12 CIR 211 (1996). Affirmed 253 Neb. 837, 572 N.W.2d 369 (1998).


Petitioner, |
v. |
Respondent. |


For the Petitioner: John P. Fahey

Dowd, Dowd & Fahey

1905 Harney Street, Suite 620

Omaha, Nebraska 68102

For the Respondent: William A. Harding

Harding & Ogborn

800 Lincoln Square

121 S. 13th Street

Lincoln, Nebraska 68501-2028

Donald W. Taute

City of Lincoln

555 South 10th Street

Lincoln, Nebraska 68508

Before: Judges Moore, McFarland and Cullan



A petition was filed by the Lincoln Firefighters Association Local 644 seeking to have the Commission resolve an industrial dispute pursuant to § 48-818. The parties requested that the CIR determine wages and other fringe benefits for the contract period September 1, 1995 through August 31, 1996 for the job classifications of Firefighter I, II and III, Firefighter/ Paramedic, Fire Apparatus Operator, Fire Captain, Fire Prevention Inspector I and II, Fire Equipment Mechanic, and Drillmaster, and the Respondent added the job position of Chauffeur. This case was bifurcated pursuant to the Commission's Order of August 8, 1995 and CIR Rule 15, and therefore, the only issue for trial is selection of the appropriate array.


There are two cities in common: Cedar Rapids and Sioux Falls. Petitioner is offering the additional cities of Peoria, Ann Arbor, Davenport and Minneapolis, and Respondent is offering the additional cities of Des Moines, Topeka, and Springfield. The population and distance from Lincoln of these proposed comparables are set forth on Table 1.

Petitioner's Array

Both parties admitted that fire suppression functions are fairly standardized in all of the proposed array points. Fire fighting duties, including training and inspection, as well as equipment and protective clothing, are similar between fire departments. However, the Petitioner asserts that the emergency medical services and hazardous material operations, both functions of the Lincoln Fire Department, are not so standardized. In addition, Petitioner's expert testified that climatic conditions can have a big impact in the operation and function of a fire department. Petitioner focused its array search on cities it thought had climatic conditions similar to Lincoln, with extreme heat and cold.

Petitioner limited its array search to cities located in the Bureau of Census north central region states of North Dakota, South Dakota, Nebraska, Kansas, Minnesota, Iowa, Missouri, Wisconsin, Illinois, Michigan, Indiana, and Ohio, and the states of Colorado and Oklahoma. Petitioner's other array criteria were city population, the fire department's emergency medical services (EMS) and their hazardous material operations.

Petitioner argues that Lincoln's EMS operation constitutes 61 percent of the fire department's calls, and is therefore, a major part of their operation. A fire department's EMS operation was considered a match to Lincoln if its firefighters were trained as Emergency Medical Technicians (EMT's) and transportation of the victims was provided by an outside source, such as an ambulance service. Conversely, a fire department was rejected as not comparable to Lincoln if its firefighters were only trained to the level of Certified First Responders (CFR's), or if the fire department had full paramedic service that included transportation of patients.

According to petitioner's experts, CFR's, EMT's, and paramedics each receive a different level of training and provide a different level of service. CFR's receive about 40 hours of training. EMT's receive between 120 and 140 hours of training and provide basic life support. Paramedics receive approximately 1100 hours of training and provide advanced life support. According to the testimony of Bill McDonnell, most fire departments that provide paramedic service also have ambulance units for transporting patients.

Petitioner used five criteria to determine whether a fire department's EMT program was similar to Lincoln's EMT program. Petitioner examined whether the fire department employees have the equipment and training to assist patients in the following: (1)airway management, (2) bleeding control, (3) splinting, (4) spinal immobilization of patient, and (5) assessment.

Petitioner argues that the Lincoln Fire Department is in the forefront of its management of hazardous materials and should be compared to fire departments with similar hazardous materials operations. Some cities have either minimal hazardous materials training and equipment, or none at all. In other locations, hazardous material incidents are handled by some other governmental entity, such as the county or a regional organization.

In the early 1980's, the Lincoln Fire Department began development of a hazardous materials team. It updates its protective clothing and equipment as technology upgrades those items. At the present time, it has three different types of protective clothing, level A, B, and C, with level C being the least protective (protection from chemical splashes) and level A being the most protective (a totally encapsulated suit with its own breathing apparatus). It also has a variety of monitoring equipment which perform functions, such as determining the type of chemical, the extent of its release, the rate and direction of its continued release, and its explosive range.

