3 CIR 554 (1978). Affirmed. 209 Neb. 335, 307 N.W.2d 795 (1981). (See also Case #316, 4 CIR 101 (1979)).


Petitioner, |
Respondent. |

Filed November 28, 1978.


For the Petitioner: M. Weinberg

For the Respondent: H. Stryker & John Baylor

Before: Judges Wall, Kratz & Green.


This case brings before us the dispute between the International Brotherhood of Electrical Workers, Local Union #763, AFL-CIO and the Omaha Public Power District over wages appropriate for the period from June 1, 1978 to May 31, 1979. We find that we have jurisdiction of the parties and of the subject matter.

Three "incidental" or side issues to the main issue of wages were presented. Since these are relatively simple to dispose of, we take them up first, and in inverse order.

The respondent, Omaha Public Power District, hereinafter O.P.P.D., presents as a counterclaim the demand for what is called variously by the parties "24-hour coverage," or "flexible scheduling." Basically, the respondent wants to be able to assign workers to shifts other than the ones they are working, without paying overtime pay as presently required in the existing contract. The proposal, as finally drafted by the respondent, would not apply to anyone presently employed by the district. Its present value is approximately zero because of that provision. It is sought for such things as that time in the future that the respondent may wish to do its underground downtown Omaha work at night. Presently, such work is barred by law. [1] The utility of the demand is thus presently speculative, but valuable as time progresses. Respondent produced little evidence that the practice is prevalent - it offered three allegedly comparable paragraphs from contracts of admittedly comparable utilities. It also offered several other allegedly comparable paragraphs, ranging from Commonwealth Edison's, third largest stockholder-owned utility in the United States (11.77 times the size of O.P.P.D. in KWHssold), to counsel's summary of Valmont Industry's shift policy as related by one of its management. No testimony was offered in support of these comparables (Exs. 56D to 56J) and they were rejected by the Court. Respondent failed to carry its burden of proof on its counterclaim; but is, however, entitled to the benefit of petitioner's evidence on this matter. Omaha Fire Management Assn. v. City of Omaha, 3 CIR 263-1 (1978); Lincoln Fire Fighters Assn. v. City of Lincoln, 198 Neb. 174, 252 N. W. 2d 607 (1977). Plaintiff's Exhibit 23 shows variable scheduling to be generally prevalent in the compared-to utilities. The exact wording of the clause is not shown to be prevalent, however. We, therefore, adopt, as part of the complete settlement hereinafter ordered, the language of Exhibit 55B, which gives the present employees of O.P.P.D. the protection of the present contract with regard to variable scheduling.

Second, petitioner claims that its fringe benefits are not comparable to the prevalent, and suggested at trial that of the company's total package offer of 8.61% (Ex. 49), it preferred an upgrading of the fringe package (.87% of the total) to receiving a similar amount in a general wage increase. Petitioner's expert, however, testified that respondent's benefit package was generally comparable to the prevalent, considered as a whole, and we accept that testimony. Petitioner has failed to carry its burden of proof that the fringe benefits differ from the prevalent and we have no reason to order an alteration. We note parenthetically that the discount offered employees on their electric bills was not sorted out, so we could not possibly intelligently evaluate single items of the fringe package. The discount itself, on the record before us, is not prevalent, and if we started to adjust fringe benefits separately, that item would be among the first to go. We adopt the present fringe package, together with the wage changes hereinafter ordered, as making O.P.P.D. comparable to the prevalent.

Third, the petitioner claims that the Maintenance and Operations Department employees generally have the same qualifications as Line Department employees, and would be paid the same relative rates. Respondent seems willing to consider this claim, but alleged, on safety grounds, that a test and apprenticeship program be set up before equalizing the pay. Market data and comparisons as hereinafter explained, obviate most of this problem, since the data indicates that the two key classes - Maintenance and Operations Man 1st Class and Journeyman Lineman - should receive the same hourly rate. For those Maintenance and Operations personnel where rates are not equalized by this Order, we direct the parties to establish both a testing and an apprenticeship program to permit those Maintenance and Operations personnel who feel they are qualified, to test into the line rate and to train the balance of the Maintenance and Operations personnel so that they may successfully test into the line rate. The test and apprenticeship program shall be completed and made effective no later than six months from the date of this Order. If such a program is not agreed upon by that time, either party may apply to the Court to establish the terms of such a program.

