|INTERNATIONAL BROTHERHOOD|||||CASE NO. 17|
|OF ELECTRICAL WORKERS,||||
|LOCAL UNION NO. 507,||||
|BOARD OF PUBLIC WORKS,||||
|CITY OF HASTINGS,||||
(Editor's Note: Case No. 17 proceeded in two stages: the first stage, in which the central issue involved the Court's authority to order defendants to bargain with plaintiff, terminating with, and the second stage, in which the central issues were the comparable labor market area and appropriate level of wages under §48-818, commencing with, the Nebraska Supreme Court's decision, 179 Neb. 455 (1965), reversing the Court's Findings and Order entered October 5, 1964.)
NOTE: MANY PUBLISHED ORDERS HAVE BEEN DEEMED TO BE NOT HELPFUL AND HAVE, THEREFORE, BEEN OMITTED FROM THIS FILE.
The Union initiated this suit with the authorization of a number of employees to compel the City and Board of Public Works to discuss or bargain with it in a representative capacity concerning the employees' wages, hours and conditions of employment. The petition states that the City and Board have failed to reply to the Union's requests to discuss or bargain with it as the authorized representative of the employees.
The Union's theory of the cause of action is that the City's and Board's refusals to discuss or bargain with authorized employee representatives constitutes an "industrial dispute" under Section 48-801 (8), R.R.S. 1943, on two separate bases: (1) as a "controversy concerning ... the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment," and (2) as a "controversy concerning terms, tenure or conditions of employment," with respect to which this Court has jurisdiction to require representative discussion or bargaining by the parties.
Section 48-810, R.R.S. 1943, requires that:
All industrial disputes involving governmental service in a proprietary capacity or service of a public utility shall be settled by invoking the jurisdiction of the Court of Industrial Relations.
The Union argues that one of the means by which this Court, in its discretion, might choose to carry out the purposes of the statutes would be to require the parties to an industrial dispute to discuss or bargain, or discuss or bargain further, concerning wages, hours and conditions of employment. Undoubtedly, there are many situations in an industrial setting where a voluntary settlement, or a court-encouraged voluntary settlement, would be preferable to a court-imposed resolution of the issues. At least, the Court of Industrial Relations would still be available to settle the issues in the event of a failure of the parties to agree.
The Union relies on the policy declaration of Section 48-802(1), R.R.S. 1943, that:
It is the duty of the State of Nebraska to exercise all available means and every power at its command to prevent the same (any substantial impairment or suspension of the operation of governmental service in a proprietary capacity) so as to protect its citizens from any dangers, perils, calamities, or catastrophes which would result therefrom.
Under Section 48-823, R.R.S. 1943:
The provisions of sections 48-801 to 48-823 and all grants of power, authority and jurisdiction herein made to the Court of Industrial Relations shall be liberally construed to effectuate the public policy enunciated in section 48-802. All incidental powers necessary to carry into effect the provisions of sections 48-801 to 48-823 are hereby granted to and conferred upon the court herein created.
Section 48-816, R.R.S. 1943, dealing primarily with issues of preliminary proceedings in the Court of Industrial Relations, states in part:
In the event of an industrial dispute between employer and employee of a public utility not operated by government in its proprietary capacity, where such employer and employees have failed or refused to bargain in good faith concerning the matters in dispute, the Court may order such bargaining to be begun or resumed, as the case may be, and may make any such order or orders as may be appropriate to govern the situation pending such bargaining. (Emphasis supplied.)
The Union contends that this sentence is not applicable to the present case. The language did not appear in the original version of L.B. 537, Nebr. Legis., 60th Session, when it was introduced on April 7, 1947. The sentence was added when the bill was reported out of Committee on April 16, 1947. Nebr. Legis. Journal, 60th Session. 1947. p. 1066. At that time, the provision read that the Court would have power "in any case where it finds that an employer and employees have failed or refused to bargain in good faith concerning the matters in dispute, to order that such bargaining be begun or resumed, as the case may be, and may make such order or orders as may be appropriate governing the situation pending such bargaining." On April 28, 1947, a mimeographed substitute was adopted for the original L.B. 537 as amended by the Committee. Nebr. Legis. Journal, 60th Session, 1947, p. 1203-4. A copy of the mimeographed substitute on file in the Office of the Clerk of the Nebraska Legislature contains the present language of Section 48-816. We have found no recorded legislative material explaining the reasoning behind the different language in the substitute bill or the intended effect of the substitute bill on this point.
In construing these sections of the Nebraska statutes, we feel that the prior determination of the identical issues by this Court and the substantial legislative acquiescence in this determination over an extended period of time is controlling with respect to our determination of the power of this Court to order negotiation or bargaining in the case of an industrial dispute between an employer and employees of a public utility operated by the government in its proprietary capacity.
The first case filed in the Court of Industrial Relations following enactment of the statutes was Local Union 739, International Brotherhood of Electrical Workers, Federation of Labor v. Central Nebraska Public Power and Irrigation District, the Loup River Public Power District and The Platte Valley Public Power and Irrigation District (Case No. 1). The petition in that case closely parallels the Union's in the present case. The order of the Court entered on May 1, 1948, (found) that a public utility which is operated by the government in its proprietary capacity cannot be compelled by this Court to bargain or negotiate with its employees concerning an industrial dispute.
The legislative acquiescence in this decision has been clear and convincing. Bills to change this Court's 1948 interpretation of the statutes have been introduced in the 1953, 1955, 1959, 1961 and 1963 legislative sessions. L. B. 195, Sixty-Fifth Session, 1953; L.B. 257, Seventy-Third Session, 1963. None of these bills has been reported out of Committee. In 1959, a motion to place L.B. 464, the sole amendment of which was to delete the phrase "not operated by government in its proprietary capacity" in Section 48-816, on general file was defeated. Nebr. Legis. Journal, 69th Session, 1959, p. 1362. The most recent legislative committee, in indefinitely postponing L.B. 257, concluded in its Committee statement that "The Committee felt that the present law was adequately servicing these areas...." Records of the Committee on Labor and Public Welfare, 1963, are on file in the Office of the Clerk of the Legislature.
The effect of the Legislature's continuous determination not to amend the statutes means that the 1948 interpretation of this Court should be followed unless the statutes so construed are in violation of the Constitution or such construction is clearly wrong. We do not believe that the 1948 interpretation was either constitutionally invalid or clearly wrong.
We base our decision, therefore, upon the rule that:
The construction of a statute of doubtful meaning given it by those whose duty it is to enforce it, and which construction the Legislature has by its continued noninterference for a number of years acquiesced in, will be approved, unless as thus construed it contravenes some provision of the Constitution, or is clearly wrong.
Ainsworth Irr. Dist. v. Bejot, 170 Neb. 257, 102 N.W.2d 416; Chicago & N.W.R. Co. v. Bauman, 132 Neb. 67, 271 N.W. 256; State ex rel. Village of Dakota City v. Bryan, 112 Neb. 692, 200 N.W. 870. See, State v. Sheldon, 79 Neb. 455, 113 N.W. 208; Massachusetts Mut. Life Ins. Co. v. George & Co., 148 F.2d 42. There are a number of additional decisions of the Supreme Court which support this clearly-established proposition of long standing.
Accordingly, we conclude that this Court cannot compel a public utility operated by the government in a proprietary capacity to discuss or bargain with its employees. This does not mean, however, that if a public utility operated by the government in a proprietary capacity chooses to discuss or bargain with employees, it can ignore a properly authorized representative.
To clarify the issues in this matter, the Court, on its own motion, orders stricken the language in the prayer of the second amended petition requesting that the Court order the City and Board to negotiate or bargain with the Union. We overrule the demurrer of the City and Board on the basis that the second amended petition as so modified pleads the existence of an industrial dispute with respect to which this Court might take appropriate action. See Local Union 739 v. The Central Nebraska Public Power and Irrigation Dist. et al. (Case No.1).
Pursuant to the provisions of Article 8, Chapter 48 of the Nebraska statutes, the Court intends to conduct an investigation concerning the nature and extent of the industrial dispute, if any, between the parties. The parties are not required to plead further until so ordered by the Court, but may file additional pleadings in the meantime without prejudice.
Now on this 20th day of June, 1964, this case came on for hearing upon the demurrer of the defendants to the second amended petition of plaintiff, and the Court, upon consideration of the pleadings, the briefs of counsel and oral arguments, finds:
1. That the second amended petition alleges facts as to parties and subject matter of which this Court has jurisdiction.
2. That the defendants operate the electrical, gas and water departments of the City of Hastings, Nebraska, as governmental service in a proprietary capacity.
3. That this Court is without jurisdiction to compel and order these defendants, or either of them, to bargain with the plaintiff concerning any matters in dispute between the parties to this action as alleged in the second amended petition.
4. That the defendants, or either of them, cannot be required to bargain or negotiate with plaintiff concerning any industrial dispute which may now exist or hereafter arise between the parties; that this Court has sole and exclusive jurisdiction to hear and determine any industrial dispute between the parties.
5. That the Court, on its own motion, should strike those portions of the prayer, contained in the second amended petition by plaintiff, which are contrary to the above findings.
6. That the second amended petition, as above modified by the Court, alleges a cause of action against the defendants, and each of them, over which this Court has jurisdiction.
7. That, as provided by Article 8, Chapter 4, of the Revised Statutes of Nebraska, the Court should conduct an investigation in this matter on its own initiative, and to this end, an investigator should be appointed by the Court, and required to submit a report, or reports, concerning his investigation, with copies thereof to be sent to the parties herein.
8. That the parties hereto should not be required to further plead until the further order of the Court but any of the parties hereto may now file additional pleadings, without prejudice.
