3 CIR 481 (1978).



Plaintiff , |
Defendant. |

Filed September 6, 1978.


For Plaintiff: John B. Ashford

For Defendant: William A. Harding

Dana Roper

Before: Judges Wall, Kratz & Green.


After an election in 1970, American Federation of State, County, and Municipal Employees (AFSCME) was recognized by the city of Lincoln as the bargaining representative for some of its employees. Successive collective bargaining agreements were negotiated thereafter by the parties, until 1977. On May 31, 1977, the parties reached impasse with four items still unresolved: wages, shift differential, pay off for unused accumulated sick leave, and vacation leave with pay.

Plaintiff petitioned this court to determine the disputed wages and conditions. Defendant moved to dismiss the case on the ground that Plaintiff has not met its burden of proving lack of comparability, has not met the requirements of the Lincoln Firefighters case, 198 Nebr. 174, with regard to presentation of overall compensation, and has failed to meet the court's coefficient correlation test[1] in the selection of its array of cities. The court reserved ruling on the motions.

There are 102 different employee job classifications within the bargaining unit. Plaintiff offered an array of 15 different cities, selected on the basis of geographic and population proximity to Lincoln, and applied a "bench mark" formula, such as was used in Omaha Civilian Employees v. City of Omaha, 3 CIR 239-1, for comparing the job classifications in the city of Lincoln.

Plaintiff's methodology involves dividing the job classifications within the bargaining unit into separate pay ranges. There are 27 of these and each pay range contains several different job classifications, all of which receive the same rate of pay. Plaintiff originally established 16 bench marks, selected on the basis of what Plaintiff considered to be the most common job descriptions (Plaintiff's Exhibits #4 and #6), but subsequently increased the bench marks to 22, when it ascertained the number of employees in each job classification (Plaintiff's Exhibit #4A and #6A), in order to represent a larger number of employees.[2] While the original 16 bench marks were confined to only one per pay range, with some pay ranges containing no bench marks because of lack of a common job title, the final comparison, with the addition of the 6 bench marks, produced four pay ranges where two bench marks were used. Plaintiff then compared the wage of each bench mark job description in Lincoln to the wage for that same bench mark job description in its array of 15 cities (Plaintiff's Exhibit #7). This comparison was made with both minimum and maximum salaries and contained a summary which illustrated the median and average salary for that pay grade in the compared to cities, and the percent increase and dollar increase (per year, per hour, and per month) necessary in order for Lincoln to reach the median or average.

All pay ranges required an increase, but there was a great variance among the pay ranges. It took 42% to reach the average in pay range 17.5 (cook) and only 1% to reach the median for Meter Reader I in pay range 25.5.[3]

Although its system includes 22 direct comparisons, Plaintiff does not ask this court to increase the minimum wage for Lincoln's cooks by 42%, or Lincoln's Meter Reader I's by 1%, based on these direct comparisons, nor does it ask the court to increase all job classifications within the separate pay ranges on the basis of the increases required for the bench mark job classification, or classifications, within that pay range. Instead, Plaintiff's expert witness says the bench mark system tries to "give the court an overall feeling of where Lincoln fits in their entire salary structure with these other cities," and Plaintiff's position in this regard is that this court should take each bench mark comparison, weigh it by the total employees within that pay range and then total and average these figures.[4] Plaintiff does not give us this total, but seems to be saying we should use it more as a guideline than a binding determination.[5]

The compared to cities used by Plaintiff in forming the percentages in its Exhibit #7 are: Grand Rapids, Michigan; Lexington, Kentucky; Fort Wayne, Indiana; Colorado Springs, Colorado; Flint, Michigan; Warren, Michigan; Salt Lake City, Utah; Madison, Wisconsin; Kansas City, Kansas; Rockford, Illinois; Des Moines, Iowa; Wichita, Kansas; Springfield, Missouri; Lakewood, Colorado; and Topeka, Kansas.

For its comparison of work, skills and working conditions, Defendant offers an array of employers who perform work in the city of Lincoln. Since 1964, Defendant has regularly mailed a wage survey to a list of employers, chosen from a Directory of "Employers of 25 or more" (Exhibit #15), in the Lincoln area. The 1977 survey was mailed to 197 companies and 88 responded. The survey lists 18 "key" job titles that are within the bargaining unit, [6] along with a job description for each of them, and asks the Lincoln employer to give Defendant his wage for any job he has which fits that job description. The response varies for each job description, from 1 EDP Technician II, to 49 Clerk Typists, to 126 Laborers. The number of bargaining unit employees reported on is 345 (Defendant's Exhibit #1), which constitutes 54.9% of the total, and Defendant received data on 4,582 employees who performed work similar to the work performed by bargaining unit employees.[7]

Defendant then compares the minimum and maximum wages from that survey with the wages currently paid by the city of Lincoln, plus the increase offered during the negotiations. This shows that the wage offered by Defendant at the bargaining table exceeds the survey wage results in all but one of the 18 job classifications, and the weighted average excess is 7.3% for the minimum wage and 9.3% for the maximum. Defendant argues from this, of course, that its current wage, plus its current offer,[8] is comparable to prevalent wages for similar work, skills and working conditions.

