17 CIR 174 (2012)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Entered March 23, 2012

 APPEARANCES:

Before:  Commissioners Blake, Burger, and McGinn

BLAKE, Commissioner

NATURE OF THE CASE:           

This action was brought by the Omaha Fire Department Management Group (“Union” or “Petitioner”) pursuant to Neb. Rev. Stat. § 48-818.  Petitioner is the duly recognized collective bargaining representative for the employee classifications of one fire chief and three assistant fire chiefs of the City of Omaha (“City” or “Respondent”).  Petitioner is seeking a determination of wages for the year commencing December 27, 2009 and ending December 25, 2010. 

During trial, all 21 exhibits offered were received with no objection and no testimony was offered.  The Commission does not select array employers other than to resolve disputes over whether an employer should be included in the array, based upon the evidence presented by the parties.  In this case, there is no dispute as to the array cities.  The agreed-upon array includes Des Moines, Iowa; Lincoln, Nebraska; Madison, Wisconsin; Milwaukee, Wisconsin; and St. Paul, Minnesota.  The issues left for our consideration are choosing the appropriate methodology for determining wages, and terms and conditions of employment for members of the bargaining unit, and then making a determination of wages based on the appropriate methodology. 

DISCUSSION:

Neb. Rev. Stat. § 48-818 gives the Commission jurisdiction to establish rates of pay and conditions of employment that are comparable to the prevalent wage rates paid for same or similar work of workers with same or similar skills under same or similar working conditions.    

In Omaha, the current fire chief has served three years and his salary is $125,096.92 per year.  The existing salary for an assistant chief in Omaha is $106,213.90 per year, and the average experience is one year.  We would need to compare the fire chief and assistant fire chiefs in Omaha to chiefs and assistant chiefs in the agreed-upon cities to determine the appropriate methodology and wage.

            All of the array cities use a pay range and no step plan.  The midpoint of the salaries for the array cities are:

                            Fire Chief                     $128,534.90                1.76 years experience               (E2)

                            Assistant Chiefs            $113,140.25                2.81 years experience               (E3) 

Neither party in this case requests a step pay range.  Petitioner asks us to set a proportionate salary, looking at the pay range in each of the array cities and then determining the salary based upon the percentage of maximum pay made in each of the cities, using the midpoint of that percentage to establish the pay for the bargaining unit members.  Respondent asks for a range to be established, with the City selecting the actual pay within that salary range.  In the alternative, Respondent asks that the Commission set the salaries at the midpoint of the array cities. 

WAGES

Our normal methodology is well-established, generally looking at midpoints.  This method does not take into account the experience or individual qualifications of the people holding these positions, economic ability to pay, or local economic conditions.  However, there is no evidence here of any of these factors, and they are largely not relevant to our determinations under the current applicable law.           

We find that it would not be appropriate to merely establish a pay range for these positions, as Respondent requests.  To do so would void the policy of this state to have conditions of employment for public employees established through negotiations between the bargaining units and their employers.  Merely establishing a pay range would be to shirk our responsibility to determine the salaries within the bargaining unit, based upon the evidence presented to us, once good faith negotiations have failed.  It would also place the parties in the position of being able to avoid the responsibilities of collective bargaining and would deny the rights established by the Industrial Relations Act.

            In support of its argument, Respondent relied upon Rodeo Telephone, Inc. Employees Association v. Rodeo Telephone, Inc., 9 CIR 118 (1987), wherein initial placement within a pay range was left to the discretion of management.  Rodeo Telephone is easily distinguishable from this case.  In Rodeo Telephone, the employer never had any type of salary system in place prior to the wage case.  There had never been any discernible guidelines for the wages set for individual employees, and no salary ranges had ever existed.  In this case, the employees have earned their salaries through an established salary system, with a minimum and maximum salary with a method of movement through the range.

