11 CIR 267 (1992)


Petitioner, |
Respondent. |


For the Petitioner: John Fahey

Mary Clarkson

Broom, Johnson, Fahey & Clarkson

1722 St. Mary's Avenue

310 Flatiron Building

Omaha, Nebraska 68102

For the Respondent: Neal Stenberg

Harding & Ogborn

500 The Atrium

1200 "N" Street

Lincoln, NE 68501-2028

Before: Judges Flowers, Orr, and F. Moore



A petition was filed by the International Association of Firefighters, Local No. 1575 requesting that the Commission set wages and other terms and conditions of employment. The fiscal year in dispute is August 1, 1991 through July 31, 1992. The issues are wages for fire fighters at minimum and maximum, vacation leave and carryover, life insurance including benefit amount and monthly cost to employer, maximum call-in pay, percentage of costs paid by employer for education assistance, step pay, number of steps, and health insurance including employer and employee contributions.

In addition to the above issues, respondent raised the issues of whether the Commission's wage order in this case can be retroactive; whether the labor agreement between the parties has been terminated, and if so, the effective date of the termination; and whether respondent should be permitted to file an amended answer.


Respondent argues that any decision we make regarding wages and other terms and conditions of employment cannot be retroactive to the date of the fiscal year. Respondent cites the parties' last collective bargaining agreement and the Nebraska Constitution in support of its position.

Although the parties' collective bargaining agreement states that it is to be in effect until July 31, 1991, it also states that "[t]his agreement shall remain in full force and be effective during the period of negotiations unless either party desires to terminate this Agreement, in which case written notice must be given to the other party not less than ten (10) days prior to the termination date. . . ."

Respondent argues that a Commission order making wages and fringe benefits retroactive to August 1, 1991 would be in violation of Neb. Const. art. III, § 19 prohibiting the grant of extra compensation to any public officer, agent, or servant after the services have been rendered. This issue was raised in Tekamah-Herman Educ. Ass'n v. School Dist. of Tekamah-Herman, 9 CIR 78 (1987), and we ruled that Article III, § 19 was not applicable because, inter alia, Commission wage orders are compensation in the first instance. However, according to respondent, if the parties are still operating under their last collective bargaining agreement, then a retroactive CIR order granting a higher rate of pay would be extra compensation and not compensation in the first instance.

In addition to prohibiting the payment of extra compensation after services have been rendered, Neb. Const. art. III, § 19 also prohibits payment of extra compensation to any contractor after the contract has been entered into. Respondent contends that the labor agreement is a contract and the union is a contractor.

Respondent further argues that the Commission lacks jurisdiction to make a retroactive award of pay or benefits since it has no general jurisdiction over contractual disputes. See Plattsmouth Police Dep't Collective Bargaining Comm. v. City of Plattsmouth, 205 Neb. 567, 568-69, 288 N.W.2d 729, 731 (1980). The Commission understands that it lacks jurisdiction to set wages and other fringe benefits as long as the parties are bound by a collective bargaining agreement. The evidence at trial indicates that neither party believed there to be a collective bargaining agreement in effect after the end of the contract year. In fact the issue itself was first raised only three weeks prior to trial. It is clear that the parties acted as though the written notice required under the contract had been given or that such was not necessary. Under the circumstances the Commission finds that the city waived the requirement that there be a written notice of termination. Our order shall be effective for the period of time beginning August 1, 1991 and ending July 31, 1992.


Petitioner limited its array search to first class cities in Nebraska. Petitioner's other criteria consisted of geographic proximity, population, square miles, type of pension, and similarity of work, skills and working conditions. Petitioner looked for similarities in the duties as set out in the job descriptions. The job description for fire fighters employed by the city of Columbus indicates that they suppress and prevent fires, educate the public in fire safety, drive emergency fire equipment, maintain the fire station, use fire fighting equipment, have knowledge of hazardous materials, and as certified emergency medical technicians they perform medical services. Petitioner's array consists of Fremont, Hastings, Norfolk, and North Platte.

In addition to similarity of work, skills and working conditions, respondent used the criteria of population (no more than double nor less than one-half the population of Columbus), geographic proximity (no more than 200 miles from Columbus), balance (one-half of its array cities larger in population than Columbus and one-half smaller), and size of the array. Respondent extended its array search to cities located outside of Nebraska because its expert felt that there were not enough comparable Nebraska cities to have a statistically reliable and balanced sample of cities. Respondent's array consists of all of petitioner's array members and Beatrice, Nebraska; Atchison, Kansas; Ft. Dodge, Iowa; Junction City, Kansas; Mitchell, South Dakota and Spencer, Iowa. The characteristics of both parties' array members are shown on Table 1.

