14 CIR 170 (2003) 


UNION LOCAL NO. 554 affiliated )
                                  Petitioner, ) FINDINGS AND ORDER
         vs. )
and MARK HYBERGER, in their )
representative capacities, )
                                  Respondents. )


For Petitioner: M. H. Weinberg
Weinberg & Weinberg, P.C.
9290 West Dodge Road-Suite 201
Omaha, NE  68112
For Respondent: Jerry L. Pigsley
Harding, Shultz & Downs
800 Lincoln Square
121 S. 13th Street
P. O. Box 82028
Lincoln, NE  68501-2028

Before: Judges Burger, Orr, and Lindahl



This action was brought by General Drivers & Helpers Union Local No. 554 ("Petitioner") pursuant to Neb. Rev. Stat. § 48-818. Petitioner is the collective bargaining agent for the bargaining unit consisting of all regular full-time employees of the County of Gage, Nebraska ("Respondent") excluding all elected, appointed, supervisory, confidential, general office, clerical and other employees listed in the Petition of the County’s Highway Department. Petitioner seeks the resolution of an industrial dispute over wages and other terms and conditions of employment for the July 1, 2002 through June 30, 2003 contract year.

After the trial was completed and briefs were submitted, the Petitioner filed a Motion for Reconsideration. The Motion for Reconsideration sought admission of the record of a judgment of the Gage County District Court, which held that the job descriptions in place prior to September 4, 2002 shall be the only job descriptions applicable for the contract year in dispute until the Commission makes its determination. A hearing on the Motion for Reconsideration was held by telephone on Friday, July 25, 2003. At the hearing, the Respondent had no objections to the Petitioner’s request to reopen the record for the purpose of submitting the District Court’s Decision as evidence. The Commission permitted the record to be reopened, the Gage County District Court Judgment was offered as Exhibit 157, and was received as part of the record.


The threshold issue in any § 48-818 wage action is whether the proposed array employers presented by the parties will be determined to be comparable under the statute. In selecting employment units in reasonably similar labor markets for the purpose of comparison as to wage rate 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 a comparison appropriate. Lincoln County Sheriff’s Employee Ass’n v. County of Lincoln, 216 Neb. 274, 343 N.W.2d 735 (1984).

The parties agreed that eight of the array counties are sufficiently similar to Gage County, so that they may be used for comparison purposes in determining the prevalent wage rates and conditions of employment for the subject bargaining unit. These common array counties are Adams County, Buffalo County, Madison County, Platte County, Saline County, Saunders County, Seward County and York County. In addition to the eight common array counties, Petitioner urged the Commission that Cass County and Washington County should be included in the array for comparison purposes. Respondent proposed that Custer County, Dawson County, Dodge County and Otoe County also be included in the array for comparison purposes.

Commission’s Array

When choosing an array of comparable employers under § 48-818, we consider evidence of relative size and proximity of proposed array members to the employer in question as well as other evidence indicating that the employments selected for comparison are sufficiently similar and have enough like characteristics or qualities to make comparison appropriate in that situation. All eight of the common counties proposed meet the Commission’s criteria of relative size of one-half to twice as large and all are within a reasonable geographic proximity to Gage County. The Commission has also held that an array of six to eight employers is an appropriate array. O’Neill Education Ass’n v. Holt County School District No. 7, 11 CIR 11 (1990); Red Cloud Education Ass’n v. School District of Red Cloud, 10 CIR 120 (1989); Logan County Education Ass’n v. School District of Stapleton, 10 CIR 1 (1988); Trenton Education Ass’n v. School District of Trenton, 9 CIR 201 (1987); State Code Agencies Education Ass’n v. Department of Correctional Services, 7 CIR 226, 232 (1984), aff’d on other grounds, 219 Neb. 555, 364 N.W.2d 44 (1985). The Commission need not consider every conceivable comparable, but only has to consider a sufficient number in a representative array so that it can determine whether the wages paid or the benefits conferred are comparable. General Drivers & Helpers Local Union No. 554 v. Darlene Robertson and Scotts Bluff, County, Nebraska, 12 CIR 120 (1995)(citing Douglas County Health Department Employees Ass’n v. County of Douglas, 229 Neb 301, 308, 427 N.W.2d 28, 35 (1998)).

