10 CIR 191 (1990)


CITY OF OMAHA, A Municipal | CASE NO. 763
Corporation, |
Petitioner, |
LOCAL NO. 251, American |
Federation of State, County |
and Local Municipal Employees |
A.F.L. - C.I.O., |
Respondent. |


For the Petitioner: Kent N. Whinnery

Deputy City Attorney

804 Omaha/Douglas Civic Center

1819 Farnam Street

Omaha, Nebraska 68183

For the Respondent: Thomas F. Dowd

Thomas F. Dowd & Associates

The Exchange Building

1905 Harney Street, Suite 710

Omaha, Nebraska 68102


Before: Judges Orr, Kratz, and Dawson

A Petition was filed in this matter on August 23, 1989, seeking a Commission determination pursuant to Neb. Rev. Stat. Section 48-818 (Reissue 1984). On September 18, 1989, an Amended Petition was filed wherein Petitioner more specifically listed wages and various other terms and conditions of employment in dispute. The Respondent then filed an Amended Answer and the matter was set for Trial.

After various pretrial activities the Trial in this matter was held November 28, 1989. Following the Trial, the Petitioner submitted a brief on December 13, 1989 thereby completing the record so the Commission could issue its recommended Findings and Order. The year in dispute is the fiscal year beginning December 26, 1988 and ending in December 1989, so, for all purposes, the year in dispute was over before the Commission could render an opinion in this matter. Thus, as is often the case, the year in dispute has passed and so too has the dispute concerning many of the issues originally listed at the pretrial conference. These issues will be addressed further in the Fringe Benefit section of these Findings.

The issues as originally listed in the pretrial report are as follows:

1)wages and total compensation

2)longevity pay

3)union business leave

4)annual leave

5)health insurance

6)sick leave

7)injured on duty pay


9)call-in pay

10)dental insurance

11)shift differential pay


13)overtime for Park Caretakers I and II

14)vacation (same as annual leave already listed)

15)public safety employees

a) promotional probationary period of six months

b) meal periods

c) hours of work

16)permits and inspections employees

a) mileage costs

b) insurance coverage

c) vehicle provision.

At the outset of the hearing in this matter the parties orally entered the following stipulations:

1)That this Commission is authorized by statute and the parties acknowledge the Commissions authority to resolve the issues that are before the Commission at this time pursuant to 48-818 of the Nebraska State Statutes.

2)That the parties share five cities in common that the Commission may consider manifest the same skills and working conditions to a degree necessary for a determination of comparability in a wage and fringe benefit adjustment pursuant to 48-818. The cities are Colorado Springs, Colorado; Akron, Ohio; Des Moines, Iowa; Milwaukee, Wisconsin; and Kansas City, Missouri.

3)That the foundation for the data submitted with respect to those five cities is hereby waived.

4)That the list of issues contained in the pretrial conference report filed November 21, 1989, is stipulated and agreed to as being the issues for resolution by this Commission except that the parties have agreed and stipulated that pension shall be withdrawn as an issue.

5)That the parties have agreed on 60 key classifications within the city of Omaha.


The Petitioner seeks relief and the Commission has jurisdiction over the dispute pursuant to Neb. Rev. Stat. Section 48-818 which, in relevant part, provides:

Except as provided in the State Employees Collective Bargaining Act, 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.....

As the Commission has previously recognized, this statute mandates setting wages at prevalent for the contract year at dispute regardless of whether the order entails an increase or decrease in wages, Fraternal Order of Police v. County of Douglas , 10 CIR 148 (1989) (appeal dismissed). While the Commission does not lightly undertake ordering wage decreases, the statute states that the Commission shall "establish rates of pay" and this language is considered mandatory. Therefore, all wage rates determined in these findings to be prevalent shall be effective for the entire contract year in dispute.


Section 48-818 requires that the Commission make its findings based on wage rates paid and conditions maintained for "the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions." The question is then which, if any, of the array members proposed by the parties fit these statutory criteria thereby making comparison appropriate.

The Petitioner proposed an array consisting of; Akron, Ohio, Colorado Springs, Colorado, Des Moines, Iowa, Kansas City, Missouri, Lincoln, Nebraska, Milwaukee, Wisconsin, Tulsa, Oklahoma, Wichita, Kansas, Douglas County, Nebraska, UNO/UNMC and the state of Nebraska. The Respondent joins the Petitioner in proposing the cities of Akron, Colorado Springs, Des Moines, Kansas City and Milwaukee; and also proposes that Cincinnati, Ohio, Denver, Colorado and Toledo, Ohio are comparable. Table 1 sets out the relevant data on the proposed comparables.

The parties stipulated that the work, skills and working conditions in the five common cities are similar and satisfy the standards set out in Section 48-818 so as to allow comparison. As Table 1 shows, the five common cities fit the Commission's traditional population guideline of one-half to double and are also reasonably proximate. Furthermore, Table 1 shows that each of the five common cities has a sufficient number of job matches so as to make comparison appropriate. There is nothing in the record to contradict this finding of comparability and the five common cities of Akron, Colorado Springs, Des Moines, Kansas City and Milwaukee will thus be included in the Commission's array.

