3 CIR 430 (1978)



Plaintiff, |
a Municipal Corporation, |
Defendant. |

Filed May 24, 1978.


For the Plaintiff:Raymond W. Conley

For the Defendant: Kent N. Whinnery

Before: Kratz, DeBacker & McGinley(McGinley dissenting)


Plaintiff and Defendant were parties to a collective bargaining agreement which expired on December 31, 1977. Attempts to negotiate a new agreement were unsuccessful and Plaintiff petitioned this court to assert its jurisdiction and "Make such findings of fact and enter such orders as are necessary to resolve these disputes." Both parties admit the existence of an industrial dispute and this court has jurisdiction.

Plaintiff, who claims there are 19 items in dispute, including wages, has the burden of showing that existing conditions and wages are not comparable to the prevalent for similar work, skills and working conditions, and until it has met this burden, the Court of Industrial Relations has no basis for entering an order changing the existing wages and conditions.[1] Of the 19 negotiated items listed in its Petition, no evidence has been presented regarding the following: management rights, work rules, seniority, probationary employees, layoffs, transfers, hours of work, overtime, meal periods, show-up and call-in time, car allowance, attendance in court, bulletin boards, union business, duration of agreement, access to personnel files, and non-discrimination. Consequently, Plaintiff has not met its burden of showing that these conditions are not comparable to the prevalent and this Court, therefore, can only order that they remain unchanged.

The main issue in this case is wages, and this court is required to determine those wages based on the following formula provided by the legislature in Section 48-818 of the Nebraska Statutes:

" . . . 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 Skills under the same or similar working conditions. . . "

The Court's assignment is made difficult by the fact the City of Omaha has 99 different employee classifications and there are no other comparable cities with classifications totally similar to those provided in Omaha. Furthermore, even though some job titles correspond to the job titles in the compared to cities, the duties and skills of these corresponding job titles may be different.

Each party offered a different array of comparable cities and used different methods of attempting to compare the job classifications within those cities to the 99 job classifications in Omaha. Plaintiff presented two arrays. One contained cities based on "geographic proximity and population similarity" and was the same array of cities as the Omaha Police Union originally presented in the case of Omaha Police Union v. City of Omaha, 3 CIR No. 233-1 (1977). The other reduced that list to the same cities determined by this court as the comparable cities in that same case. Defendant presented an array which contained a group of cities with whom the city of Omaha had communicated and compared wage and conditional benefits for the last seven or eight years. These arrays are as follows:

NOTE: Arrays deleted.

Defendant based its comparison of job classifications within its array on a survey mailed to the compensation divisions or personnel directors in those other cities. This survey included a comparison of jobs by job description, rather than title, and involved personal contact to resolve questions which arose in connection with these job comparisons. Exact comparisons of job classifications were only available in 62 of the 99 job classifications.[2] These 62 classifications included 85.3% of the Omaha employees within the bargaining unit (914 of 1,071) and involved only the minimum and maximum salary in each classification. The increases in 14 of these classifications, however, are not based on the prevalent in the compared to cities, but are "adjusted" in order to provide "internal consistency."[3] Also, in 16 other classifications, where comparable wage data was not received, the wages were "adjusted" to maintain historical wage differentials.[4] The remaining 21 job classifications [5] are provided an increase based on the average weighted percentage increase of the other 62 classifications.[6]

Plaintiff , on the other hand, employed a system of "bench marks" to make comparisons between the job classifications in its array and the job classifications in Omaha. This system involved selecting several pay grades and listing the job classifications within each pay grade, then choosing a job title in each of the pay grades to use for comparability. Plaintiff's expert witness explained this "concept is that if you have arranged people by pay grade, you should be able to choose one of the titles in that pay grade and use it as a bench mark for the others." Thus, each bench mark is an appropriate representative for all other job classifications within that pay grade and you then compare that bench mark with a similar bench mark in the other cities in the array.

Plaintiff uses 18 bench marks and the system can be illustrated as follows: Pay grade 15 (Plaintiff's Exhibit #5) lists the following job classifications: Communications Operator, Laboratory Assistant, Public Works Inspector I, Sewage Plant Operator I, and Sign Painter. Sewage Plant Operator I is selected as the bench mark, and Plaintiff compares the wage of this job classification with the identical job classification in the compared to cities and that comparison then applies to all classifications within Pay Grade 15. Each pay grade produces a different wage increase percentage and these percentages are then weighted by the total number of employees in each pay grade, totaled and averaged to produce the weighted average increase requested by the Plaintiff.[7] While Plaintiff makes this comparison by job description, rather than title, with its bench mark classifications, this job description comparison is made only with regard to the 18 bench marks and not with regard to the other job classifications within the Pay Grade. Thus, while Defendant has used comparisons by job description, rather than title, in 62 job classifications, though some are rather inconclusive (footnote 2), Plaintiff has made this type of comparison with only 18 job classifications.

