17 CIR 276 (2012)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

APPEARANCES:

Entered January 27, 2012.

Before:  Commissioners Lindahl, Blake, and McGinn

LINDAHL, Commissioner

NATURE OF THE PROCEEDINGS:

            This action was brought by the Professional Firefighters of Omaha, Local 385 (“Petitioner” or “Union”) pursuant to Neb. Rev. Stat. § 48-818.  Petitioner is a labor organization as defined by § 48-801(6) (Reissue 2004) and the duly recognized collective bargaining representative of a bargaining unit of employees of the City of Omaha (“Respondent” or “City”), an employer as defined by § 48-801(4).  The bargaining unit consists of all uniformed employees of the Omaha Fire Department, including the classifications of Firefighter, Fire Apparatus Engineer, Fire Captain, Drill Master, EMS Shift Supervisor, Assistant Fire Marshal and Battalion Chief, but excluding the Fire Chief and Assistant Fire Chiefs.  Petitioner seeks the resolution of an industrial dispute over wages and other terms and conditions of employment for the December 29, 2009 through December 25, 2010 contract year.

            A hearing was held on December 5, 6 and 7, 2011 before the Honorable Loren L. Lindahl, and resumed on December 12, 2011 by telephone conference call.  The parties agreed to a bifurcated briefing schedule in which the array would be decided in a separate Order from the Commission, with a subsequent briefing schedule and Order regarding all other issues.

ARRAY:

            The parties have proposed five array cities in common: Des Moines, Iowa; Milwaukee, Wisconsin; Madison, Wisconsin; St. Paul, Minnesota; and Lincoln, Nebraska.  Petitioner proposes to include the cities of Cincinnati, Ohio and Toledo, Ohio.  Respondent initially proposed the inclusion of Lexington, Kentucky and St. Louis, Missouri, but removed both cities from consideration.  Respondent now proposes that the Commission select only the five common array cities in its final determination.

Under § 48-818, the Commission must determine rates of pay and conditions of employment that are comparable to the prevalent wage rates paid and conditions of employment maintained under the same or similar working conditions of workers exhibiting like or similar skills under same or similar working conditions.  The Commission has discretion to determine what is comparable to the prevailing wage rate.  See Lincoln Fire Fighters Ass’n v. City of Lincoln, 198 Neb. 198, 252 N.W.2d 607 (1977).  However, the Industrial Relations Act does not define comparable or specifically direct the Commission in the manner and process of its determination.  The Nebraska Supreme Court has provided guidance in this regard:

“a prevalent [sic] wage rate to be determined by the Court of Industrial Relations must almost invariably be determined after consideration of a combination of factors…Under Section 48-818, R.R.S. 1943, in selecting cities in reasonably similar labor markets for the purpose of comparison in arriving at comparable and prevalent wage rates the question is whether, as a matter of fact, the cities selected for comparison are sufficiently similar and have enough like characteristics or qualities to make comparison appropriate.”

Omaha Ass’n of Firefighters v. City of Omaha, 194 Neb. 436, 440-41, 231 N.W.2d 710, 713-14 (1975).

As a general rule, the factors most often used to determine comparability are geographic proximity, population, job descriptions, job skills, and job conditions.  Douglas County Health Dept. Emp. Ass’n v. Douglas County, 229 Neb. 301, 427 N.W.2d 28 (1988).  To make an appropriate determination, the Commission hears evidence from each party concerning the similarity and appropriateness of including the members of the proposed arrays.  The Commission then chooses the array cities that are sufficiently the same or similar based on evidence presented on a case-by-case basis.  The Commission is not required to consider every possible array, but seeks one which is sufficiently representative as to determine whether wages paid or benefits given are comparable.  See Lincoln Co. Sheriff’s Ass’n v. County of Lincoln, 216 Neb. 274, 343 N.W.2d 735 (1984).  Once the array is chosen, the Commission establishes prevalent wage rates paid and conditions of employment, determining the overall compensation.

            The cities agreed upon by both parties will be included in the array.  In past cases, the Commission has expressed its preference for arrays containing more than four or five comparable cities whenever possible.  Professional Firefighters Ass’n of Omaha, Local 385 v. City of Omaha, 16 CIR 408 (2011); Grand Island Educ. Ass’n v. Hall County School Dist. No. 0002, 11 CIR 237 (1992).  The Commission has previously held that arrays consisting of four or five comparable cities (Hastings Educ. Ass’n v. the School Dist. of Hastings, 6 CIR 317 (1982)) to six to eight cities (O’Neill Educ. Ass’n v. Holt County School Dist. No. 7, 11 CIR 11 (1990)) as being appropriate.  The use of a particular array in one case does not require that the same group of employers would be appropriate in a different case.  See International Ass’n of Firefighters v. City of Grand Island, 9 CIR 43 (1987).  Sufficient arrays are chosen after thorough analysis of the evidence presented for each array city proposed by the parties.