We, thus, turn to the issue of establishing wages. During the long history of bargaining between the parties, they have basically looked for comparison of wage rates and job duties to "five sisters" and "two cousins". The five "sisters" are:

SMSA KWH Sales Area Served Population in Millions

Iowa Electric L & P Cedar Rapids, IA 169,000 3,645

Interstate Power Dubuque, IA 95,600 3,348

Iowa Public Service Sioux City

Waterloo, IA 123,800 2,733

Iowa Power & Light Council Bluffs 333,900

& Des Moines, IA (D.M.) 4,015

Iowa Illinois G & E Quad Cities 375,500 3,676

Northern States

Power Twin Cities 1,412,900 25,366

Kansas City P & L Kansas City, MO 834,100 7,900

Petitioner submits six other systems as comparables:

Union Electric St. Louis, MO 1,874,600 23,081

Deluth Duluth, Superior 134,900

Dept. of Energy South Dakota

(Bureau of Recl.) Nebr. & Iowa -- --

Toledo Edison Toledo 785,000 7,488

Pub. Svc. of Colorado Denver, Colo. 1,484,300 12,378

Cent. III. Pub. Svc. Decatur,

Springfield 312,000 8,323

Respondent objects to the use of utilities not previously used in bargaining. While the use of a particular employer as a comparable by a party in bargaining, or the fact of belonging to an athletic or scholastic association with a particular employer may be taken as an admission of some degree of comparability between the party and such employer, the failure to use or failure to belong does not constitute an admission that there is no comparability, nor provide the evidentiary foundation for an inference of no comparability.

Respondent tenders N.P.P.D., which serves Nebraska outside of the O.P.P.D. area (with some overlaps) and the Lincoln Electric System. The O.P.P.D. has an SMSA Population (Omaha) of 589,- 300 and KWH sales of 5,219,000,000.

While the Lincoln Electric System does serve some areas within three miles of the city, and is unionized, it lacks substantial generation, transmission and wholesale operations, and we reject it as comparable. We accept N.P.P.D., even though it is not unionized, since it generally matches O.P.P.D. Petitioner did not tender an adjustment factor for N.P.P.D. for lack of unionization, though such might be appropriate under the rationale of Lincoln Firefighters v. City of Lincoln, 198 Neb. 174, 252 N. W. 2d 607 (1977). We reject Union Electric because of the size disparity, and because out of the 11 key classes it reported on (out of the 23 used by both parties), it was the high system on five of the 11, indicating that its use would unduly skew the result upward. While Northern States is one rank larger than Union Electric, we retain it in constructing our hypothetical universe because of its past use by the parties, the fact that data is available from it on all 23 key classifications (indicating similarity of operations) and while it is high on 2 of 23 classifications, it is also low on 2 of 23 classifications - thus, reassuring us that its use will not skew the result. Respondent objects to the use of the Department of Energy or Bureau of Reclamation figures. While it is true that it is engaged primarily in hydroelectric generation, transmission and wholesale operations, we deem it appropriate to retain it, since its Wage Board rates are determined, after research and hearing, by the Secretary of Labor (at Step 2) to be the prevailing wage in the industry in the area concerned. Public Service of Colorado has two lows and no highs in the 21 key classifications on which it reports, and is otherwise sufficiently similar in operations to justify its retention in the array.

