10 CIR 148 (1989), Appeal Dismissed January 5, 1990.


LODGE NO. 2, |
Petitioner, |
Subdivision of the State of |
Nebraska, |
Respondent. |


For the Petitioner: John B. Ashford

Bradford, Coenen & Ashford

300 South 19th Street

Omaha, Nebraska 68102

For the Respondents:Neal E. Stenberg

Heron, Burchette, Ruckert

& Rothwell

1200 N Street, 500 The Atrium

P.O. Box 82028

Lincoln, Nebraska 68501

H. L. Wendt

Deputy County Attorney

906 Omaha-Douglas Civic Center

1819 Farnam Street

Omaha, Nebraska 68183

Before: Judges Cope, Mullin, Orr, Kratz, and Peetz (EN BANC); Mullin dissenting.



The Fraternal Order of Police, Lodge No. 2 filed a petition with the Commission on August 25, 1988 seeking to have an industrial dispute resolved pursuant to Neb. Rev. Stat. ยง48-8l8. The dispute concerns wages and conditions of employment for the fiscal year, July 1, 1988 to June 30, 1989. The Respondent's Answer alleges that overall compensation exceeds the prevalent wage rates and conditions of employment and asks that the same be reduced. After numerous requests for continuances of the pretrial and trial, a pretrial was held on December 2, 1988. The job classifications in dispute were identified as deputy sheriff, sergeant and lieutenant and the issues to be resolved are: wages (including potential reductions), total compensation, vacation leave, annual sick leave, shooting allowance, pay plan structure, call in pay, and vehicle take-home policy. Subsequent to the pretrial conference, the Petitioner filed a Motion to request that dependent health insurance be added as an issue and through a telephonic hearing both parties agreed that this issue could be added and broadened to health insurance/dental insurance. Both parties were also given leave to withdraw their foundational objections and Respondent was given leave to introduce additional exhibits on contracts, job descriptions, and organizational charts. On the eve of the December l3, l988 hearing, the Commission was informed that the matter might be settled and the hearing was continued. A negotiated settlement was not reached and a hearing was finally held on January 3l, 1989.


The Commission has jurisdiction of the parties and of the subject matter. The controlling statute is Section 48-8l8, 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......


The Petitioner submitted the following nine county array: Arapahoe (CO), Genesee (MI), Jefferson (CO), Johnson (KS), Kent (MI), Kern (CA), Monterey (CA), Sonoma (CA), and Spokane (WA). The Respondent submitted a ten county array consisting of: El Paso (CO), Jackson (MO), Lancaster (NE), Oklahoma (OK), Peoria (IL), Polk (IA), Sedgwick (KS), Shawnee (KS), Tulsa (OK), and Wyandotte (KS). There are no array points in common. At trial, the parties stipulated that both the Petitioner's expert, Gary Troutman, and Respondent's expert witness, Dr. Robert Otteman, are expert in the personnel area and were qualified to testify and render opinions with respect to the sameness and similarity of work, work skills, and working conditions; and were also qualified and competent to render opinions with respect to prevailing wages, fringe benefits and conditions of employment (71:14-22). There are significant differences in the methodologies employed by the parties in choosing their arrays. Table 1 sets out much of the relevant information on the proposed counties.


The Petitioner first used a demographer to comprise an array of counties demographically similar to Douglas. The demographer in choosing array points looked at counties with a population in the range of twice as large to half as small as Douglas. The demographer testified that the primary criteria he used was the size of the county in relationship to the size of the metropolitan area which is in or adjacent to the county. He stated that he was looking for functionally similar counties (39:12-18). The demographer further testified that geographic proximity was a consideration but it was just one of many things he looked at (38:1-5). The demographer presented an extensive exhibit which listed several categories of demographic data. The demographer testified, however, that most of the columns except the county population and the percent of metro area were informational and not determinative of comparability. In fact when the demographer was asked whether the columns of data presented proved similar work, skills and working conditions the demographer replied "I can't say that because they don't" (65:19-22).