Plaintiff's 18 bench marks represent less than one-half the total number of employees in the bargaining unit and Plaintiff's expert witness admits that analyzing more positions in a pay grade would produce a better prediction of the wages of remaining employees in that pay grade. In pay grade 9 (Plaintiff's Exhibit #5) Plaintiff has used 7 employees as a bench mark for 121 employees, and only 7 employees are in the Draftsman I classification, yet that classification is offered by the Plaintiff as the bench mark (pay grade 11) for 112 employees.

Defendant argues that its system is more exhaustive and reliable and therefore more predictable and valid for establishing the comparable wages to be paid in Omaha. We agree. While Defendant's system has some defects, we doubt that there is a perfect system for comparing 99 job classifications, and we consider Defendant's system more reliable than Plaintiff's insofar as it applies to the standard of comparable to the prevalent.

We can see no validity, however, in the Defendant's claim that the city civilian wages should be compared on the basis of an hourly adjustment which represents additional money paid as a bonus for using less than 49 hours sick leave, an arrangement which does not exist in Defendant's compared to cities. The generally applicable rule would require the removal of this fringe benefit feature if it was not the prevalent, rather than provide a wage adjustment for it.

We turn next to the array. Plaintiff argues that the same cities should be used here as were used in the case of Omaha Police Union v. City of Omaha , 3 CIR 356-1. It isn't that easy. The Nebraska Supreme Court has said:

"...We are not prepared to say that merely because one set of school districts was deemed adequate in one case, a different set of school districts would necessarily be inadequate in a different case, particularly where different evidence is adduced." Crete Education Association v. School District of Crete , 193 Neb. 245.

The evidence in the instant case is significantly different from the evidence presented in the Omaha Police case. [8]

In Omaha Association of Firefighters, Local 385 v.

City of Omaha, supra , decided February 15, 1978, this court stated: "As we have pointed out before, we are not wedded to any particular array in determining cases between the same parties, . . ." In Nehawka Classroom Teachers Association v. School District , 3 CIR 248-1, the Court used a different array than it had in a previous decision (2 CIR 65-1) involving the same parties.

While the Omaha Police case involved para military employees, we are concerned here with civilian employees. Defendant contends that with para military personnel it is necessary to compare with other cities, but that this needn't be the case with civilian employees. This would seem to be true, yet neither party offered any comparison with other civilian employees working in the city of Omaha. Plaintiff discarded any comparison with private employers as impractical (testimony of expert witness Lampkin) and investigated a comparison with employees of the federal government, but presented no evidence thereon. It made no attempt to make comparisons with MUD, OPPD, or the county government, though those would appear to be legitimate comparable employers. With the same opportunity, however, the Defendant also chose to make comparisons with other cities, rather than other employers within the same city. Apparently there is some good reason for the absence of this comparison, but the record simply doesn't show what it is. Admittedly, it is difficult to make a comparison of 99 job classifications, no matter where you go.

The Nebraska Supreme Court, in Lincoln Firefighters Association v. City of Lincoln , 198 Neb. 174, 252 N. W. 2d 607 (1977) agreed with the Court of Industrial Relations' method of selecting comparable employers of para military forces and specifically referred to geographic proximity, similarity of population, density, force size, and weather conditions as proper criteria. The fact that three of these criteria (weather conditions, force size, and density) would seem exclusively applicable to para military personnel indicates the Nebraska Supreme Court would likely apply different criteria to civilian personnel.

The following comments from the Supreme Court in the Lincoln Firefighters case also illustrate the difference in comparing para military personnel and civilian personnel:

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

"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 fire departments in particular locations. The physical layout of the city, of course, is relevant to the 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 fire fighters 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." Plaintiff seems to place little reliance on its #1 array and it was, for good reasons, substantially reduced by this court in the Omaha Police case. Thus, we will consider it no further. A comparison of Plaintiff's array #2 and Defendant's array shows that both arrays include the cities of Akron, Ohio, Cincinnati, Ohio, St. Paul, Minnesota, and Wichita, Kansas, and the differences, therefore, are these:

NOTE: Table deleted.

