3 CIR 43 (1975). Affirmed. 196 Neb. 693, 244 N.W.2d 515 (1976).


Plaintiff, |
NEBRASKA, a municipal |
Corporation, |
Defendant. |

Appearances: James A. Beltzer, For Plaintiff

Earl D. Ahlschwede, For Defendant

Before: Wall, P.J.; Kratz and Green, J.J.

WALL, Presiding Judge:

This industrial dispute comes before us for disposition of several issues which seem to have developed and escalated largely because of failure of communication. Plaintiff asked one thing-defendant answered a different question; and before long, hardened positions had been taken which blocked the dispute settlement process.

The plaintiff seeks to modify the bargaining unit under the provisions of our Rule 4F, to include Captains and Lieutenants in the Fire Department as purportedly specifically authorized by the 1972 amendments to § 48-816, R.R.S. 1943.

The plaintiff secondly seeks a determination of the scale of wages and conditions of employment for its members under the provisions of §48-818, R.R.S. 1943.

Defendant first objects to the jurisdiction of this Court to proceed, more than 60 days have elapsed since the case was filed, in view of the amendments to §48-813, R.R.S. 1943. Secondly, the defendant seeks a determination that the 1972 amendments to §48-816, R.R.S. 1943, permitting officers in the Fire Department to be members of the bargaining unit, are unconstitutional. Third, the defendant disputes the plaintiff's approach to the §48-818 determination and offers other cities and another approach. We deal first with the procedural matters, and then turn to the wage determination. We find that we have jurisdiction of the parties and of the subject matter.

In the 1974 Legislature, the N.S.E.A. portion of this court's constituency lobbied thru the Legislature amendments to §48-813, R.R.S. 1943 which stated that when a Petition is filed in this court, a hearing must be held within 60 days of the filing thereof, and an Order entered within 30 days of the hearing. In all but one instance since its passage, where the statute would apply, the Education Association has specifically waived the statute. It appears in all events that the amendment, if valid at all, is intended to protect primarily plaintiffs, and only secondly, defendants. Defendant has made no showing whatsoever of any detriment befalling it because of the delay of the court in processing this matter. Instead, it cites a profusion of cases concerning failure of plaintiffs in inferior courts to prosecute with diligence, resulting in dismissal for failure to prosecute. We note that this court, by definition, is not an inferior court, its decisions being appealable directly to the Supreme Court. We note also that the delay in processing the case results not from any failure on the part of the plaintiff, but rather is the fault, if fault there be, of the court. The court was activated in 1947 and has thus been in existence twenty-eight (28) years. More than one-third of the court's business has come to it in the last fifteen (15) months. An average of less than four (4) cases per year were filed between 1947 and 1974; 32 cases were filed in the fiscal year 1974-75, and the rate of filing so far in the fiscal year 1975-76 indicates that over forty (40) will be filed this fiscal year. The court's rules are continuously under review for possible revision to speed cases as quickly as fair trial and due process considerations permit, and the rules are, in fact, so amended as often as an advantage appears. As this opinion is written, the Court's business is coming under control. When this case was filed, some inevitable delays were occurring, and some still occur. We do not feel that the plaintiff should suffer because of the administrative problems of this court. The rule in this state has long been that parties to litigation should not be penalized because of a failure on the part of a court official to perform some action. Hagadorn v. Wagner, 4 Nebr. Unof. 713, 96 N.W. 1842; Kates v. Spencer , 105 Neb. 599, 181 N.W. 520; Lynde v. Wurtz , 147 Neb. 454, 23 N.W. 2d 703; Zabloudil v. Lane , 159 Neb. 547, 68 N.W. 2d 193; Liljehorn v. Fyfe , 178 Neb. 532, 134 N.W. 2d 330. We have heard of an instance in the Federal Courts where the District Judge, feeling the pressures of the Administrative Office of the Court's sometime procrustean time limitations, dismissed the case, and at the same time ordered all of the pleadings and papers in it refiled as a new case on which a new time limit might begin to run. We could do the same thing, but feel that it is unnecessary and that no interest of the parties or of sound judicial administration is served thereby. In Dearborn Fire Fighters v. City of Dearborn, Mich., 231 N.W.2d 229, the Michigan Supreme court said, regarding a similar time limit in their statute:

"Also without merit is the city's challenge to the fire fighter order on the ground that the panel failed to issue its order within the 30-day period prescribed in the act. 6

6 The city contends that the act permits, upon the parties' agreement, extensions beyond the 30-day limit (M.C.L.A. §423.238; M.S.A. §17.455 [38]) but argues that it, a 'party' never gave the requisite permission.