NOW THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED:
That the demurrer of the defendants be, and the same hereby is overruled; that the following language, to-wit:
that the Court order the Defendants and each of them to discuss terms and conditions of employment with Plaintiff with respect to the employees of the Electrical, Gas and Water Departments as contained in the request by Plaintiff to the Defendants and each of them in Exhibit B attached hereto; that the Court order the Defendants and each of them to bargain collectively in good faith with the Plaintiff with respect to wages, hours and conditions of employment of employees of the City of Hastings, Nebraska, and its agent the Board of Public Works, City of Hastings, Nebraska, employed in the Electrical, Gas and Water Departments of the City, all as requested in Exhibit "B" attached hereto.
contained in the prayer of the second amended petition of plaintiff be, and the same is hereby stricken on the Court's own motion; and that Wallace M. Rudolph be, and he hereby is appointed investigator by the Court, to conduct, pursuant to Article 8, Chapter 48, of the Revised Statutes of Nebraska, an investigation as to the nature and extent of the industrial dispute, if any, alleged to exist between the parties, and submit a report thereof, not later than August 1, 1964; and that the parties hereto be, and they hereby are directed to meet with the investigator on July 6, 1964, at 10:00 a.m. at the office of the City Attorney, Hastings, Nebraska, and such other times and places, either jointly or separately, as he may designate.
WALLACE M. RUDOLPH
Pursuant to order of Court dated June 26, 1964 appointing an investigator to conduct an investigation as to the nature and extent of the industrial dispute between the City of Hastings, and Local 507 of the International Brotherhood of Electrical Workers, I, Wallace M. Rudolph, met with the following persons on July 19, 1964 in the office of Gerald Whelan in the city of Hastings; Doyle Troudt, president of local 507, Melvin Rothrock, financial secretary of local 507, Elton Hughes, Irving Scott, Robert K. Garrity, International Representative of the I.B.E.W. Also present was Mr. Whelan, City Attorney for the City of Hastings. I received the following documents from Mr. Garrity (Exhs. K. Union demands, R, wage comparisons, and L, agreement between local 507 and the Board of Public Works for the years 1941 through 1951.) This meeting lasted from 10:00 a.m. till noon during which time I questioned the men on the union committee in the presence of Mr. Whelan. In the afternoon, Mr. Whelan and I talked to Mr. John Foster, the manager of the utility and I conversed with him. Mr. Whelan and Mr. Foster had the office prepare for me the rest of the exhibits from the exhibits of the Hastings Utility examination. In preparing this report I have examined the minutes of all meetings of the Board of Public Works from 1960 to the present time and other pertinent records.
The Board of Public Works of the City of Hastings operates the city gas, light, and water works for and in behalf of the City of Hastings pursuant to Section 16 Neb. Rev. Stat. 691. The basic documents that control this operation, especially concerning employees, are-Civil Service Ordinance (Exh. A), Hastings Utility, Payroll Procedures approved by the City Council May 11, 1964 (Exh. C) and Utility Personnel Procedures (Exh. E). The operation of the plant is under the active supervision of the plant manager, John B. Foster and the supervision of the men is under superintendents for the Power Plant; Electric Lines and Meters; Water & Sewer, and Gas Department. Wage increases at the present time are by merit on the recommendation of the various superintendents although minimum and maximums are set by ordinance. (Exh. N) (Exh. D) (Exh. F) (Conversation with John Foster on July 17, 1964.) This year a rating system on a form like Exhibit M was established (conversation with Mr. John Foster). Previously no attempt was made to systematically rate the men and no recommendation of a foreman for a merit increase was ever turned down. (Conversation with Mr. John Foster.) One exception to this occurred when a supervisor turned in identical raises for all of his personnel. He was told to resubmit his recommendations to insure than pay was on a merit basis. (Conversation with Mr. John Foster.) Employee requests for general changes in working conditions and across the board wage increases are submitted to the Board of Public Works. At present the Board receives such requests from superintendents, supervisors and foremen (Exh. B). Previously the Board received such requests from the Committee of Employees of Hastings Utilities (Exhs. G. E. and H). During the years 1941 through 1951, the Board of Supervisors did recognize and did have a working agreement with Local Union No. 507 (Exh. L) and this agreement still makes up the basic work rules at the Hastings Public Utilities. (Compare Exh. L with the Utility Personnel Procedures Exh. E.) Further evidence of the fact that the Board of Supervisors dealt with the officers of Local 507 are found in Exh. J. Council action concerning approving or disapproving of wage increases for utility employees depends as much on the ability of the City Council to satisfy the police and fire departments, as it does on competitive rates for utility personnel. (Conversation with Mr. John Foster and City Attorney Whelan.) It was clear that action of utility employee wages by the City Council depended upon the City's ability to meet demands from other departments (conversation with Mr. John Foster and Mr. Whelan). The actual process for setting wages requires that the Civil Service Commission approve the range of salaries for a particular position (Exh. A) and the Board of Public Works sets the individual wage. It will be noted that no employee is at his maximum (Exh. P). This is not accidental, but part of the scheme of using merit increases to improve productivity. (Conversation with John Foster.) It is also noted that on the supervisory level all supervisors are paid the same with one exception (Exh. P) (Exh. I). The exception is based on seniority and will be eliminated. (Conversation with Mr. John Foster.) This program of similar salaries in supervisory levels is carried out throughout the City government. (Conversation with Mr. Whelan.) Thus the merit system is only applied below supervisory levels.
General prepartaion of wage data both historically and comparatively have been on a minimum-maximum basis (Exhs. S & T). As has already been pointed out actually wages are almost never at maximum. (Compare Exhs. N & Q [actual salaries] with maximums Exh. S.) Thus a foreman Lyle Burdick in the electrical department was raised to $2.52 per hour as of April 18, 1963 but was eligible to receive $2.70 per hour, Exhibit R is a comparison on the basis of the average actual wages between localities and shows Hastings consistently below other utility and private firms. (Exh. R was prepared by Mr. Garrity of the international union and were not taken from company records.) Exhibit K are the demands of the local union and were presented to me by Mr. Garrity. In addition, Mr. Troudt said that the men were very displeased by the merit system and he claimed that it led to favoritism. (Conversation with Troudt in Whelan's presence.) For example, Mr. Troudt has never received a merit increase and he is president of the local union. (Conversation with Mr. Troudt.) He said that other workers were raised twice in very short periods of time. The union representatives were also very disgruntled with the action taken by the Board of requiring the employees' committee to be made up of superintendents, supervisors, and foremen. (Exh. B.) Mr. Troudt and the other union members felt that they were entitled to be represented by the persons of their own choosing. (Conversation with Mr. Troudt and other members of the union committee.) Mr. Foster explained that the reason the Board established a committee made up of supervisory personnel (Exh. B) was feeling by the Board that the information concerning employee relations was not accurately getting to all employees when they dealt with the union's employees' committee (conversation with Mr. Foster) and therefore, the board decided to use its normal chain of command in dealing with its employees (conversation with Mr. Foster). Exhibit H, a notice correcting a mistaken view of the employees, indicates the possible cause for the Board's refusal to deal with the employees' committee.
After examining the various exhibits and talking to Mr. John Foster, Mr. Doyle Troudt, Melvin Rothrock, Robert Garrity, all in the presence of Gerald Whelan the investigator finds the following facts.
There is labor dispute as to:
(1) The existence and operation of the merit plan (failure to use seniority). (Compare Exhibits K & F)
(2) The right of the employees to be represented by persons of their own choosing. (Exhibits K, J, and B)
(3) The appropriateness of tying wages of utility workers to those of other city employees contrary to the policy of Article 8, Chapter 48, Neb. Rev. Stat. which relates utility wages to those generally followed in the industry.
(4) Wages, overlapping categories, night work. (Exhs. K. R.S.T and conversations with Union Committee)
(5) Fringe Benefits such as: sick leave, meal allowance and call-back pay. (Exh. K. J. and conversations with Union Committee)
(6) Local 507 represents the majority of employees. (Exh. A to complaint)
(7) Promotions. (Exh. K and conversation with Union Members)
It is recommended that:
(1) The Court continue jurisdiction.
(2) The Court order the Board to recognize local 507 as the representative of the employees.
(3) The Court order the Board not to deal on matters of conditions of employment with any group or person other than the recognized representatives of the employees.
(4) The Court order a hearing for the presentation of further evidence on the questions:
(a) Merit Pay.
(b) Call-Back Pay.
(c) Subsistence (Meals) Pay.
(d) Premium for night work.
(f) Rates of pay, compared to other utilities.
(g) Appropriateness of referring rates of pay to City Council and Civil Service Commission for approval.
Defendants filed an answer to plaintiff's second amended petition, and the plaintiff filed its reply thereto. Pursuant to statute and the order of this Court, dated June 26, 1964, an investigator was appointed. On July 31, 1964, the investigator filed his report, indicating the bases of controversies between the parties and his recommendations. On August 12, 1964, this matter was set to be heard on September 14, 1964, at 10:00 o'clock a.m. A "Notice to Employees" was to be mailed to all the employees. The record affirmatively shows service of this notice upon all employees and the posting thereof, as required by the order of this Court. The formal hearing was held at the time and place fixed by the Court. Both the plaintiff and the defendants were represented by counsel. The investigator was duly sworn and testified, and was cross-examined by counsel for both parties. Counsel also made opening statements and presented arguments to the Court.
We summarize the pleadings as follows:
1. Allegations admitted by answer:
1. The plaintiff is a labor organization.
2. The principal office of the plaintiff is Hastings.
3. The City of Hastings owns electrical, gas, and water departments.
4. The Board of Public Works is an agency of the City.
5. The Board operates as such agency said electrical, gas, and water departments as a governmental service in a proprietary capacity.