The Commission finds that the counties of Adams County, Buffalo County, Madison County, Platte County, Saline County, Saunders County, Seward County, and York County are sufficiently similar and are sufficient in number to constitute the array. No others need be considered in this case. Having been requested during these proceedings to take judicial notice of Case No. 1054 between the same parties concerning the next contract year, we note again that array decisions are made on a case-by-case basis from the evidence received. This array decision does not control the proper array in future cases, see Lincoln Firefighters Ass’n Local 644 v. City of Lincoln, 12 CIR 211 (1996).

Job Descriptions

As the prior years Collective Bargaining Agreement was about to terminate, representatives of Petitioner and Respondent entered into a short agreement including the following language. "…The parties are presently negotiating articles of that contract and wish the present contract to continue until a new contract is signed and agreed to by both parties or a determination is made by the Commission of Industrial Relations …"

On September 4, 2002, the Respondent formally modified the job descriptions for positions within the bargaining unit. This action precipitated the above referenced action for declaratory judgment brought by Petitioner against Respondent in the District Court of Gage County, and resulted in Petitioner and Respondent proposing two diametrically different positions on how the Commission must proceed to resolve this proceeding.

The Petitioner raised a number of arguments that suggest the Commission is required to use the pre-September 4, 2002 job descriptions in our Neb. Rev. Stat. § 48-818 wage decision. On each of these arguments, the Respondent argues that the declaratory judgment decision from the District Court does not have an effect on the comparability evidence in this case, or alternatively, that the Commission should find that it does not have subject matter jurisdiction to alter an existing agreement between the parties for the year in dispute.

The Petitioner first argues that if the Commission uses the post-September 4, 2002 job descriptions, the determination of the Commission would be effectively interpreting and enforcing a collective bargaining agreement, beyond its jurisdiction. Under Neb. Rev. Stat. § 48-818, the Commission has jurisdiction to make findings and order or orders to 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. The Petitioner also maintains that the Commission does not have the power to override a district court’s declaratory judgment action.

The resolution of these issues is complicated by the fact that Petitioner has chosen not to bring a complaint under Neb. Rev. Stat. § 48-824, and implement the procedures under § 48-825. Instead, the Petitioner has chosen to invoke the Commission’s jurisdiction under Neb. Rev. Stat. § 48-818, and raise its objections to the action of Respondent within the context of an action to establish wages, and conditions of employment.

The Legislature having provided the Commission prohibited practice jurisdiction, and a procedure to invoke such jurisdiction, we are not inclined to resolve issues of whether Respondent’s action with respect to the job descriptions was a prohibited practice within a wage case. Such a practice would ignore Neb. Rev. Stat. § 48-825, which was clearly intended to have the parties formally frame these issues for decision; not have them decided as ancillary issues in a wage case.

When comparing job duties, § 48-818 requires the Commission to consider "same or similar work" and does not require perfection when comparing job duties. Lincoln Police Union International Brotherhood of Police Officers, Local 544 v. City of Lincoln, 5 CIR 134 (1981). The Commission’s findings as to the appropriate array are factual findings, not conclusions of law. County of Sarpy, 10 CIR at 63. Thus, the array decision rests on the evidence presented by the parties. If there has not been any stipulation as to similarity of work, skills and working conditions, each party must provide credible evidence as to which factors they believe demonstrate and determine similarity of work, skills and working conditions and how their array displays such similarity.

Job descriptions are tools used by those comparing jobs, skills, and working conditions to determine comparability. They do not operate in the abstract. They are simply descriptions, nothing more. The key is the actual jobs, skills, and working conditions of the employees. Job descriptions, without other probative evidence, cannot be used in a § 48-818 wage decision. For example, in International Brotherhood of Electrical Workers Local Union No. 1521 v. Metropolitan Utilities District, 6 CIR 246 (1982), the Petitioner’s witnesses testified as to job matches with respect to various array utility districts, but testified as to doing some verification of job matches made by others. In that case, the verification process, at most, involved only job descriptions with no verification of the work actually being performed for those employers. The Commission found that Petitioner’s case lacked probative evidence of authentication of actual job data in the original matching process. Therefore, the Commission excluded these additional employers where the Petitioner’s witnesses did not attempt to discover the actual duties performed.