The panel's inability to complete its task within the 30 days does not vitiate the order. The dominant cause of the delay was the non-participation of the city. The statutory purpose would not be served by requiring absolute compliance with these time limitations. Moreover, the city has not shown any prejudice to its interests resulting from the delay in decision."

Accordingly, we hold the 60 and 30-day provisions of §48-813, R.R.S. 1943, as amended, to be precatory and not jurisdictional.

In November, 1974, the majority of the Captains and Lieutenants in the Grand Island Fire Department signed dues deduction authorizations and asked to be included in the bargaining unit. (Ex. 1). These two requests in one were denied, (Ex. 2) citing the contract between the parties. (Ex. 11). The contract provides at Art. XI B.a. that any employee holding a position in the Department of Public Safety may join the union. Article XV D. provides that the City will not interfere with the right of employees to join the union. The Captains and Lieutenants hold positions in the Department of Public Safety and thus, were entitled to join the union and entitled to be free of harassment as provided in Article XV D. The November refusal to honor their request to join the union was, therefore, a breach of Article XIV of the contract.

The contract was not yet subject to being opened as to the inclusion of the Captains in the unit, so that portion of the denial was correct at the time.

The Legislature of this state has determined that public employees shall be free to join or not to join a union as they personally see fit. It follows that the Legislature having made this determination, no elected or appointed public official is free to interfere with that individual determination; and that the statute requires of the elected or appointed managerial official strict neutrality when the question of unionization of his organization arises. Mid-Plains Education Assn. v. Mid-Plains Nebraska Tech. College , 189 Neb. 37, 199 N.W. 2d 747; State v. Kilmer , 194 Neb. 434, 231 N.W. 3d 708. The contract herein spells out these same rights. Accordingly, we find the refusal of the defendant to accept the dues deduction cards signed by the Captains and Lieutenants to be a breach of the contract and an illegal labor relations practice.

Our statute does not speak of "unfair labor practices", as such and this court has heretofore avoided the phrase. The result has been, generally, that we are sometimes misunderstood and fail to communicate. Attorneys generally feel more comfortable if they can categorize subjects in neat cubby-holes, appropriately labeled, whether or not the subject appropriately fits the cubby-hole. Therefore, as an aid to communication with the bar, and for our own convenience, we will hereafter generally refer to actions prohibited in the labor relations field of law as "unfair labor practices." Accordingly, the refusal of the city to accept the dues deduction cards and refusal to accept the Captains and Lieutenants as union members was an unfair labor practice as here defined.

The testimony shows that as a routine matter, the Fire Chief solicited from each fire fighter promoted to a command position a revocation of such firefighter's dues deduction authorization. We find this, likewise, to be a breach of the contract and an unfair labor practice.

On March 22, 1975, the union formally demanded that the bargaining unit be broadened to include the Captains and Lieutenants (Ex. 3). The contract was due to expire May 31, 1975, and in accordance with Article XVII B.3. was open for amendment within 120 days of that date, or any time on or after February 1, 1975. On April 3, 1975, the city replied to this request with a letter advising that it would be referred to the City Council (Ex. 4).

On April 7, 1975, the Captains and Lieutenants concerned wrote the City Council of the City of Grand Island a letter, calling to the Council's attention the earlier refusal of the defendant to permit them to join the plaintiff union, or to be in the bargaining unit, and stating their position that they believed they were entitled to be in the unit. (Ex. 5). This would be a violation of Article XIII E. of the contract between the parties if the officers were members of the union, something defendant had just denied them, and if Article XIII E. were constitutional, a subject discussed hereinafter. On receiving his copy of the letter to the Council, the City Manager told the City Attorney that he felt like firing the whole damn bunch. At trial, the City manager characterized this threat as "jocular" and it may, at that point, have been. However, the City Manager's next stop was the Fire Chief, where he told the Chief what he had told the City Attorney. The retelling could only be for the purpose of having it further conveyed to the common officers involved, to intimidate them to the extent possible and deter them from the free exercise of their right to join the union as guaranteed by contract and statute. We find this to be both a breach of contract and an unfair labor practice.

The Fire Chief then called one of the on-duty officers, repeated what the City Manager had told him, and directed him to call the off-duty officers, and have them get together that evening, to come in for a meeting with the City Manager the next morning, and "to get their heads screwed on straight." We can only construe this as a further breach of contract, more anti-union activity, and another unfair labor practice.

