3 CIR 130 (1976). Affirmed in part, and in part reversed and remanded with directions. 198 Neb. 174, 252 N.W.2d 607 (1977).


ASSOCIATION, Local 644, |
Plaintiff, |
A Municipal Corporation, |
Defendant. |

Appearances: For Plaintiff, Hal Bauer

For Defendant, Dana W. Roper and William A. Harding

Before: Judges DeBacker, Rudolph and Green


The first issue in this case is whether the City is properly served. It is clear that whatever defects in service that might have existed were cured when the Plaintiff served the Mayor of the City with the petition and notice of filing petition on November 10, 1975. Such service met the requirements of the act.

The second issue in the case is the authority of the City to establish unilaterally a two-week wage lag. The City on September 1, 1975, established a pay lag. It had been the practice of the City not to withhold wages but to pay the workers either immediately or nearly immediately as practicable their wages on a bi-weekly basis. The City unilaterally decided to establish a two-week pay lag that is to hold two week's wages of employees at all times and to pay only wages that were due for a two-week period. In order to establish this fund the City deducted from all city employees including the firefighters, an amount equal to two week's wages. This amount was deducted from each employee over an eight-week period and resulted in an actual reduction of wages during the eight-week period. No interest is paid on this fund, and it can only be recovered on the severance of the employment relation through retirement, death or changing jobs.

The establishment of the pay lag is certainly a change in wages and cannot be established unilaterally by the City. Since the establishment unilaterally of a pay lag was beyond the authority of the City, this Court will add the amount of the pay lag to any wages it determines is prevalent for the same occupation under similar circumstances.

The second issue for the Court to determine is the appropriate universe to consider in determining prevalent wages and working conditions. As the Court said in Verdigre Education Association v. School Dist. , 2 CIR 111-4 (1974);

***The purpose of groupings (e.g. conference, locality, size) is basically to find a representative sample of manageable size within which comparable work, skills and working conditions exist.***

Before determining what the appropriate groupings are, the Court rejects the Plaintiff's contention that the grouping be limited to Grand Island, Lincoln, and Omaha for several reasons.

First, there is no testimony that there is any similarity in working conditions between the firemen in all three cities. In fact, the testimony is quite the opposite. Second, this Court in both Grand Island Firefighters v. City of Grand Island 3 CIR 142-1 (1975), and Omaha Firefighters v. City of Omaha 2 CIR 117-1 (1975), essentially rejected the comparability of Lincoln to either of the other cities; and third, and most important, the pay scales of each of the cities have already been set by this Court for Grand Island for 1976 and for Omaha for 1975. The essential standard set in 48-818 relates to prevalent wages for similar work. The underpinning of this concept is the market. If this Court looks to its own decisions as to what are the prevalent wages instead of market, its findings will become essentially circular and the standard will become simply what this Court thinks is fair, as such a standard was never contemplated in 48-818. The standard of pay in the act is what other employees similarly situated as to work and skills received. The Court can receive evidence on this point and apply this evidence to this standard.

The Court also rejects the contention of the Plaintiff's that the cost of living is relevant. The fact that the cost of living has either gone up or down does not in any way affect what the firefighters should receive. There is no guarantee that a standard requiring that firefighters receive the prevalent wages for similar work insures that such workers maintain a particular standard of living. In fact, the law is just the opposite. If the market rate for such work being considered increases faster than the cost of living, then the workers are entitled to the market rate; the reciprocal, of course, is just as true.

This Court recognizes that in labor negotiations that cost of living considerations are always present and probably more so in public employment than in the private sector. However, cost of living considerations will reflect themselves in wage determinations made in contracts of firefighters in the other cities and thus be indirectly considered.

Before turning to determining which firefighters' contracts will be considered in determining the prevalent wage rate, the Court is aware of the fact that the figures the parties can present to the Court will have a very conservative bias. The evidence presented by the defendant reflected the pay as of September 11, 1975.

The beginning date for the period of time subject to this dispute is September 1, 1975. Most, if not all, of the possible comparable wage rates were for contracts for calendar year 1975 and thus overlap the Lincoln Firefighter's contract by only four months. If we wish to compare average wage rates from August 1, 1975 to July 31, 1976, we would need the results of the contracts made by the comparable cities for 1976 and that information simply is not available. We recognize, however, that in all cases, the wages paid on August 1, 1975 are less than the average which would be paid during the term of the contract between August 1, 1975 and July 31, 1976. After considering the appropriate group of comparable fire departments, we will adjust the figures to reflect this increase.

The defendant presented a number of exhibits comparing both as metropolitan area and as a city in two overlapping geographic areas. Region Seven includes Nebraska, Kansas, Missouri and Iowa and the West North Central Region includes North Dakota, South Dakota, Nebraska, Kansas, Missouri, Iowa and Minnesota. Since the latter is more inclusive and does not lead to excessive number of comparable fire departments, the Court decides to choose this latter unit.

In addition to the fact that the West North Central section of the country has a number of fire departments comparable to Lincoln, it has the advantage of being the same section of the country as this Court used in the Omaha Firefighters case, supra. Of course, it is only the western half of this region but it was unnecessary to consider the whole region as the western half had enough comparable fire departments to make a reasonable group.