Petitioner's expert further testified that OSHA has identified a number of skill and competency levels for responders to hazardous materials incidents. These levels have been adopted by the National Fire Protection Association (NFPA) and are identified as NFPA 472. The levels include operations or first responder, technician, and specialist. The operations level requires a minimum of an eight hour course and provides the skills to identify, recognize and isolate the chemical. The technician level requires a minimum of 24 hours of training and provides training to take care of the hazardous material from beginning to end. Specialist requires training for a particular field. Almost one-fourth of the 260.5 sworn employees (approximately 20 per shift) at the Lincoln Fire Department are trained at the technician level.

Hazardous materials incidents are ranked by levels according to the severity of the leak. Level 1 is a small fuel spill of ten gallons or less and one engine company is dispatched for such a spill. Level 2 is a release of 20 gallons or more of fuel on the ground and an engine company, the hazardous materials van and a command vehicle are dispatched. Level 3 is a larger spill involving a full alarm response and two engines are dispatched, along with one truck, a command vehicle and the hazardous materials van. In the last year, the Lincoln Fire Department responded to approximately 200-240 hazardous materials incidents of all levels.

Finally, Petitioner maintains that employees at the Lincoln Fire Department spend a significant amount of time training in the areas of EMS and hazardous materials. In 1994, the average per person was 113 hours spent on EMS training and 75 hours spent on hazardous materials training. This time is taken out of 800-900 hours per year that are available for training, fire fighting, EMS calls, administrative duties, station maintenance and apparatus maintenance.

In sum, the Petitioner's array selection focused on the criteria of geographical proximity, weather conditions, city size, EMT and hazardous material operations.

Respondent's Array

Respondent argues that array employers should not be selected on the basis of the fire department's EMS or hazardous materials operations, but rather, it focused primarily on geographic proximity and metropolitan size. The Deputy Chief for Administrative Services (Deputy Chief) testified that more time is spent on training than on responding to fires, medical emergencies or hazardous materials incidents and the Lincoln Fire Department requires more training for fire related activities on a monthly basis than for any other type of activity. The Deputy Chief further testified that although there are more EMS calls than fire calls, the EMS calls are of a shorter duration than fire calls. He testified that the time spent on an EMS call is between five and twenty minutes, whereas time spent on a fire call is between twenty minutes and several hours. Regarding hazardous materials, the Deputy Chief testified that level 1 incidents, which are less time consuming, are more common than level 3 incidents.

The Respondent began its array search by drawing a concentric circle 300 miles around Lincoln and looking at all cities with a city population or MSA (Metropolitan Statistical Area) population one-half to twice Lincoln's population. Ten cities fit this criteria. Of those ten cities, two were eliminated because their MSA population was not one-half to twice Lincoln's MSA population. Respondent's expert testified that the counties and the economic systems are inextricably entwined with one another within an MSA. Respondent argues that MSA and geographic proximity are appropriate criteria for selection of an array because dissimilarity grows as the population doubles in size and with distance. Respondent also compared job positions in Lincoln with similar job positions in its array of compared-to employers. The purpose was to perform preliminary job matches to determine whether the array employers should be compared to Lincoln.

For each fire department in Respondent's array of compared-to employers, Respondent compiled a number of figures to prove the comparability of these fire departments. Respondent provided the total number of personnel employed in the categories of emergency services, maintenance, training, administrative and fire prevention; the number of fire stations, engine companies, truck companies and fire hydrants; and the number of fire calls, fire false calls, EMS calls, EMS false calls and the number of hazardous conditions. Respondent compiled the same figures for Petitioner's array of compared-to employers. Respondent argues that these figures indicate Minneapolis is substantially different from Lincoln because Minneapolis has significantly more fire department personnel, fire stations, engine companies, truck companies, fire hydrants and a substantially larger call volume. Respondent further argues that the figures for Ann Arbor indicate it is too small for comparison.

