15 CIR 324 (2007) 

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 APPEARANCES:

Entered May 15, 2007.

NATURE OF THE PROCEEDINGS:

This action was brought by International Association of Firefighters, Local Union No. 647 (hereinafter, “Petitioner” or “Union”) pursuant to Neb. Rev. Stat. § 48-818. The Petitioner is the duly recognized collective bargaining representative for all uniformed employees of the City of Grand Island Fire Division, except for the Fire Chief, Operations Division Chief, Fire Prevention Division Chief, Fire Training Division Chief and EMS Division Chief of the City of Grand Island (hereinafter, “Respondent” or “City”). The Petitioner seeks the resolution of an industrial dispute over wages and other terms and conditions of employment for the October 1, 2006 through September 30, 2007 contract year.

ARRAY:

The parties have three array cities in common. These cities are: Fremont, Nebraska; North Platte, Nebraska; and Norfolk, Nebraska. The Petitioner also argues for the addition of Lawrence, Kansas; Rapid City, South Dakota; Council Bluffs, Iowa; and Salina, Kansas in the array. The Respondent argues that the out-of-state cities are not comparable and that the Commission should include Hastings, Nebraska in the array along with the three other Nebraska employers.

Neb. Rev. Stat. § 48-818 gives the Commission discretion in its determination of what is comparable to the prevailing wage rate. See Lincoln Fire Fighters Ass’n v. City of Lincoln, 198 Neb. 174, 252 N.W.2d 607 (1977). While the Industrial Relations Act does not define comparable nor specifically direct the Commission in the manner and process of its determination, the Commission has received some guidance from the Nebraska Supreme Court. In Omaha Ass’n of Firefighters v. City of Omaha, 194 Neb. 436, 440-41, 231 N.W.2d 710, 713-14 (1975), the Supreme Court found that “a prevalent [sic] wage rate to be determined by the Court of Industrial Relations must almost invariably be determined after consideration of a combination of factors…. Under section 48-818, R.R.S. 1943, in selecting cities in reasonably similar labor markets for the purpose of comparison in arriving at comparable and prevalent wage rates the question is whether, as a matter of fact, the cities selected for comparison are sufficiently similar and have enough like characteristics or qualities to make comparison appropriate.”

The cities of Fremont, Nebraska, North Platte, Nebraska and Norfolk, Nebraska are agreed to by both parties and shall be included in the array. However, three employers is not a sufficient array. In numerous past cases, the Commission has expressed its preference for arrays containing more than four (4) or five (5) members whenever possible. Grand Island Educ. Ass’n v. Hall County School Dist. No. 0002, 11 CIR 237 (1992); International Ass’n of Firefighters, Local No. 1575 v. City of Columbus, 11 CIR 267 (1992); Douglas County Health Dept. Employees Ass’n v. County of Douglas, 9 CIR 219 (1987). The Commission has held that arrays consisting of six (6) to eight (8) members are appropriate. O’Neill Educ. Ass’n v. Holt County School Dist. No. 7, 11 CIR 11 (1990); Red Cloud Educ. Ass’n v. School Dist. of Red Cloud, 10 CIR 120 (1989); Logan County Educ. Ass’n v. School Dist. of Stapleton, 10 CIR 1 (1988); Trenton Educ. Ass’n v. School Dist. of Trenton, 9 CIR 201 (1987).

The Respondent proposes the inclusion of Hastings, Nebraska as an array member. The Petitioner argues that Hastings, Nebraska does not have similar working conditions as compared to Grand Island because Hastings does not perform the Advanced Life Support (hereinafter, “ALS”) transport function. When looking at geographic proximity, there is a preference for staying within the State of Nebraska when choosing comparables if an appropriate array exists within the State. Lincoln Co. Sheriff’s Employees Ass’n v. Co. of Lincoln, 216 Neb. 274, 343 N.W.2d 735 (1984). Therefore, the Commission will consider Hastings first, to determine whether Hastings meets the Commission’s comparability test under Neb. Rev. Stat. § 48-818.