The Court is aware that in some ways the parties to this lawsuit assumed we are comparing cities, populations, and amenities. We are not. We are comparing work done, in that the density of population, age of building, condition of roads and streets, number of fire alarms, all have relevance to the kind of work firefighters do in a city. Population alone, number of theaters, museums, cultural opportunities, however, are not directly relevant, nor is a scale of quality of life, no matter how important it is to the attractiveness of the city.

The Court in determining the comparable fire departments will consider the size and complexity of the firefighting forces and the physical conditions under which the firefighter's work is done.

The essential exhibits in determining the comparable fire departments are Exhibits 17, 18, 19, and 20 and 23 and 24 which include information about the fire departments, the weather and the density.

Using size of the department as a criteria, we find that the four largest forces were found in Topeka, Des Moines, Wichita, St. Paul and the next four smaller forces were found in Springfield, Cedar Rapids, Duluth, and Waterloo. Using area covered in the square miles of the city, we find almost all the cities are the same or larger in area except for Fargo, which was radically smaller and Kansas City, which is nearly three times the size. If we consider fire ratings, all the cities have either a three or four rating and the factor is, therefore, not significant in determining the appropriate group.

If we look at Standard Metropolitan Statistical Area population, we have Topeka, Springfield, Duluth and Des Moines on the larger size and Cedar Rapids, Waterloo, Fargo and Sioux City on the smaller size. If we use cities and not SMSA, we have St. Paul, Wichita, Des Moines, Kansas City, Springfield, Topeka, Cedar Rapids, and Davenport.

In this case, we have decided to use cities instead of SMSA. The reason for this is two-fold. First, the use of cities provides a group of cities with a more similar density to Lincoln than SMSA. The city mean and median density is less than Lincoln's but more than the mean and median density for the SMSA. This means that the physical layout of the cities' array is more similar to Lincoln than that of the SMSA. Using this list also provides the closest approximation in firefighter force size. The mean of the cities' list is 48.5 larger than Lincoln and the median is 36.5 larger than Lincoln. If we use the SMSA the mean is 76.5 smaller and the median is more than 100 smaller. We also have to recognize that cities actually employ firefighters while SMSA does not. We also note that the median and mean temperatures of these cities in Exhibit 23 are within two degrees of mean temperature of Lincoln.

Turning then to the salaries on Page 6, the pay raise necessary for Lincoln to reach mean (average) of minimum salaries of the array is 9% and the pay raise necessary to reach the mean (average) of the maximum salaries of the array is 5.3%.

As we have already pointed out, such pay raises would not reflect the prevalent wage rate for the period of September 1, 1975 to August 31, 1976 since most of the cities in the array had different starting and closing dates. Among the cities that were used in the array, Davenport's effective date is March 1976, Cedar Rapids is January 1976, St. Paul is January 1976, Kansas City is January 1, 1976, Topeka, January 1, 1975, Des Moines, January 1976. Springfield is October and had an increase of $233 on the minimum and $48 on the maximum being 3% increase on the minimum and a 5.6% increase on the maximum. We have no information on the effective dates of the Wichita contract. Omaha, which has a January date, was increased by 5% and we could normally expect the other cities to have similar increases. Since 5 of the 8 fire departments had a January date and since the January increases in Omaha and Cedar Rapids, a similar city but not included in the average, were 5%, we could expect an average increase in the neighborhood of 5%. Based on the fact that the contract only overlaps for 8 months, we would include only 2/3 of the increase of 3.3% to adjust to the figures. Thus, the starting pay should be $814.00 plus $26.86 or $840.86 and the maximum pay should be $956.00 plus $31.55 or $987.55 per month.

This latter figure is based on the mean (average) figure for the group of cities arranged on Page 5 of Defendant's Exhibit 27 and include a 9% increase in base minimum pay to $814.00 plus an additional 3.3% to adjust for current contracts and a 5.3% increase in base maximum pay to $956.00 plus a 3.3% increase to adjust for current contracts.

These figures do not deal with all grades and all experience steps in Appendix C to Exhibit I.

On an annual basis then, starting pay should be $10,090.32 for firefighters while the maximum pay would be $11,850.60 on an annual basis.

We have no figures relating to increases to the higher grades, so in order to be both conservative and fair, the starting salary in each grade should be increased in the same manner as set out for the firefighters. The increase on steps C, D and E of the firefighters' pay scale shall be equal to the average of the increase between the minimum and maximum pay. The same procedure shall be used for each grade. The minimum salary should be increased 9% plus 3.3% and the maximum should be increased 5.3% plus 3.3%. the intermediate steps should be increased in an amount equal to the average of the two increases.

Turning now to the other issue of fringe benefits, the Plaintiff presented evidence concerning Omaha and Grand Island, both cities that this Court has found not to be comparable. The Defendant did not present any evidence on this issue. Since insufficient evidence was presented in this issue to show that the existing fringes were not comparable to any group of comparable fire departments, this Court at this time will not order any changes from the existing contract. Plaintiff is free to petition this Court on this issue in the future.

The Court, therefore, orders that the City reimburse the Plaintiffs in the amount of the pay lag. If the City wishes to establish a pay lag, it must negotiate such a provision or show what the value of holding two week's pay is for the particular workers.

Secondly, the minimum and maximum pay of the firefighters and other ranks and grades should be increased as set out in this opinion; and thirdly, the fringe benefits shall remain the same as in the 1974-75 contract year.

Entered April 5, 1976.