the difference between the rate they were paid and the additional compensation found prevalent.

4) Employer contribution rate toward single health insurance shall be increased to 99%.

5) Employer contribution rate toward two-party health insurance shall increase to 70%.

6) Employer contribution rate toward family health insurance shall decrease to 72%.

7) Employer contribution rate toward single dental shall be decreased to 84%.

8) Employer contribution rate toward family dental insurance shall be decreased to 29% .

9) Longevity pay practice shall be eliminated.

10) Stand-by pay practice shall be eliminated.

11) Wages shall be paid to each position pursuant to the rates listed in Table 4. Increases shall be retroactive to July 1, 1996, and decreases shall be prospective from the date of this Order..

12) A step pay plan shall be established with 6 steps, taking 9 years to reach maximum. Employees shall initially be placed on this pay plan using seniority and/or successful performance evaluations as found to be prevalent. Progression shall also be based on seniority and performance as found to be prevalent. A probationary period of 6 months shall be established.

13) Any additional wage compensation due bargaining unit members may be offset by all overpayments received during the fiscal year for overpayment of employer contributions toward health and dental premiums and for payment of longevity pay and stand-by pay. Such reimbursements shall be capped by and limited to the amount of increases due to the employee from the employer.

14) Pursuant to the Pretrial Conference stipulation, all adjustments in compensation resulting from the final order rendered in this matter shall be made by lump sum payment within 45 days of the final order.

15) All other terms and conditions of employment are not affected by this Order.

Entered February 16 , 1998.