Commission's Array

The Commission has rendered two prior wage and fringe benefit decisions between the parties to this proceeding. Those decisions are identified as Lincoln Firefighters Association, Local 644 v. City of Lincoln, 3 CIR 130 (1976), aff'd in part and rev'd in part, 198 Neb. 174, 252 N.W.2d 607 (1977) and Lincoln Firefighters Association, Local 644 v. City of Lincoln, 8 CIR 31 (1985). The array of compared-to employers in each of these two cases was similar, but not identical. The Commission is not required to use either of these arrays in the present proceeding.

`The Court of Industrial Relations should not be compelled to compare the same school districts in every case that comes before it involving the same school districts . . . We are not prepared to say that merely because one set of school districts was deemed adequate in one case, a different set of school districts would necessarily be inadequate in a different case, particularly where different evidence is adduced.' It appears to us that what we have said with regard to school districts is equally applicable with regard to other governmental subdivisions.

AFSCME, Local 2088 v. County of Douglas, 208 Neb. 511, 518, 304 N.W.2d 368, 373 (1981) (citing Crete Educ. Ass'n v. School Dist. of Crete, 193 Neb. 245, 226 N.W.2d 752 (1975)).

In selecting an appropriate array of employers for purposes of an action under Neb. Rev. Stat. § 48-818, the Commission considers evidence of the work, skills and working conditions of employees in the bargaining unit with that of workers performing the same or similar work, who exhibit like or similar skills under the same or similar working conditions. " `In selecting employment units in reasonably similar labor markets for the purpose of comparison as to wage rates and other benefits, the question is whether, as a matter of fact, the units selected for comparison are sufficiently similar and have enough like characteristics or qualities to make comparison appropriate.' " Douglas County Health Dep't Employees Ass'n v. County of Douglas, 229 Neb. 301, 308, 427 N.W.2d 28, 35 (1988) (citation omitted).

This is the first decision rendered by the Commission in a bifurcated proceeding whereby the issue of array is heard prior to and separate from the determination of wages and terms and conditions of employment. The Commission created this rule as a cost-saving measure to the parties. In this case, the Petitioner conducted on-site investigations, while the Respondent did not. In the array portion of a bifurcated proceeding, the Commission will follow its previously established criteria in selecting an array of employers that are sufficiently similar. It is not necessary at the array stage of a bifurcated proceeding to accomplish a precise "job match" comparison for particular employees within an array employer.

The Commission agrees with Petitioner that EMS is an important criteria in establishing similar work, skills and working conditions to employees at the Lincoln Fire Department. Both parties agree that EMS is a significant part of the Lincoln Fire Department's operation. The Commission finds that, for purposes of selecting an array of compared-to employers, firefighting and EMS are more significant and time consuming functions performed by the Lincoln Fire Department than the function of a hazardous materials operation. In addition, the Commission declines to use MSA, or Metropolitan Statistical Area, as an array selection criteria in this case, as there was no evidence presented to support the contention that a city's presence in a larger metropolitan area directly affected wages or work, skills and working conditions. Finally, the Commission chose not to rely heavily upon the fire department "call" statistics provided by both parties due to the differences between departments in the manner that these statistics were categorized and compiled.

Topeka was rejected by Petitioner as not comparable to Lincoln based on the criteria of hazardous materials. Petitioner acknowledges that Topeka's EMS operation is similar to Lincoln's, but argues that Topeka does not have a hazardous materials operation. Respondent, on the other hand, assumes that the Topeka Fire Department performs some hazardous materials duties because it reported 580 "hazardous conditions" for the year of 1994. Since the functions of firefighting and EMS at Topeka are comparable to Lincoln and Topeka fits the size criteria and is geographically proximate, the Commission shall include Topeka in its array.

Springfield was offered as a comparable by the Respondent. Springfield's population meets the size criteria and Springfield is geographically proximate. Springfield's firefighters are trained to the level of EMT's. Petitioner's expert witnesses testified that they initially were considering including Springfield in their array, however, after visiting Springfield's department for the purpose of comparing the work, skills and working conditions, rejected it as a comparable because of the difference in its EMS operation. Petitioner argues that Springfield's EMT's cannot perform to the level of basic life support (BLS) because the fire department lacks the necessary equipment. Petitioner argues that Springfield's equipment is at the CFR, or certified first responder, level. Of the five criteria Petitioner used to evaluate a fire department's EMS program, the only BLS equipment the Springfield Fire Department has is for airway management. Springfield lacks equipment for bleeding control, splinting, spinal immobilization and assessment. This testimony was not disputed by the Respondent. The Commission finds that the EMS program at Springfield is functioning at the level of certified first responder. Lincoln is functioning at the BLS level, and to a lesser extent, at the paramedic level. The Commission further finds that Springfield is not comparable to Lincoln and, therefore, shall not be included in the Commission's array.

