17 CIR 179 (2012)


                                  Petitioner, )  
         v. )  
Municipal Corporation, )  
                                  Respondent. )

Entered May 7, 2012


For Petitioner: Dalton W. Tietjen
Tietjen, Simon and Boyle
1023 Lincoln Mall, Ste 202
  Lincoln, NE  68508
For Respondent: Bernard J. in den Bosch
  Assistant City Attorney
804 Omaha/Douglas Civic Center
  1819 Farnam Street
  Omaha, NE  68183

Before:  Commissioners Blake, Burger, and McGinn

BLAKE, Commissioner


            On March 23, 2012, the Commission entered its Findings and Order regarding wages for the Fire Chief and Assistant Fire Chiefs employed by the City of Omaha (“Respondent”). The Omaha Fire Department Management Bargaining Group (“Petitioner”) timely requested a Post-Trial Conference as provided by Neb. Rev. Stat. § 48-818(7)(d). The Post-Trial Conference was held April 5, 2012.  


The Commission entered a Findings and Order determining wages for the Fire Chief and Assistant Fire Chief positions. For completeness of this Final Order, the details of our prior finding shall be included below.

In the March 23, 2012 Order, we advised the parties that a Post-Trial Conference regarding fringe benefits could be held at either party’s request, and Petitioner timely submitted its request. Petitioner and Respondent jointly submitted evidence, by exhibits, regarding a number of fringe benefits. Based on the stipulated facts, the Commission shall make determinations of certain fringe benefits.


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.

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.


During trial, the parties jointly submitted exhibits relating to a number of fringe benefits. There is apparently no dispute regarding this evidence, but the parties have asked the Commission to make a determination regarding those benefits. There is no argument as to what the Commission’s determination should be regarding any of those benefits, and they have not addressed the benefits in any other way than to jointly move for a determination. In regards to these fringe benefits, we find as follows:

Longevity Pay

            It is prevalent in the array to have a longevity plan. However, it is prevalent not to provide for longevity pay until after 10 years of service. After 10 years, the mid-point of longevity pay in the array is 5.22%, increasing to 5.66% after 15 years, 6.28% after 20 years and 6.52% after 25 years of service. This longevity pay schedule is ordered for this bargaining unit. See Tables 1 and 2. 

Annual Sick Leave Allowance

            The evidence demonstrates that the prevalent practice is to allow accumulation of sick leave with no limit on the amount of accumulation, and the mid-point of sick leave hours allowed annually in the array cities is 113 hours. This finding shall apply to both the Fire Chief and Assistant Fire Chief positions. See Tables 3 and 4. 

Vacation Leave

            There is precedent for declaring this benefit to be moot when past the end of the contract year in dispute. Nebraska Public Employees Local Union 251 v. Otoe County, 12 CIR 177 (1996); General Drivers & Helpers Union Local No. 554 v. County of Gage, 14 CIR 170 (2003). However, at least for this small bargaining unit it is not. The evidence establishes that for both positions in the bargaining group the mid-point of the number of vacation hours earned annually in the array cities is 156 hours after one year, increasing to 190 hours after five years of service, then increasing to 192 hours after eight years of service, 194 hours after 15 years, 200 hours after 20 years and 204 hours after 25 years of service. The mid-point of the maximum accumulation of vacation is 299 hours. This schedule of vacation leave and accumulation is so ordered. See Tables 5 and 6. 

Health Care Insurance Premium

            Omaha currently pays 100% of health insurance premiums for the Fire Chief and Assistant Fire Chief positions. However, it is prevalent in the array cities for employees to pay a percentage of the health care insurance premiums. The evidence establishes that in the array cities, the percentage paid by the employer is 94.6% for individual coverage, 87.6% for family coverage, and 87.3% for two-party coverage for both positions in the bargaining unit. It is so ordered. See Tables 7 and 8. 

Tuition Reimbursement

            Currently, Omaha offers tuition reimbursement for the Fire Chief and Assistant Fire Chief positions. This practice is prevalent in the array and is ordered for the contract year in dispute. See Tables 9 and 10.

Moot Fringe Benefits

While the Commission is not deprived of jurisdiction to set wage rates after the end of the bargaining year in question, a dollar–for–dollar costing out of each benefit is not required where, as here, the contract year in dispute is already past, and the impossibility or impracticability of retroactively changing fringe benefits for an expired contract year is well recognized.  See Lincoln Firefighters v. City of Lincoln, 12 CIR 248 (1997), aff’d, 253 Neb. 837, 572 N.W.2d 369 (1998). The Commission determines that the following fringe benefits are moot because the year in dispute is over; see General Drivers & Helpers Union Local 554 v. County of Gage, et. al., 14 CIR 170 (2003):

1)      Annual Sick Leave Allowance- Family Illness Provisions

2)      Personal Leave Days

3)      Employee Assistance Program

4)      Cell Phone- Provided

IT IS THEREFORE ORDERED that for the December 27, 2009 through December 25, 2010 contract year, the following shall be effective beginning December 27, 2009:

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.

3)      Respondent shall continue to provide a longevity plan after 10 years of service.

4)      Respondent shall decrease the sick leave hours earned per year for the Fire Chief and Assistant Fire Chief from 156 hours to 113 hours allowed per year. The maximum accumulation of hours shall remain unlimited.

5)      Respondent shall adjust vacation leave accrual for the Fire Chief and Assistant Fire Chief as follows in year: 1 from 95.84 hours to 156 hours; 5 from 240 hours to 190 hours; 6 from 240 hours to 190 hours; 8 from 240 hours to 192 hours; 10 from 240 hours to 192 hours; 15 from 240 hours to 194 hours; 20 from 240 hours to 200 hours; 25 from 240 hours to 204 hours; and for a maximum from 280 hours to 299 hours.

6)      Respondent shall decrease the amount of health care premium costs it pays for the Fire Chief and Assistant Fire Chief positions from 100% for Individual, Family, and Two-Party coverage to 94.6% for Individual coverage, 87.6 for Family coverage, and 87.3% for Two-Party coverage.

7)      Respondent shall continue to offer tuition reimbursement for the Fire Chief and Assistant Fire Chief positions.

8)      The fringe benefit and wage offset shall be calculated on an individual employee basis. 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 not exceed the amount of compensation owed to the employee from Respondent.

9)      Adjustments and compensation resulting from this Final Order shall be paid in a single lump sum payable within ninety (90) days of the entry of this Final Order. 

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

To obtain a copy of  the Tables, please contact the Commission of Industrial Relations at (402) 471-2934 or by e-mail at industrial.relations@nebraska.gov.