3 CIR 619 (1978)


ASSOCIATION, an Association, |
Plaintiffs, |
a Municipal Corporation, |


Filed October 4, 1978


For the Plaintiff:James P. Costello

of Costello and Dugan

For the Defendant: Kent N. Whinnery and Timothy M. Kenny, Deputy City Attorneys

Before: Judges Kratz, McGinley, and Gradwohl.


This matter came on for hearing and decision on the Amended Petition of the Plaintiffs and the Amended Answer of the Defendant. The Amended Petition prays "that this Court establish rates of pay and conditions of employment for the Plaintiffs as set forth in 48-818 R. R. S. Nebraska". The Amended Answer prays "that the Court resolve the dispute which exists with reference to the Plaintiffs' claim for an adjustment in their take home pay". The Court finds that it has jurisdiction of the parties and of the subject matter of the controversy.

The five individual Plaintiffs are all of the Assistant Fire Chiefs of the Omaha Fire Division. They are inferior in rank only to the Chief of the Omaha Fire Division and are not members of the firefighters unit which includes persons up to the rank of Battalion Chief. See Section 48-816.

The five individual Plaintiffs were given 6.9% pay increases for 1978, raising their base pay from $24,348 to $26,028. All City of Omaha employees in a so-called middle management group were given 6.9% raises for 1978. The five Assistant Fire Chiefs attempted to disassociate themselves from the general city middle management advisory group and in March, 1978, formed the Omaha Fire Management Association which has represented them in negotiations with the City and in this litigation. The Amended Petition seeks to increase their $26,028 wage which they have been receiving in 1978 during the negotiations and litigation and to increase certain other economic benefits they are receiving. The parties stipulated that any Order of this Court be retroactive to January 1, 1978, in settling the industrial dispute between the parties.

The Court has general jurisdiction to settle industrial disputes under Section 48-810, which states in part:

"All industrial disputes involving governmental service, service of a public utility, or other disputes as the Legislature may provide shall be settled by invoking the jurisdiction of the Court of Industrial Relations . . . "

With respect to the entry of Orders establishing wages, hours, and conditions of employment, Section 48-818 provides:

"The findings and order or orders may establish or alter the scale of wages, hours of labor, or conditions of employment, or any one or more of the same. In making such findings and order or orders, the Court of Industrial Relations shall establish rates of pay and conditions of employment which are comparable to the prevalent wage rates paid and conditions of employment maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions. In establishing wage rates the court shall take into consideration the overall compensation presently received by the employees, having regard not only to wages for time actually worked but also to wages for time not worked, including vacations, holidays, and other excused time, and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees."

The Plaintiffs' evidence consisted almost exclusively of introducing wages and conditions of employment for Omaha Assistant Fire Chiefs and those in ten other cities, together with testimony that all Assistant Fire Chiefs perform substantially the same work duties and skills and that all of the other fire departments are about the same size as Omaha's.

The cities selected by the Plaintiffs and the base pay the Plaintiffs would receive in each city were:

City Pay

Portland 36,212.80 *a

Akron 31,075.00

Toledo 25,403.00

Dayton 29,113.00 *b

Minneapolis 31,408.00

Long Beach 40,800.00

St. Paul 32,812.00 *c

Rochester (N.Y.) 23,896.00

Cincinnati 28,379.00

Sacramento 29,220.00

Omaha 26,028.00

*a)Adjusted to $36,649.60 on 9/15/78.

*b)Plus a .71 cents per hour cost of living adjustment paid quarterly

*c)Needs 15 years of service. $34,619.00 after12/30/78 and after 15 years also.

Base salary is $30,979.00, longevity is added in to bring to $32,812.00.

The ten other cites were selected because they had been considered in prior cases in this Court involving Omaha firefighters and policemen. See Omaha Association of Fire Fighters, Local 385, v. City of Omaha, 3 CIR 410 (Case No. 240, February 16, 1978); Omaha Police Union, Local No. 1, v. City of Omaha, 3 CIR 356 (1977); Omaha Association of Firefighters v. City of Omaha, 194 Neb. 436, 231 N. W. 2d 710 (1975), affirming 2 CIR 117-1 (1975). In those prior cases, however, not all of the ten other cities were included in the array of comparable cities utilized in the Court's decision. Also, in the prior cases, some additional cities were included in the Court's comparative array as well. The Plaintiff introduced no separate evidence with respect to the other ten cities for selecting a proper array and making the statutory comparisons in this case. None of the records in the prior cases was made a part of the evidence in this case. The Court recently stated in Omaha Association of Fire Fighters, 3 CIR 410 at 413-414 (Case No. 240, February 16, 1978):

"As we have pointed out before, we are not wedded to any particular array in determining cases between the same parties, especially where changes, such as the population of Dayton, may have removed a particular city from a comparable status."

This holding was relied upon and followed in Omaha City Employees Local Union No. 251 v. City of Omaha, Case No. 239, pp. 6-7 (May 24, 1978).

