12 CIR 312 (1996).

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Appearances:
For the Petitioner:

Jane E. Burke
140 North 8th Street
Suite 250
Lincoln, NE 68508

For the Respondent:

William A. Harding
Harding & Ogborn
800 Lincoln Square
121 S. 13th Street
P.O. Box 82028
Lincoln, NE 68501-2028

and

Lisa R. Thayer
City Attorney
City of Grand Island
City Hall
100 East 1st Street
Box 1968
Grand Island, NE 68802-1968

Before: Judges DeLay, Flowers,, and Cullan

DELAY, J.:

NATURE OF PROCEEDINGS:

A petition was filed by the Petitioner seeking to have the Commission resolve an industrial dispute pursuant to Sec. 48-8l8. for the job classifications of Maintenance Worker I, Maintenance Worker II, Senior Maintenance Worker, Equipment Operator, Senior Equipment Operator, Equipment Mechanic, Shop Attendant, Fleet Maintenance Technician, Horticulturist, and Grounds Maintenance Crew Chief. Respondent objected to the inclusion of job classifications of Horticulturist and Ground Maintenance Crew Chief in the bargaining unit, and moved to strike such job classifications from the petitioner's bargaining unit for the reason that the petitioner had not been recognized by the city as the bargaining agent for such job classifications in the solid waste division of the Public Works Department, and the Parks and Cemetery Divisions of the Parks and Recreation Department. Upon hearing and offer of evidence, the motion to strike was sustained. The cause was bifurcated pursuant to the stipulation of the parties. The parties proceeded to pre-trial during which time, the parties stipulated that the petitioner could file a certification petition seeking to add additional job classifications to the bargaining unit, and if the effected employees elected to be represented by the bargaining unit, then the new job classifications could be included in this industrial dispute. As a result of the election in the cause entitled AFSCME, Local ll09 v. City of Grand Island,Case No. 907, and the stipulation of the parties hereto, additional job classifications were included in this bargaining unit. The issue for trial was the selection of an appropriate array.

ARRAY:

There are two cities in common: Hastings and Kearney. Petitioner is offering the additional cities of Fremont and North Platte, Nebraska, St. Joseph, Missouri, Lawrence and Salina, Kansas, and Ames, Iowa. Respondent is offering as array comparables, in addition to the common array cities, local comparables of Anderson Ford, Carpenter Cars, Chief Industries, Diamond Engineering, Hall County, Hooker Bros. Indianhead Golf Club, Northwest High School, Rick's Lawn Care Co., Sperry-New Holland, and Westlawn Memorial.

PETITIONER'S ARRAY:

The Petitioner selected its proposed array by initially assuming that employees of cities in reasonably similar labor markets would have rates of pay and conditions of employment for same or similar work of workers exhibiting like or similar skills under the same or similar working conditions. Petitioner's experts testified that petitioner, in selecting its proposed array, first surveyed cities within the State of Nebraska which were within the population guidelines previously recommended by the Commission of one-half to twice as large as the City of Grand Island. Crawford Teachers Ass'n v. Dawes County School Dist., ll CIR 254, 256 (l99l). The l990 Official U S Census was used as the population guideline. The petitioner determined that six cities within the State fell within those general guidelines. The selected cities were Bellevue, Fremont, Norfolk, Hastings, Kearney, and North Platte. Columbus was excluded because the l990 Official Census showed that the population of Columbus was less than one-half the population of Grand Island (39,386-Grand Island, l9,480- Columbus). The petitioner then excluded from its proposed array the City of Bellevue because Bellevue was located within the Omaha MSA (Metropolitan Statistical Area). The experts then surveyed the selected cities to determine whether the job classifications of Petitioner's members matched the job classifications of the surveyed cities. The criteria used was an 80% job description match with at least 50% match of job classifications. Using this process, the petitioner selected for its proposed array the cities of Hastings, Kearney, North Platte, and Fremont within the State of Nebraska. Norfolk was excluded because the survey indicated that Norfolk has less than a 50% job classification match. The Nebraska cities selected in the proposed array, however, were all smaller in population than Grand Island (Exhibit 50). Thus, the petitioner drew concentric circles centered on Grand Island until four additional cities with populations in excess of the population of Grand Island were located which cities also matched the criteria of 80% job description match and at least 50% match of job classifications. The cities selected were St. Joseph, MO, Lawrence and Salina, KA, and Ames, Iowa. The concentric circle had a radius of 250 miles. Other cities found within the 250 mile concentric circle were disregarded by the petitioner unless the population of such city was greater than the population of Grand Island. The petitioner's experts testified that the reason for selection of the additional out-of-state cities was to "balance the array" between cities of smaller populations with cities of greater populations than the City of Grand Island. No evidence was adduced by the Petitioner showing the relationship between the population size of a city, and same or similar work of workers exhibiting like or similar skills under the same or similar working conditions. All of the cities proposed by the petitioner as array members had an 80% or greater match of job duties with at least an 80% job classification match with the bargaining unit job classifications as determined and surveyed by the petitioner.

