3 CIR 474 (1978). Reversed and dismissed. 204 Neb. 238, 281 N.W.2d 772 (1979).



LOCAL 554 affiliated with the |
Petitioner, |
Respondent. |

Filed July 27, 1978


For the Petitioner: David D. Weinberg

For the Respondent: Roger J. Miller

Before: Judges Wall, Green and McGinley


This case brings before us the continuing dispute between the petitioner, General Drivers and Helpers Local 554 (hereinafter, Teamsters) and West Point, Nebraska. Petitioner was certified as a bargaining agent in Case No. 67, decided in 1972. The parties have been negotiating since that time without arriving at a contract. This action seeks a wage determination for an undefined period, but was tried as an action for determination for the fiscal years 1976- 77 and 1977-78. Where an action is treated by the parties as for a particular cause or period, it will be so treated by the Court. Initially, petitioner sought to bring all items in dispute before the Court, but at trial limited its evidence to wages. We find that we have jurisdiction of the parties and of the subject matter.

Respondent at trial moved to strike certain testimony because of the expert witness' lack of personal knowledge of Cuming County REA linemen and because he could not recall the details of a conversation he had with another witness who supplied him with certain data. This challenge goes to the weight and not to the admissibility of the evidence, and the

motion to strike is denied. We note, further, that respondent had apparently stipulated the data into evidence anyway. While petitioner's rough-hewn expert may not have expressed himself with the precision respondent would prefer, we construe his testimony regarding the REA linemen as being that a lineman is a lineman, just as in school cases we hear iterated again and again that a teacher is a teacher.

Respondent complains of the lack of job descriptions and minute details of job function. While we appreciate details when we must go outside the relative homogeneity of the State of Nebraska for comparables and construct a hypothetical universe or array, such detail is not required in comparing jobs inside the state in small units where the Court in its own expertise and sound legislative judgment knows, for example, that a street laborer in one small town is doing the same work as a street laborer in another small town in Nebraska. As we said in Kramer Power Station Employees v. Loup River Public Power District, 1 CIR 16-1 (1963):

"The public interest, as set forth in §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 not greatly strained by the expense of governmental units' and public utility's 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."

(Baylor, P.J.)

While litigation in this Court has become more complex than may have been anticipated by the distinguished Presiding Judge Emeritus in the perhaps halcyon days of 1963 when the quoted statement was made, we need not make trials in this court more difficult than necessary. Certainly, in small towns, we can discern similarity without a $11,000.00 study by personnel experts. Respondent operates without detailed job descriptions and seems to manage its affairs reasonably and properly. We feel, at least within the size range which we are here discussing, that a simple opinion that the jobs are similar will suffice. This is particularly true in 818 cases in which defendant chooses not to aid the court in reaching its legislative determination of the proper wage level. Omaha Police Union v. City, 3 CIR 121-1 (1975).

Petitioner offers two arrays - Fairbury, Beatrice, Lincoln, Cuming County REA, Grand Island and Fremont for '76-'77 and Fairbury, Beatrice, Grand Island and Fremont for 1977-78. We find these comparables, properly adjusted, to be sufficient to carry the petitioner's burden of showing that West Point wages are not comparable to the prevalent. See IBEW v. Board of Public Works, 3 CIR Adv. 164, 3 CIR 158-1 (1976). For our own convenience, however, we prefer to operate in an array where we need not make continual and complex adjustments. Where the parties have not presented evidence deemed sufficient properly to appraise the value of the particular labor before it, the court may sua sponte direct the production of other or different evidence in order that it may properly execute its duty to protect the public interest and reach an accurate conclusion. Omaha Police Union v. City, 3 CIR 121-1 (1975) . Executing this duty as empowered by the Legislature under §48-807, R.R.S. 19943, we have had data produced on the various job classifications in cities in the state operating their own generation plants and within a population range of 2,000 to 3,850 to add to petitioner's proffered comparables.

Respondent challenges the petitioner's data and the data supplied under §48-817, R.R.S. 1943 as unusable because respondent's expert found no correlation between population and wages paid, citing Omaha Ass'n of Firefighters v. City of Omaha, 3 CIR 240-1 (1978). Respondent fails to note that in the Omaha case we were constructing a hypothetical universe, and also ignores the inconsistency of citing the case in which we pointed out that correlation did not establish causation, while producing and vouching for an expert who testifies that correlation does establish causation. If we accepted this conclusion, we would have to agree with the fly, in the fable of the fly and couch-and-four, wherein the fly convinced himself that he was driving the coach.[1]

We then proceed to a determination of the proper wages to be paid. We find that cities in Nebraska operating their own electric generating plants and within population limits of 2,000 to 5,200 are properly a class for comparison, the work, skills, and working conditions therein being substantially similar in view of their presence is the relative homogeneous Nebraska economic area, as well as being fairly unique in that they have their own generation plants. We also find the wages paid linemen by the Cuming County REA to be useful for comparison, Cuming County being the precise local of West Point. For 1976-77 we then have West Point, Fairbury and the Cuming County REA for direct comparison and Kimball, Ord, Tecumseh and Wahoo which we may compare after adjustment. We have also David City for comparison on all jobs except Line Foreman. We note that David City granted a 2% increase from 1977 to 1978 and that respondent's unilateral increase in December, 1977, was about 6%. We find that we may use Kimball, Ord Tecumseh and Wahoo wages for August 1977-78 in our 1976-77 comparison by discounting them 10%, an ultra-conservative position in review of the 2% and 6% figures in the evidence.

The arrays are thus as follows:

NOTE: Table deleted

In the exercise of our expertise and a sound legislative judgment, we fix the wages for each year in question at the midpoint of the mean and median. The wages are thus established as follows:

NOTE: Table deleted

Petitioner has failed to carry its burden of proof of any difference in fringe benefits, and we thus direct no change in those benefits.

The date for respondent to certify its 1978-79 budget is rapidly approaching, and we urge the parties to bargain to a conclusion the 1978-79 wages before a certification locks in the respondent's position. Surely it should not take another six years to reach an impasse or a resolution.

ORDERED, that the dispute is settled as hereinabove set forth.

[1] For a complete discussion of the falsity of the respondent's conclusions, see Campbell, Flaws and Fallacies in Statistical Thinking , Prentice Hall, 1974.