The evidence presented at trial demonstrated the significant impact ALS had on operations of the proposed array members. In ALS departments, Firefighter/Paramedics are trained to assess a patient’s condition, administer drugs, defibrillate and provide advanced airway management prior to transportation to the hospital. On the other hand, Basic Life Support departments provide all basic measures of resuscitation including techniques of artificial ventilation and cardiac massage, but those departments do not provide extensive medical supervision or treatment, such as the use of drugs and invasive procedures.

The evidence presented by the Petitioner at trial established that providing advanced life support has a considerable impact on the operation of a department, as opposed to a department that provides only basic life support. Hastings is a licensed basic life support department and has no ALS functions. The coursework required of Hastings’ Emergency Medical Technicians is significantly less than that of paramedics located at the other fire departments. The evidence also demonstrated that the training required for the entire department is more extensive for ALS departments. ALS departments also have considerably more equipment to maintain. ALS departments require greater supervision by the command staff and ALS departments have noticeably more interaction with the public and hospital staff as opposed to non-ALS departments. Furthermore, because ALS is such an important function for the firefighter/paramedic position, there is no comparison for the job classification at Hastings, Nebraska. Accordingly, since the Petitioner’s bargaining unit in the instant case is comprised of only three classifications, the Commission finds the ALS function within a department is an important factor in determining comparable array members. Therefore, the Commission will not include Hastings, Nebraska in its array because it does not have similar working conditions.

The Commission has in the past commented on the strong policies in favor of using an array of comparable Nebraska array members, rather than using array members from outside the State of Nebraska. However, in the instant case, we will consider employers located outside the State of Nebraska, since an array with only three employers does not meet the Commission’s preference for four or more comparables. See also Metropolitan Technical Community College Educ. Ass’n v. Metropolitan Community College Area, 14 CIR 127 (2003). Therefore, we must review the proposed out-of-state employers. 

Salina, Kansas

The Petitioner first proposes Salina, Kansas as an array member. The Respondent argues that while the Commission should choose only Nebraska employers, if the Commission utilizes non-Nebraska employers, the Respondent does not object to the inclusion of Salina, Kansas. Salina, Kansas is not in a Metropolitan Statistical Area and the evidence supports that Salina, Kansas is a comparable array point. Therefore, the Commission will include Salina, Kansas in its array.

Council Bluffs, Iowa

The Petitioner also proposes the inclusion of Council Bluffs, Iowa. The Respondent argues that Council Bluffs, Iowa should not be included because it is in a Metropolitan Statistical Area with Omaha and a Combined Statistical Area with Fremont, Nebraska. The Respondent also argues that with the inclusion of Fremont, the Commission should exclude Council Bluffs because it “double dips” in the same Combined Statistical Area.

The Commission has, in the past, used the fact that proposed array cities were located in metropolitan statistical areas to eliminate such cities from the array. See Lincoln Firefighters Ass’n Local 644 v. City of Lincoln, 8 CIR 3l, 44 (l985); Grand Island Educ. Ass’n v. School Dist. of Grand Island, 9 CIR l88, l92 (l987), and Grand Island Educ. Ass’n v. Hall County School Dist., 11 CIR 237, 24l (l992).

There is no evidence in the record which compels us to find that Council Bluffs’ inclusion in a Metropolitan Statistical Area has a direct effect on wages or work, skills and working conditions. In fact, the evidence indicates just the opposite. The testimony at trial indicated that approximately 50 employees from the Council Bluffs Fire Department over the past seven years have left for higher paying jobs with the City of Omaha Fire Department. Council Bluffs has implemented a loss of training penalty if an employee tries to quit before five years of employment, in an effort to stop the massive turnover rate. The City of Omaha is not included as an array member when Council Bluffs negotiates salaries. The general impact of a Metropolitan Statistical Area is not present in the instant case.

