10 CIR 233 (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

This matter comes before the Commission upon a Motion for Reconsideration and Clarification filed by the Respondent and a Motion for Clarification/Rehearing filed by the Petitioner. Upon the request of the Petitioner, oral arguments were heard on the motions before the Honorable Jeffrey Orr on March 16, 1990. The Petitioner was represented by its attorney, Kent Whinnery and the Respondent was represented by its attorney, Thomas Dowd. Both parties seek to have the Commission revise the Findings and Order issued in this case on February 6, 1990.

Neb. Rev. Stat. 48-816(7)(d)(Reissue 1988) provides that the Commission shall, in a wage case filed pursuant to Section 48-818, issue a recommended decision and order which shall become final within ten days of entry unless one of the parties requests a posttrial conference. Although neither of the parties to this action formally requested a posttrial pursuant to this statute, it is clear following the arguments heard on the parties' motions that neither party actually seeks a rehearing of the entire matter and in effect both parties raised issues that are the proper subject of a posttrial conference. The Commission will thus treat the motions filed as requests for a posttrial conference and in the future will require the parties to comply with the statutory requirements for filing such a request.

The Respondent contends that the Commission was remiss in failing to address three issues listed in the pretrial order and in failing to explain why Douglas County was included in the array chosen by the Commission. The Petitioner argued that the Commission erred in finding that some of the fringe benefit issues raised by the parties were moot, in finding that there should be no change in the health insurance benefits provided, and in finding that Denver, Cincinnati, and Toledo were appropriate for inclusion in the array while the state of Nebraska and UNO/UNMC were excluded.

Respondent's Arguments

The first issue raised by the Respondent was the failure of the Commission to address the benefit of furnishing vehicles to permit and inspection employees. Although there is evidence that the practice of furnishing vehicles to these employees is prevalent, it is also clear that the contract year is over and the employees in Omaha in these job classifications have already received mileage payments in lieu of being furnished a vehicle. It is impossible at this point to order the city to furnish vehicles for the contract year in dispute. The sole effect such a ruling would have at this point would be making the employees pay back the mileage reimbursements they received because they should instead have been furnished a car and the payments should not have been made. The furnishing of vehicles to certain employees is an excellent example of a benefit that is impossible to adjust once the contract year is over and one the Commission thus finds is moot.

The Respondent also took exception to the fact that the Commission did not mention the issue of overtime for park caretakers. The Respondent contends that there is sufficient evidence in the record to support a finding that payment of overtime to park caretakers is prevalent and should be implemented by the city. After again carefully reviewing the evidence presented, the Commission does not find sufficient evidence to warrant such a ruling. The Respondent suggested that the Commission look to the surveys presented for the array points offered by them to determine what the prevalent practice is regarding this benefit. Counsel for the Respondent stated that Omaha does not, by contract, pay any overtime to these job classifications.

In looking at the surveys for the array points offered by the Respondent, the Commission is unable to determine a prevalent practice. In response to the question regarding any specific overtime policy for park caretakers the cities of Cincinnati, Denver, and Kansas City said the question was not applicable ; the survey for Colorado Springs, which is one of the cities relied on for a job match, doesn't even list the question; the city of Des Moines, which is another city with a job match for these positions, submitted two surveys, one of which states that overtime is paid after an eight hour day or a forty hour week, but that such overtime MUST be taken in the form of compensation time, and another that states that overtime is paid at time and a half for hours over forty. Both surveys further state that these policies are applicable to park caretakers. The Milwaukee and Akron surveys indicate that there are no city employees in those job classifications and the survey for Toledo leaves the question blank as does the survey for Omaha. Given this information the Commission can not find that there is a clear prevalent practice and will not order a change concerning this benefit.

The last issue addressed by the Respondent concerned the public safety department and various benefits offered the employees in those job classifications. The record indicated that neither party sought a change with regards to those employees because both parties found that the benefits offered by Omaha were comparable. The Commission thus found there was no dispute as to those benefits and declined to make a finding as to their comparability. If there is no dispute pending before the Commission, we will not issue an advisory opinion or an opinion intended to provide future guidance to the parties.