The meeting the next morning, April 8, 1975, surprised some of the officers by its friendly tone at the beginning. The City Manager directed the discussion toward conflicts of interest, the question of whether the command officers were supervisors, and the communication to the City Council. He had Secs. 19-618 and 19-646, R.R.S. 1943 read to the assemblage. Since these sections only prohibit the City Council from meddling in the City Manager's decisions, and in no way restrict public employees from contacting the City Council, the only purpose could be for obfuscation and intimidation.

The City Manager brought up the City of McCook and pointed out that its Fire Department ran fine without Lieutenants and Captains. Again, the only purpose could be intimidation. We find that both the reading of the statute and the discussion of McCook to be breaches of the contract, and unfair labor practices. As a result of this meeting, the command officers withdrew their letter and withdrew their request to be part of the bargaining unit. (Exs. 6 and 7). On April 17, 1975, the city advised the union that it would not discuss or negotiate the inclusion of the Captains and Lieutenants in the bargaining unit, but would instead seek a determination that LB 1402 of 1972 was unconstitutional. In other circumstances, this might not be a failure to bargain in good faith, but given the existing contract provision permitting Captains and Lieutenants to join the union, a refusal to even discuss broadening the bargaining unit to include these permissible union members must be considered a refusal to bargain in good faith, and an unfair labor practice. We find the entire matter, after the November request of the command officers to join the union and to become a part of the bargaining unit, to be so permeated by breaches of contract and so tainted by unfair labor practices that only the initial request can stand.

We thus meet the defendant's claim that the 1972 amendment to §48-816, R.R.S. 1943, permitting command officers in police and fire divisions to become part of the bargaining unit, is unconstitutional. We find it unnecessary to decide this issue. First, we regard LB 1402 to be no more than a pointed reminder to this court that the Legislature had already said all public employees had a right to organize, and a reminder also that utilization of NLRB precedent, where the NLRA differed significantly from the Nebraska statute, was less than appropriate. E.g., Nebraska has no provision prohibiting supervisors organizing, such as is found in the NLRA. While we still feel it is the duty of this court to avoid situations where inclusion of supervisors in a unit could cause conflicts of interest, it is likewise our duty to recognize that the statute without the 1972 amendments contained no prohibition on organization of supervisors, a fact pointed out to the Legislature by the defendant's City Manager in testimony on LB 1402 (Ex. 14).

We further find that the defendant, having agreed in its contract to permit anyone in the Public Safety Department to join the union, is estopped to challenged the constitutional validity of the 1972 amendments to the Court of Industrial Relations Act.

Accordingly, we find the appropriate unit herein to be all members of the Fire Department of the City of Grand Island, other than the Chief, the Deputy Chief, the Training Officer and the Fire Marshal. Our experience shows that while supervisors in an ordinary unit might cause serious conflicts, that such is simply not true in the case of fire units. In Omaha, for example, the President of the Fire Fighters Union is a Battalion Chief, and we have yet to discover a serious conflict of interest arising in this largest Fire Fighters Union in the state because of the inclusion of supervisory personnel in the unit. We do not feel that there will be any conflict in this much smaller unit, either.

We then turn to the economic issues. With respect to wages, the plaintiff seeks to compare Grand Island, 1970 population 32,358, 1974 fires, 298; with Fremont, 1970 population 22,962, 1974 fires, 206; with Hastings, 1970 population 23,580, 1974 fires 226; and with North Platte, 1970 population 19,447, 1974 fires, 165. (Ex. 23). The defendant city concurs in those cities and adds Beatrice, 1970 population 12,358, 1974 fires, 326; and Scottsbluff, 1970 population 14,507, 1974 fires, 209 (Ex. 18). The cities sought to be compared range from 25 to 275 miles distant from the defendant.

All of the fire departments in the cities offered by either party as comparable answer alarms outside the city limits, while Grand Island does not. All have substantially lower investments of time and money in training or personnel, and all are ranked lower than Grand Island by the national rating bureau as to training, skills and effectiveness.

Since both parties advance the City of Hastings as comparable and since it is only 25 miles away, draws from the same labor market and has so closely comparable work, skills and working conditions, it is very tempting to simply set the wage at the 1974 Hastings level (1975 being still under negotiation at the time of trial) and let it go at that. This alternative also has the advantage of being based solely on the defendant's data. (Ex. 29). The basic problem is that such an approach results in an increase in starting salary of 18.6%, just to get Grand Island to the point Hastings was at last year. Our task, however, is to appraise most carefully the value of the work and skills performed under the working conditions shown, balance the interests of the plaintiffs with the interests of the public at large, and thus arrive at a fair compensation. Omaha Association of Firefighters Local 385 v. City of Omaha , 2 CIR 117-1 (1975) aff'd 194 Neb. 436, 231 N.W. 2d 710. Omaha Police Union, Local No. 1 v. City of Omaha , 3 CIR 121-1 (1975). [1] We must reject such a simplistic approach, and proceed to a close examination of the evidence adduced.