We agree with Petitioner that a more comparable case is Nebraska Public Employees Local Union 251 v. County of York, 13 CIR 128 (1998), which was decided after Rodeo Telephone.  In Local Union 251, the employer had a pay range system in place.  The Commission placed the bargaining unit employees on a new pay range based upon their previous placement in the old range.  However, the situation in Local Union 251 is also distinguishable from the present case.  Local Union 251 dealt with 14 job classifications divided into three groups.  Here, we have a very small group of two job classifications with a total of four employees, with pay ranges in the array cities that are strikingly broad and diverse.  These factors, combined with placement within the array cities’ pay ranges, indicate that the percentage of the maximum is simply not a relevant factor.

In the instant case, the pay ranges in the array members for fire chiefs are from a low of $55,950 to a high of $157,500 (both high and low in Lincoln).  Remarkably, this is a range of over $100,000 between the minimum and maximum in one city.  This illustrates the rather broad ranges found in this group. (E4).  The ranges are not quite so wide open for the assistants but are still quite broad, ranging from $76,244 to $127,668 for the assistant chiefs, again with Lincoln setting the high and low.  The tightest range in the array is a spread of $36,000 for chief, but gets down to a manageable $12,000 spread for assistants.  Comparing the midpoints for minimums and maximums within the array members, we find:

                                                                Minimum                                  Maximum

            Chief                                        $96,865.30                              $149,955.20

            Assistants                               $85,365.85                              $119,800.93 

Trying to match placement within the array cities with any criteria is of little help.  There is no correlation to be found between the years of experience in the position and the level of pay or the percentage of maximum.  This shows that fire management positions are, to a large degree, a matter of matching the individual to the needs of the community and not a matter of simply fitting into a step pay grade or a percentage found in a broad pay range.

Looking first at the fire chief classification, the ranges are fairly meaningless in this case, and vary enough that comparing any percentage of maximum is an easy but largely meaningless calculation.  It is more meaningful to look at what the fire chiefs are actually being paid in the array cities (remembering that there is no correlation between experience and pay and we do not compare individuals).  The current mid-point for fire chief in the array cities is $128,534.90.  The mid-point of pay as a percentage of the maximum within the ranges in the array cities is $128,961.47.  We adopt the simple midpoint of pay within the array as the best method in this case to set a comparable pay.

            The midpoint of actual salaries for assistant chiefs in the array cities was $113,140.25.  The midpoint of pay as a percentage of the maximum in the array cities was $113,896.38.  The maximum for the assistant chiefs in Omaha was $106,213.90.  Again, the arrays of City pay ranges are very broad and the method of determining the amount of pay in each of the cities is not in evidence.  What has been demonstrated is that pay in Omaha and the array cities is fairly near the top of the range.  The actual wage paid in Omaha for assistant chiefs is at 98% of the pay range.  The pay in the array cities is at 95%.  As with the fire chief position, we will establish a salary for the payroll year in question based upon the midpoint of actual pay in the array cities, which is $113,140.25 per year.

            Although the evidence shows such a broad and inconsistent set of ranges of pay for the fire chief that the array provides little or no help in establishing actual pay, we will set the range for the fire chief and assistants in Omaha as requested by both parties.  The pay range for the fire chief position shall be $96,865.30 to $149,955.20, and $85,365.85 to $119,890.93 for the assistant fire chief position.   

FRINGE BENEFITS

There is evidence as to a number of fringe benefits.  The parties have submitted exhibits indicating comparison of these fringe benefits offered to the bargaining unit with benefits from the array cities.  Neither party indicated at trial or in their briefs that there was any  dispute as to these benefits.  There was no evidence offered other than the exhibits with the mathematical calculations from the array cities and the Respondent.  We do not enter an order regarding these benefits.    Either party may request a Post Trial Conference pursuant to Neb. Rev. Stat. Section 48-816(7)(d)  Rule if they wish to pursue a ruling as to any fringe benefit. 

IT IS THEREFORE ORDERED that:

1.       The pay for the Fire Chief in Omaha be established at $128,534.90 for the payroll year commencing December 27, 2009 and ending December 25, 2010.  The pay range for this position shall be $96,865.30 to $149,955.20.

2.      The pay for the Assistant Fire Chief in Omaha be established at $113,140.25 for the payroll year commencing December 27, 2009 and ending December 25, 2010.  The pay range for this position shall be $85,365.85 to $119,890.93.

All panel Commissioners join in the entry of this Final Order.