6. The plaintiff has been authorized to represent a majority of the employees of the electrical, gas, and water departments, exclusive of office, clerical, and management employees "as collective bargaining agent."
II. Allegations denied by answer:
1. The plaintiff sent letter, Exhibit B, to the Board of Public Works on October 23, 1963.
2. Exhibit B requested the Board to meet with the plaintiff for the purpose of "bargaining collectively as to employees' wages, hours and conditions of employment."
3. No answer has been received to Exhibit B.
4. The defendants have failed to comply with the plaintiff's request in Exhibit B and other oral requests to bargain collectively.
5. An industrial dispute exists in that there is a controversy concerning representation of persons.
6. Said industrial dispute will lead to substantial impairment of operation of electrical, gas, and water departments.
7. Continuous operation of services of said departments is essential to public health, welfare, and safety.
8. The Court of Industrial Relations has jurisdiction to settle the dispute.
1. Order defendants to discuss with plaintiff terms and conditions of employment.
2. Order defendants to bargain collectively in good faith with plaintiff.
3. Make any order appropriate to settle industrial dispute.
I. Affirmative Defenses:
1. The petition does not state facts sufficient to constitute a cause of action.
2. The Board has conducted meetings with representatives of employees.
3. The Board never has failed to meet with employees and to discuss wages and conditions of employment.
4. The Board recommends to City Council wages but does not set wages.
5. Neither defendant has "legal capacity to negotiate for wages and hours."
6. "Negotiation (with) or recognition of this plaintiff would constitute an illegal and invalid unconstitutional delegation of authority."
7. No industrial dispute exists.
8. No controversy concerning the terms, tenure, or conditions of employment exists.
1. Jurisdiction of the Parties. Since it is admitted that the plaintiff is a labor organization authorized to represent a majority of the employees of the defendants' electrical, gas, and water departments, which the defendant City of Hastings owns and which the defendant Board of Public Works operates as agent of the City, and that such operation is by a government in its proprietary capacity, the Court has jurisdiction of the parties. See Sec. 48-811 and 48-801 (7) R.R.S. Neb. 1943, and paragraphs 1 and 2 of our Opinion filed December 16, 1963, in Kramer Power Station Employees Committee v. Loup River Public Power District, et al, Case No. 16.
2. Existence of an Industrial Dispute. In Paragraph 3 of our opinion in Kramer v. Loup, supra, we discussed the plaintiff's failure to prove either a demand on the defendants prior to filing suit or the probability of a strike's ensuing from failure to comply with such demand, and we held:
The public policy expressed in Sec. 48-802 R.R.S. Neb. can best be served by settling disputes while they are still relatively minor. This cannot be done if the act is construed so that the Court has no jurisdiction until the plaintiff can affirmatively and convincingly prove that a failure of service will result from an inability to settle a dispute. We hold that, where the plaintiff and the defendant are properly within the jurisdiction of this Court, and the pleadings themselves present a demand by or on behalf of employees and the employer's denial of relief, nothing further need be shown to invoke and maintain the jurisdiction of the Court to settle the dispute.
Likewise we hold here that the plaintiff's failure to adduce testimony in support of its allegations respecting demand prior to filing suit (Exhibit B attached to the petition) and its allegation that failure to settle the industrial dispute will lead to substantial impairment of essential operation of public utilities, even though such allegations are denied by the defendants, is immaterial to the Court's decision in this case.
The evidence does disclose controversies between the defendants and the employees who have authorized the plaintiff to represent them concerning the following:
a.The employer's right to require that employees' demands for wages and conditions of employment be presented to the Board of Public Works by supervisors.
b.The plaintiff's right to present to the Board the employees' demands.
c.The right of the plaintiff, in presenting such demands, to have the aid, both in appearing before the Board and in preparing for appearance before the Board, of full-time union officials and of attorneys and accountants who are not employees of the defendants.
d.The legality and the appropriateness otherwise of procedure heretofore adopted by the City for setting wages insofar as such procedure relates wages of utility employees to wages of policemen and firemen set in accordance with Chapter 19 Article 13 R.R.S. Neb. 1943.
e.Basic wage rates, classifications of workers, and wage rates for night work.
f.The desirability or fairness of the standard heretofore employed by the defendants for wage increases, such standard consisting solely of "merit" as determined by the uncontrolled discretion of supervisors rather than including "seniority" as an element in any respect.
g.Fringe benefits, such as sick leave, meal allowances, and call-back pay.
Sec. 48-801 (8) R.R.S. Neb. 1943 is as follows:
The term industrial dispute includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment.
We hold that the first three controversies, expressed in paragraphs (a), (b), and (c) above, are controversies concerning the representation of persons in negotiating or seeking to arrange terms or conditions of employment, and that the last four, expressed in paragraphs (d), (e), (f), and (g) above, are controversies concerning terms, tenure, and conditions of employment. We need not decide whether a justiciable industrial dispute, which, under the mandate of Sec. 48-810, the Court must settle, is raised by a controversy concerning solely the representation of persons. Under the evidence in this case all types of controversies defined in the statute exist, and accordingly there exists an industrial dispute which the Court must settle.
3. This Court's Power to Order Negotiation between Employers and Employees. In our opinion filed in this case June 26, 1964, explaining our ruling on the defendants' demurrer and the order appointing an investigator, appears the following statement;
Accordingly, we conclude that this Court cannot compel a public utility operated by the government in a proprietary capacity to discuss or bargain with its employees. This does not mean, however, that if a public utility operated by the government in a proprietary capacity chooses to discuss or bargain with employees, it can ignore a properly authorized representative.
Apparently because of that statement, counsel for the defendants contended in part that our opinion of June 26 disposed of all controversies except those concerning terms and conditions of employment. Accordingly that statement must be clarified. In accordance with the authorities cited in that opinion we held that this Court cannot compel a public utility operated by government in a proprietary capacity to "bargain collectively" nor can we certify the plaintiff as a "bargaining agent" as those phrases are used in federal labor law or as the National Labor Relations Board can compel an employer subject to its jurisdiction.
Nevertheless that holding is a far cry from any conclusion that this Court is without any power to get employers and employee representatives together to define and simplify controversies and thereby implement settlement of an industrial dispute. In Safeway Cabs, Inc. v. Taxicab Drivers Union Local 762, et al, Case No. 18, we held:
Sec. 48-818 R.R.S. 1943, detailing the Court's power to fix rates of pay and other conditions of employment does not contain the only methods by which this Court can settle industrial disputes... The statutes have a purpose and intent, as stated in Sec. 48-802(1), R.R.S. 1943, that the State of Nebraska, through the Court of Industrial, "exercise all available means and every power at its command" to act lawfully to prevent the interruption of service. Provision was added that the jurisdiction, power and authority of the Court should be liberally construed to effectuate the statutes and that the Court should have all necessary and incidental powers. (Emphasis supplied.)
Under Sec. 48-823 and 48-816 R.R.S. 1943, the Court has broad powers to formulate its own rules of pleadings and practice. It would be unwise for this Court to promulgate rules which would require in all industrial cases either employees or employers to set down publicly in pleadings or even in letters to each other all the possible extreme demands that ingenuity of their counsel might imagine. Our experience as lawyers is that setting down such extremes is the necessary result of the usual rules of pleadings in the District Courts of this State. On the other hand, in appropriate cases in an industrial setting, harmony may be promoted and settlement of disputes achieved or at least facilitated by requiring no more of a petition than the bare allegations of a controversy and by ordering upon the filing of such a petition the parties to get together, under conditions, rules, or supervision appropriate to the particular circumstances, for the purpose of defining or eliminating the areas of controversy.
The defendants by their pleadings and argument consistently have contended that the City has no power to enter into a contract with the union, and that therefore there is no point in the Court's assuming power to order the City to bargain, negotiate, or discuss. It seems to us probable, though we need not and do not decide here, that the City does have power, although a limited one, to contract with the union. See Sections 16-201, 16-218, 16-674, 16-691 R.R.S.Neb. 1943, Compare City of Nebraska City v. Nebraska City Speed & Fair Association, 107 Neb. 576, 186 N.W. 374 (1922), wherein the distinction between the power to enter into governmental contracts and the power to enter into proprietary or business contracts is mace; and Launt v. Village of Oakdale, 88 Neb. 320, 129 N.W. 258 (1911), enforcing a contract by a committee of the City Council to employ the plaintiff as supervisor of repairs of water works. See also Norwalk Teachers' Association v. Board of Education, 138 Conn. 269, 83 A.2d 482.31 ALR2d 1133 (1951), Springfield v. Clouse, 356 Mo. 1239, 206 S.W.2d 539, 31 ALR2d 1157 (1947). We do hold, that a power to contract is not necessarily incidental to a power or duty to carry on some sort of negotiations or discussions. Very frequently an agent or attorney is given power to negotiate or discuss without the power to bind the principal by contract. If power to bargain without power to contract is desirable in the business world, why should a City not have the duty to do so where there is a probability of a similarly desirable result?
It must be understood that we are not adopting the federal system of labor law and that at this time we do not find the federal cases interpreting such phrases as "collective bargaining" or "certification of bargaining representative" helpful in lucidating the powers of the Nebraska Court of Industrial Relations under Chapter 48 Article 8 of the Nebraska statutes. Nevertheless, under the incidental and procedural powers extended to us by the Legislature, we shall provide in appropriate cases a means and appropriate environment for discussion of controversies by parties to an industrial dispute.