The use of the other utilities gives us a balanced array ranging from the 41st down to the 93rd largest publicly-held utilities, and bracketing O.P.P.D.'s 5,219 Million KWH sales from 2,733 Million KWH to 12,877 Million KWH. By weighing the array heavily with the Iowa companies, all smaller than O.P.P.D., ranking 90th, 87th, 85th, 83rd and 93rd, we assure a conservative approach and an error, if any, on the side of "too small" rather than "too great." By using a balanced array, we do away with the necessity for economic adjustments and, indeed, respondent has not presented us with any suggested adjustments as required by Local 675 v. Hastings, 3 CIR Adv. 406, 3 CIR 234-1 (1978), or Omaha Police Union v. City of Omaha, 3 CIR 233, 3 CIR Adv. 356 (1977), wherein we allocated the burden of going forward with such evidence to the respondent. Since we are again constructing an hypothetical universe, geographic proximity, as pointed out by respondent, gives way to similarity of work, skills and working conditions.

Both parties, facing from 93 to 107 [2] classifications, have adopted the "key classification" approach. That is, they have determined by empirical, parametric studies, the classifications most populated and most representative of the entire employee population. They then surveyed the other utilities to obtain the rates of pay at the other utilities for classifications presenting at least an 80% match as to job duties in 23 of the classifications. The parties then spread the 23 key classifications among the 17 lines of progression or seniority in the district, where rates for higher and lower classifications can be determined on the basis of the historic percentage differential between the classifications in each line of progression. It differs vastly from prior attempts to compare wages by "bench marks," in that instead of comparing wages for secretaries to determine wages for draftsmen, we compare wages of linemen to determine wages of line foremen, or apprentice linemen, jobs above or below the skill levels surveyed. It is also supplemented by a brief job content study that assists us in determining wages for those jobs not in a line of progression. We accept the approach as meeting the evidentiary requirements for us to fulfill the statutory standard of setting comparable wages for similar work, skills and working conditions.

We have ascertained the median and the mean for each of the 23 key classifications. See Appendix "A". In all but one instance, recognizing the statistical problems in using solely means or solely medians, we have taken the midpoint between the mean and the median as the most representative percentage figure to utilize in setting the comparable wage. The exception is where the survey shows that the Street Light Maintenance line of progression would receive no increase, while the Cable-Splicer line of progression in the same department would receive a 6% increase. To adjust for this singularity or anomaly, we have disregarded the Street Light Maintenance as a key class and have taken, instead, the 6% rate shown for the Cable-Splicer line of progression. Where 22 of 23 key classifications show at least some increase, we know from the laws of statistics that some error has crept into the choice of samples, the sampling technique, or the statistical analysis when the 23rd class shows a negative correlation. The rates thus found are shown at Appendices B-1 thru B-17. The key classifications are underlined. After completion of these computations, we found certain anomalies or singularities remaining, other than mere displacement of equality of rates between certain jobs where equality had been maintained in the past.

The first anomaly is that of Painter 1st Class. In the Service Department, the Painter comes out at $8.75. In the Transportation Department, the Painter comes out at $8.68. Petitioner suggests 7.6% which would be $8.88, but which includes a 1.5% "contract overlap" increment which we have not used, having determined the array to be balanced with data sufficiently proximate in time to the contract period under consideration. Without the 1.5% adjustment, the rate computes to $8.75. Based on all the evidence, we find the Painter's job to be most closely related to the jobs in the Service Department line of progression, and set the rate uniformly at $8.75

The other anomalous area is the Maintenance Department where we have three surveyed key classes: Electrical Technician at 8.1% Maintenance Man 1st Class at 2.5% and the entry-level Utility Man, which we have standardized everywhere except in the Line Department, at 10.7%. No classifications in the steamfitter line of progression were surveyed. Putting Steamfitters 1st Class on the same basis as Maintenance Men 1st Class gives them a rate of $8.83. Putting them on the Electrician 1st Class basis gives them a rate of $9.31, or 48 cents per hour difference (Annualized, $1,056.00). Based on our legislative knowledge and expertise, as well as the evidence here, we find that traditionally, steamfitter's skills, knowledge and abilities have been valued in the marketplace above those of mechanical maintenance men and below those of electricians. In the exercise of sound legislative judgment, we thus set the Steamfitter line of progression at 5.3%, midway between the two.

