3 CIR 504 (1978)



LOCAL NO. 554 affiliated with Inter- |
national Brotherhood of Teamsters, |
Chauffeurs, Warehousemen and Helpers of |
America, |
Petitioner, |
Respondent. |

Filed June 30, 1978.


For the Petitioner: David D. Weinberg.

For the Defendant: Rockford G. Meyer.

Before: Judges Wall, DeBacker and McGinley.


This case brings before us the dispute between General Drivers and Helpers Union, Local 554, usually, and hereinafter known as the Teamsters, and Douglas County. Teamsters Local 554 is the recognized bargaining agent for a bargaining unit in the Douglas County Surveyor's Office. We disposed of the wage dispute between the parties for the contract year 1977 in Case No. 193. The parties now litigate the wages for the year 1978 and the extent (in time) of the contract. We find that we have jurisdiction of the parties and of the subject matter of the dispute.

The Stipulation of the parties, Exhibit 1 herein, provides that the sole issue to be determined herein is the wage rates to be paid and the effective date of the wages. Paragraph I, Subparagraphs A and B, Exhibit 1. Because of the limited stipulation of Fact as to the extent in time of the contract (Par. III, Subpar. 3, Ex. 1), because we find the county offer to be an admission against interest which, in turn, raises the question of the continuation of the contract provision on retirement and medical coverage, and because the county desires to change the contract period, we find it necessary to interpret one of the most singularly obtuse contract clauses that we have come upon in recent years.

Article XXX of the contract between the parties, carrying the catch-line "Duration of Agreement and Wage Reopener" provides as follows:

"Article XXX, Duration of Agreement and Wage Reopener: This Agreement shall be and shall remain in full force and effect from the 1st day of September, 1975 to September 1, 1977, and thereafter for successive two (2) year periods unless one of the parties hereto on or before May 1, 1977, on or before May 1 of any two (2) year period thereafter shall notify the other party hereto in writing of its desire to modify the same or any part thereof. This Agreement shall, effective September 1, 1976, be reopened for the sole and limited purpose of negotiating wages; negotiations shall commence no later than June 1, 1976 provided the union has presented the employer its wage demands prior to April 1, 1976. In the event the parties hereto are not successful in negotiating a wage settlement by September 1, 1976, either party may submit the wage negotiation matter to the appropriate judicial authority."

If the paragraph is read strictly, only one provision for a reopening of the contract solely for wage negotiation is permitted - in September, 1976, a date long since past. Also read strictly, if the contract was reopened for any purpose in 1977 (as it was), then the contract would not continue for a successive two year period beyond September 1, 1977. The result would be that the parties were operating without a contract after September 1, 1977, or that, if they did have a contract, it could not be reopened again for any purpose until May 1, 1979.

We find, however, that the parties have ignored the traps provided by the scrivener, and have regarded the contract as continuing in force and as providing for an annual wage negotiation. The par ties' conduct during the performance of the contract is the best guide to its interpretation. Muller Enterprises, Inc. v. Gerber , 178 Neb. 463, 133 N. W. 2d 913, 918 (1965). We, therefore, construe the contract as the parties have done. Additionally, there may be an element of estoppel involved, since the respondent through its attorney has advised petitioner that the contract continues in force. The petitioner has certainly changed its position in reliance on such representation, for it has negotiated and litigated only wages, rather than representation or the entire contract.

We turn then to a determination of the wages to be paid, having determined from the construction of the contract by the parties that the applicable period is September 1, 1977 to September 1, 1978. The parties present as comparables the City of Omaha, MAT as to mechanics, the State of Nebraska and the Douglas County offer rejected by petitioner June 19, 1978. The offer would be inadmissible if the parties had not stipulated it into evidence, and useless if Mr. Lamberty had not testified that the offer would make Douglas County comparable to the prevalent. Several City of Omaha pay schedules were stipulated - the 1977 levels, the levels found by this Court in Case No. 239, and the level offered by the City in its level attempt to normalize the results after the extent of impenetrability of the jungle caused by Case No. 239 became apparent. The City's offer, of course, is of no evidentiary value, having been made in an attempt to settle pending litigation and having been rejected by the offeree.