The Respondent also argues that the fact that Council Bluffs is in the same Combined Statistical Area as Fremont skews the array because the Commission would be using the same labor market twice. There is no evidence in the record which compels us to find that including two public employers from a Combined Statistical Area has a direct impact on wages or work, skills and working conditions. There is also no past case law which directs the Commission regarding the impact of Combined Statistical Areas. Therefore, without such evidence, Council Bluffs should be included in the array with Fremont, Nebraska; North Platte, Nebraska; Norfolk, Nebraska and Salina, Kansas.

Lawrence, Kansas and Rapid City, South Dakota

            The Petitioner also argues for the inclusion of Lawrence, Kansas and Rapid City, South Dakota in its array. The Respondent argues that both array cities are located within Metropolitan Statistical Areas and Grand Island is not located within a Metropolitan Statistical Area. Currently, Grand Island has a population of 44,564 and is only 5,436 people away from being considered a Metropolitan Statistical Area. Once Grand Island gains this added population, it will become the nexus of its own Metropolitan Statistical Area.

The Commission has used the fact that proposed array cities are located in Metropolitan Statistical Areas to eliminate such cities from a proposed array. However, while it is evidenced that Metropolitan Statistical Areas tend to impact the wages of the surrounding communities included within the Metropolitan Statistical Area, the evidence does not establish that the nexus city’s wages impact itself. By definition any city containing 50,000 or more in population is considered a Metropolitan Statistical Area. Currently, Rapid City, South Dakota is the nexus of its Metropolitan Statistical Area with a population of 62,167. Whereas, Lawrence, Kansas with a population of 81,816 is a subdivision of the Kansas City Metro area, which is the nexus of a Metropolitan Statistical Area with a total population of 1,947,694.

In the instant case, Rapid City, South Dakota has comparable working conditions and clearly has job matches to Grand Island and is the nexus of its Metropolitan Statistical Area, much like Grand Island will be when it reaches the 50,000 population mark. Rapid City is within one half to twice the size of Grand Island and has similar skills, work, and working conditions. Therefore, the Commission will include Rapid City, South Dakota.

However, Lawrence, Kansas is unlike Grand Island in that it is not the nexus of its Metropolitan Statistical Area. Furthermore, the Petitioner did not present any evidence that Lawrence, Kansas was not impacted by its inclusion in the Kansas City, Kansas/Missouri Metropolitan Statistical Area. Therefore, without any evidence to the contrary, the Commission will not include Lawrence, Kansas.

The array for this case will include: Fremont, Nebraska; North Platte, Nebraska; Norfolk, Nebraska; Council Bluffs, Iowa; Rapid City, South Dakota; and Salina, Kansas.

FRINGE BENEFITS:

Retirement

The Commission does not have jurisdiction over the pension plan of the employees to order a change in the pension plan, even though the Commission does have jurisdiction to offset favorable and unfavorable comparisons of current to prevalent when reaching its decision establishing wage rates. Douglas Cty. Health Dept. Emp. Ass’n v. Douglas Cty., 229 Neb. 301, 422 N.W.2d 28 (1998). Therefore, the Commission will not change the Retirement Benefit Formula and Early Retirement Provisions, Social Security Coverage, Retirement Plan Defined Benefit and Defined Contribution.

Dental Insurance

Currently, the dental insurance is an indivisible part of the health insurance plan. Since the City of Grand Island does not carry a separate policy for dental insurance, the current percentages paid by the employees or the employer are not divisible from the health insurance plan. Therefore, all dental insurance benefits will remain unchanged for the October 1, 2006 through September 20, 2007 contract year.

Management Prerogatives

            There are certain fringes which we believe are management prerogatives and we will not address the following in this Order:

1)      Workday in Hours.

2)      Workweek in Hours.

3)      Scheduling Procedure.

Benefits Not Considered

The Commission shall continue to determine comparability of health insurance and life insurance by comparing the percent of the premium to be paid by the employer and employee. See also Lincoln Firefighters Ass’n Local 644 v. City of Lincoln, 12 CIR 248, 265 (1997); General Drivers & Helpers Union Local 554 v. County of Gage, et. al., 14 CIR 170 (2003).