Although no evidence was adduced pertaining to the relative effect of the population of a city upon the working conditions of the workers, the Petitioners experts did testify that the working conditions of the workers in the proposed array were same or similar to the working conditions of the workers in the Respondent City.

RESPONDENT'S ARRAY:

The respondent stipulated with the petitioner that the cities of Fremont and Hastings were common array cities, and included the same in its proposed array. The respondent then assumed that local employers (public and non-public) who employed workers in same or similar jobs would have the same or similar working conditions. Based on the respondent's assumption that proximity equalled similar working conditions, the respondent surveyed local public and non-public employers in the Grand Island area who employed between 25 and l00 employees to determine job matches.

The criteria used for job matches was 85% or more match of job duties within the job descriptions. The respondent was not concerned with the number or percentage of job classification matches each local employer had with the job positions or classifications within the bargaining unit. The Respondent's expert also testified that the respondent selected three local employers for their proposed array who employed in excess of l00 employees, Sperry-New Holland (960), Chief Industries (563) and Hall County (240). The respondent proposed an array in addition to the common cities to include, Anderson Ford (63 employees), one job position match; Carpenter Cars (29 employees, which included one mechanic), one job position match (mechanic); Chief Industries (563 employees), four job position matches; Diamond Engineering (l00 full time employees, up to 75 seasonal employees), ten job position matches; Hall County (240 employees), nine job position matches; Hooker Bros (52 employees), six job position matches; Indianhead Golf Club (6 to l2 employees, half of which were seasonal), four job position matches; Northwest High School (73 employees), five job position matches; Rick's Lawn Care Co. (l0 to l2 employees, half of which were seasonal), five job position matches; Sperry-New Holland (960 employees), three job position matches, and Westlawn Memorial (6 to l2 employees, half of which were seasonal), four job position matches. The job position matches found by the respondent for the common array cities of Hastings and Kearney were thirteen and sixteen of eighteen job positions, respectively.

Other than the assumption made by the Respondent that proximity of employer location equated to similar working conditions, the Respondent offered no further facts or evidence pertaining to the issue of similar working conditions.

COMMISSION'S ARRAY:

The Commission finds from the evidence and from the stipulation of the parties that the common array cities of Hastings and Kearney should be included in the proposed array, and it is so ordered.

Neb. Rev. Stat. Sec. 48-8l8, Reissue l993, provides as follows:

" . . .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. . . ." (Emphasis supplied)

• The Commission and the Nebraska Supreme Court have interpreted the above statutory requisite in a number of cases, as follows:
  

• "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." Lincoln Co. Sheriff's Emp. Assn. v. Co. of Lincoln, 2l6 Neb. 274, 278, 343 N.W.2d 735, 739 (l984), and Douglas Cty. Health Dept. Emp. Assn. v. Douglas Cty, 229 Neb. 30l, 308, 427 N.W.2d 28 (l988).
  

" As a general rule it may be said that factors often used to determine comparability are geographic proximity, population, job descriptions, job skills, and job conditions." AFSCME Local 2088 v. County of Douglas, 208 Neb. 5ll, 304 N.W.2d 368 (l98l), and Douglas Cty. Health Dept. Emp. Assn. v. Douglas Cty, 229 Neb. 30l, 308, 427 N.W.2d 28 (l988).

" We believe 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 the purposes within the state exists . . . [W]hen given a choice between sufficient comparables without the state, we believe it is more appropriate for the CIR to confine itself to comparables within the state." Lincoln Co. Sheriff's Emp. Assn. v. Co. of Lincoln, 2l6 Neb. 274, 278-79, 343 N.W.2d 735, 739 (l984); and IAFF Local 83l v. City of North Platte, 6 CIR l, l0 (l982), and Int'l Ass'n of Firefighters v. City of Columbus, ll CIR 267, 270 (l992).

"[W]here there are local comparisons which can or should be made, they may not be disregarded if in fact it appears from the evidence that the local employers are comparable in that they meet the requirements of 48-818. "AFSCME Local 2088 v. County of Douglas, 208 Neb. 5ll, 5l9, 304 N.W.2d 368, 373 (l98l).

"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." Int'l Ass'n of Firefighters v. City of Columbus, ll CIR 267, 270 (l992); Nickerson School Educ. Ass'n v. Dodge County School Dist. No. l9, ll CIR l59, l64-65 (l99l), and Banner County Educ. Ass'n v. Banner County School Dist. No. 000l, l2 CIR l06, l08 (l994).