Granted that all Assistant Fire Chiefs perform substantially the same work and exercise the same skills, the Plaintiffs' evidence in this record was not sufficient to establish a group of comparable cites from which an appropriate array can be selected by the Court to act under Section 48-818. Plaintiffs' Exhibit containing wages and other benefits was admitted in evidence subject to the Court's reserving a ruling on Defendant's objection as to the absence of any showing of comparability of cities (E36:1-10). The Plaintiffs' evidence did not meet the basic requirements of the Lincoln Fire Fighters Association and Omaha Association of Fire Fighters decisions (as summarized in the Lin coln decision, 198 Neb. 174 at 178-179) that the cities selected for comparison be sufficiently similar and have enough like characteristics to make comparisons appropriate.

The Plaintiffs are entitled, however, to the benefit of all evidence in the entire record, not only that introduced on their own behalf. The Nebraska Supreme Court set out the applicable rules in the Lincoln Fire Fighters decision (198 Neb. 174 at 178) as follows:

"The city maintains the court should not have ordered a wage increase after rejecting the evidence presented by the Union. This contention is without merit. It is true the burden is on the moving party in a section 48#-818, R. R. S. 1943, case, to demonstrate that existing wages are not comparable to the prevalent wage rate, but all evidence contained in the record may be considered for this purpose. There is no merit to the city's contention that the city's evidence cannot be used. The burden of proof is satisfied by actual proof of the facts, of which proof is necessary, regardless of which party introduces the evidence. 31A C.J.S., Evidence."

In Columbus Education Association v. School District of Columbus, 3 CIR 385, at 395 (February 2, 1978) this Court recently stated:

"Plaintiff's burden of proof can be met by actual proof of the facts, regardless of which party introduced the evidence."

The Defendant City of Omaha introduced evidence similar to the Plaintiffs' evidence for the following six cities:

Toledo, Ohio $25,403

Cincinnati, Ohio $28,379

Wichita, Kansas $26,006.76

Akron, Ohio $31,075

Pittsburgh, Pennsylvania$24,078

St. Paul, Minnesota $30,979 after 5 yrs.

$31,863 after 10 yrs.

$32,812 after 15 yrs.

Like the Plaintiffs, the Defendant introduced no separate evidence with respect to the other six cities it presented to the Court for selecting a proper array and making the proper comparisons in this case. The Court can, however, treat the City's evidence as a judicial admission of comparability by the Defendant City of Omaha and utilize the evidence to support the Plaintiffs' burden of proof in this matter.

This Court recently set forth the general procedural aspects of the issue of comparability when it is necessary to go outside of the State of Nebraska for comparable employers of comparable personnel. Neither the Plaintiffs' nor Defendant's evidence specifically shows that it is necessary to go outside of the State of Nebraska, although there is no evidence of a comparable employer of comparable personnel within the State of Nebraska for the purposes of Section 48-818. Syllabus 2 in Omaha Police Union, Local No. 1, v. City of Omaha, 3 CIR 356 (December 22, 1977), summarizes the procedural aspects of the issue of out-of-Nebraska comparability as follows:

"In future cases, where we must go outside the relative homogeneity of Nebraska for comparable employers of comparable personnel, the plaintiff will meet its burden of going forward with the evidence by showing work comparability. The burden of going forward will then shift to the defendant to show either lack of comparability, divergence of economic circumstances so great that a proposed community in the array cannot be used, divergence of economic circumstances sufficiently documented to provide an appropriate deflator, or divergence of economic circumstances documented only sufficiently to require it to be taken into account in reaching a final determination."

See also text of Opinion and Order, 3 CIR at 362.

Applying the general procedural rules of the Omaha Police Union decision to the present case, the Plaintiff did not meet its general burden of proof under Section 48-818 of showing comparable employers of comparable personnel. Plaintiffs' evidence at most showed comparable duties and skills but not comparable employers as that requirement exists under Section 48-818. Defendant's evidence, however, can be taken as evidence that Toledo, Ohio, Cincinnati, Ohio, Wichita, Kansas, Akron, Ohio, Pittsburgh, Pennsylvania, and St. Paul, Minnesota, are comparable employers of comparable personnel.

The Defendant introduced no evidence of economic dissimilarities between its six cities and Omaha for which adjustments are required under the decisions in Lincoln Fire Fighters Assn. v. City of Lincoln, 198 Neb. 174, 252 N. W. 2d 707 (1977); Omaha Association of Firefighters v. City of Omaha, 194 Neb. 436, 231 N. W. 2d 710 (1975), affirming 2 CIR 117-1 (1975); Omaha Police Union, Local No. 1, v. City of Omaha, 3 CIR 356 (1977); and Omaha Association of Fire Fighters, Local 385, v. City of Omaha, 3 CIR 410 (1978). Accordingly, no adjustments for economic dissimilarities need be made in utilizing the evidence presented by the Defendant City of Omaha in disposing of the industrial dispute in this matter.