Thus, we can easily see that the population figures favor the Plaintiff's array and geographic proximity favors Defendant's selected cities.

The only testimony on the effect of population on civilian personnel, as distinguished from para military personnel, is presented by the Defendant. Witness Larry Wewel, Director of the Personnel Department for the city of Omaha, testified that population was not as important as a comparability criterion with regard to a civilian work force as with uniformed personnel. His explanation for this conclusion seemed to be that the work assignments of the civilian labor force are not as related to the population of the city as the work assignments of uniformed personnel. The civilian employee doesn't directly serve the citizens nearly to the extent that they are served by policemen and firemen. To some extent this would seem to be true. [10] The testimony of this witness was not rebutted and we agree with it.

We conclude that there is a difference between a comparison of government civilian personnel and para military personnel and the fact that certain cities were selected as comparable in the Omaha Police cases should have only limited effect in the selection of comparable cities in the instant case.[11]

We furthermore point out that this court's rejection in the Omaha Police case of certain cities in Defendant's array in this case was based partially on facts which are not present or applicable in this case. Kansas City was eliminated because of its size, and "because its multiplicity of ranks makes comparison difficult, if not impossible, and because its salaries are set by a board appointed by the mayor, an apparently political, rather than economic, process", and Des Moines was rejected because of size, and also "because of the existence of the rank of senior police officer which, as pointed out above, makes the true maximum pay statistically blurred." Furthermore, Minneapolis was rejected only because St. Paul was accepted and to use them both would be "counting the same market twice."

In the many school cases decided by this court, the criteria typically employed in determining the comparable school districts is similarity of student enrollment, geographic proximity, athletic conference, other contracts, and community of interest. [12] Student enrollment would correlate to population and would favor the Plaintiff's array. As previously discussed, however, population is not as important in this case as in the Omaha Police case. Athletic conference, of course, is not applicable. Geographic proximity would favor Defendant's array. Other contacts and community of interest, though not as applicable in this type of case as in the school cases, would also favor Defendant's array inasmuch as the evidence illustrates that the Defendant city of Omaha has been communicating on a regular basis with the cities in its array for the purpose of comparing salaries and positions. This relationship might also be likened to the strong historical connection which was a factor in determining comparable school districts in the case of South Sioux City Education Association v. School District of South Sioux City , 3 CIR 90-1.

While Lincoln was rejected as a member of the array in the recently decided Omaha Police case, and it has been rejected in other Omaha cases because of the population dissimilarity, it has also been used by this court as a comparable city to Omaha. In the earlier Omaha police case, Omaha Police Union Local No. 1 v. City of Omaha , 3 CIR 8-1, the array included Lincoln, Des Moines, Akron, Minneapolis, and Kansas City. With regard to Lincoln and Des Moines, the court said: "We know that Lincoln and Des Moines do not meet Chief Anderson's criteria for comparability, being too small, but felt that leaving them in the array assured that our error, if any, would be on the side of conservatism." That case was a para military case, where we have determined population to be a greater factor than in this case, and we are also instructed in this case that if we err, it, too, should be on the side of conservatism."[13] The city of Des Moines, Iowa, was also used in the case of Omaha Education Assn. v. School District of Omaha , 3 CIR 217-1, though Lincoln was eliminated from the array in that case.

We conclude that the proper array, based on the evidence presented in this case, shall consist of the following cities: Akron, Ohio, Cincinnati, Ohio, Wichita, Kansas, Kansas City, Missouri, Des Moines, Iowa, Dayton, Ohio, Minneapolis, Minn., [14] and Lincoln, Nebraska.

With regard to the job classifications where no comparison was available, we accept Defendant's suggested adjustment, based on an overall average weighted percentage (footnote 6), as the best alterative to an irresoluble proposition. We include in this list the classifications named in footnote 2, where we consider the comparisons inadequate.

We come now to the 30 job classifications that Defendant claims should be treated differently in the interest of "internal consistency". In 14 of these classifications, comparisons were available in the compared to cities, and in 16 they were not. We recognize the city's problem with a formula which would, inter alia , require them to pay a painter more than a sign painter, but the Defendant offers, and we can find, no statutory language, or case precedent, which would allow this deviation from the statutory rule of comparable to the prevalent. Consequently, we reject Defendant's suggested inconsistent treatment of the 30 job classifications and hold that the increases in the 14 classifications, where comparisons are available, should be based on the wages paid for these same job classifications in the compared to cities, and the increases in the 16 job classifications, where comparisons are not available (footnote 4), should be the same as in the other 21 classifications where there is no comparable wage data. We also cannot depart from the statutory formula with regard to those employees who, when compared to the prevalent, are entitled to no increase, and we therefore reject Defendant's arbitrary 2% increase for those employees.