            The following benefits will not be considered according to the above rule: 

1)      Health Insurance Dollar Amounts.

2)      Life Insurance Dollar Amounts.

Comparable Fringe Benefits

The following fringe benefits shall remain unchanged because they are comparable:  

1)      Annual Sick Leave─Granted for family illness. See Table 4.

2)      Educational Assistance Plan─Provided. See Table 5.

3)   Educational Assistance Place Provisions─Tuition at 100% for A, B; 80% for C. See Table 5.

4)   Educational Incentive Pay─Not Provided. See Table 5.

5)      Other Special Compensation Pay─Not Provided. See Table 5.

6)   Injured-on-Duty Pay─Provided. See Table 6.

7)      Injured-on-Duty Pay─Compensated with Up to One Year With Full Pay. See Table 6.

8)      Overtime Pay Policies─Number of Hours Considered for Overtime. See Table 7.

9)      Overtime Pay Policies─Leave Hours Counted. See Table 7.

10)  Overtime Pay Policies─Time and ½ Rate. See Table 7.

11)  Overtime Pay Policies─No Compensation Time. See Table 7.

12) Percentage of Employer and Employee Contribution to the Retirement Plan─No Offset Required.

13) Call-in Pay Policies─Provided. See Table 8.

14)  Call-In Pay Policies─2 Hour Minimum at 1.5 times the Regular Rate. See Table 8.

15)  Call-In Pay Policies─Hours Merge with Normal Shift. See Table 8.

16)  Call-In Pay Policies─Called In During Off-Duty. See Table 8.

17)  Life Insurance─Coverage Provided.

18)  Life Insurance─100 Percent Employer Paid.

19)  Paid Holidays─Hours are Not Counted For Overtime Purposes. See Table 9.

20)  Funeral Leave─Other Relatives. See Table 10.

21)  Fire Bunker Gear and Uniform Allowance─Fire Bunker Gear Provided. See Table 11.

22) Fire Bunker Gear and Uniform Allowance─Uniform Allowance Provided. See Table 11.

23) Fire Bunker Gear and Uniform Allowance─Other Allowance. See Table 11.

24)  Formal Pay Structure─Pay Range. See Table 12.

25)  Formal Pay Structure─Combination Basis for Progression. See Table 12.

26) Paid Vacation Policies Conversion─Upon Resignation, Dismissal, Retirement, and Death. See Table 13.

27) Paid Vacation Policies Maximum Number of Hours Carried Over─1 year accrual plus 48 hours. See Table 13.

28) Paid Vacation Policies─Accumulation Allowed. See Table 13.

29) Annual Sick Leave Conversions─Sick Leave Converted to Cash upon Resignation, Dismissal, Retirement, and Death. See Table 14.

Non-Comparable Benefits

The Commission makes the following findings as to non-comparable fringe benefits:

1)      Annual Sick Leave Allowance─168 Hours Annually. See Table 4.

2)      Annual Sick Leave Allowance─1,576 Hours for Total Accumulation. See Table 4.

3)      Annual Hours Granted for Family Illness─95 hours Allowed. See Table 4.

4)   Family Illness provisions apply to Parent, Spouse, Child, Brother, Sister, and Grandparent. See Table 4.

5)   Work Out of Class Pay Policies─Not Paid. See Table 15.

6)      Disability Plan─Employer Coverage Not Provided. See Table 16.

7)   Health Insurance─93 Percent Paid for Individual Coverage by the Employer. See Table 17.

8)   Health Insurance─80 Percent Paid for Family Coverage by the Employer. See Table 17.

9)  Health Insurance─82 Percent Paid For Two-Party Coverage by the Employer. See Table 17.

10) Paid Holidays─133 Hours Per Year. See Table 9.

11) Paid Holidays─Personal Holiday 15 Hours. See Table 9.