4. Sufficiency of Evidence to Sustain Order Requiring Defendants to Negotiate with the Plaintiff. Here we have an industrial dispute concerning the representation of employees in seeking to arrange terms and conditions of employment. Sec. 48-810 contains a mandate that the Court settle that dispute. The development of guidelines for settling such a dispute is left to the Court. It has been suggested that an employer has an obligation to recognize any duly appointed representative for the purpose of treating with those employees who duly appointed that representative, or, stated otherwise, that any employer and any employee has the right to be represented by any persons or associations selected by the represented.
We doubt that such obligation or such right is absolute in an industrial setting where the right to strike and the right to lock-out have been taken away by statute. In this case we hold only that, under the record so far, our ordering the Board of Public Works to negotiate in good faith with the union as the representative of those employees who signed Exhibit A attached to the complaint would be fair, equitable, conducive to efficient operation of the utility, and conducive to settlement of all controversies which make up the industrial disputes.
The evidence and the admitted allegations of the pleadings disclose:
Of the following persons:
Lavern Hinrichs Albert Schmidt
Ernest L. Snell William Frasier
James D. Lafing Chris Gerloff
Richard L. Merrill William L. Fink
Robert Patterson Henry B. Meyer
Lee E. Malone Casrroll Wyman
Donald D. Baker Jake Lafing
Irving E. Scott Raymond Allman
Wilbur E. Jorgensen Michael S. Merrill
Robert L. Smith George Schumn
Irvin E. Rothfuss William Howsden
Darrell Mayer Melvin L. Baker
Elton Hughes Darrel Smith
Wardie Carver Merwyn B. Valentine
Robert Sanford Ellis E. Maul
Arnold Heye Albert H. Cook
Melvin Burge Melvin I. Rothrock
Stanley G. Jase Doyle Troudt
Lawrence A. Wahl George E. Davis
William L. Belz Orville Klein
Joseph H. Hittner Alex Barth
Delbert Bruce J.C. Bryce
Rul E. Arunet John Kahler
James DeSatine Donald Stromer
John J. Corshuck Clyde E. Fleming
Edwin G. Hein Earl L. Dickenson
A.C. Watkins James L. Menhite
Milan J. Wallin Gilbert W. Mays
Harold L. Kelley Clifford Mays
James Mohr Howard W. Hohlen
Don Brouillette Lyle Burdick
Leon Knudsen John W. Winfrey
Adrian Kimminan Darrel L. Hill
all are employees of the defendants in the electrical, gas, and water departments, none is employed in an office, clerical, or management capacity, and all have authorized the plaintiff to bring and maintain this action on their behalf. The operation of all the City utilities is under the general supervision of the plant manager, John B. Foster, and under him are superintendents for Power Plant, Electric Lines and Meters, Water & Sewer, and Gas Departments. Wage increases at the present time are by "merit" as described and recommended by the respective superintendents, although minimums and maximums are set by ordinance. Employee requests for general changes in working conditions and across-the-board wage increases are submitted to the Board of Public Works. Since its direction in March, 1964, the Board has required that such requests be formulated, evaluated, submitted, and orally presented to the Board, by only the superintendents, supervisors, and foremen on behalf of employees under them. Previously the Board received such requests from the Committee of Employees of Hastings Utilities made up of officers of the plaintiff. During the years 1941 through 1951, the Board of Public Works did recognize and did have a working agreement with the plaintiff, Local Union No. 507, and this agreement still makes up the basic work rules at the Hastings Public Utilities. The wage-setting procedure is that the Civil Service Commission sets a range of salaries for a particular position, the City Council appropriates the money, and the Board of Public Works sets the wage of each individual. The men are very displeased by the merit system claiming it leads to favoritism. For example, Mr. Troudt, the president of the union, has never received a merit increase. The union representatives were also very disgruntled with the action taken by the Board of requiring the employees' committee to be made up of superintendents, supervisors, and foremen. Mr. Troudt and the other union members feel that they are entitled to be represented by persons of their own choosing. The reason the Board established a committee made up of supervisory personnel was the feeling by the Board that some information concerning employee relations was not accurately getting to all employees when the Board dealt with the Union, and that the normal chain of command would present more accurately the Board's views to the men.
In the record there is no hint of fraud, bad faith, or intentional misrepresentation by a union member, whether an employee of the defendants or not. The fact that the defendant Board felt "that information concerning employee relations was not accurately getting to all employees" and the fact that at one time the Board posted a notice correcting a mistaken view of the employees are not sufficient to deprive the employees of the benefits which human experience shows usually follow from a person's choosing his own representative and spokesman. To counterbalance said benefit to the employees, there is no showing of any benefit, existing or hoped for, to the defendants from an employee representation other than that of the plaintiff. Certainly one party's imposition of a spokesman on the other party contrary to the latter's wishes is not conductive to harmony or settlement of controversies. The Board's order of March, 1964, requiring that all presentation of grievances and demands and all evaluation, formulation, itemization, and submission of specific requests, and the physical appearance before the Board be done on behalf of employees by superintendents and foremen is arbitrary and unreasonable and should be rescinded.
In oral argument counsel of the defendants contended that appearances before and communications with the Board should be limited to persons who are employees, and that union officials, attorneys, accountants, and other assistants who were not employees of the defendants should be eliminated from taking any part in the evaluation, formulation, and presentation of employee demands. There is no evidence whatsoever that such elimination will be fair, or conducive to efficient operation of the utility, or conducive to the settlement of controversies, or even benefitual to the defendants.
We conclude that the defendants should be ordered to receive and to consider and respond in good faith to the demands of the plaintiff on behalf of the employees named above (excluding office, clerical, and management employees) regardless of whether persons who are not employees of the defendants took any part in the formulation and presentation of such demands and discussions in regard thereto, and to rescind in toto their order of March 20, 1964, referred to above.
5. The Element of Good Faith. It is possible to construe one statement of one of the counsel of the defendants as being an indication that if any individuals other than employees take any part in formulation and presentation of employee demands, then the defendants will take no part in attempting to settle controversies outside formal hearing in this Court. We do not now decide the penalty for failure to attempt to define and eliminate areas of controversy by communications in good faith between the parties, but we do point out that such failure will be a violation of the order of this Court.
THEREFORE IT IS ORDERED, ADJUDGED, AND DECREED:
1. That the plaintiff and the defendants by communications in good faith shall eliminate or define their controversies insofar as such controversies concern:
a.The appropriateness of the procedure for setting wages of utility employees insofar as such procedure relates wages of the plaintiff's members to wages of policemen and firemen.
b.Basic wage rates, classification of workers, and wage rates for night work.
c.The standard for determining wage increases, and
d.Fringe benefits, including but not limited to sick leave, meal allowances, and call-back pay;
and are with respect to the employees named in paragraph numbered 4 above excluding, however, office, clerical, and management employees.
2. That such communications shall include written and oral communications in such form, at such times and places, and under such circumstances as the parties in good faith with reasonable promptness shall determine; and that each communication of a party shall be reasonably responsive to the prior communication of the other.
3. That the defendants shall arrange for the plaintiff's holding and conducting meetings of employees of Hastings utilities on utility time under circumstances no less favorable and convenient to the employees than have been the circumstances for such meetings heretofore held by the committee composed of superintendents, supervisors, and foremen.
4. That each party shall respect and deal with, as the representatives or spokesmen of the other, such persons as such other in good faith shall authorize; and that the defendants shall not deal with or recognize or declare as the representatives of employees named in paragraph numbered 4 said committee composed of superintendents, supervisors, and foremen.
5. That the plaintiff by supplemental petition and the defendants by cross petition filed in this Court no later than January 5, 1965, shall report the respects in which said controversies have been eliminated or defined.
Having considered the pleadings, arguments, report of investigator, and evidence which have extended over several months in this matter, I am thoroughly convinced that the above Findings and Order set out the most desirable and effective means for attempting to resolve the pending industrial disputes between the parties. In my opinion, however, this relief is not permitted under the statutes as previously interpreted by this Court for the reasons set out in the Opinion in this case filed on June 26, 1964. I would adhere to the conclusion that this Court has no power to require a governmental agency acting in a proprietary capacity to discuss or bargain in a nonjudicial setting with its employees or a representative of its employees.
The evidence shows that after a history of various representative arrangements dating back to 1941, the City and Board refused to recognize the Union as spokesman for its employees authorizing the Union to act for them. On March 20, 1964, during the pendency of this suit, the Board formed a representative committee consisting of superintendents, supervisors and foremen to present the views of any and all employees desiring to be heard by the Board. The employer-created committee was substituted for the Union insofar as the representation of a majority of the employees was concerned. There are a number of pending items of industrial dispute between the Board and a majority of its employees, the most critical of which is likely to be the controversy "concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment." See Section 48-801 (8), R.R.S. 1943.
I agree with the portions of the Court's order that the City and Board be required to recognize the Union as a representative of the employees authorizing it to act for them; and that the City and Board should be ordered not to deal on matters of industrial dispute with any group or person other than the authorized representative insofar as those employees are concerned. The Court's order additionally requires the parties to communicate in good faith with each other outside of the judicial procedure of this Court. This extrajudicial discussion, in my opinion, cannot be compelled by this Court for the reasons contained in the opinion of June 26th, however desirable such an approach might seem in effectuating the underlying policies of the statutes.
From the record in this case, the Court's effort to secure a court-encouraged "voluntary" settlement of the industrial disputes concerning terms, tenure and conditions of employment is wholly warranted. I would, however, carefully proscribe and conduct all aspects of the Court's remedial measures within the judicial framework of this Court.
Having stated my disagreement with the Court's rulings on these issues, I intend, nevertheless, to follow this order in future cases, once the present order becomes effective, unless the holding is legislatively or judicially altered.