After narrowing his list to the counties he found most demographically similar, the demographer sent his array choices to Petitioner's stipulated expert on work, skills, and working conditions. This expert then looked at the counties chosen by the demographer to determine if the work, skills, and working conditions for sheriffs in the chosen counties were similar to Douglas. The process used by the expert in gathering data on the proposed counties was very thorough and included verifying survey data, in-person visitation and collection of written contracts, policies, or other documentation of work, skills, and working conditions. Petitioner's expert testified that in his opinion the counties chosen by the demographer exhibited comparable work, skills, and working conditions (116:5-7). However, Petitioner's expert testified that he played no part in selecting the array (86:13-24).

Both the demographer and the expert hired by the Petitioner stressed the importance of the size of the metropolitan area in or adjacent to the proposed county and how that size determined what types of crimes the sheriffs encountered. Petitioner did not present any evidence either as to the population of the metropolitan area or the crime statistics which quantify the types and nature of the crime encountered. Petitioner's expert also talked about the interaction of the Douglas County Sheriff Department and the Omaha City Police, yet, no evidence was presented as to what interaction occurs in the proposed array counties. Lastly, there was considerable testimony in the record about the correctional facilities of the proposed array members. The Douglas County Sheriff's Department does not provide a correctional function, yet, all of the counties proposed by the Petitioner do provide correctional functions. In some cases corrections is the main function of the sheriff's department in the proposed array point; in Genesee County, 167 of 220 employees are in the correction's division.

In effect the sole objective criteria presented by Petitioner as to the comparability of work, skills and working conditions is the county population. Petitioner's own witness indicated that county population alone may not be determinative of similarity. A Chief deputy in the Douglas County Sheriff Department testified that although crime rate is directly related to population (122:22-25) there are areas that have the same population but that would not be comparable such as Douglas County and Newark, New Jersey. The Chief Deputy, in discussing the comparability of Newark, stated "Basic population is the same as Douglas County but they are over -- the crime rate is no where near. They've all had three times the police officers that Omaha or Douglas County, although their population is the same. So their crime rate and their problems are different based on square miles." (122:22 to 123:4).


Respondent's expert utilized a two-step process in choosing an array. Initially he looked for counties that; 1) fit the Commission's traditional one half to twice as large population guidelines; 2) contained an urban area of at least 150,000; and 3) were geographically proximate to Douglas County. After arriving at an array of 15 using his gross screening process he used fine screening criteria including organizational size, department size, organizational structure and job content to further narrow the array to ten counties.

The Respondent's expert was also very thorough in gathering data on his proposed counties. The Respondent's expert visited all of his proposed counties and verified job matches in order to match work, skills and working conditions (156:11 to 157:20).

The Respondent's expert testified that in his opinion there is a significant relationship between comparable working conditions and geographical proximity. He stated that the closer you stay to the county at issue the more similar the general nature of the working conditions (137:5-15).

The Respondent also presented testimony that population of the county and department size are directly related to comparability of work, skills and working conditions. In effect, the population served by the sheriff's department, which is that population which is not under the jurisdiction of a city police force, is reflected in the size of the sheriff department and the size of the department is reflective of the level of specialization that is performed in the department (142:11 through 146:25). Similarly sized departments would thus be at a comparable level of specialization. However, as in the case of Petitioner's proposed array, many of Respondent's proposed array points have correctional facilities. It is speculative to compare the total department sizes of organizations with corrections facilities to departments that do not have correction functions. A more accurate methodology is to compare the size of the departments after accounting for the number of correctional employees.


The Commission is faced with a statutory directive to determine an array of comparables exhibiting same or similar work of workers exhibiting like or similar skills under the same or similar working conditions. This decision must be based on the facts contained in the record and cannot be speculative or subjective.

There is considerable testimony in the record that county population, geographical proximity, and department size are indicative and determinative of similar work, skills and working conditions. The Commission will thus apply these criteria in choosing the array in this case.

Although most of the proposed counties fit the Commission's traditional population guidelines, the counties of Lancaster, Peoria, Wyandotte and Shawnee are significantly smaller than other proposed comparables and shall not be included. The Commission also does not find it necessary given the evidence presented to extend the array to the West coast to include the counties of Kern, Spokane, Sonoma and Monterey.