Respondent argues that Davenport should not be used as a comparable because its population is a few hundred people less than one-half of Lincoln's population. However, the size criteria used by the Commission is a general guideline and not a rigid rule. "The Commission has often held that array members used to determine comparability should generally range from one-half to twice as large as the employer in question." Crawford Teachers Ass'n v. Dawes County School Dist., 11 CIR 254, 256 (1991). See also AFSCME Local 2088 v. County of Douglas, 208 Neb. 511, 523, 304 N.W.2d 368, 375 (1981) (guidelines used by the CIR are not statutory requirements). The uncontested evidence indicates that Davenport's functions of firefighting and EMS "mirrored" Lincoln. In addition, Davenport is located only 330 miles from Lincoln. Davenport shall be included in the Commission's array.

Petitioner argues that Des Moines should be excluded from the array because their EMS is not comparable to that provided by Lincoln. The Des Moines Fire Department provides advanced life support, or paramedic service, and transportation of patients.

The Lincoln Fire Department is in the process of upgrading its EMS to advanced life support (ALS). Advanced life support skills include the ability to administer drugs, to intubate, to shock, and to start IV's. A class of twelve paramedics has completed the classroom training and is expected to be fully certified and operational by the end of 1995. One of those individuals is fully certified and working as a paramedic and the other eleven are working as paramedics in all aspects other than the administration of drugs. A second class of fourteen paramedics has completed the classroom training and may be fully certified and operational by August 31, 1996, the end of the contract year in dispute. The Deputy Chief testified that, other than the element of transportation, a significant number of EMS calls in Lincoln are presently receiving ALS care. The Commission finds that the Des Moines Fire Department is sufficiently similar to be compared to Lincoln, and shall be included in the array.

Both parties agree that the cities of Cedar Rapids and Sioux Falls are comparable to Lincoln and, therefore, these two cities shall be included in the Commission's array.

The city of Peoria was offered by the Petitioner as comparable to Lincoln. Petitioner advocates that the functions of firefighting, EMS and hazardous materials at Peoria are comparable to Lincoln. The population of Peoria is within one-half to twice the population of Lincoln. Respondent argues that Peoria, located 380 miles from Lincoln, is not geographically proximate. Respondent's farthest array city is Springfield and it is located 315 miles from Lincoln. The Commission finds that Peoria is geographically proximate and it shall be included in the Commission's array.

Minneapolis was offered by Petitioner as comparable to Lincoln. Respondent argues that Minneapolis is substantially different from Lincoln because its fire department statistics were much greater than Lincoln's statistics. However, the population of Minneapolis is almost double the population of Lincoln, so it is understandable that Minneapolis has a larger fire department operation. Minneapolis, located 335 miles from Lincoln, is geographically proximate, its population is within one-half to twice the population of Lincoln, and its EMS and hazardous materials operation are comparable to Lincoln. The Commission finds that Minneapolis is appropriate for inclusion in its array.

Ann Arbor, located 690 miles from Lincoln, is the farthest from Lincoln of the nine proposed array cities. The second farthest is located 380 miles from Lincoln. The Commission has a seven city array without Ann Arbor and this is a sufficient number of comparable employers. The Commission finds that it is unnecessary to extend the array search beyond 380 miles from Lincoln. The Commission declines to include Ann Arbor in its array.


1. The array of compared-to employers for the purpose of determining wages and fringe benefits for the contract year September 1, 1995 through August 31, 1996 shall be Topeka, Davenport, Des Moines, Cedar Rapids, Sioux Falls, Peoria and Minneapolis.

2. The Clerk of the Commission shall contact the parties to schedule a telephone conference, to be held within two weeks of the date of this Findings and Order, to discuss the scheduling of a hearing on the determination of wages and terms and conditions of employment.

Entered February 5, 1996.