 CINCINNATI, OHIO AND TOLEDO, OHIO:

            The parties have stipulated that in five cities- Des Moines, Iowa; Milwaukee, Wisconsin; Madison, Wisconsin; St. Paul, Minnesota; and Lincoln, Nebraska- the work, skills, and working conditions of bargaining unit employees are sufficiently similar to those employees at the proposed comparable array points to satisfy the standards set forth in Neb. Rev. Stat. § 48-818.  In addition to the five agreed-upon cities, Petitioner requests that the Commission include Cincinnati, Ohio and Toledo, Ohio in the selected array.  Petitioner argues that Cincinnati and Toledo firefighters engage in similar work with similar work skills under similar working conditions to Omaha firefighters, and presented surveys and live testimony in support of its contention.  Respondent argues that the Ohio cities are not comparable or geographically proximate to Omaha, and including both of these cities in the array would be a “double dip” in the same labor market.

            The Commission has included Cincinnati in its array in a previous wage case involving these parties, stating that Cincinnati was the most similar in working conditions and size to Omaha of the three Ohio cities (Toledo, Cincinnati, and Columbus) proposed.  Professional Firefighters Ass’n of Omaha, Local 385 v. City of Omaha, 16 CIR 35 (2008).  The following year, this Commission excluded Cincinnati from the array selection based on a lack of evidence to support its inclusion.  Professional Firefighters Ass’n of Omaha, Local 385 v. City of Omaha, 16 CIR 408 (2011).  In each wage case brought before the Commission, the party requesting the inclusion of a particular array city must prove the inclusion of that array city through the weight of the evidence presented. 

In the present case, Petitioner has provided sufficient evidence to show that firefighters in Cincinnati and Toledo perform similar work, have similar skills, and work in similar working conditions as Omaha firefighters.  Cincinnati and Toledo engine companies staff their engine companies similarly to Omaha engine companies, staff medical units with ALS medics, and Emergency Medical Services are performed by cross-trained firefighters.  Each city falls within the Commission’s population guidelines.  Job descriptions in each city are also similar to job descriptions in Omaha. 

Despite Petitioner’s favorable showing of comparability in support of Toledo, we must draw the line as to how far in geographic proximity we are willing to go to achieve a sufficient array.  Toledo has been included in previous arrays in both fire and police wage cases before this Commission (see Omaha Association of Firefighters Local 385 v. City of Omaha, 2 CIR 117 (1975), aff’d 194 Neb. 436, 231 N.W.2d 710 (1975); Omaha Police Union Local No. 1 v. City of Omaha, 3 CIR 356 (1977); Omaha Fire Management Association v. City of Omaha, 3 CIR 619 (1978); Omaha Police Union Local 101 v. City of Omaha, 11 Cir 114 (1991)).  With the exception of the 1975 Omaha firefighters wage case affirmed by the Nebraska Supreme Court, Toledo was included because it was an agreed-upon array city.  In this case, Toledo is not an agreed-upon city, so we must look at all factors to determine whether its inclusion is necessary to achieve the goal of determining an outcome in this industrial dispute.  Sufficient evidence has been presented in terms of comparability, but we are left with the factor of geographic proximity to Omaha in making our determination.  We believe that Toledo is just too remote to justify its inclusion in this particular array.  We do not need to extend the outer limit of proximity to Omaha beyond Cincinnati, the closer in geographic proximity of the two Ohio cities proposed, in order to achieve a sufficient array.  The Commission shall exclude Toledo and include Cincinnati.

            Respondents raised the argument that Toledo and Cincinnati share the same labor market and that including both cities in the array would be a “double dip.”  However, we do not need to address this concern as we have chosen to include only one Ohio city in the array.

            IT IS THEREFORE ORDERED that the array shall include the cities of Des Moines, Iowa; Milwaukee, Wisconsin; Madison, Wisconsin; St. Paul, Minnesota; Lincoln, Nebraska; and Cincinnati, Ohio.  The Commission shall schedule a telephonic conference with the parties to determine a briefing schedule for all remaining issues.