The Petitioner offered six additional array points: Lincoln, Nebraska, Tulsa, Oklahoma, Wichita, Kansas, Douglas County,UNO/UNMC and the State of Nebraska. The Petitioner's expert testified that the last three array points offered were included to reflect the local labor market. (T Vol. I 13: 3-14). The Commission has, since Local No. 2088 AFSCME v. County of Douglas , 208 Neb. 511 (1981) been mindful of including local employers where appropriate. However, the Commission must still determine that the local array members offered meet the criteria of Section 48-818 and the guidelines the Commission has established in determining comparability. After reviewing the record in this matter, the Commission finds that the State of Nebraska is not sufficiently similar so as to meet the requirements of 48-818. As the Petitioner's expert testified, the state employs in excess of 10,000 employees. (T Vol I 21: 4-6). This figure is clearly outside the double to half parameters the Commission generally relies on. Although the Petitioner contends that the size of work force is comparable if you look only at those state employees employed in Douglas County, the fact remains that the state does not negotiate salary on a county by county basis. The state negotiates salaries for all clerical employees on a statewide basis, See State Employees Collective Bargaining Act, Neb. Rev. Stat. 81-1369 to 81-1390 (Reissue 1987). Thus, the salaries paid state clerical workers in Douglas County are not a reflection of the local wages and employment conditions. For these reasons the Commission finds that the State of Nebraska should not be included in our 48-818 analysis. Similarly, because the employer-employee relationship between the state and UNO/UNMC is unclear in the record, the Commission likewise chooses not to include UNO/UNMC as a comparable.

Table 1 shows that the cities of Lincoln, Tulsa, and Wichita fit within the Commissions population parameters and are sufficiently proximate. These cities have a similarly sized workforce and a similar organization size, together with a significant number of job matches. There is nothing in the record to contradict a finding of comparability and the cities of Lincoln, Tulsa, and Wichita will thus be included in the Commission's array.

The Respondent proposed the additional cities of Cincinnati, Ohio, Denver, Colorado and Toledo, Ohio. As Exhibit 1 shows these cities fit the Commission's population parameters and may be considered geographically proximate in light of the common cities agreed to by the parties. The Respondent did not present evidence as to the size of the civilian workforce or the size of the organization but all three of the cities have a significant number of job matches indicating a similar organizational structure. Again as there was no evidence contradicting a finding of comparability the cities of Cincinnati, Denver and Toledo will be included in the Commission's array.


There are 107 job classifications at dispute in this matter. Both parties employed a key classification methodology for establishing wages. The parties stipulated as to which of the disputed classifications would be used as the key classifications. The 60 chosen key classifications are those job classifications listed on Table 2. Both parties also submitted exhibits showing which non-key job classifications were imputed from which key job classifications, Petitioner's Exhibit 4 and Respondent's Exhibit 9. Although both parties used substantially the same process, they did not in all cases agree as to which position should be imputed from which key classification.

The Commission in Douglas County Health Dept. Employees Ass'n v. County of Douglas , 8 CIR 208 (1986) affirmed 229 Neb. 301, 427 N.W.2d 28 (1988), reaffirmed the use of the key class methodology in certain restricted situations. The Commission held that there must be a showing that the number of job classifications at dispute is too numerous to economically conduct a full job survey. Furthermore there must be a showing that there exists a structured wage progression which would lend itself to the key class approach. Lastly, the Commission held that the original key classification guidelines, as set out in IBEW v. OPPD, 3 CIR 554 (1978), would be followed. The original guidelines that apply when a party attempts to employ a key classification methodology are;

(1) Job descriptions must exist, be generated, or be apparent to the Court from its previous experience. A job description is defined as the narrative statement of the work, skills and working conditions of a particular employee or a number of employees as a part of the whole function of the employer.

(2) Job descriptions must match, as between employees, within 20%, to be considered comparable.

(3) The wage rates surveyed of the job description tendered must cover not less than 20% of the total job descriptions of the employer whose wages are sought to be adjusted.

(4) The "key classifications" together with the related lines of progression, must permit direct or computed establishment of at least 85% of the classes involved.

(5) The "key classifications" or wage rates tendered should have at least one in each regular line of progression, or lines of progression should be established as comparable, or their relative market value established or apparent to the court from its previous experience.

(6) The "key classifications" must be subject to checking for accuracy of assessment of job content, lines of progression, and similarity or dissimilarity of other key classes and lines of progression within the several employers offered as sources of comparables.

(7) In setting wages from the key classifications, where more than one class is surveyed in a single line of progression, the Court will not average the percentage of increase or decrease, but will apply the percentage indicated to the classes not surveyed which are most closely related to the "key classification." (See end of the computer screen on this opinion for a special note)

In applying these guidelines to the evidence presented by these parties it is apparent that the Petitioner's evidence more closely complies with these guidelines. The Commission thus chooses to impute wages where necessary using the key class methodology set out on Petitioner's Exhibit 4.