Both parties raised objections to the array chosen by the Commission. The Petitioner questioned the inclusion of Denver, Cincinnati, and Toledo and the Respondent questioned the inclusion of Douglas County. While the inclusion or exclusion of array members is not normally addressed in a posttrial order, the Commission after hearing the parties arguments still finds that the array chosen for this case is appropriate. Both parties presented arrays their experts found to be comparable. Table 1 of the original Findings and Order indicates that all of the non-local array members presented fit the Commission's traditional size and proximity guidelines. Furthermore, there is evidence in the record showing that all of the array members chosen by the Commission have a significant number of job classifications similar to Omaha. There is not any evidence in the record to indicate that any of the offered array points should not be included other than the testimony that the state of Nebraska employs upwards of 10,000 people which is clearly more than double the size of the workforce in Omaha. Because UNO/UNMC is under the governance of the state of Nebraska, the Commission also chose to exclude it. The Commission in a section 48-818 case, does not have to find the most suitable array but is charged with finding an array where the employments are, as a matter of fact, sufficiently similar and have enough like characteristics or qualities to make comparison appropriate, Fraternal Order of Police v. County of Adams , 205 Neb. 682, 289 N.W.2d 535(1980).

Petitioner's Arguments

The Petitioner contends that the Commission should rule on all of the issues presented at the pretrial regardless of whether or not the contract year in dispute is over at the time the decision is entered. In effect, the Petitioner challenges the Commission's authority to find that the dispute as to certain benefits is rendered moot by the end of the contract year.

In recent years more and more of the cases filed with the Commission are filed at or near the end of the contract year in dispute. While in some cases the delay in bringing the dispute to the Commission is necessitated by the parties ongoing negotiations, in many other cases the delay is unnecessary. In any event, the Commission is statutorily authorized to decide only pending industrial disputes and therefore has no jurisdiction to issue declaratory or advisory judgments, NAPE v. Department of Roads , 220 Neb. 883, 374 N.W.2d 46(1985). As is often the case when an issue as to a certain benefit is raised, it is clear that because the contract year is over, a ruling as to that benefit would be advisory only and would have no effect on the contract year in dispute. It is impossible in many situations to go back to the beginning of the year and alter a condition of employment such as adding or deleting a holiday, or amending the health insurance to require precertification before admission to a hospital. While a ruling as to such benefits would give guidance to the parties for the next years negotiations, the Commission has no jurisdiction to issue such advice.

The Petitioner also takes exception to the fact that the Commission did not provide an in depth analysis of its finding that there should be no change in the health/dental insurance benefits provided by the city. The Commission in determining overall compensation and overall comparability to prevalent, is not required to make a mathematical finding as to equivalency nor is the Commission required to cost out the fringe benefits provided in order to determine a prevalent rate of overall compensation. See, Omaha Ass'n of Firefighters v. City of Omaha , 194 Neb. 436, 231 N.W.2d 710(1975).

In the present case the employees were not required to contribute towards dependent health insurance coverage like most of the employees of the array members but those same Omaha employees did not receive any dental insurance, while the prevalent practice was to provide and pay some portion of the premium for that benefit. The record also indicates that the city of Omaha is essentially self insured and the figures that are listed on the exhibits are the cost to the city for providing or paying for medical services divided by the number of employees receiving family coverage. It is unclear what the relationship is between the cost to the city under a self insurance plan and the premium rate the other array members pay for dependent or dental coverage and how the Commission would determine based on the percentage of premium paid what the prevalent percentage of the cost would be to the employees. What is clear is that, even though the costs may not directly offset each other, the dependent health coverage in Omaha is more favorable while the lack of dental coverage is less favorable and taken in their totality the health/dental benefits are comparable to the prevalent.

Lastly, the Commission would like to clarify that it did not adjust any of the wage figures presented by the parties in this case. All of the wage figures used were either contained in the direct evidence presented by one of the parties or were agreed to by both parties following the presentation of the case.

IT IS THEREFORE ORDERED THAT the Findings and Order issued on February 6, 1990 shall remain unchanged.

All judges assigned to the panel in this case join in the entry of this Final Order.

Entered March 28, 1990.