In this case it is clear from the exhibits and testimony at trial that all of the expert witnesses spent time interviewing and interpreting the application of the job descriptions and job duties at the various proposed array counties. In fact, despite using the two different job descriptions, both the Petitioner’s expert witness and the Respondent’s expert witnesses arrived at the exact same wage numbers, for many of the job positions and for all eight common array members. In the context of a § 48-818 wage determination, job descriptions are only useful if those descriptions are an accurate representation of the work being performed at both the compared-to county and the proposed array counties.

The Commission must follow the evidence presented at the trial on a case-by-case basis, as our determination is a factual one. We have no knowledge of the evidence presented to the District Court of Gage County. Nor do we attempt to interpret that judgment. The Commission’s responsibility is to establish wages and conditions of employment from the evidence presented at trial. We are convinced by the testimony that the evidence shows that, with one minor exception, the revised job descriptions reflect the work and duties of the employees within the bargaining unit and throughout the contract year, and before. The revised job descriptions merely represent the updating of the paper descriptions to accurately reflect the duties performed, and skills required by these employees. The descriptions are tools, but, the Commission must make its determination based on the evidence of jobs, skills, and working conditions. The judgment of the District Court of Gage County has no impact on our review of that evidence, or our decision.

Mechanic I

The Mechanic I position has been vacant for most of the contract year. All of the current mechanics are Mechanic II. The position exists in the abstract only. Nevertheless, Respondent’s expert described this position as an apprentice position, which obviously will be filled as the need requires. Although no current bargaining unit employee occupies this position, it would leave issues for further conflict if no attempt is made to resolve upon an appropriate wage. The Respondent’s expert testified that the position was effectively an apprentice to the Mechanic II position, and that an appropriate wage rate would fall within a range of 75% - 95% of the Mechanic II position. Although the evidence on how to treat this position is limited, we will accept that evidence as an appropriate way to handle this position. As will be discussed later, we have concluded that the evidence does not support a change from the Respondent’s present flat rate, so that the proposed range must be converted to a flat rate basis. In the absence of other evidence, we determine that the Mechanic I position should be paid 85% of the Mechanic II wage rate.

Determination of the ultimate rate for the Mechanic II position is complicated by numerous unexplained discrepancies and inconsistencies in the evidence. This is likely a function of the volume of evidence necessary to establish the facts, the effort to present the evidence within a manageable time frame, and the dispute over which job descriptions to use for purposes of matching positions. Examples include the discrepancy between Exhibits No. 113 and No. 34, both representing responses from Adams County, certified by the same person. Exhibit No. 113 reflects a wage of $11.00 for the Mechanic II position while Exhibit No. 34 reflects a wage of $13.25 per hour. Complicating matters further is a handwritten summary sheet in Exhibit No. 113 that reflects the Mechanic II wage as $13.25 per hour, not $11.00. Petitioner’s Exhibit No. 10 reflects the Mechanic II position being paid $14.16 per hour at Buffalo County, consistent with Respondent’s evidence, yet Petitioner’s Exhibit No. 35 shows the wage as $17.16 per hour.

These discrepancies are understandable due to the underlying dispute in this case over the proper job descriptions to use. Confusion is likely when survey participants are asked essentially similar, but different, questions, at different times.

Having concluded that the revised job descriptions are the functions actually performed by the members of the bargaining unit, we will obviously give them more weight than those reflecting survey responses by the array members to job matches for the old descriptions. Petitioner’s expert testified that he did no on site resurvey of the agreed array using the revised job descriptions, only the Petitioner’s proposed additional array members. More importantly, we will note where Petitioner’s exhibit and Respondent’s exhibit agree, and assume that convergence to be the correct evidence of wages in resolving such discrepancies.

Using these guidelines, we determine that the correct wages for the Mechanic II match in Adams County is $13.25, as it appears in both Exhibits No. 113 and No. 34. We conclude that $14.16 is the correct pay rate for the Mechanic II match in Buffalo County as it appears in both Respondent’s Exhibit No. 114 and Petitioner’s Exhibit No. 10.