We are not impressed with the scope of either party's method of attempting to compare to the prevalent, and while it is undoubtedly difficult to compare 102 job classifications, we are convinced there can be a more detailed, complete and thorough comparison made than either of those presented here, one of which compares 18 of the 102 job classifications and the other compares 22.

The only other case considered by this court which involved Lincoln, or any of its governmental subdivisions, was the case of City of Lincoln v. Lincoln Firefighters , 3 CIR 153-1. In that case, the array determined by the court included St. Paul, Wichita, Des Moines, Kansas City, Springfield, Topeka, Cedar Rapids, and Davenport. Only four of the eight are used here.[9]

The evidence shows that Lakewood is a suburb of Denver, Kansas City, Kansas, a suburb of Kansas City, Missouri, and Warren, Michigan, a suburb of Detroit. To use these three cities would be to compare Denver, Detroit and Kansas City, Missouri, to Lincoln. Those cities are too large and therefore not comparable. The wages of suburban cities are generally similar to the wages of the principal city, since they are all a part of the same labor market. In Columbus Education Association v. Columbus School District , 3 CIR 203-1, this court excluded Papillion and Ralston as comparable to Columbus, though the student enrollments were similar, "because they are a part of the Omaha metropolitan area."

Defendant argues that Plaintiff's array is unbalanced because 11 of the comparable cities are larger than Lincoln and only four are smaller. If we remove Lakewood, Warren, and Kansas City, Kansas, this ratio becomes 9 to 3. This is not the type of balance we would prefer, but neither is it sufficient alone to cause us to reject the array. The case of Tecumseh Education Association v. School District , 2 CIR 119-1, established that this court preferred an array balanced between larger and smaller employers. Plaintiff's expert witness testified it was difficult to maintain this balance and still find cities with enough observations to make an adequate comparison. We assume that it is the reason cities such as used, but if more bench marks were used, more cities would become eligible for comparison on the basis of sufficient observations in comparable job classifications.

Plaintiff argues that there are differences between private employers and public employers which prevent an accurate comparison of their employees. Very little evidence, however, was presented to illustrate this alleged difference, and much of Plaintiff's argument in this regard involves conclusions which are not based on the evidence.

It isn't necessary to point out that Defendant's comparisons include several public employers,[10] because we really do not see any difference. An employee who operates an electric typewriter for a savings and loan association in Lincoln, Nebraska, does essentially the same work, possesses the same skills, and works under similar working conditions as the employee who operates an electric typewriter for the city of Lincoln, and this would be generally true with regard to stenographers, clerks, and other office employees. The same similarity would apply to the comparison of an equipment operator working for a Lincoln construction company and one working for the city, and a custodian working for a Lincoln bank.

Plaintiff argues, also, that most of the employers used in Defendant's comparison are smaller than the city, and this is true, but there was no evidence presented which would show that this makes the comparison inadequate. The work and work environment would likely be the same, no matter what the size of the employer, particularly within the same city. Also, the evidence shows that the Lincoln city employees are departmentalized, so that the largest department has 200 employees and the smallest 50. If the comparison is made by department, of course, a much larger number of Defendant's compared to employers become similar in size.

Plaintiff presented testimony that its array of cities was based on geography and population. If those are important criteria in determining comparable cities, and this court has said they are, then Defendant has the perfect comparison. Its compared to employers operate in a city with an identical location and the same population.

Section 48-818 says this court shall establish wages comparable to the prevalent wages for similar work for workers with similar skills performing under similar working conditions.

In Lincoln Firefighters Association v. City of Lincoln , 198 Neb. 174, the Nebraska Supreme Court said:

"Prevalent wage rates for firemen must of necessity be determined of comparisons with wages paid for comparable services in reasonably similar labor markets." (emphasis supplied)

This court in that same case (Lincoln Firefighters, 3 CIR 153-1), said:

"The essential standard set in 48-818 relates to prevalent wages for similar work, the underpinning of the concept is the market...the standard of pay in the Act is what other employers similarly situated as to work and skills received ..." (emphasis supplied)

And in Omaha Association of Firefighters Local 385 v. City of Omaha , 2 CIR 117-1, this court said:

"The 'prevalent' then is to be found in the market where the employer before the court hires labor and in which the employees before the court offer their services." (emphasis supplied)

Thus, our determination of the prevalent wages and conditions under Section 48-818 is based on the labor market of the employer before the court. That labor market is where that employer looks, and competes, for employees, and the price it pays in this marketplace for employees establishes the prevalent wages and conditions for that labor market. The best place, therefore, for determining the prevalent wages for similar work for the employees working for the city of Lincoln is in the city of Lincoln. Heretofore it has not been possible for this court to compare employers within the same city, [11] but, where possible, it would seem to provide the most applicable comparison under the rule of comparable to the prevalent.