Of the ten array members offered by the parties, five are Nebraska employers. Both this Commission and the Nebraska Supreme Court have expressed a preference for Nebraska employers. "We believe that there are strong policies in favor of using an array of comparable Nebraska employers rather than using employers from outside the State of Nebraska, when an appropriate array for that purpose within the state exists. . . . [W]hen given a choice between sufficient comparables within the state and comparables without the state, we believe it is more appropriate for the CIR to confine itself to comparables within the state." Lincoln County Sheriff's Employees Ass'n, Local 546 v. International Bhd. of Police Officers, 216 Neb. 274, 278-79, 343 N.W.2d 735, 739 (1984). Although the Commission prefers an array larger than five, we have used arrays of this size in the past. See Service Employees Int'l Union Local No. 226 v. Westside Community School Dist. No. 66, 11 CIR 75 (1991); Nebraska Western College Educ. Ass'n v. Western Technical Community College Area, 10 CIR 101 (1989); Fraternal Order of Police, Sarpy Lodge No. 3 v. County of Sarpy, 10 CIR 61 (1988).

Respondent contends that the Commission should include out-of-state employers in its array to achieve balance. Of the five proposed Nebraska employers, four are larger than Columbus and one is smaller. While it is true that including out-of-state employers in the final array would achieve balance, the Commission declines to do so. "The Commission will not assume that balance automatically impacts array members. . . . Absent credible evidence indicating balance is linked to the proposed array members, the Commission will not use it as a criteria in its selection process." Nickerson School Educ. Ass'n v. Dodge County School Dist. No. 19, 11 CIR 159, 164-65 (1991). Sufficient evidence of a direct relationship between wages and population was not presented in this case. The Commission's array shall consist of the Nebraska cities of Beatrice, Fremont, Hastings, Norfolk, and North Platte.


Petitioner and respondent presented different methods for calculating fire fighter wages. The difference rests in petitioner's contention that adjustments need to be made for kelly days, compensatory time and scheduled overtime.

Fire protection must be provided 24 hours a day, seven days a week, 52 weeks a year. All of the fire departments in the array (as well as those excluded from the array) provide the needed protection by creating three shifts of fire fighters each of which works 24 hours on followed by 48 hours off in either 27 or 28 day cycles. The FLSA requires that fire departments pay fire fighters overtime for work in excess of 212 hours in a 28 day cycle (204 hours in a 27 day cycle). Some departments choose to take a fire fighter off the schedule rather than pay the overtime. The days off the schedule are known as kelly days and are used by employers to reduce overtime costs. If a fire fighter works overtime, the department can pay that employee in cash or with compensatory time off in lieu of cash.

Scheduled overtime impacts wages when each employer bases its fire fighter salaries on a different number of hours. For example, if a fire fighter's annual salary is based on 2,756 hours per year, then all overtime worked by the fire fighter must be compensated at the rate of one and one-half times the fire fighter's FLSA regular rate of pay. The figure of 2,756 is arrived at by multiplying 212 by 13 (the number of 28-day work cycles per year). If a fire fighter's annual salary is based on 2,920 hours per year, then the first 164 hours of overtime is compensated at the rate of one-half times the employee's FLSA regular rate of pay because the straight-time pay is already figured into the employee's annual salary.

For each employer in its array, petitioner adjusted the gross scheduled hours by the number of kelly/comp. hours to arrive at a net hour figure. The annual salary was adjusted upward to reflect scheduled overtime pay. The adjusted annual salary was then divided by the net hours to arrive at an adjusted hourly wage. Petitioner contends that the adjusted hourly wage is the figure the Commission should use to determine comparability.

Respondent, on the other hand, made no adjustments for kelly/comp. hours or scheduled overtime pay. Respondent contends that fire fighter wages should be the FLSA regular rate of pay. The regular rate is determined by dividing the annual salary by the number of hours the employer and employee have agreed the salary is intended to compensate.