I do not regard several matters contained in the Findings and Orders to be necessary to the present issues, and, for that reason, reserve for a more appropriate case my own decisions concerning them. These involve the authority of the City or Board to enter into a labor agreement; the limitations, if any, upon the right of employees to be represented by spokesmen of their choice, including nonemployees, in situations where, in the words of our June 26th opinion, "a public utility operated by the government in a proprietary capacity chooses to discuss or bargain with employees"; and any questions pertaining to the enforcement of the present order of this Court. I am authorized to state that Judge Pospishil agrees with my views in this Part II.
The Court is of the unanimous opinion that the present Findings and Order completely disposes of all issues between the parties concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment. For that reason, I would direct the attention of counsel to the issue that this Order may be a final order for purposes of appeal. See Section 25-1902, R.R.S. 1943; Section 48-819, R.R.S. 1943; Dorshorst v. Dorshorst, 174 Neb. 886, 120 N.W.2d 32.
NOTE: The following opinion was rendered after we were reversed by the Supreme Court.
This matter came on for trial on the Third Amended Petition of the Plaintiff and the Defendants' Answer thereto. From the pleadings and evidence adduced at the trial, the Court makes the following findings:
1. Jurisdiction of the Plaintiff. The Plaintiff is a labor organization in which employees of the Defendants are members and which exists for the purpose of dealing with the Defendants concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of work. It holds regular meetings at which members discuss problems pertaining to wages and working conditions of the Defendants. It collects dues from its members, and members are entitled to present questions of interest at the meetings of the membership. The Plaintiff after debate among all members has presented periodically to the Defendants requests formulated by the members for changes in wages and working conditions and for some years prior to the initiation of this action had negotiated with the Defendants. The Plaintiff in this action also represents some employees of the Defendants who are not members of the Plaintiff.
The Plaintiff was authorized by more than sixty of the Defendants' employees to initiate the suit in this Court, and again in March, 1966, to proceed at the time the Third Amended Petition herein was filed.
Section 48-811, R.R.S. Neb. 1943, provides:
Any . . . labor organization ...may file a petition with the Court of Industrial Relations invoking its jurisdiction.
Section 48-801 (7), R.R.S. Neb. 1943, states:
The term labor organization means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
We find that the foregoing evidence establishes the organization's purpose and the participation of the employees therein and is sufficient to establish the Court's jurisdiction of the Plaintiff.
2. Jurisdiction of the Defendants. Hastings Utilities supplies electric power, gas, water, and sewage disposal to residents of the City of Hastings, and in some surrounding territory. The Defendant Board of Public Works has direction of the Utilities. Active management is vested in a Utilities Manager employed by the Board. Employees are subject to Civil Service regulations of the City of Hastings. Wages, salaries, and conditions of employment are fixed by the Board of Public Works, subject to the approval of wage schedules by the Mayor and City Council. Section 48-801 (3), R.R.S. Nebr. 1943, provides:
The term governmental service in a proprietary capacity shall mean and include any service performed under employment in any public utility, or commercial or business enterprise, which is owned, managed or operated by the State of Nebraska, (or) any political or governmental subdivision thereof....
Section 48-810, R.S. Supp. 1965, provides:
All industrial disputes involving governmental service in a proprietary capacity ... shall be settled by invoking the jurisdiction of the Court of Industrial Relations.
It is admitted, and we find, that the Defendants are political or governmental subdivisions of the State of Nebraska and operate the Hastings Utilities as a governmental service in a proprietary capacity. The foregoing evidence is sufficient to establish this Court's jurisdiction of the Defendants.
3. Existence of an Industrial Dispute. Plaintiff adduced evidence of its presentation, prior to the bringing of this action, and after initially filing this action but before the trial on the merits, of its merits, of its demands upon the Defendants and the Defendants' refusals to grant the demands of the Plaintiff. As finally presented, the subjects of these demands were increased base pay, automatic wage increases based solely on length of employment, minimum pay for an employee recalled for overtime work, premium pay for shift workers, additional meal allowances, seniority rights, additional vacation time, and additional paid sick leave.
Section 48-801 (8), R.R.S. Neb. 1943, provides:
The term industrial dispute includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment.
We find that the Plaintiff's demands concern terms, tenure, and conditions of employment; that the Defendants' refusal to accede to the demands gives rise to a controversy; and that the controversy is an industrial dispute as defined in section 48-801 (8) above.
We find additionally that since the Plaintiff and the Defendants are properly within the jurisdiction of this Court, and the pleadings themselves present demands by or on behalf of employees with which the employer has refused to comply, there has been a sufficient pleading of an industrial dispute to invoke and maintain the jurisdiction of this Court to settle the dispute.
The Defendants have consistently refused since 1963 to recognize the Plaintiff as a representative of those of the Defendants' employees who have authorized the Plaintiff to act for them. The Defendants contend here that both the decision of the Supreme Court of Nebraska on prior appeal of this action and also the mere fact of the pendency of the case in this Court require such refusal. The Defendants indicated a willingness to discuss any problems or demands with individual employees, or the problems or demands of individual employees presented through superintendents, supervisors, or foremen, but an unwillingness to permit the presentation of any demands or requests by the Plaintiff in a representative capacity. We find that the foregoing evidence establishes a controversy concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment and is an industrial dispute as defined in section 48-801(8).
4. Effect of this order on employees not represented by the Plaintiff. We follow our holding in Case No. 16 (see paragraph 5 of Findings and Order of December 16, 1963) in affirming our power and jurisdiction to affect wage rates and working conditions of those of the Defendants' employees not represented by the Plaintiff, and in finding that this is not a proper case for exercising such power and jurisdiction. A finding here that a failure to establish rates for such other employees would defeat a settlement of the industrial dispute here presented would rest on the purest of speculation as to the effect of such failure on the Defendants or their employees. Here all employees of the Defendants have been given notice of this action and an opportunity to enter their appearances in this action. None has done so. The Plaintiff already represents several employees who are not members of it. The Court's investigator reports no complaint from those not represented by the Plaintiff. Neither the Plaintiff nor the Defendant has suggested that the Court's order should affect in any way such other employees.
5. Determination of "the same labor market area" and "adjoining labor market areas." Section 48-818, R.R.S. Neb. 1943, requires that the Court make certain findings and determinations with respect to "the same labor market area" or "adjoining labor market areas:"
The findings and order or orders may establish or alter the scale of wages, hours of labor, or conditions of employment, or any one or more of the same. In making such findings and order or orders, the Court 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 work of workers exhibiting like or similar skills under the same or similar working conditions, in the same labor market area and, if none in adjoining labor market areas within the State and which in addition bear a generally comparable relationship to wage rates paid and conditions of employment maintained by all other employers in the same labor market area. The Court shall determine in each case what constitutes the same labor market area or adjoining labor market areas in the state.
We conclude that for the purposes of the Nebraska Court of Industrial Relations Act:
A labor market area may be defined as a geographic area consisting of a central community and surrounding territory in which there is a concentration of economic activity or labor demands, and within which workers can generally change jobs without changing their residences:
and that whether workers actually do change such jobs is not necessary to the discovery of the labor market area, although evidence of workers' actually changing jobs without changing their residences is certainly relevant though not controlling to a determination of whether they can do so.
The evidence in this matter is uncontroverted and to the effect that more than 90% of the employees of the Defendants were residing in the City of Hastings at the time they first started to work for the Defendants. The record indicates that there is no substantial labor interchange between Hastings and Grand Island or between Hastings and any other areas outside of Adams County. We find that the City of Hastings and Adams County, Nebraska, are the central community and surrounding territory in which there is a concentration of economic activity or labor demand. We determine, therefore, that Adams County, Nebraska, constitutes the labor market area in this case.
As originally introduced in the 1947 Nebraska Legislature, what is now section 48-818 would have required that "... such wages, hours of labor, conditions of employment, or other matters affecting harmonious relations between employer and employee shall conform to those generally prevailing in like or similar fields of employment in this state...."File on L.B. 537 (Section 18, page 7 of original Bill), 1947 Nebraska Legislature, Office of the Clerk of the Nebraska Legislature. The labor market area concept was added by Committee Amendment. 1947 Legislative Journal, page 1066.
The recommendation of the Court-appointed Investigator is that the Defendants' wages and conditions be compared with those in Grand Island, because Grand Island is the "closest adjoining (labor) market area of comparable type." He did not take into consideration other labor market areas adjoining the Hastings area because Grand Island was the closest comparable operation supplying full utility services. The Defendants contended that the evidence pertaining to Grand Island should not be given weight since Grand Island was not comparable to Hastings. The Defendants adduced evidence of an existing general labor shortage in Grand Island caused by a number of new industries in that area. The Defendants also adduced evidence of wage rates and working conditions for the cities of Kearney, Holdrege, Fairbury, Auburn, Nebraska City, Fremont, Beatrice, Columbus, Scottsbluff, and North Platte.
In view of the legislative history of section 48-818, set out above, we hold that the section in its present form requires that a comparison be made with respect to all adjoining labor market areas in which comparable workers are shown to exist, and precludes a comparison with respect to labor market areas which are not adjoining to the labor market area in question. The clause at the end of the second sentence in section 48-818, "and which in addition bear a generally comparable relationship to wage rates paid and conditions of employment maintained by all other employers in the same labor market area," is discussed in a subsequent portion of these Findings. This clause does not, however, relate to the determination of adjoining labor market areas, but, as set out below, modifies the rates of pay and conditions of employment which the Court is empowered to establish.
In the absence of specific testimony, we resort to a map of the State of Nebraska, of which we take judicial notice, and from this and the foregoing evidence, we find and determine:
a.That Hall County (in which Grand Island is located) and Buffalo County (in which Kearney is located) are adjoining labor market areas to Adams County, Nebraska, and are the adjoining labor market areas in this case; and
b.That, although evidence has been adduced with reference to the cities of Holdrege, Fairbury, Auburn, Nebraska City, Fremont, Beatrice, Columbus, Scottsbluff, and North Platte, and although each may be a separate labor market area in the State of Nebraska, none of them constitutes an adjoining labor market area with respect to Adams County, Nebraska.