In Fremont Education Association v. the School District of Fremont , 1 CIR 50-1, we said that "similarity tends to decrease with increasing distance among what are to be compared to and becomes more pronounced with increasing proximity." Defendant's array doesn't have to measure the proximity to the compared to employer because the proximity is zero.

The evidence on correlation coefficient in this case is somewhat confused. Defendant's expert witness testified there was no meaningful correlation between Plaintiff's array of cities and the city of Lincoln in the areas of wages and population, monthly payroll costs, general revenues, taxes, general expenditures, and capital outlays. Plaintiff's expert witness, however, testified she did not use any of these factors, except population, in the selection of Plaintiff's array of cities.[12]

In Nebraska City Education Association v. the School District of Nebraska City , 2 CIR 116-1, this court held that until the moving party in a 48-818 case demonstrates that existing wages are not comparable to the prevalent, we have no occasion to enter an order changing existing wages.

Considering and balancing all of the evidence in this case, we conclude that Plaintiff has not demonstrated that the existing wages and conditions of the employees of the city of Lincoln within the bargaining unit are not comparable to the prevalent wages and conditions for similar work, skills and working conditions.

In reaching this conclusion, we are primarily influenced[13] by (1) the fact that Plaintiff's array makes a direct comparison in only 22 out of 102 job descriptions and with only 33.9% of the bargaining unit employees, which leaves us without any direct comparison to what Plaintiff claims is the prevalent for two-thirds of the employees in the bargaining unit, and (2) our conclusion that Defendant's methodology in determining the "prevalent", although it also offers an inadequate number of "bench marks is superior to Plaintiff's because it compares the identical labor market. The wage and condition information from Defendant's array of employers, of course,shows that Defendant's present wages and conditions, plus the proposed increase, compare to the prevalent for similar work in the city of Lincoln, Nebraska.

Plaintiff's motion to dismiss, based on Plaintiff's failure to show that existing wages are not comparable to the prevalent, is granted. In making this determination, we rely on the understanding, conveyed during the course of the hearing, that if Defendant's Motion is granted, Defendant intends to put into effect the wages previously offered (footnote 8).

[1] Omaha Firefighters v. City of Omaha , 3 CIR 240-1.

[2] Its 22 bench mark job classifications represent 33.9% of the total employees in the bargaining unit.

[3] Pay Range 25.5 also used another bench mark, water meter repairman, whose average minimum wage in the compared to cities was 25.91% above the city of Lincoln minimum wage for water meter repairman.

[4] Plaintiff's brief says: "...it is the position of AFSCME that in order to maintain the internal consistency of the pay ranges in the City of Lincoln that an across the board increase would be preferable to an increase for each pay range or job classification."

[5] We recognize that it is impossible to make direct comparisons with 102 job classifications, and thus while we understand the basis for Plaintiff's recommendation, we nevertheless have difficulty with it. If we select Plaintiff's array of cities and they show, by direct comparison, that the prevalent wage for water meter repairman is 25.91% above the wage presently paid for this job in Lincoln,, how can we, under the specific language of the statute, give that job classification anything other than an increase of 25.9%?

[6] The laborer classification, however, includes Pubic Works Maintenance Workers I & II, Park Workers I & II, and Utility Workers I & II.

[7] For example: 59 firms reported on 609 employees in a job classification similar to the bargaining unit job of Clerk I, and 49 firms reported on 329 employees in a job classification similar to the bargaining unit job of clerk typist.

[8] 6%, except for 5 job classifications where an upward adjustment is provided, based apparently on supply and demand.

[9] Wichita, Des Moines, Springfield & Topeka.

[10] Agricultural Department, Soil Conservation Service; Cengas; Lincoln Electric System; Lincoln Public Schools; Nebraska State Merit System; Nebraska State Personnel Dept.; and Veterans Administration Regional Office.

[11] Our other cases in this issue have involved school districts, firemen, and policemen, and in Nebraska there is only one employer per city of teachers (except Omaha), firemen and Policemen.

[12] Apparently Plaintiff had earlier listed these factors in Answers to Defendant's interrogatories, but in its final selection of cities had not used them.

[13] Minor influences are the fact that at least three of the cities used by Plaintiff are clearly not comparable to Lincoln, the fact that much of Plaintiff's wage information is based on different fiscal years, the fact that there is a lack of balance in Plaintiff's proposed array, and the fact that there appears to be no correlation between wages and population in Plaintiff's array.