3 CIR 420 (1978)

LOCAL No. 554, Affiated with |
International Brotherhood of Team- |
sters, Chauffers, Warehousemen and |
Helpers of America, |
Petitioner, |
Respondent. |

Filed May 10, 1978


For the Petitioner: David D. Weinberg.

For the Respondent: H. L. Wendt.

Before: DeBacker, Green, and McGinley.


The petitioner union is the voluntarily recognized bargaining agent of unit of Douglas County employees, which contains two subgroups. One subgroup is located at the Douglas County garage and does essentially maintenance and warehousing duties in connection with the equipment and materials used in the construction and maintenance of county roads and bridges. The second subgroup consists of those persons who actually perform work upon the roads and bridges and certain support personnel.

Under the terms of the relevant collective bargaining agreement, the petitioner was entitled to seek negotiation of wages and working conditions for the period commencing September 1, 1976. The union gave notice prior to April 1 of its request to negotiate concerning wages, and some negotiations resulted. The parties failed to reach agreement.

The union has petitioned for the establishment of wages for the period September 1, 1976 to September 1, 1977. The employers principal defense is set out in Paragraph No. III of its Answer. Essentially, that defense is that the county was in a difficult financial position at the time negotiations were had and for the period of September 1, 1976 to July, 1977. The defense essentially means a claim by the county of inability to pay.

In support of its defense, the county offered the testimony of Mr. Sykes, the county's fiscal administrator, and of Mr. Lamberty, the county surveyor and the immediate supervisor of the unit in question. The statute, 48-818 R. R. S. 1943, requires us in wage determination cases to consider evidence of similarity of work, skill and working conditions between the petitioning employees and similarly situated employees who do similar work, exhibit similar skills under similar working conditions. That statute, and indeed the entire act, is silent concerning the ability of the employer to pay. We have on many occasions in cases involving public school districts and municipalities declined to consider evidence relating to budgets, mill levies, assessed valuations and similar items. We are in this case unable to give weight to the county's financial position.

The petitioner and the respondent both offer evidence concerning wages paid to similar job classifications by the City of Omaha. Additionally, the petitioner offers job classifications and pay scales of the Omaha Public Power Dist, Metro Area Transit and nine private employers. Those private employers consist of heavy contractor associations, general transportation companies and Safeway Stores. In addition to the City of Omaha, the county offered evidence concerning wages and job classifications of

the State Department of Roads and of Lancaster County and the City of Lincoln.

Upon a careful review of the evidence concerning the private employers it becomes apparent that there exists a very considerable disparity of wages between the employees covered under those agreements and those governmental employees whose wages are shown by the evidence. For example, a journeyman mechanic employed by one of the highway transporters is shown with an hourly wage of $7.92, whereas the equivalent position with the City of Omaha, which both parties agree is comparable, is $6.53 per hour. When an effort is made to array the wages of the various private employees shown in the evidence with those of the governmental employees shown, the example given above is revealed to be the norm. It thus becomes apparent that there are factors working upon the private sector wages which are not reflected in public sector employment, even though various other factors of the work, skill and Working conditions show comparability. We have, accordingly, not considered the private sector wages in making our comparisons and arriving at our decision.

In arriving at a decision with respect to that segment of the unit identified as "surveyor-engineer position" we have utilized the pay scales and job classifications of the Department of Roads, Lancaster County, the City of Lincoln and and the City of Omaha. In arraying that data, it becomes apparent that the City of Lincoln and Lancaster County, and to a lesser extent the Department of Roads, tend to distort the statistics downward. Doubtless at least a part of this effect is attributable to the use of both Lancaster County and the City of Lincoln. We have, accordingly, made certain internal adjustments to compensate for that tilt. On the basis of the evidence, we find that an increase of 8% for each of the employees in the surveyor-engineer positions will establish the required comparability of wages.

The evidence of similar job classifications for the Douglas County job group is less extensive than for the group discussed above. Our array in this instance is made up of Metro Area Transit, the City of Omaha and, where possible, Lancaster County. Without the City of Lincoln and without the Department of Roads, the apparent bias of the statistics of the former group is not present here. Having evaluated the evidence, it appears that an increase in the Douglas County garage positions of 8% will establish comparability. We are further persuaded that the statistical basis for the 8% increase in the garage unit lends additional validity to the adjustments found necessary in the evidence concerning the surveyor-engineer unit.

The county further contends that since the county's budget for the period in question covers the period July 1, 1976 to June 30, 1977, any action on our part respecting the wages of the union members here would be retroactive. While Section 48-817 prohibits retroactive ordes of this Court, it has been determined that an Order of this Court fixing wages for the period in controversy, even though entered after the commencement of the period and indeed after its conclusion, does not violate the prohibition of 48-817. Crete Education Association v. School District, 193 Neb. 245, 226 N. W. 2d, 752.

It is therefore ordered that the dispute between the parties is settled in accordance with this quesion and that the increases in wages herein ordered shall be effective for the period September 1, 1976 through September 1, 1977.