Pay Plan

Gage County has a flat rate pay rate system. Three of the array members have a stepped range plan, three have a range without steps, and two have flat pay rates. The discussion in Nebraska Public Employees Union 251 vs. County of York, Nebraska, 13 CIR 128 (1995) shows that each of those plans are distinct. Ranged pay plans with steps, and those without steps are not the same. Although six of the eight array members have ranged pay plans of some sort, none of the wage administration plans are prevalent, and we conclude that with this particular array, the flat rate pay plan must be maintained for this contract year.

The evidence at trial was directed toward how to properly place flat pay rate data into a ranged plan. The Commission does not have evidence on how to extrapolate ranged pay plans into an appropriate flat rate. Our prior cases have generally dealt with the converse of converting to ranged pay plans. As an example, the evidence does not reflect individual rates within the ranges in the plan, from which an actual mean could be calculated, assuming that is an appropriate practice.

The Commission’s duty is to resolve this industrial dispute. In this instance, faced with this evidence, we concluded to use the mid point of the minimum and maximum of each pay range as that array members pay rate for conversion into a flat rate pay plan for Respondent. We acknowledge that this may not reflect the actual pay of any member of a particular position, however, the evidence in this case either assumed a ranged plan as appropriate, or was concentrated on other issues. Recognizing the somewhat arbitrary nature of this extrapolation, it appears the best resolution we have for converting the ranged pay plans from the agreed array into Respondent’s existing flat rate plan.

Saline County

One of the Petitioner’s witnesses was permitted to testify of communications between the negotiators for the union and the employer that a settlement had been reached between them for an across the board wage increase. We need not address questions of its admissibility, reliability, or the appropriateness of evidence contradicting exhibits agreed upon at the pretrial conference. The witness testified that these understandings had not been approved, to his knowledge, by the County Board, and that no contract had been signed incorporating this change. The negotiators act as agents for the union and the County, but, lack the authority to bind the unit, or the County. We disregard the evidence of this putative wage settlement in our calculations.

Platte County

Both the Petitioner and the Respondent agree on the inclusion of Platte County in the array. However, the Petitioner contends that because Platte county workers have scheduled overtime six months of the year, that overtime wage should be averaged into the average daily wage because anything less would not be the "overall compensation" required under § 48-818. Petitioner suggests the facts in the instant case are more comparable to Local Union No. 647 International Association of Firefighters v. City of Grand Island, 9 CIR 43 (1987). Respondent argues that Petitioner’s figures for Platte County result in double counting of overtime. Respondent cites us to International Association of Firefighters, Local No. 1575 v. City of Columbus, 11 CIR 267 (1992).

In City of Grand Island, the Commission included overtime in its calculation. The Commission found that it was clear that the straight-time pay for those four hours is already included in the annual salary. The Commission noted that this was as it should be because the firefighters were scheduled to work these hours. If no leave was taken and those four scheduled overtime hours were worked, the firefighter got paid an additional half time for four hours or 2 hours of straight time. The Commission also determined that if the firefighters did not work those four hours normally scheduled, they would still get paid straight time for those hours because the firefighters were not working them due to taking paid leave such as vacation or sick leave.

In City of Columbus, the Commission determined that no adjustment should be made for either "kelly days" or scheduled overtime. With respect to overtime under the Fair Labor Standards Act ("FLSA"), 2,756 hours are the maximum hours a firefighter can work annually without being paid any additional wages for the overtime. If a firefighter works more than 2,756 hours (actually 212 hours per 28-day work cycle), he or she was paid time-and-one-half for those hours. The Commission concluded that to make the adjustment that Petitioner requested with respect to scheduled overtime would do nothing other than build overtime wages into the base hourly rate, which the Commission held, would be inappropriate.

In the instant case, the Petitioner did not present evidence that the county employees would be paid for the scheduled overtime hours if they did not work those hours. It is also not clear from the record how we are to attempt to compare firefighters who work unusually long scheduled shifts with county road workers. The Commission declines to include overtime hours for Platte County’s calculation. Artificially building in overtime wages into the hourly rate is inappropriate.