6. Comparability, Prevalence, Similarity, Etc. Having determined the labor market area and adjoining labor market areas, the Court must then look for the existence in the same labor market area of:
a.A quality of prevalence respecting the rates or conditions of employment under consideration.
b.A similarity of the work performed by the employees before the Court with work performed by other employees with whose rates and conditions the Court is asked to make comparison.
c.A similarity of skills of workers before the Court with the skills of the other workers with whose rates and conditions the court is asked to make comparison.
d.A similarity of working conditions of workers before the Court with the working conditions of other workers with whose rates and conditions the Court is asked to make comparison.
If such quality of prevalence and such similarity of work, skills and conditions do not exist in the same labor market area of the parties to the action, the Court must seek such quality and similarity in adjoining labor market areas. Before establishing a rate or condition, the Court must additionally determine that such rate bears a generally comparable relationship to wage rates paid by all other employers regardless of their business in the same labor market area, or that such condition bear a generally comparable relationship to conditions of employment maintained by all other employers regardless of their business in the same labor market area. Adjoining labor market areas are not relevant to the process of formulating the latter finding.
With reference to the relationship of evidence and a legally sufficient finding of this Court, we held in Kramer v. Loup River, Case No. 16:
Whether the relationship between a conclusion and the evidence can be termed "a reasonable inference" as distinguished from "pure speculation" must be determined in the light of what is reasonable in view of the purposes of the Act. The public interest, as set forth in section 48-802 requires that the burden and expense of litigation in this Court be within the means of the working man, and that the public purse be no greatly strained by the expense of governmental unit's and public utilities' defense. Cost of litigation in this Court would become excessive if this Court were to adopt a rule requiring detailed evidence of technical processes and operations to support a conclusion of similarity of work and skills.
This Court must assume the attitude which a reasonable and prudent employee would have in making demands under all the economic pressures of the market place including those pressures which conceivably would be present but for the prohibition of Article 8, Chapter 48. Then must the Court assume the attitude which a reasonable and prudent employer would have in considering his employees' compensation under all the economic pressures on him, including again pressures which conceivably would be present but for the statutory prohibition. And finally the Court must balance the attitudes and reach the decision as to prevalence, similarity, and relationship required by Section 48-818. The average, reasonable and prudent employer, in considering employees' compensation doubtless makes some inquiry as to prevalence of wage rates and similarity of work, skill, and conditions. Under unusual circumstances he may make much more intensive investigation than the evidence indicates has been made here by counsel and defendants, but under the normal, usual circumstances he would do no more than has been done here. Therefore, we hold that no more is required here so far as meeting any burden of proof is concerned. Thus the conclusions set forth in the following paragraphs are reached by us as triers of fact and are not conclusions of law based in any respect upon a legal insufficiency of evidence to sustain a finding for a party having the burden of proof.
We went on to base our findings on evidence of matters other than the ultimate product of the employers and pointed out that such supporting evidence on which we relied was "mainly in the form of expert conclusions unsupported by details."
In this case at bar the respective contentions of both the parties with respect to those workers whose work, skills, and working conditions must be compared with those of the employees represented by the Plaintiff as a preliminary to a finding of comparability of wage rates and conditions of employment have been premised on a misconception of section 48-818. The Plaintiff's evidence tends to establish, and the Plaintiff contends, that because of the size of the City of Grand Island and the nature of its utilities operation, Grand Island is the only comparable labor market area to Hastings. In the first portion of the second sentence of section 48-818 which prescribes the comparison, however, "labor market area" is not modified by "comparable," but only by in one instance "the same" and in the other instance "adjoining." If a labor market area is adjoining and contains workers doing similar work and exhibiting similar skills under similar working conditions as the work, skills and conditions of the employees represented by the Plaintiff, then such labor market area must be considered by the Court regardless of whether in other respects it may be comparable to the labor market area of the Plaintiff.
On the issues of general prevalence, similarity of work, similarity of skills, and similarity of working conditions, the evidence which persuades us, we summarize as follows:
Kansas-Nebraska Gas Company is operating a gas service in the Adams County labor market area and for work similar to that of the Defendants, is employing workers with similar skills under similar working conditions as those of the employees of the Defendants' Gas Department, South Central Public Power District and Southern Nebraska Rural Public Power District employ in Adams County workers for similar work with similarity of skills under similar working conditions as those of the employees of the Defendants' Electrical Department, although there is incomplete evidence of the wage rates paid by South Central. A large utility does not require a more highly skilled employee than a smaller utility, at least within the range of largeness and smallness of the utilities in Hastings, Grand Island, and Kearney. The duties of employees within a classification bearing a certain title (e.g., electrician, lineman, assistant operator) in one utility are very comparable to the duties of an employee in a classification bearing the same designation in another utility. Hastings' classification nomenclature and classification descriptions are similar to those of the other utilities whether large or small. Kearney has no municipal power plant.
Accordingly, we find that a comparison of the rates of pay and conditions of employment for the employees in Defendants':
a.gas department should be made with those of the Kansas-Nebraska Gas Company in Adams County;
b.electric department should be made with those of Southern Nebraska Rural Power District in Adams County and South Central Public Power District in Adams County;
c.water and sewer department and office department with the City of Grand Island Utilities Department in Hall County and the City of Kearney Utilities Department in Buffalo County; and
d.power plant department with the City of Grand Island Utilities Department in Hall County.
7. Basic Wage Rates: The Defendants have prepared and offered exhibits which were received in evidence, and which set forth in the left column a one or two word designation of an employment classification, in the next two columns the minimum and maximum rates established by the Defendants for each classification so designated and in subsequent columns rates paid by other employers. We infer that the rates in the subsequent columns are for similar work and skills under similar conditions; with extremely minor exceptions hereinafter noted, the plaintiff has offered no evidence contradicting that inference. Accordingly from said exhibits, omitting however those comparisons made by the Defendants which in Sections 5 and 6 above we have held to be irrelevant, we construct the following tables:
Now we note the few instances in which the Plaintiff has offered evidence contrary to the foregoing tables:
a.The Investigator's Report relied on and offered by the Plaintiff expressly concludes:
(Grand Island) Power Plants do not have an Operator-Supervisor classification. The operator is in charge on any shift.
Therefore we conclude that the Defendants' exhibits no. 12 (I) and 17 (H) are in error in stating that the Grand Island rate for work comparable to that done by the Hastings Power Plant supervisor is $4,0818. Accordingly we have made no entry opposite "Power Plant Supervisor" in the Grand Island column. The result of an absence of a rate in the right hand column of the foregoing table is explained below.
b.The Investigator's Report states:
Mr. Arnold Heye, Supervisor-Storekeeper, indicated that this classification also included all of the purchasing for supplies except bought (sic) by the sewage disposal plant. These duties also included making estimates of work orders, and would seem to justify a pay rate higher than that provided.
Here was an express invitation to the Plaintiff to educe evidence of the prevalent rate for the work required of the Defendants' supervisor-storekeeper, but since the Plaintiff did not do so, we cannot establish a wage rate for this classification.
c.The Plaintiff educed evidence that the Grand Island Utilities has some tree trimming done by employees in the Groundmen classification although most of the tree trimming is contracted out. That evidence is not sufficient basis for finding a prevalent rate for tree trimmers in the absence of further evidence of the non-existence of other employed tree trimmers in Adams County and the similarity of groundmen-tree trimmers' skills and working conditions in Hastings, Kearney, and Grand Island.
The Gas Department of the Hastings Utilities is not included in the foregoing table. The evidence in its entirety respecting the prevalent wage rates of Kansas-Nebraska Gas Company for work similar to that performed within the classifications as designated for the Defendants' Gas Department is as follows:
Exhibit B (3) the Defendants' job classifications and description of duties for the Gas Department:
Foreman and welder: Must be able to handle a group of men...see that every man on his crew has a job to do....plan his work...do all the welding in main lines, gas service, and booster stations. To instruct all crew members on how to use all equipment.
Machine operator: To dig all ditches including main line ditches, service line ditches, dig auger holes and backfill all excavations made by the Gas Department. To keep all digging equipment in working condition. To keep all odorizing equipment in operation. He has to have working knowledge of all the motors and digging equipment.
Serviceman: Install and remove gas meters: check for gas leaks, light, adjust any gas appliance required by the public....check for carbon monoxide....must be able to handle high pressure in emergency if necessary. Must know how to use carbon monoxide tester and leak machine to determine safety of equipment....Must know City of Hastings gas code. Must have either a journeyman's gas license or a master gas fitter license....Must have working knowledge of this gas distribution system in required length of time.
Meter repairman: Must repair all positive meters, all sizes from 1A-500 metric, test them and prove them. Repair regulating equipment. Keep records of every meter by company number, where it is set, when it was set, when it was repaired, and what was used in repair; when meters are to be brought in for testing and repair; must be able to check and test all base pressure indexes on high pressure meters.
Laborer: Must be able to dig ditches, make service taps, use pavement breaker or do any other job dictated by foreman. Must know what wrenches to be used and be able to do a little pipe fitting as necessary.
Investigator's Report 6-27-66:
The Kansas-Nebraska Gas Company employs in the classification of gas servicemen, utility men, laborers and foremen-welders. These jobs may be considered as comparable to those similar classifications of Hastings Utilities.
