12 CIR 221 (1996). Affirmed 253 Neb. 837, 572 N.W.2d 369 (1998).


Petitioner, |
v. | ORDER
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, Shultz & Downs

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


This matter comes on before the Commission upon the Motion for Reconsideration, the Motion to Reopen, and the Motion to Strike filed by the Respondent herein. A hearing was held by telephone on February 26, 1996. The Petitioner was represented by John P. Fahey, its attorney. The Respondent was represented by William A. Harding and Don W. Taute, its attorneys. Also present at the hearing on behalf of the Respondent were John Goomis, John Huff, John Cripe and Ron Todd.

The Respondent offered Exhibits 149 and 150. The Petitioner objected to both Exhibits on relevance, but the objection was overruled and the Exhibits were received. The Petitioner offered Exhibit 151. The Respondent objected to the Exhibit on the basis of relevance, which objection was taken under advisement pending receipt of the Exhibit by Judge Moore. Arguments by counsel were made and the Motions were taken under advisement.

The Commission, being duly advised in the premises, finds as follows:

1. Respondent's objection to Exhibit 151 is overruled and Exhibit 151 is received.

2. The Respondent's Motion for Reconsideration should be and the same is hereby denied. The Commission has not uniformly adopted Metropolitan Statistical Area (MSA) population as a criteria in selecting or rejecting array members. The Commission has, on occasion, rejected the use of MSA as a selection criteria. See Douglas County Health Dep't Employees Ass'n v. County of Douglas, 8 CIR 208 (1986), aff'd, 229 Neb. 301 (1988); Lincoln Police Union v. City of Lincoln, 5 CIR 134 (1981); Lincoln Firefighters Ass'n, Local 644 v. City of Lincoln, 3 CIR 130 (1976), aff'd in part and rev'd in part, 198 Neb. 174 (1976). There was no evidence presented in the instant action to justify use of the MSA population as opposed to the city population.

3. The Respondent's Motion to Reopen should be and the same is hereby denied. The evidence presented by the Petitioner at trial concerning not only Springfield, but all of the array members which the Union chose to visit, concerned the comparability of work, skills, and working conditions and did not rise to the level of evidence concerning specific job matches, which will be heard in the second phase of this bifurcated proceeding. The Respondent was aware, through discovery and the exchange of trial exhibits prior to the trial, that the Petitioner was offering evidence at this stage concerning the comparability of the EMS and hazardous materials operations in the various cities. The Respondent acknowledged at the commencement of the trial that some analysis of organizational size and configuration, together with a general view of job match, is appropriate at the array stage.

The Commission has frequently analyzed factors affecting work, skills and working conditions, in conjunction with the criteria of size and geographic proximity, in selecting an array. The bifurcation of this trial does not change the analysis to be used by the Commission in the array stage of this proceeding. The Respondent conducted significant cross-examination of the Petitioner's witnesses concerning the EMS testimony, offered direct evidence regarding Lincoln's EMS status, and finally, offered as evidence through its expert witness that telephone discussions had occurred with the various cities concerning the EMS duties, staffing and transportation activities. The Respondent cannot now claim any unfair prejudice resulted in the Commission's analysis of this evidence.

4. The Motion to Strike should be and the same is hereby denied. The testimony in Case No. 902 which Petitioner asserts should lead to the striking of Michelle Smith's testimony in the instant action does not support the Petitioner's argument.


Entered March 12, 1996.