Retroactive Establishment of Wage Rates

The Respondent argues that the Commission lacks jurisdiction or authority to establish wage rates and fringe benefits for a fiscal year which has elapsed. Respondent maintains that such an order would be contrary to Neb. Rev. Stat. § 48-817.

A retroactive wage increase is within the authority of the CIR, Douglas County Health Department Employees Ass’n v. County of Douglas, 229 Neb. 301, 318, 427 N.W.2d 28 (1998). The Commission is not increasing wage rates when, pursuant to § 48-818, it proceeds to "establish rates of pay and conditions of employment which are comparable to the prevalent wage rates paid...." Neb. Rev. Stat. § 48-818 (1993). It is establishing the rates of pay in the first instance. Tekamah-Herman Education Ass’n v. School Dist. of Tekamah-Herman, 9 CIR 78, 80-83 (1987); International Association of Firefighters Local No. 1575 v. City of Columbus, 11 CIR 267, 268-269 (1992). Indeed, if the Commission were unable to set wages applicable during the period in dispute, then public workers would never be paid the wages "comparable to the prevalent wage rates paid ...for the same or similar work...." Neb. Rev. Stat. § 48-818 (1993). We will continue to adhere to the conclusion reached in our previous decisions, and find that Respondent’s assertion of Neb. Rev. Stat. § 48-817 (Reissue 1998) prohibition, does not indeed prohibit the Commission’s entry of an order during an industrial dispute establishing wages during or after the fiscal year that is over pursuant to § 48-818. See Nebraska Public Employees Union Local Union No. 251 v. County of York, 13 CIR 128.

Although the Commission has no jurisdiction to increase wages when the parties are already bound by a collective bargaining agreement, it does have jurisdiction to set wages when the parties have been unable to agree upon a collective bargaining agreement establishing what the rate of pay for work should be. International Association of Firefighters, 11 CIR at 268-269.


Moot Fringe Benefits

The Commission determines that the following fringe benefits are moot because the year in dispute is over, see Nebraska Public Employees Local Union 251 v. Otoe County, 12 CIR 177, 194 (1996) and Lincoln Firefighters Ass’n Local 644 v. City of Lincoln, 12 CIR 248 (1997) affirmed 253 Neb. 837, 572 NW2d 369 (1998):

1) Sick leave number of days earned per year;

2) Sick leave payout;

3) Sick leave used for personal leave;

4) Sick leave used for family illness;

5) Funeral leave;

6) Vacation days per year;

7) Vacation conversion to cash;

8) Vacation payout upon resignation, dismissal, retirement or death;

9) Holidays;

10) Health insurance coverage type;

11) Health insurance stop loss;

12) Health insurance prescription benefit;

13) Safety glasses;

14) Payment of CDL;

15) Safety boots;

16) Educational assistance;

17) Dental;

18) Life insurance amount of coverage;

19) Retirement;

20) Longevity plan;

21) Employer-paid disability leave;

22) Overtime;

23) Clothing furnished;

24) Equipment;

25) Employee assistance program;

26) Working out of classification pay;

27) Grievance procedure;

28) Lay-off procedure;

Management Prerogatives

There are certain fringes which we believe are management prerogatives and we will not address the following in this Order:

1) Hours worked per day;

2) Hours worked per week;

3) Paid rest breaks;

4) Paid meal period;

Benefits Not Considered

According to Fraternal Order of Police Lodge No. 24 v. City of Grand Island, 14 CIR 81 (2002), the Commission shall continue to determine comparability of health insurance by comparing the percent of the premium to be paid by the employer and employee. See also Lincoln Firefighters Ass’n Local 644 v. City of Lincoln, 12 CIR 248, 265 (1997); General Drivers & Helpers Local Union No. 554 v. Robertson, 12 CIR 120, 125 (1995); International Ass’n of Firefighters, Local No. 1575 v. City of Columbus, 11 CIR 267, 273 (1992); Nebraska Public Employees Local Union 251 v. County of Douglas, 11 CIR 189, 195 (1992); Fraternal Order of Police Lodge No. 23 v. City of Holdrege, 9 CIR 257, 263 (1988).