The Kansas-Nebraska Gas Company employs servicemen, laborers and welders. These classifications are in the same labor market area. As the requirements for meter readers are not similar it would appear that the rate for Hastings Utilities be established as that determined for Meter Reader Electrical. It should be noted that employees of the Kansas-Nebraska Gas Co. receive some greater non-wage benefits than those of Hastings Utilities, including a profit-sharing trust.
Meter reader: All of the meter readers contributed to the discussion presenting the general complaint that they read meters for all three utilities services but received pay less than that received by meter readers employed by Northwestern Service Company in Grand Island.
Mr. Leo Burnett, Vice President Sales and Distribution, Kansas-Nebraska Gas Company; Mr. Burnett supplied information as to wages and employment benefits for employees doing work comparable to gas service employee Hastings Utilities. The hourly wage rates supplied are as follows:
NOTE: TABLE DELETED
That evidence is sufficient to support only a finding of comparable prevailing wage rates for similar work of workers exhibiting similar skills in the same labor market area as shown by the following table:
NOTE: TABLE DELETED
Under our statutory mandate we find:
a. That, with respect to employment classifications after which no figure appears in the right hand column of Tables I and III, there has been a failure of proof, so that no order should be entered now as to the basic wage rate which should be paid to employees in such classifications; and that all subsequent findings are subject to this one.
b. That, for employees in the Water & Sewer Department and the Office Department, the comparable prevailing basic wage rate in adjoining labor market areas is the average of the Grand Island and Kearney rates for the respective classification where each such a classification, but, where only one has such classification, then the rate paid by that one.
c. That each person listed in Exhibit 1 who is still an employee of the Defendants should be paid at least the basic wage rate listed in the right hand column of Table I or Table III for that classification which appears after the employee's name on Exhibit 18; but that since the defendants' have filed no counterclaim or appropriate request for affirmative relief, the relief granted at this time on the record to date will be limited to establishing as a basic wage rate the present rate or the rate listed in said right hand column, whichever rate shall be higher.
d. That, for the employees of the Defendants' Gas Department, on the record to date the relief with respect to basic wage rates will be limited to establishing for workers in only the following classifications the minimum and maximum rates as follows:
Classification Minimum Maximum
Foreman-Welder .......... 2.53 3.01
Skilled labor ........... 1.99 2.45
Serviceman .............. 2.39 2.89
Before an order establishing wage rates is entered there are two other provisions of Section 48-818 to be considered:
The court ... shall establish rates of pay ... which are comparable ... (etc) and which in addition bear a generally comparable relationship to wage rates paid ... by all other employers in the same labor market area.
There is no evidence or hint that the basic wage rates set forth above do not bear the required relationship. Unless there were a substantial issue with respect to such relationship, detailed proof of it would be exhausting of the parties' expense and the Court's time, and to require such proof, so far as we can determine, would not further the purposes of the Nebraska Court of Industrial Relations Act. We hold that, because of the statutory policy and purposes and the practical burdens of trial and proof, wages and conditions of employment shown by substantial evidence to be comparable to those prevalent for similar work of workers exhibiting similar skills under similar conditions in the applicable labor market area or areas shall be presumed to bear a generally comparable relationship to wage rates paid and conditions of employment maintained by all other employers in the parties' labor market unless at least a scintilla of evidence appears indicating the absence of such relationship.
Furthermore Section 48-818 provides:
In establishing wage rates the Court shall take into consideration the overall compensation presently received by the employees, having regard not only to wages for time actually worked but also to wages for time not worked, including vacations, holidays, and other excused time, and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees. In establishing the foregoing wage rates, the Court has taken into consideration the overall compensation shown by the evidence to have been received by the employees. The evidence and findings with respect to such overall compensation is set forth and examined in Section 9 of this Order, and has been considered and relied upon in portion of the Findings as fully as if separately stated here.
8. The Defendants' Merit System for Raising Basic Wage Rates, and the Plaintiff's Contention that an Employee's Basic Wage Automatically should Progress to a State Higher Level upon the Completion of a Period of Service. The Defendants have established for each classification of employment a minimum and maximum wage rate and purport to give wage increases within such minimum and maximum on employee merit. One purpose for the minimum-maximum wage structure is to permit the Board of Public Works to grant wage increases without City Council approval in each instance. Decisions on merit or demerit are made by Mr. Foster, the Defendants' utilities manager, after written reports from foremen and supervisors which are retained in the employer's file on each employee and oral conferences with such foremen and supervisors, which are not recorded and filed. No overall review of basic wage rates is made, and policies in the various departments may show a variation. None of the foremens' or supervisors' reports on eligibility or ineligibility for merit pay increases was presented in evidence, nor does the Plaintiff educe evidence as to any individual case of specific unfairness in the granting or withholding of merit increases. Nevertheless the Investigator's Report and the testimony of two of the Plaintiff's witnesses strongly impress upon the Court the conclusion that the employees represented by the Plaintiff deeply resent the merit system. Clearly the system is subject to abuse, but no abuse is shown, and we decline to draw the inference of abuse solely from evidence that the Plaintiff's officers are at the low end of their respective pay scales, and that no employee is at the maximum rate. The evidence overwhelmingly demonstrates that the merit system, as conducted by the Defendants, is not prevalent in the same labor market area or in adjoining labor market areas. Nevertheless, we find that Grand Island Utilities and Kansas-Nebraska Company achieves from the employer's point of view much the same result as does the Hastings so-called merit system: the former employers provide for various subclasses of employment with increasing wage rates for each subclass, so that an employee's wage can be raised by transferring him from one subclass to the next higher subclass. Moreover the Investigator reports:
There appeared to be some disagreement (among the Defendants' employees) as to the demands for a change in the rate structure. Most agreed that a single rate for each classification was not desired. While a few felt that any employee should reach the maximum in two years, others felt this should vary by job...First there was general dissatisfaction with the administration of the merit increases and secondly a complaint over the difficulty of reaching the maximum.
The evidence is not clear that in either Grand Island Utilities or Kansas-Nebraska Gas Company or Southern Nebraska Public Power District these transfers from one subclass to a higher subclass come about automatically with completion of a certain term of employment.
Accordingly, subject to the findings in paragraph numbered 7 above, we find that the Defendants may continue to grant wage rate increases on the basis of some management determination of employee merit.
In view of lack of detailed evidence of the prevalence of an automatic step progression of basic wage rates in accordance with period of times of service, we decline to grant at this time any relief in accordance with the Plaintiff's request for automatic step progression of wage scales.
9. Consideration of "overall compensation" or "fringe benefits." In addition to the issues of basic wage rates and automatic wage increases, the industrial dispute in this case involves call-in pay, premium pay for shift workers, additional meal allowances, seniority, vacations and sick leave. It is, therefore, necessary to examine and compare these items within the applicable labor market areas. Section 48-818 also requires:
In establishing wage rates the Court shall take into consideration the overall compensation presently received by the employees, having regard not only to wages for time actually worked but also to wages for time not worked, including vacations, holidays, and other excused time, and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees.
The evidence with respect to compensation other than basic wage rates and automatic wage increases is as follows, and we find:
a.Call-in pay. The Hastings Utilities Payroll Procedures allow a minimum of one hour's pay at a time and one-half rate for all employees who are called back after their regular day's work. In addition, employees in each department subject to trouble calls after regular working hours or on holidays and weekends share a 35 cent per hour premium. Plaintiff requested a minimum of two hours pay each time an employee is called for overtime, unless the overtime commences less than two hours before the start of the employee's regular work schedule. Grand Island allows a minimum overtime of one and one-half hours. The practices of the other employers in the labor market areas are not shown in the record. With respect to the payment of overtime, itself, Hastings Utilities pays time and one-half for hours worked in excess of 40 hours per week or 8 hours in a single workday. Grand Island follows the same practice. Southern Nebraska's Policy shows payment for more than 40 hours per week at time and one-half. Kearney Utilities pays no overtime wage rate; but pays the straight time rates for overtime work. South Central requires a normal 44-hour workweek and pays no additional compensation for additional time worked. Kansas-Nebraska's overtime policies are not reflected in the evidence.
b.Premium Pay for Shift Workers. Plaintiff requested an additional 10 cents per hour for workers on a shift beginning between 2:00 p.m. and 5:00 p.m. and 15 cents per hour for a shift beginning between 10:00 p.m. and 1:00 a.m. The Investigator found that shift differentials were not customary nor found in employments in which the shifts are rotated. Any such differential would have the effect of increasing the average rate of all shift workers. No shift differential is paid to employees at the Grand Island Power Plants; the practices of other employers in the labor market areas are not shown in the record.
c.Additional Meal Allowances. Plaintiff's request stated that Hastings Utilities' employees presently receive payment for meals when requested to work overtime, but that employees required to work overtime or past 6:00 p.m. should receive a free meal every six hours during such overtime. None of the practices of other employers as to this item were offered in evidence.
d.Seniority. Plaintiff requested the posting of seniority lists in each department each six months, and that promotions be made on the basis of seniority to qualified employees. The 1965 Revised Civil Service Ordinance of the City of Hastings and the Rules of the Civil Service Commission were included in the Report of the Investigator. The Municipal Code provides that "Appointments to and promotions in the departments shall be made solely on merit, efficiency and fitness, which shall be ascertained by open competitive examinations and impartial investigation." See Sections 6-620 (2); 6-625 (2). The civil service procedures had not been utilized by Hastings Utilities Department, however, prior to the investigation in this matter in June, 1966. The practices of other employers in the labor market areas with respect to seniority are not reflected in the evidence.
c.Vacations. Hastings Utilities' employees are entitled to two weeks of vacation per year until they have had fifteen years of continuous service; beyond fifteen years, employees are entitled to three weeks of paid vacation per year. The Plaintiff's demands were to allow all employees having ten or more years with the Defendants a vacation with pay of three weeks; employees with fifteen years of service, four weeks; and to eliminate the continuous employment requirement. Kansas-Nebraska allows vacations to employees having six months service, one week; one to ten years, two weeks; ten to twenty years, three weeks; and over twenty years of employment, four weeks. South Central's employees earn one day vacation for each month worked after a three-month probationary period; after two years, they are entitled to one and one-half days per month, or 18 days per year; vacation cannot be accumulated in excess of fifteen days. Southern Nebraska allows employees who have completed one year of service, 2 weeks of vacation; after six years, employees receive an additional 11 hours of vacation with regular pay; accumulation is permitted up to three weeks. Kearney Utilities allows its employees after one year, 1 week of vacation; 2 years, 2 weeks; and after fifteen years, three weeks. Grand Island Utilities' employees are allowed after the first year, 5 working days; after the second year, ten working days; and after fifteen years, fifteen days. Grand Island has a continuous service requirement, but the practices of the other employers in the labor market areas with respect to this requirement are not shown in the evidence.
f.Sick leave. The prevalent practice of all employers involved in each of the labor market areas is to allow 1 day of sick leave per month. The present industrial dispute involves the amount of sick leave which can be accumulated, a request for reinstatement of lapsed sick leave in certain circumstances, and a change in the sick leave provision with respect to handling workmen's compensation payments.