Table 2 sets out the wages found to be comparable for the key job classifications in the array cities chosen by the Commission. The figures on this table for the chosen array members were taken from Petitioner's Exhibit 3 and Respondent's Exhibit 9 and also from the stipulation filed by the parties following the Trial. Although the Petitioner did not adjust its wage figures for differing contract years the Respondent did not challenge that methodology and the Commission has in Douglas County Health Dept. Employees Ass'n v. County of Douglas , 9 CIR 219 (1988), found that it is not necessary to adjust the salary figures for differences in contract years if there is no evidence that the adjusted figures would make a significant difference. Where however, the commission is able to adjust, or is given figures that more closely reflect the actual year in dispute, the Commission will continue to use those figures over non-adjusted wages. For these reasons the Commission used the Respondent's wage figures when there was a variance between the Petitioners' and the Respondents' numbers. The wages determined to be comparable for all of the disputed job classifications are set out on Table 13.


The parties originally listed numerous fringe benefits as being at issue. However, there is no evidence in the record concerning some of the benefits and some of the benefits are moot due to passage of the year in dispute. The Commission finds that any resolution of the dispute as to union business leave, vacation accumulation, the addition of certain conditions to the health insurance coverage provided (i.e. pre-certification), sick leave, and holidays would have no application to the year in dispute as the year is over. We thus decline to make any ruling on these benefits. As to the disputed benefits for which there is sufficient evidence upon which to make a determination, the Commission makes the following findings:

Longevity Pay

Table 3 sets out a comparison of the longevity pay policies at the compared to entities. Of the twelve array members only five currently provide any longevity pay. Thus, a policy such as that provided in Omaha is not prevalent and shall be eliminated.

Vacation Carryover

Table 5 sets out the vacation carryover policies in the compared to entities. The prevalent practice of the array members is to allow 30 days of vacation carryover.

Health and Dental Insurance

Tables 6 and 7 set out the relevant information concerning the health and dental insurance benefits received at the compared to array members. The Petitioner currently pays 100% of the health insurance premiums for employees taking either single or family coverage. The Petitioner does not provide any contribution towards any type of dental insurance.

As Table 6 indicates, for most of the array members there is a variance between the benefits received by those employees taking single coverage and those taking family coverage. For those employees taking single coverage it appears that there is no clear prevalent practice; half of the array members pay 100% of the premium and half pay something less. For those employees receiving family coverage the prevalent practice is to pay some portion of the premium less than 100%. As Table 7 indicates, it is the prevalent practice to contribute some dollar amount towards the premiums paid for both single and family dental insurance.

In comparing Omaha's practices with the prevalent practices of the array chosen, the Commission finds that ultimately there should be no change in the insurance benefits offered. For single health insurance, the Petitioner is clearly comparable. Although it would appear that the Petitioner makes too high of a percentage contribution towards family health coverage, the city does not contribute towards dental insurance and is thus below the prevalent practice in that respect. Viewing the insurance benefits as a whole the Commission determines that the Petitioner is comparable and the Commission will not order any change.

Call In Pay

Table 11 sets out the prevalent practice concerning call-in pay. Omaha's policy is to pay for either a four hour minimum or the actual time worked. In comparing the Petitioner's policy to those of the array members, the Commission finds that Omaha is not substantially different. No change shall be made concerning this benefit.

Shift Differential

Table 12 sets out the shift differential practices for the array members chosen by the Commission. The Petitioner does not provide for any shift differential payment. It is clear that shift differential payment is prevalent according to the Commission's array. The Commission finds that the prevalent practice is to pay $.28 per hour shift differential for the second shift and $.36 per hour shift differential for the third shift.


Table 9 sets out the pay plan structure for each of the array members. The pay plan in Omaha is clearly below the prevalent as far as both the number of steps and the number of years from minimum to maximum. The prevalent pay plan based on the Commissions array has 6 steps and requires 5 years to reach maximum.


In looking at all of the exhibits on fringe benefits presented by the parties and Tables 3-12 the Commission has determined that the benefit package as a whole at Omaha is comparable when the benefits previously discussed are changed. However, as the Commission has deleted the benefit of longevity pay and added the benefit of shift differential pay there are monetary consequences that must be addressed.

Table 13 shows that some of the employees in this unit will receive decreases in wages while others will receive substantial increases. To the extent possible and practical the commission finds that the lump sum payments either due the petitioner or the members of the association should be added to or offset by the amount of longevity pay that should be credited the city or the amount of shift differential the employee should have received. By ordering such an offset we prevent the employees from receiving a windfall and credit the employer for benefits paid in excess of the prevalent practice. Douglas Co. Health Dept. Employees Ass'n v. County of Douglas , 9 CIR 219 (1987).


1. The wages for the fiscal year beginning December 26, 1988 shall be as set out on Table 13.

2. Omaha eliminate its current longevity payment.

3. Omaha allow only 30 days of vacation carryover.

4. Omaha pay a shift differential of $.28 per hour for those employees working the second shift and $.36 per hour for those employees working the third shift.

5. Omaha's pay plan for the job classifications at dispute be amended so that there are six steps and it takes five years to reach maximum.

6. All other terms and conditions of employment governing the year in dispute are not affected by this Order.

All judges assigned to the panel in this case join in the entry of these Findings and Order.

Entered February 6, 1990.