The parties' evidence continues the failure to communicate mentioned earlier-the plaintiff analyzes only maximum salaries for firefighters, the defendants analyzes only minimum. The plaintiff's analysis demonstrates a long-term trend of declining compensation and more rapidly declining purchasing power of the Grand Island firefighter. Starting in 1971 as the highest paid in any of the four cities compared, by 1974 the Grand Island fire fighters had become the lowest even though the evidence is clear that he is the most skilled and faces the most challenges. In 1971, the Grand Island firefighter at maximum, with longevity, received 104.4% of the average of the other three cities-in 1974, he received 89.4%. Were we to restore the ratio, an increase of 16.8% would be required. The figures with longevity are 113.8% for 1971, 97.5% for 1974, and an increase of 13.8% to bring the ratio back to the 1971 level. (Exs. 24 and 25.) [2]

The evidence of the defendant analyzes only entry level figures for firefighters, and carefully spread the figures out over each firefighter involved to come up with allegedly meaningful averages for each item of compensation.

We reject generally the conclusions of both plaintiff and defendant, but accept their raw data to formulate our own conclusions.

The defendant's array of starting salaries is as follows:

Norfolk $590.00

Scottsbluff $628.00

Fremont $660.00

North Platte $661.00

Hastings (1974) $670.00

Beatrice $672.00

The median is $9,600.00 and the average is $9,428.00. The median requires an increase (without longevity) of 14.0%. The average requires an increase of 11.9%. With longevity, which we hereinafter treat separately, the median requires an increase of 4.4% and the average requires an increase of 2.6% Since the difference in longevity seems to be one of the few obvious things keeping the more highly skilled Grand Island firefighter from moving to Hastings to work, and must thus be considered an important element of compensation balancing the extra skills, we set that aside for the moment. Again, picking the less traumatic figure as more in keeping with the public interest, we increase the top scale figure by 11.9% and increase the steps between, proportionately, as follows:

1974-75 Negotiated:

Step I 2 3 4 5 6

$565 $590 $615 $640 $671 $701

Increase %:

14.5% 13.9% 13.3% 12.9% 12.3% 11.9%

1975-76 Determined:

1 2 3 4 5 6

$647 $672 $697 $723 $754 $787

As noted above, the compensation system under the contract has two steps above Step 6, designated L-I and L-II. The contract requires the employee to have been in Step 6 at least three (3) years to be eligible to be moved up to Step L-I and to have been in Step L-I at least five (5) years to be eligible to be moved to Step L-II. While the contract makes such moves discretionary, it appears from the evidence that the movement to the L-I and L-II steps have become routine upon the completion of the minimum time periods, and that we may fairly treat them as longevity renumeration and not as merit increases. A firefighter would require four (4) years to move from Step 1 to Step 6, if he moved as rapidly as permitted under the contract, or a total of twelve (12) years to move from Step I to Step L-II. For the fiscal year 1974-75, the L-1 step was 104.6% of Step 6, and the L-II step was 109.1% of Step 6, or 104.4% of Step L-1. We thus see that the parties have maintained a spread of about 4.5% for these steps, and we deem that to be fair and reasonable for continuation under the dispute settlement made herein, as well as making plaintiff's pay more nearly comparable for the added skills and experience shown by the evidence. We thus fix the L-I step at $821.00 and the L-II step at $858.00.

The evidence of the parties is not sharply delineated as to the compensation due to the Lieutenants and Captains, and such evidence as there is, is stale, dating wholly from 1974. Without going into detail, we note that just to place the command officers in the 1974 position of their counterparts in other cities in Nebraska, outside Lincoln and Omaha, would require an increase. We, therefore, direct an across-the-board increase for these officers of not less than the 8% offered by the city to the firefighters, and retain jurisdiction over this aspect of the dispute in the event it requires our further attention.