In looking at department size as an indication of similar work, skills and working conditions, it is apparent that for many of the array points the Commission is unable to accurately determine the size of the department without including correctional employees. Again, the Douglas County Sheriff Department is not responsible for corrections. The Commission will thus include in its array only those counties which exhibit comparable department size after accounting for correctional employees. The Commission thus finds that the counties of Jackson, Tulsa, Kent, El Paso, Polk and Johnson are sufficiently similar for comparison purposes and shall constitute the array in this case.


Tables 2 through 4 set out the prevalent wages for the positions in dispute. Once again the Commission is clearly faced with a situation where the evidence establishes that all of the job classifications are being paid above the prevalent at minimum and some of the job classifications are also above the prevalent at maximum. The Commission has clearly recognized that the language of Section 48-818 mandates setting wages at the prevalent regardless of whether that requires an increase or a decrease in wages. Douglas County Health Dept. v. County of Douglas , 8 CIR 208 (1986) aff'd 229 Neb. 301, 427 N.W.2d 28 (1988). The Supreme Court has affirmed the Commission in finding that "It is clearly within the authority of the CIR to order a reduction of wages." Douglas County Health Dept. v. County of Douglas , 229 Neb. 301, 316, 427 N.W.2d 28.

In the past when faced with this situation the Commission has ordered that the effective date of the increase in wages be the beginning of the contract year but the effective date of the decrease in wages be the date of the order, Douglas County, supra . However, Section 48-818 contemplates resolution of the dispute for the entire contract year at issue. To order that some wages are effective for the entire contract year while others are effective only prospectively is to ignore the clear language of the statute requiring that the Commission set wages at the prevalent wage rates paid. While the Commission does not lightly undertake ordering a wage reduction for the entire contract year, Section 48-818 states that the Commission "...shall establish rates of pay..." As the Supreme Court has stated, "...the word "shall" is considered mandatory and inconsistent with the idea of discretion." State Code Agencies Ed. Ass'n v. State of Nebraska, 231 Neb. 23, 27-28 (1989) (citing Moyer v. Douglas & Lomason Co. 212 Neb. 680, 685, 325 N.W.2d 648, 6511 (1982).) The Commission therefore finds that the wages for the job classifications in dispute shall be set at the prevalent wage rate determined by this order and shall be effective for the entire contract year in dispute thereby becoming effective July 1, 1988.


Table 5 sets out the prevalent for the pay plan structure. Douglas County's pay plan is shorter than the prevalent for both number of steps and years to reach maximum. The prevalent pay plan has six steps and it takes five years to reach maximum.


Douglas County currently has a policy whereby each sheriff department officer receives three hours pay at time and a half for qualifying twice annually in a shoot. This additional compensation is called Shooting Allowance. As Table 14 shows, none of the array members provide for any type of shooting allowance. In order to compare to the prevalent the Douglas County Sheriff's Department should eliminate the shooting allowance.


Both Petitioner and Respondent presented exhibits costing out the fringe benefit packages for their arrays, yet, both parties also agree that the Commission may alternatively modify only those specific benefits which depart from the prevalent practice. In looking at the benefits received, see Tables 6 through 16, and specifically the prevalent for a pension contribution rate, Table 13, it is clear that the total package Douglas currently receives minus the shooting allowance is comparable to the total package that is prevalent according to the array chosen by the Commission. Many of the individual benefits currently received at Douglas are above the prevalent but Douglas is also currently considerably below the prevalent in terms of pension contribution rate. The Commission thus finds that after adjusting wages and eliminating the shooting allowance, total compensation is comparable and the other fringe benefits currently received at Douglas County should not be altered.


1. The per hour wages for the 1988-1989 fiscal year shall be:

Minimum Maximum

Deputy $9.70 $13.05

Sergeant 12.16 14.84

Lieutenant 14.91 17.12

2. Douglas County's pay plan for the sheriff department employee's at issue be amended so that there are six steps and it takes five years to reach maximum.

3. Douglas County's current shooting allowance policy shall be eliminated.

4. All other terms and conditions of employment governing the 1988-1989 fiscal year are not affected by this Order.

Robert W. Mullin, Dissenting:


I disagree with that part of the decision which decreases certain wages and applies that decrease retroactively to the beginning of the contract year.