If these denials of Defendant's various "adjustments" destroy certain historical differentials, create inappropriate wage inconsistencies, and unrealistically provide no wage increase for certain employees, we suggest that the problem can be solved by collective bargaining. While the Court can only do what the statute requires it to do, based on the evidence presented, we remind the parties that they are not similarly restricted, and can, by mutual agreement, adjust any increases ordered by this Court which they consider to be inconsistent or unrealistic.

We are determining the wages and conditions here for the period January 1, 1978, to December 31, 1978, but Defendant's suggested compared to cities have collective bargaining agreements already in existence (except Lincoln) with different expiration dates. Because of this, Defendant has added an "inflator" to the wage comparisons based on the different contract expirations and the latest available cost of living increase.[15] While there is likely no perfect scheme for giving proper consideration to the difference in contract expirations, we consider Defendant's adequate and we accept it.

Finally, we resolve the other matters in dispute[16] as follows:

Tool allowance: There is no evidence of a variance from the prevalent and we conclude there should be no change in this condition.

Holiday pay: The prevalent for paid holidays is 9 l/2 (mean)[17] and we, therefore, increase the paid holidays for Omaha civilian personnel from 9 to 10.

Vacation leave: There is no evidence to indicate that Omaha varies from the prevalent and we find, therefore, that the vacation leave shall remain unchanged.

Funeral leave: No change is indicated, either, by the evidence presented on the issue of funeral leave.

Sick leave: Both parties argue that there should be no change in the current sick leave benefit. We find, also, that there should be no change, based on a balancing of the disadvantage Omaha employees have in their accumulation of sick leave against the advantage they have in receipt of bonus pay for minimum use of sick leave (Exhibit #15), a benefit previously rejected when offered in the form of a wage adjustment.

Insurance: We find no departure from the prevalent and direct the continuation of the present life insurance coverage.

Longevity: On the issue of longevity, Plaintiff's array consists of 52 cities in the north central section of the country (Michigan, Ohio, Indiana, Illinois, Wisconsin, Minnesota, Iowa, Missouri, North Dakota, South Dakota, Nebraska and Kansas).[18] The cities are not specifically named and the longevity figures in the exhibit apparently represent an average of the 52 unnamed cities. This exhibit is not usable for several reasons, including the fact that Plaintiff offered no evidence that the work, skills, and working conditions of the employees in these cities are similar to those in Omaha. Plaintiff also suggests we consider in this regard the fact that the longevity pay of the civilian employees is "significantly below the present longevity payments for Omaha Police and Firefighters", but there is no evidence which would cause us to consider this as a factor in this determination.

Defendant's Exhibit (#15), on the other hand, illustrates the difficulty of comparing longevity pay among different cities. The accumulation periods differ and the pay formula does not have a consistent wage basis (cents per hour, dollars per year, or percentage of salary). Defendant's solution to this conundrum is an attachment to Exhibit #15 and the methodology recommendation contained therein for arriving at what longevity is comparable to the prevalent is reasonable and we accept it, minus the city of St. Paul, Minnesota.

ORDERED that the dispute be settled as herein provided. Appendix "A," attached hereto, sets out the determined wage schedule.[19]

Judge McGinley does not concur in this opinion for reasons which will be explained in a subsequent separate opinion.

NOTE: Appendix A not included.

[1] Nebraska City Education Association v. School District of Nebraska City , 2 CIR 116-1 (1974):

"...the statutory standard of 'comparable to the prevalent' applies to conditions of employment. In fixing conditions of employment we are required to utilize 'the standards set by the "peers" of the parties before the court'...If the norm in the trade is not proved by the party seeking an order, we are not positioned to grant him relief. Here, the union has not presented us with a pool of comparable practice. Hence a finding for the Defendant is appropriate on the issue."

See also International Brotherhood of Electrical Workers, Local No. 1357 v. Board of Public Works, City of Fremont, 3 CIR 164-1, where this court held that the moving party in Section 48-818cases must demonstrate that existing wages are not comparable to the prevalent and the court has no occasion to enter an order changing existing rates until the moving party has satisfied this burden by presenting an array of wage practices of other employers large enough to support the inference that those practices represent the prevailing pattern of wages, and Omaha Association of Firefighters, Local No. 385 v.City of Omaha, 2 CIR 117-1 (1975), where we said: "until the moving party in the 48-818 case has demonstrated that existing wages are not comparable to the prevalent, we have no occasion to enter an order changing existing wages . . ."