The Plaintiffs' prayer seeks an adjustment of both the base wage of the Assistant Fire Chiefs and other economic benefits. The items other than wages were not presented by the Omaha Fire Management Association at the bargaining table. The City concedes that in applying the provisions of Section 48-818, the Court must take into account the non-wage economic benefits, but contends that no adjustments should be made for anything other than wages since those matters were not presented during bargaining and the City had met with the Association and had bargained with the Association on the only item for which the Association sought to bargain. Recognizing that the Court has statutory authority to enter an Order on non-wage matters under the statutory grants of authority to the Court, the Court determines as a matter of its discretion to properly carry out the purposes of the act to encourage bargaining by the parties that it should not enter into matters not presented at the bargaining table where the employer has bargained with the Association on all matters for which bargaining was requested by the Association. By the mandatory language of Section 48-818, however, all relevant non-wage economic benefits must be taken into account in fixing a wage rate under that section.

The average base salary for Assistant Fire Chiefs from Defendant's array of cities (Toledo, $25,403; Cincinnati, $28,379; Wichita, $26,006.76 Akron, $31,075; Pittsburgh, $24,078; and St. Paul (over 15 years), $32,812) is $27,959.

The Court has examined and taken into account the evidence with respect to the other factors pertaining to total compensation of the Omaha Assistant Fire Chiefs required to be considered under Section 48-818 and concludes that no further adjustment of the average base salary figure should be made in this case. The items for which evidence was presented were:

a. Longevity. The evidence was that four Omaha Assistant Fire Chiefs had 21 years (or more) longevity and the fifth had 20 years. The four receive $600 longevity pay per year, the fifth $420. The other figures were Toledo, $1,883; Cincinnati, $320; Wichita, $480 for 20 years and $504 for 21 years; Akron, $620; Pittsburgh, $400 for 20 years, and $420 for 21 years; and St. Paul, none (included in base salary for over 15 years).

b. Turn Out Gear. Omaha is voluntarily providing this gear administratively. Toledo, Cincinnati, Akron and St. Paul also provide turn out gear; Wichita and Pittsburgh do not.

c. Clothes. Omaha provides an allowance of $10 per month, making $120 per year. The other cities are Toledo, all; Cincinnati, $165; Wichita, $175; Akron, $200; Pittsburgh, $300; and St. Paul, $177.

d. Health and Accident Insurance. The City of Omaha pays the full cost of family coverage, without dental benefits. Toledo, Cincinnati and Pittsburgh pay 100% with 80-20 deductible on some amount; Pittsburgh apparently pays 75% and the employee 25% of Blue Cross/Blue Shield; Akron pays 100% plus $4.00 per month on dental coverage (with $3.00 by the employee) and St. Paul pays 100% single coverage and 50% family coverage, without any deductible amount.

e. Life Insurance. Since January 1, 1978, Omaha has provided $15,000 life insurance; Toledo and Cincinnati provide $10,000; Akron, $8,000; St. Paul, $5,000; Pittsburgh, $24,078; and Wichita an unspecified percentage of the salary at a cost of 2 /3 to the City and 1/3 to the employee.

f. Furlough. Omaha provides 18 days of furlough and an additional five days as executive leave, making 23 days total per year. Toledo provides 25 days; Cincinnati 23 days; Akron, 5 weeks; Pittsburgh, 4 weeks, and St. Paul, 25 days. The Wichita amount is unclear from the evidence.

g. Holidays. Omaha, 11 days; Toledo, 14 days;

Cincinnati 132 hours; Wichita, 9 days; Akron, 10 days; Pittsburgh, 13 days; St. Paul, 9 days, plus 2 floating holidays.

h. Call Back Time. Omaha, Toledo, Wichita, Akron, and Pittsburgh do not provide pay for call back time. Cincinnati allows a minimum of 4 hours at time and one-half. St. Paul gives compensatory time off.

i. Hours per Week. Three of the Omaha Assistant Fire Chiefs who are in charge of fire suppression work 56 hours per week on 24 hour rotations. The two Assistant Fire Chiefs assigned to office and administrative duties work 40 hours per week on regular 8 hours per day schedules. The hours shown for the other cities are Toledo, 50; Cincinnati, Wichita, and Akron, 40 hours; Pittsburgh, 42; and St. Paul, 38 3/4.

j. Out of Classification Pay. None of the cities pay out of classification pay for Assistant Fire Chiefs.

k. Sick Leave Bonus. Omaha is the only city to pay sick leave bonus. If an Assistant Fire Chief uses less than 47 1/2 hours of sick leave during a year, he receives pay for three shifts or three days. That will amount to $321 for 1978 for persons eligible to receive the benefit. The other aspects of the sick leave benefit were not shown in the evidence.

From this total evidence of all of the items making up the compensation package for the five Plaintiffs in this action, we determine that the base salary for 1978 should be fixed at $27,959.

IT IS, THEREFORE, ORDERED that the dispute be settled by fixing the base salary for the five individual Plaintiffs at $27,959 effective January 1, 1978, and that the other benefits remain unchanged.