The Commission determines that no adjustment should be made for either kelly days or scheduled overtime. With respect to kelly days, an adjustment would be appropriate only if the kelly days were paid days. Then we might need to adjust for differences in hours worked much as we have done in the past for teachers when there are differences in contract days and as we recently did in Nebraska Public Employees Local Union 251 v. County of Douglas, Case No. 819 (1992) for paid lunch hours. In this case there is no evidence that the kelly days are paid days off work. In fact, the opposite appears to be true. In those cities with kelly days (Fremont, Norfolk and Columbus), the annual salary is based on 2,756 hours. Under FLSA, 2,756 hours are the maximum hours a fire fighter can work annually without being paid overtime. If a fire fighter works more than 2,756 hours (actually 212 hours per 28-day work cycle), he or she will be paid time and one-half for those hours. It is apparent that no kelly days are included in the annual salaries paid in those departments. While Beatrice, Hastings and North Platte base their pay on 2,920 and 2,912 hours respectively, there are no kelly days included in those hours. (See Table 2). One note should be added with respect to Hastings. While petitioner argues that Hastings has 78 kelly hours, that does not appear to be supported by the evidence. It may well be that Hastings provides compensatory time instead of overtime pay, but the same does not represent a kelly day as the Commission understands those days to be.

To make the adjustment that petitioner requests with respect to scheduled overtime would do nothing other than build overtime wages into the base hourly rate and that would be inappropriate.

Table 2 sets out the Commission's findings regarding the array members' annual salaries at minimum and maximum, the number of hours on which each salary is based, and the number of kelly days used by each employer.

Table 3 sets out what the Commission has determined is each array member's hourly wages at minimum and maximum. These figures indicate that the comparable wage for a fire fighter is $6.23 at minimum and $8.57 at maximum. Columbus is below prevalent and its wages shall be adjusted accordingly.


Pursuant to Neb. Rev. Stat. § 48-818 (1988), the Commission is required to look at fringe benefits and wages to determine overall compensation. The rate at which vacation accumulates is set out in Table 4, the maximum accumulation is set out in Table 5, and the vacation carry over is set out in Table 6. The vacation accumulation rate at Columbus is either at or above prevalent. The new vacation accumulation rate table is set out in the order section of the opinion. The maximum accumulation at Columbus is comparable to the prevalent, so no change shall be made. It is prevalent to have a policy allowing employees to carry over accumulated vacation and Columbus has such a policy. However, there is no prevalent vacation carry over policy, so no change shall be ordered.

Table 7 indicates that the amount of life insurance Columbus provides to its employees is above prevalent. The prevalent amount of life insurance coverage is $16,000. Columbus shall provide its employees with life insurance coverage in the amount of $16,000.

Table 8 sets out the call-in pay policies of the array members. Columbus is above prevalent in the minimum amount of time it pays employees called back to work and at prevalent in the rate it pays them. The minimum amount of time Columbus pays its employees called back to work shall be reduced from one and one-half hours to one hour.

The education assistance policies of the array members is set out in Table 9. Columbus' education assistance policy is comparable, and shall remain unchanged.

Table 10 sets out the relevant information on the step pay plan. The prevalent number of pay steps is seven. Columbus is comparable to the prevalent in the number of years from minimum to maximum and the requirement for movement along the pay line. The number of pay steps at Columbus shall be reduced from ten to seven. Table 11 sets out the relevant information on the health insurance plans offered by the employers in the Commission's array. Columbus currently pays 100 percent of the single and 74 percent of the family premium. We did not prepare a table showing the specific provisions of each employer's health insurance policy, but we did review them for comparability. The specific provisions of Columbus' health insurance plan are comparable. Columbus is prevalent in the amount it pays for a single premium and below prevalent in the amount it pays for a family premium. Columbus shall pay 100 percent of the single and 91 percent of the family health insurance premium.

Table 12 indicates that it is prevalent for an employer to provide health insurance for retirees and to require the retired employees enrolled in such insurance to pay the full cost. Columbus shall offer health insurance for retired employees with the cost of such insurance paid for by each employee electing the insurance.


The minimum hourly wage for a fire fighter position at the city of Columbus shall be $6.23 and the maximum hourly wage shall be $8.57.

The vacation accumulation rate shall be as follows:

Yrs. of EmploymentDays of Vacation
After 1 Yr.109
After 5 Yrs.131
After 10 Yrs.174
After 15 Yrs.182
After 20 Yrs.230
Columbus shall provide its employees with life insurance coverage in the amount of $16,000.

Columbus shall pay employees called back to work a minimum of an hour of pay at the rate of one and one-half times the employee's hourly rate of pay.

The number of steps in Columbus' pay plan shall be seven.

Columbus shall pay 100 percent of the single or 91 percent of the family premium for employees enrolled in the health insurance plan.

Columbus shall provide health insurance to its retired employees with the cost of the insurance paid for by each employee electing such coverage.

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

Entered May 18, 1992.