[2] Some of the comparisons do not meet the "multiple array" criterion established in IBEW v. Board of Public Works (Fremont), supra, such as Park Caretaker, where only one other similar classification could be found in the compared to cities, and Field Inspector, Nurseryman, Elevator Inspector, and Golf Caretaker, where only two other similar classifications are listed.

[3]For example, the various inspection jobs (plumbing, electrical, heating, building, mechanical, and elevator) have always received the same pay rate and Defendant contends this historical similarity in pay must be maintained. They suggest we do this by paying each classification the average of the increases for these classifications in the compared to cities (they range from 2.7% to 18.5% and produce and average pay increase of 10.6%). Also, "sign painters", a more skilled craft, have always received greater pay than "painters", and "internal consistency" requires that this differential should be maintained.

[4]The record is not clear regarding these 16 classifications, but Exhibit #17 indicates they are the following: Tree Trimmer, Draftsman II, Traffic Signal Technician, Clerk-Messenger, Clerk II, Clerk Typist III, MT/ST Operator II, Switchboard Operator, Engineering Aide II, Sewage Plant Operator Trainee, Sewage Plant Maintenance Mechanic I, Stationary Engineer, Asphalt Plant Operator I, Solid Waste Disposal Operator, Boiler Inspector (who is adjusted by the Defendant to the 10.6% average increase provided the other inspectors listed in footnote 3), and watchman (incorrectly listed in Exhibit #17 as a classification with comparable data).

[5]The Defendant claims 22, but they have incorrectly included Public Works Inspector I.

[7]11.41% if Plaintiff's Array #1 is used and 13.63% if Plaintiff's Array #2 is used.

[8] One example is the Court's reliance in the Omaha Police case on the Hay system of job classification. This system, which shows the similarity of work, skills, and working conditions within the compared to cities and assigns points for know-how, problem solving, accountability, and working conditions, was not produced as evidence in the instance case.

[9]Rand McNally & Co., 1978 Ed.

[10]Wewel said the difference in effect of population on comparing para miliary personnel and civilian personnel should be an offsetting factor in this case to the population dissimilarity between Omaha and Lincoln.

[11]The fact that significantly different evidence was adduced in the Omaha Police case also contributes to this conclusion.

[12]Fremont Educ. Ass'n v. School Dist., 1 CIR 50-1(1972); Valentine Educ. Ass'n v. School Dist., 2 CIR 66-1 (1973); Tecumseh Educ. Ass'n v. School Dist., 2 CIR 119-1 (1975); So. Sioux City Educ. Ass'n v. School Dist., 3 CIR 141-1 (1976); Yutan Educ. Ass'n v. School Dist., 3 CIR 148-1(1976).

[13]Omaha Police Union v. City of Omaha, 3 CIR 121-1 (1975); Omaha Educ. Ass'n v. School Dist., 3 CIR 178-1 (1977); Omaha Police Union v. City of Omaha, 3 CIR 233-1 (1977).

[14]Applying the Court's resolution that we cannot use both St. Paul and Minneapolis, we choose Minneapolis in order to present a more balanced array. Beatrice Educ. Ass'n v.School Dist. of Beatrice, 3 CIR 323-1. This array, thus, shows reasonable balance, though not perfect, and is more balanced than the array suggested by Plaintiff (3 larger and 5 smaller as compared to 1 larger and 7 smaller). Furthermore, it would not be possible to use any of Plaintiff' cities to provide a better balance because the only city larger than Omaha in Plaintiff's selections (Cincinnati) is already a part of the array determined by the court. In some instances the Defendant has included one and not both of these cities, and thus, where St. Paul is included and not Minneapolis, we will use St. Paul.

[15]Consumer Price Index, U.S. Dept. of Labor, Bureau of Labor Statistics, October 1976 to October 1977.

[16]Plaintiff presented no evidence and no argument regarding funeral leave, vacation leave, insurance, and tool allowance, but there is nevertheless evidence on those benefits by virtue of Defendant's Exhibit #15 and they therefore must be considered. Lincoln Firefighters v. City of Lincoln, supra , at p. 178.

[17]Exhibit #15.

[18]Exhibit #11.

[19]The refiguring of Defendant's statistical wage information is based on the findings herein, and is also based on mathematical errors discovered in Defendant's exhibits.