To complete our examination of the total compensation package, we next turn to vacation and sick leave. On vacations we have the following array: [3]

Grand Island after 2 years 1 week

2-15 years 2 weeks

over 15 years 3 weeks (Ex. 11)

Beatrice 1-10 years 2 weeks

10-20 years 3 weeks

over 20 years 4 weeks

Fremont 1-10 years 2 weeks

11 years 2 weeks and 1 day

12 years 2 weeks and 2 days

13 years 2 weeks and 3 days

14 years 2 weeks and 4 days

15 years 2 weeks and 5 days

16 years & over 3 weeks

Hastings 5 mos. to 1 year 1 week

1-12 years 2 weeks

12-20 years 3 weeks

over 20 4 weeks

Scottsbluff 15 days per year (Ex. 31)

It is apparent from reviewing the array that all of the other cities give vacations during the first year, varying from one to two weeks. In addition, two other cities provide for four weeks vacation after 20 years. In order to make the vacation time comparable and an adequate factor in the total compensation for the work, skills and working conditions involved, we adjust the vacation schedule as follows:

6 mos. to 2 years 1 week

2-15 years 2 weeks

15-20 years 3 weeks

over 20 4 weeks

We find no difference in the sick leave, health insurance, call-back, holiday, uniform allowance, or leave to conduct union business provisions warranting an adjustment.

As to turn-out gear, we find that two of the three cities for which comparisons are offered, furnish this equipment. Accordingly, we direct the defendant to furnish this equipment. In order to phase-in this requirement, defendant shall be required only to replace present personally-owned items as they become unserviceable and then to replace city-furnished items after they, in turn, wear out. Some discussion was had on the safety value of Nomex coats and clothing, but no evidence was offered as to its use in comparable cites, nor as to its necessity as a safety measure. In this posture of the evidence, we thus leave the choice of type of gear to the defendant or to negotiation.

With regard to life insurance, the array is as follows:

Grand Island $3,000.00 100% paid by city

Beatrice $5-$10,000.00 100% paid by city

Fremont $10,000.00 66 2/3% paid by city

Hastings $2,000.00 0% paid by city

Norfolk $5,000.00 100% paid by city

Scottsbluff $2,000.00 0% paid by city

The median is thus $5,000.00, 100% paid by the city, and we adjust the Grand Island figure to that amount.

With regard to residence requirements, we note that two of the three cities for which the parties furnished data permit residence outside the community. We note further that this is a negotiable item. Detroit Police Officers Assn. v. City of Detroit, 391 Mich. 44, 214 N.W. 2d 803 (1974). We, therefore, adjust the residency requirement to the average of the three cities compared, or three miles from the city limits.

In another connection, we have mentioned the contract's prohibition against contact by the union or its members with the Mayor or City Council. We find this to be repugnant to the Nebraska and United States Constitutions. Sections 5 and 19, Article I, Constitution of Nebraska; Article I of the Amendments to the Constitution of the United States , as made applicable to the States by Article XIV of these Amendments. Arnett v. Kennedy , 416 U.S. 134, 94 S.Ct. 1633 (1974). Specifically, we hold that employees of the Fire Department as individuals or as union members have the right to make temperate, reasoned, truthful communication of factual matters to the Mayor or to the City Council, and the City does not have the right to deprive the members of the department of that right. Cf., Carlson v. Schlesinger , 511 F. 2d 1327 (CA D.C. 1975). A requirement that such communication be through channels, if such requirement is not utilized to block the communication completely, or delay it so that it is useless, might be permissible; but this will have to be decided on a case-to-case basis.

The dispute is thus ordered settled as hereinabove specified, for the period June 1, 1975 through May 31, 1976. All provisions of the previous contract not modified herein are continued in force.

In view of our conclusion that these disputes were precipitated by repeated illegal action on the part of the defendant, in casual and complete disregard of the law, we feel it appropriate to tax, as costs, part of the expense of these proceedings. Accordingly, we tax to the defendant, City of Grand Island, as costs, to be paid to the Clerk, for further payment into the General Fund of the State of Nebraska, an amount equal to the expense of preparing the record herein, or $514.78.

The costs, as well as the rest of the judgment, shall bear interest at 8% per annum until paid.

[1]We adopt this method of citation of our cases as the most convenient. The first 50 cases fill Volume 1, Cases 51-120 fill Volume 2, and we thus start Volume 3 with Case 121.

[2]Exhibit 25 purports to show a 16.8% increase also, but this is an arithmetical error, and only 13.8% would be necessary.

[3]We have disregarded plaintiff's evidence in this area, since it appears to vary from the contract as to Grand Island and is otherwise not presented in a way meaningful to the Court.

Entered October 28, 1975.