The state schedule is heavily influenced by the 92 counties outside Douglas County, and while useful for establishing a base, is not controlling. The MAT Schedule is helpful, as is the Douglas County offer. Since, however, the classifications involved herein were all recently examined in Case No. 239 and evidence was available on each in that case, and since Mr. Lamberty adopted it by indirection in his testimony, we determine to use the schedule therein developed with certain exceptions and adjustments. [1]

The experts for both parties testified that the job descriptions and work, skill and working conditions of the compared-to-classifications in Douglas County and the City of Omaha were either identical or nearly so. We accept this testimony with one exception. The parties have compared a Douglas County Traffic Data Collector to a City of Omaha Right-of-Way Agent. We find the Douglas County position to be more closely comparable to a City of Omaha Engineering Aide II or Surveyor's Aide II. This finding is modified, however, by one of the exceptions hereinafter set forth.

With four exceptions, we have taken the comparable City of Omaha wage rate as determined in Case No. 239, subtracted from it the current Douglas County rate to determine the difference, and taken 75% of the difference as the amount to be added to the current Douglas County wage to establish the wages herein.[2] The 75% figure is to adjust for the overlap in the contracts - the City of Omaha runs for the calendar year 1978, while Douglas County runs from September 1, 1977 to August 30, 1978, or only 75% of the calendar year. While this is admittedly a somewhat Procrustean approach, we feel that in the exercise of a sound legislative judgment that it is a fair and equitable approach under the circumstances.

Three of the four exceptions are Road Foreman, Traffic Data Collector, and Parts Foreman. In each of these instances, our formula results in a figure below that testified to by Mr. Lamberty as comparable to the prevalent, and we have therefore used the respondent's figures in those three cases. The fourth exception is Douglas County's Blacksmith-Welder. The evidence shows that the respondent has maintained an 11% disparity between the welder and blacksmith-welder position. We continue that difference by adding 11% to the rate found proper for the welder position.

The wage rates as thus determined are as follows:

NOTE: Wages deleted.

Petitioner is also entitled to the most advantageous retirement and health insurance benefits offered by the respondent to other Douglas County units for the period in question under our interpretation of the contract.

Under our construction of the contract, it runs for an additional two year period from September 1, 1977 to September 1, 1979, and would require a reopening for wages prior to May 1, 1978, if 1978-79 wages were to be discussed. However, in view of the conduct of the parties and, particularly, the urging by the respondent of the extension herein of the rates into 1979, we find that formal compliance with a May 1, 1978 reopening date for the wage period beginning September 1, 1978 and ending September 1, 1979, is unnecessary. We suggest that the parties dispose of that issue forthwith at the bargaining table before the respondent is required to certify its budget on August 1, 1978.

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

[1]We usually try to avoid feeding on our own decisions, but in view of the respondent's concessions of similarity and comparability, feel we may depart here from our general rule.

[2]Counsel tend slavishly to adopt whatever array we have previously adopted in a given case, without thinking the situation out and perhaps discovering that the situation has changed. We wish to make it abundantly clear, in this instance, that the utilization of a single employer out of an array, after comparing several employers, does not mean that we will accept a single employer as sufficient to constitute an array from which we might determine comparability. See IBEW v. City of Fremont , 3 CIR Adv. 164, 3 CIR 158-1, 1976. We note particularly here that neither party bothered to advance evidence of comparable wages in the private sector, even though they had used such evidence in the prior case. While it is true that we did not utilize the evidence offered in Case No. 193 in making our determination of wages for the prior year involved between these two parties, the reason was not that there was lack of showing of comparability, but rather, that there was no evidence showing "continuity of employment" which has a very definite bearing on the comparison of wages between the public and private sectors, particularly in those instances where the private sector is off work and drawing unemployment during a portion of the year due to adverse weather conditions or a general shutdown in employment. We reiterate that the largest reasonably available sample of comparable work, skills and working conditions should be made available and that under any circumstances, an array consisting of only two employers is insufficient, and that an array of three or four may be questioned.