The following benefits will not be considered according to the above rule:

1) Life Insurance premium;

2) Health insurance, total monthly premium;

3) Health insurance employee premium, dollar amount paid;

4) Health insurance, employer premium, dollar amount paid;

Comparable Fringe Benefits

The following fringe benefits shall remain unchanged because they are comparable:

1) Clothing

a. Allowances: No

b. Cleaning: No

2) Life Insurance

a. Employer paid: 100%

b. Employee paid: 0%

3) Pay on Holidays

a. Schedule: 2.5

b. Called: 2.5

4) Sick Leave Conversion

a. Vacation: No

b. Cash: No

5) After Duty Pay/On Call and Call In Pay

a. On call: No

b. Call Back: Yes

c. Minimum Time: Actual

d. Minimum Amount: 1.0

Non-Comparable Benefits

The Commission makes the following findings as to non-comparable fringe benefits:

1) Vacation – Respondent is below the comparable in that it does not allow vacation carryover. It should allow vacation of up to nine days to be carried over per year.

2) Sick Leave/Maximum Accumulation of Sick Leave – Respondent is above the comparable in that it allows the maximum accumulation of 120 days of sick leave. It should decrease its maximum accumulation of sick leave days to 88 days.

3) Health Insurance – Respondent is below the comparable in that it pays for only 44% of family coverage, only 51% of 2-4 party coverage, and it is above comparable in that it pays for 100% of single coverage. It should increase its percentage of family coverage to 76%, and increase its percentage of 2-4 party coverage to 78%. Although a strict mathematical calculation would result in a 1% adjustment to the single coverage premium, we conclude that this insignificant revision would be burdensome, and not cost effective. No change is made to the Respondent’s share of single coverage. The Respondent is below comparable in that the employee pays 56% of family coverage, 49% of 2-4 party coverage. It should decrease the percentage that the employee pays to 24% for family coverage, 22% for 2-4 party coverage, and Respondent will continue to pay 100% of single coverage.

IT IS THEREFORE ORDERED that for the fiscal year 2002-2003, the following shall be effect as of July 1, 2002:

1) Petitioner’s wages for the fiscal year 2002-2003 shall be as follows:

Job Classification Flat Rate
Equipment Operator I $11.18
Equipment Operator II $11.64
Motorgrader/Equipment Operator II $11.70
Equipment Operator III $12.16
Equipment Operator IV (Crane) $12.24
Highway Worker I $11.37
Mechanic I* $10.80
Mechanic II $12.70
Sign and Safety Technician $12.81
Welder $12.81

2) Respondent shall pay 100% of the single monthly premium and the employee shall pay 0% of the single monthly premium. Respondent shall pay 78% of the 2-4 party monthly premium and the employee shall pay 22% of the 2-4 party monthly premium. Respondent shall pay 76% of the family monthly premium and the employee shall pay 24% of the family monthly premium.

3) Respondent shall continue its current practice of not providing clothing allowances or cleaning of clothing.

    1. Respondent shall retain its current life insurance premium.
    2. Respondent shall continue to pay 2.5 times the regular rate for scheduled and called in work on holidays.
    3. Respondent shall continue to not convert sick leave for vacation or cash.
    4. Respondent shall continue to not provide on call pay, but shall continue to provide pay for call back, providing actual pay for the time worked at 1.0 time the regular rate of pay.
    5. Respondent shall increase vacation carry over to up to nine days carried over per year.
    6. Respondent shall decrease its maximum accumulation of 120 days of sick leave to 88 days of sick leave. The Respondent shall not decrease the maximum accumulation of days of sick leave for those employees that have already accumulated more than 88 sick days, allowing those employees to keep the days they have already accumulated.

10) The fringe benefit and wage offset, as found herein, shall be calculated on an individual employee basis. The Respondent shall determine the net lump sum overpayment or underpayment for the contract year for each employee. Any net lump sum underpayment for any employee shall be paid by the Respondent to each such employee, however, any employee reimbursement shall not exceed the amount of compensation owed to the employee from the Respondent.

11) Any adjustments in compensation resulting from this Order shall be paid in a single lump sum with the payroll checks issued next following the expiration of this Final Order’s time for appeal or sooner.

All other terms and conditions of employment are not effected by this Order.

All panel judges join in the entry of this order.

Entered November 21, 2003