One other anomaly remains. The working foreman in the Rural Department, as computed, comes out above the Line Department Line Foreman as surveyed. As directed by statute, we place greater reliance on market data than on computations, and thus reduce the Rural Working Foreman to the rate computed for the Line Foreman.

Petitioner suggests that we find overall rates, borrowing from one line of progression to aid another. We feel this would disregard the legislative mandate that we follow market forces in computing the value of labor, and decline to follow that suggestion. Petitioner also suggests that we establish percentages of journeymen rates for 2nd Class and Apprentice rates based on the survey of comparable percentage differentials. We feel that to do so would disregard the most significant evidence of prevalence of rate differentials - the differentials established by the parties over years of bargaining. We thus, likewise, decline that suggestion.

Based on all the evidence, we increase the shift differential by 10%; that is, from 20 cents to 22 cents per hour and from 30 cents to 33 cents per hour. Also based on all the evidence, we increase the premium pay for holding a Senior Reactor Operator's License while only required to hold a Reactor Operator's License to 75 cents per hour, and for holding a Reactor Operator's License while not required to be licensed, to 50 cents per hour.

For the benefit of those who practice before us, we here summarize our requirements in accepting utilization of "key classification" evidence in setting wage rates for employers with large numbers of job classifications:

1. Job descriptions must exist, be generated, or be apparent to the Court from its previous experience. A job description is defined as a narrative statement of the work, skills and working conditions of a particular employee or a number of employees as a part of the whole function of the employer.

2. Job descriptions must match, as between employees, within 20%, to be considered comparable.

3. The wage rates surveyed of the job descriptions tendered must cover a plurality of not less than 40% of the employees employed by the employer whose wages are sought to be adjusted.

4. The wage rates surveyed of the job descriptions tendered must cover not less than 20% of the total job descriptions of the employer whose wages are sought to be adjusted.

5. The "key classifications" together with the related lines of progression, must permit direct or computed establishment of at least 85% of the classes involved.

6. The "key classifications" or wage rates tendered should have at least one in each regular line of progression, or lines of progression should be established as comparable, or their relative market value established or apparent to the Court from its previous experience.

7. The "key classifications" must be subject to checking for accuracy of assessment of job content, lines of progression, and similarity or dissimilarity of other key classes and lines of progression within the several employers offered as sources of comparables.

8. In setting wages from the key classifications, where more than one class is surveyed in a single line of progression, the Court will not average the percentage of increase or decrease,but will apply the percentage indicated to the classes not surveyed which are most closely related to the "key classification. "

9. The Court, pursuant to Section 48-818, will not average the percentages of all of the key classifications surveyed to obtain an overall percentage of increase or decrease for all classifications.

We recognize that utilization of percentages of key classes may distort the values of jobs below and above the key class by valuing a class below the key class somewhat lower than what might be established by the market, and concomitantly valuing a class above the key class somewhat higher than what might be established by the market. We feel this small risk is acceptable, however, in order to make manageable the task of analyzing large numbers of job classifications.

In all cases where we have established the top step or the entry rate, the parties shall either agree upon the step differentials, or if they cannot agree on what seems to us to be obvious differentials, shall apply to the Court for a determination. We have deliberately made no adjustment of the provisions of Exhibit "A", Section lc(l) of the contract, but the parties may agree to such changes thereto as they deem appropriate. All items in the present contract not changed by this Order shall remain in effect for the period to which this Order applies. In reaching the settlement of this dispute, we have considered all factors and remuneration, direct or indirect, bearing on the result.

ORDERED, that the dispute between the parties is settled as herein set out, for the period June 1, 1978 to May 31, 1979.

1)For all of those of us who wondered why the utilities wait until the morning rush hour to block the streets, the reason now becomes clear.

2)The number varies depending on how often you count entry level or similar jobs in separate lines of progression.