The Commission relies on the statutory language, "[s]hall establish rates of pay..." as mandating that increases in wages and decreases in wages be treated the same. In prior rulings we have applied increases retroactively to the beginning of the contract year but have applied decreases prospectively from the date of the decision due to policy questions and the difficulty of implementation of a decrease. That approach was specifically approved in the recent decision of Douglas Cty. Health Dept. Emp. Assn. v. County of Douglas , 229 Neb. 301, 427 N.W.2d 28 (1988) in which certain wage increases were applied retroactively and decreases were applied prospectively.

It is my opinion that the statutory language relied upon by the Commission mandates that we "establish rates of pay." That mandate is limited only by the requirement that the rates of pay so established be "comparable to the prevalent." Those are not precise terms but are terms of judgment and discretion. They certainly do not dictate that we demand repayment by public employees of wages paid out over the course of a contract year. To address that issue we must look to the policy behind the Industrial Relations Act and the practicalities of bargaining in the public sector. In AFSCME Local 2088 v. County of Douglas , 208 Neb. 511, 304 N.W.2d 368 (1981), rehearing 209 Neb. 597, 309 N.W.2d 65 (1981) the Supreme Court faced a slightly different but, I believe, analagous issue. There the employer had determined the amount if felt it should pay in wages and was paying those wages to non-union employees but withholding those wages from an identical class of union employees doing identical work because of the existing industrial dispute. In its original opinion, the Supreme Court held that such a practice was both improper and illegal. Citing from an earlier decision, it was held:

"'In an unregulated labor market, labor and management test their relative market power through bargaining. This testing may include resort to the strike or the lock-out. However, the Legislature decided that the services provided by employees subject to [the CIR's] jurisdiction were too vital to allow interruption while employer and employees tested the merits of their claims by trial by battle. When discussion is barren, employers and employees in the public sector are routed [to the CIR]. Judicial mandate replaces economic power as the determinate of wages.'" We recognize, therefore, that the public employer and the public employee do not stand on the same footing as employers and employees in the private sector.

The policy of the public sector law in Nebraska is clear. It is to ensure "[t]he continuous, uninterrupted and proper functioning and operation of the governmental service..." See Neb. Rev. Stat. Section 48-802 (Reissue 1978). If, on the one hand, employees may not refuse to work without risk of discharge, employers may not refuse to pay employees the wage established by the governmental employer for such work.

Furthermore, Neb. Const. art. XV, Sections 13 and 15, would indicate that public employees may not be discriminated against or punished because they have sought collective bargaining and have reached an impasse with the public employer....208 Neb. at 525.

In its holding on rehearing the court said:

It is the holding of this court that once a public employer has established a rate of pay for the performance of a particular job in a specific year by granting an across-the-board, cost-of-living wage increase to a group of employees, it may not withhold paying that salary to an employee of the classification granted the raise and performing that work, who would otherwise be entitled to payment at the increased rate of pay, solely on the basis that at the time the payment should otherwise be made the public employer and the bargaining representative of the employee are then engaged in a labor dispute. By so declaring, we intend that the wage which should be paid to a public employee by a public employer during a dispute is that wage which the public employer has declared as the appropriate wage to be paid and which it would otherwise agree to pay the public employee if no dispute then existed. ... 209 Neb. at 598. (Emphasis supplied.)

Here, the employer has otherwise agreed to pay certain wages to certain employees as if no dispute existed. Those wages have been paid as was required under the decision of AFSCME Local 2088. We are not dealing with wages offered as a compromise to the dispute but with wages which, for one reason or another, have been paid. For the reasons set forth in AFSCME we cannot now take away the wages which have been paid throughout this contract year. To do so would be a penalty to the employees who have merely exercised their right to seek a determination by the CIR.

There is no statutory mandate that we reach into the pockets of public employees to take back wages they most probably have already spent. The purpose of the Industrial Relations Act is to protect the economic interests of public employees who are denied the right to strike. See the concurring opinion of Krivosha, C.J., Lincoln Co. Sheriff's Emp. Assn. v. Co. of Lincoln , 216 Neb. 274, 283, 343 N.W.2d 735 (1984). It is an anomalous result if that protection requires that these employees must repay their employer.

Entered June 27, 1989.