1.Accumulations. Hastings Utilities allows employees with less than fifteen years of service to accumulate six regular work weeks of sick leave; employees with fifteen or more years of service may accumulate seven regular work weeks. Kansas-Nebraska employees are entitled to accumulate a maximum of 24 days of sick leave. Grand Island Utilities allows 80 days accumulation. Southern Nebraska permits employees with less than ten years of service to accumulate up to ten calendar weeks of sick leave (and receive an initial credit of three days after the first month of employment); employees with ten or more years of service can accumulate up to fifteen weeks. South Central allows no sick leave during a three-month probationary period; after that, employees can accumulate up to 120 days of sick leave. Kearney employees can accumulate up to 90 days sick leave.
2.Reinstatement. The Plaintiff demands included the following:
After an employee has been paid wage allowances for a sickness for the full time allowable, he shall receive no further allowances until he has performed duties for a period of not less than 13 weeks, when he has performed such duties for a 13-week period, if he shall again be sick, such sickness shall be considered a new period and his sick leave credits shall be reinstated to the maximum number of allowable sick days in accordance with his years of service, dating from the first date of employment.
No comparable provision is found in the City of Hastings Vacation and Sick Leave Regulations (1965) or in the evidence relating to any other employers in the labor market areas.
3.Workmen's Compensation Payment Adjustments. The City of Hastings Vacation and Sick Leave Regulations (1965) provide:
When an employee is injured, the Department shall pay him his full salary on sick leave. When workman's compensation is received, it shall be turned back to the Department as long as he is being paid sick leave. If and when he has used all his sick leave, the workman's compensation shall be given to the employee. When the employee is able to return to work, he shall receive hours credit to his sick leave for future use for the amount of workman's compensation turned back to the Department. The amount of money turned back divided by his hourly rate of pay shall determine the number of hours credit he shall receive.
Plaintiff requested the following:
Employees who are injured on the job and are entitled to Workmen's Compensation shall be entitled to use all available sick leave credits due them after such Workmen's Compensation payments are exhausted.
The Grand Island Utilities rules provide the following workmen's compensation adjustment:
1. An employee receiving compensation under Workmen's Compensation laws, shall receive for the duration of such compensation, only that portion of his regular salary which will together with such compensation, equal his regular salary.
2. Under the above conditions, earned sick leave will be charged proportionately, in increments, not less then one-quarter days, for that part of the pay which is sick leave pay.
g.Other Benefits. Hastings Utilities employees receive seven paid holidays per year, as do the employees of Kansas-Nebraska, Grand Island Utilities, and Kearney Utilities. Southern Nebraska and South Central allow six paid holidays. The Defendants also introduced evidence that its employees receive two fifteen minute coffee breaks daily, as do the Grand Island and Kearney employees. The coffee break practices of the other employers is not shown. Hastings Utilities' employees are participants in the Hastings Employee's Pension Plan, one-half of the cost of which is paid by the City of Hastings. The Grand Island and Kearney Departments also have retirement plans in which the City and employees contribute equally. The Hastings and Grand Island plans involve 3% to 6% contributions, and the Kearney plan a 3% contribution, by each. Kansas-Nebraska pays 60%, and the employees 40%, to its pension plan; provides company paid life insurance; and a medical plan in which the company pays 55% of the cost. In addition, Kansas-Nebraska has a profit sharing plan in which the company contributes 10% of the employee's yearly wage or 10% of its net profits, whichever amount is smaller. South Central provides one-half of the premium for a $25.00 deductible group major medical insurance plan; provides the entire cost of a retirement plan and of group life insurance; and contributes 2% of the employee's salary, and the employee 1% toward an additional retirement pension. Southern Nebraska provides the entire costs of pension, life insurance and surgical and hospitalization insurance for the employee. Dependents' benefits under the surgical and hospitalization insurance are paid for by the employee. The details of a number of these programs of other employers in the labor market areas are not in evidence; any precise evaluation of their effect is impossible on the record, and not required by the statutes especially since both parties had an ample opportunity to supply any more complete information desired in this regard. All of the above employers presumably pay federal social security taxes, listed by Defendants in the fringe benefit computations introduced in evidence.
The second sentence of Section 48-818 requires that the Court establish rates of pay and conditions of employment which are "comparable to" the specified others in the applicable labor market area. The statute does not require an identity of all wages and working conditions, although identity is certainly permitted under this language. We have separately examined and compared within the applicable labor market areas each item of the pending industrial dispute set out above. As required by the next to last sentence in Section 48-818, we have also taken into consideration the total overall compensation shown to be received by the various employees. We have additionally considered the possible consequences and effects of four separate categories of awards concerning the above items which might affect differently some or all of the employees in Defendants' gas department, electric department, water and sewer department, and power department. The foregoing evidence shows that Hastings Utilities is above some comparable other employers in some respects and below some comparable employers in other respects.
On the basis of the foregoing evidence, we find that the condition of employment, except for the basic wage rates and automatic wage increase items set out in other portions of this Order, presently received by the employees of Hastings Utilities are comparable to the prevalent conditions of employment maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions in the applicable labor market area or areas within the State. This finding does not include the factors of basic wage rates and automatic wage increases separately considered in this Order.
In addition, we find that to the extent of the differences in basic wage rates set out in other portions of this Order, the overall compensation presently received by the employees of Hastings Utilities is not comparable to the overall compensation presently received by comparable workers in the applicable labor market area or areas within the state.
For the foregoing reasons, we find that the Court should not alter the Defendant's hours of labor or conditions of employment with respect to call-in pay, premium pay for shift workers, additional meal allowances, seniority, vacations and sick leave. This finding does not determine to any extent the validity or propriety of Defendants' policies, especially those relating to civil service and the adjustment of sick pay accumulations for the receipt of workmen's compensation benefits, under any provision of law other than Section 48-818.
10. Relevancy of Exhibit 8. The Plaintiff offered Exhibit 8, a letter dated October 15, 1964, from the Plaintiff addressed to the Defendant Board requesting, "pursuant to the order" of this Court of October 5, 1964, "the negotiation of ...items...noted on the attached sheets," a "negotiation conference" in 1964 and the scheduling of additional conferences "on a year to year basis to further negotiate or change wage or working conditions for employees" represented by the Plaintiff. The Defendants objected "for the reason it goes solely to an issue that has already been determined by the Supreme Court as not being within the province of the Court; it goes strictly to collective bargaining." At the trial on October 26, 1966, this Court reserved ruling, which now is made. Insofar as the letter demanded negotiations immediately and from year to year thereafter for the purposes set forth, it both exceeded said order of October 15, 1964, and required of the Defendants something that the Supreme Court later stated on appeal of that order that the Defendants had no power to perform. Nevertheless, for the limited purpose of showing extra-judicial statements of the Plaintiff having some bearing, by way of clarification, on the nature and extent of the relief that Plaintiff is seeking from this Court. Exhibit 8 including the attached sheets as well as the letter, will be received. The Exhibit of course is inadmissible as self-serving hearsay with respect to the issue of the Plaintiff's entitlement to that relief.
NOW THEREFORE IT IS ORDERED, ADJUDGED, AND DECREED:
11. That for work done after 12:01 a.m. June 1, 1967, the basic hourly wage rate of each person named below while employed by the Defendants in the classification appearing after the person's name be and it hereby is established to be no less than the greater of the one or two figures appearing after the person's name in the tabulation as follows:
NOTE: TABLES DELETED
12. That because of illegibility certain names on Trial Exhibit 1 may have been omitted from paragraph numbered 11 above; that within ten days of the entry of this order the Plaintiff may file a showing as to the name of a person whose name does not appear in the tabulations in paragraph numbered 11 of this order but does appear (though illegibly) on Exhibit 1 in this action and as to the employment classification of such person and the basic hourly wage rate to which he is entitled in accordance with the foregoing findings; that within five days of the filing of such showing the Defendants may file a counter showing; and that upon ruling upon the counter showing, if any, the Court by supplemental order will establish or withhold establishment of the basic hourly wage rate for such persons in accordance with the foregoing findings.
13. That in all respects other than those ordered by paragraphs numbered 11 and 12 of this order the prayers of the Third Amended Petition and of the Answer be and they hereby are denied.
14. That the objection to Trial Exhibit numbered 8 be overruled and the exhibit received for the limited purpose described by paragraph numbered 10 above.
15. That this order is final and appealable.