Applying the foregoing principals where appropriate, and the hereinafter cited authorities for exceptions to said foregoing rules, the Commission finds as follows:

Petitioners' array:

The petitioner proposed four out-state cities in its proposed array: Lawrence and Salina, Kansas, St. Joseph, Missouri, and Ames, Iowa. The petitioner, however, presented no evidence showing the relationship between an array balanced with cities as large or twice as large as the subject city with cities half as large as the subject city. The petitionerassumed in its selection of a proposed array that balance of city population was a critical criteria. The petitioner also disregarded the fact that two of its proposed out-of-state array cities, St. Joseph, MO, and Lawrence, Kansas, were located in County Metropolitan Statistical Areas (CMSA), whereas the subject city, Grand Island, was not located within a metropolitan statistical area (MSA). The petitioner, however, disregarded Bellevue as a proposed array city for the reason that the same was located in Omaha's MSA. Thus the petitioner was inconsistent, using its selected criteria for selection of proposed array cities. The petitioner offered no evidence of the effect, if any, of the statistical data drawn from cities which were located in larger metropolitan statistical areas than the proposed array city. The respondent's experts testified that a metropolitan statistical area referred to an economic building block that had an effect on the wages paid within the statistical area. Employers within the statistical area were competing for workers within the statistical area, rather than merely within the city. The Commission has, in the past, used the fact that proposed array cities were located in metropolitan statistical areas to eliminate such cities from the array. See Lincoln Firefighters Ass'n Local 644 v. City of Lincoln, 8 CIR 3l, 44 (l985); Grand Island Education Ass'n v. School Dist. of Grand Island, 9 CIR l88, l92 (l987), and Grand Island Education Ass'n v. Hall County School Dist., ll CIR 237, 24l (l992). Thus the Commission will not use St. Joseph, Missouri and Lawrence, Kansas as array comparables.

The Commission is not persuaded that Salina, Kansas and Ames, Iowa are appropriate array members. Both cities are out-state, when it appears that cities located within the State of Nebraska, and which are within the general criteria for comparable cities, one-half to twice as large in population are available as comparables, to wit, Fremont, North Platte, Columbus and Norfolk, Nebraska Thus, the Commission will not use the out-state cities of Salina, Kansas, and Ames, Iowa as appropriate comparables.

Respondent's array:

The respondent has proposed as appropriate array employers, the common cities of Hastings and Kearney, Nebraska. We have indicated that such cities are appropriate array employers and are included in the Commission's array.

The respondent has further proposed public and non-public local employers as appropriate array employers, to wit: Anderson Ford, Carpenter Cars, Chief Industries, Diamond Engineering, Hall County, Hooker Bros. Indianhead Golf Club, Northwest High School, Rick's Lawn Care Co., Sperry-New Holland, and Westlawn Memorial. The Respondent, however, offered no facts pertaining to similarity of working conditions and relied exclusively upon the Respondent's assumption that proximity equated to similar working conditions.

We do not believe that proximity alone, without the offer of other facts and circumstances pertaining to similarity of working conditions is sufficient to base a finding that a local employer is appropriate to be included in an array. In Fraternal Order of Police v. County of Adams, 205 Neb. 682, 289 N.W.2d 535 (l980, the court held:

"[I]n 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." Id at 685. (Emphasis supplied)

We therefore exclude the Respondent's proposed array of local employers which was based solely upon an assumption that proximity equated to similar working conditions without the further offer of evidence pertaining to similar job conditions.

The evidence also shows that the petitioner's proposed array cities of Fremont and North Platte, Nebraska, have an 80% or greater job position match of the proposed job classifications, at 85% or greater job duty match within each such position. The cities of Fremont and North Platte, Nebraska both fall within the criteria used by both parties of one-half to twice as large in initially selecting proposed array employers; the Petitioner offered evidence that the working conditions were similar; such cities are located within the State of Nebraska, and the Commission finds that such cities should be and are included as array employers.

Although the evidence and stipulation of the parties made at the time of the hearing may be sufficient to include the cities of Norfolk and Columbus as array members, neither party proposed such cities as array members. The commission therefore elects not to include such cities as array members.

IT IS THEREFORE ORDERED THAT:

1. The Commission's array of compared-to employers for the purpose of determine wages and fringe benefits for the contract year August l, l995 through and including July 3l, l996 is as follows:
   

1. The common array cities of Hastings and Kearney;
   

1. The cities of Fremont and North Platte, Nebraska
   

1. 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 Finding and Order, to discuss the scheduling of a hearing on the determination of wages, terms and conditions of employment.

Entered this 25th day of July, l996.