12) Paid Vacation Policies Leave Earnings Number of Hours Earned Annually After 1 Year─112 Hours. See Table 18.

13) Paid Vacation Policies Leave Earnings Number of Hours Earned Annually After 5 Years─141 Hours. See Table 18.

14) Paid Vacation Policies Leave Earnings Number of Hours Earned Annually After 6 Years─166 Hours. See Table 18.

15) Paid Vacation Policies Leave Earnings Number of Hours Earned Annually After 10 Years─181 Hours. See Table 18.

16) Paid Vacation Policies Leave Earnings Number of Hours Earned Annually After 15 Years─208 Hours. See Table 18.

17) Paid Vacation Policies Leave Earnings Number of Hours Earned Annually After 20 Years─233 Hours. See Table 18.

18) Paid Vacation Policies Leave Earnings Number of Hours Earned Annually After 25 Years─233 Hours. See Table 18.

19) Funeral Leave─Immediate Family Can Use Up to 48 Hours. See Table 10.

20) Funeral Leave─Definition of Immediate Family is Parent, Spouse, Child, Brother, Sister, Grandparent, Step, In-law, and Grandchild. See Table 10.

21) Longevity Pay─No Plan Provided. See Table 19.

22)  Annual Sick Leave Conversions to Cash/Vacation─Not Allowed. See Table 14.

23) Fire Bunker Gear and Uniform Allowance─484 Dollars Provided Annually. See Table 11.

24)  Formal Pay Structure─Nine Steps. See Table 12.

25) Formal Pay Structure─8 Years to move from Minimum to Maximum. See Table 12.

IT IS THEREFORE ORDERED that for the October 1, 2006 through September 20, 2007 contract year, the following shall be effective as of October 1, 2006:

1) Petitioner’s wages for the October 1, 2006 through September 20, 2007 contract year

shall be as follows:

JOB CLASSIFICATION                                      MIN                           MAX

Firefighter/EMT                                                      $10.96                         $15.38

Firefighter/Paramedic                                           $12.54                         $17.24

Fire Captain                                                           $14.88                         $20.36

2) The fringe benefit and wage offset, as found herein, shall be calculated on an individual employee basis. The Respondent shall determine the net lump sum overpayment or underpayment for the contract year for each employee. Any net lump sum underpayment for any employee shall be paid by the Respondent to each such employee; however, any employee reimbursement shall not exceed the amount of compensation owed to the employee from the Respondent.

3) The Respondent shall maintain the percentage of employer and employee contribution to the retirement plans with no offset required.

4) The Respondent shall continue to provide life insurance coverage.

5) The Respondent shall continue to pay 100 percent of the life insurance premium.

6) The Respondent shall maintain its program for annual sick leave allowances to be allowed for family illness.

7) The Respondent shall decrease its annual sick leave allowance from 288 hours annually accrued to 168 hours annually accrued.

8) The Respondent shall decrease its maximum total accumulation for sick leave allowance from 2,880 hours to 1,576 hours.

9) The Respondent shall increase its hours allowed for family illness from 72 hours per year to 95 hours per year.

10) The Respondent shall now allow the family illness provisions of annual sick leave allowance to also apply to brothers, sisters, and grandparents, but it shall not allow the family illness provision to apply to in-laws.

11) The Respondent shall continue to provide an Educational Assistance Plan.

12) The Respondent shall continue its practice of providing payment in its Educational Assistance Plan Provisions, whereby the Respondent continues to pay 100% of Tuition for grades of A and B and 80% of Tuition for grades of C.

13) The Respondent shall continue to not provide Educational Incentive Pay.

14) The Respondent shall continue to not provide other Special Compensation Pay.

15) The Respondent shall maintain its practice of providing Injured-on-Duty Pay.

16) The Respondent shall continue to compensate up to one year with full pay for Injured-on-Duty Pay.
            17) The Respondent shall continue paying overtime after an employee reaches 96 or 120 hours a pay period.

18) The Respondent shall maintain its practice of not counting hours earned for vacation, holiday and sick towards overtime.

19) The Respondent shall continue to pay the time and ½ rate for overtime.

20) The Respondent shall continue to not allow compensation time for overtime.

21) The Respondent shall maintain its call-in pay policies.

22) The Respondent shall continue its policy of providing 2 hours minimum at 1.5 times the regular rate for call-in pay.

23) The Respondent shall maintain its call-in pay policy during off-duty hours.

24) The Respondent shall continue to not apply the call-in pay policy when the call-in hours merge with the employee’s normal shift.

25) The Respondent shall increase the number of hours it pays per year for paid holidays from 120 hours to 133 hours per year.

26) The Respondent shall continue to not count paid holiday hours for overtime purposes.

27) The Respondent shall increase the number of hours for personal holiday from 12 hours to 15 hours.

28) The Respondent shall implement a policy of allowing 48 hours of funeral leave for immediate family. Immediate family shall be defined as parent, spouse, child, brother, sister, grandparent, step, in-law and grandchild.

29) The Respondent shall continue to not allow employees to use funeral leave for other relatives.

30) The Respondent shall continue to provide fire bunker gear.

31) The Respondent shall continue to provide a uniform allowance.

32) The Respondent shall continue its practice not allowing any additional money for annual maintenance. 

33) The Respondent shall decrease the annual amount of uniform and fire bunker gear from $600 to $484 per year.

34) The Respondent shall maintain its formal pay structure pay range.

35) The Respondent shall continue to consider a combination basis for progression through the formal pay structure.

36) The Respondent shall increase the number of steps in its pay plan from eight steps to nine steps for an employee to move from minimum to maximum on the pay range.

37) The Respondent shall increase the number of years it takes to move from minimum to maximum on the formal pay plan from six years to eight years.

38) The Respondent shall maintain its practice of allowing employees to accumulate paid vacation time.

39) The Respondent shall continue to allow employees to accrue a maximum of 1 year plus 48 hours for paid vacation.

40) The Respondent shall continue its practice of allowing vacation to be converted into cash upon the occurrence of resignation, dismissal, retirement, or death.

41) The Respondent shall no longer allow conversions of annual sick leave to cash/vacation.

42) The Respondent shall maintain its current practice of not converting sick leave to cash upon resignation or dismissal and converting sick leave to cash for retirement or death.

43) The Respondent shall discontinue its practice of paying 3% after five consecutive shifts for working-out-of-class pay.

44) The Respondent shall discontinue its practice of providing a disability plan in addition to worker’s compensation.

45) The Respondent shall increase the percent it pays for individual health insurance coverage from 90 percent to 93 percent.

46) The Respondent shall decrease the percent it pays for family health insurance from 87 percent to 80 percent.

47) The Respondent shall decrease the percent it pays for two-party health insurance from 87 percent to 82 percent.

48) The Respondent shall decrease the number of hours earned annually for paid vacation after the first year from 120 hours to 112 hours.

49) The Respondent shall increase the number of hours earned annually for paid vacation after the fifth year from 120 hours to 141 hours.

50) The Respondent shall increase the number of hours earned annually for paid vacation after the sixth year from 144 hours to 166 hours.

51) The Respondent shall decrease the number of hours earned annually for paid vacation after the tenth year from 192 hours to 181 hours.

52) The Respondent shall decrease the number of hours earned annually for paid vacation after the fifteenth year from 240 hours to 208 hours.

53) The Respondent shall decrease the number of hours earned annually for paid vacation after the twentieth year from 240 hours to 233 hours.

54) The Respondent shall decrease the number of hours earned annually for paid vacation after the twenty-fifth year from 240 hours to 233 hours.

55) The Respondent shall discontinue its practice of providing a longevity pay plan.

56) Any adjustments in compensation resulting from this Order shall be paid in a single lump sum with the payroll checks issued next following the expiration of the Final Order’s time for appeal or sooner.

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

All panel judges join in the entry of this order.