3 CIR 675 (1979)



CITY OF OMAHA, d/b/a |
Petitioner, |
Respondent. |

Filed June 6, 1979


For the Petitioner: Soren S. Jensen

For the Respondent: Robert E. O'Connor, Jr.

Before: Judges Wall, Kratz, McGinley, Gradwohl and Orr (EN BANC)


This matter comes on for decision after a new trial was granted by the Commission. Petitioner, at the outset of the second hearing, amended its Petition to allege that the offer made by it was comparable to the prevalent. Thus, we easily allocate the burden of proof-each party bears the burden of going forward with the evidence for, and proving, its own allegations.

Petitioner has provided a comparative analysis of the combined array of both parties (Ex. II-A). Petitioner urges us to choose an array based on the systems having the largest number of high linear correlations. We decline. None of the correlations have been shown to be statistically significant: we do not need a correlation study to see a relationship between population-urban area, population served and population-city, or between median family income and per capita income, or between number of buses, number of operators and annual revenue miles; and no evidence was adduced to exclude curvilinear correlation or to show causation. Instead, we feel the most significant areas of comparison are those initially urged by petitioner: Amount of product produced, i.e., average annual revenue miles; available customers, i.e., population of the area, population of the central city, and population served; [1] and type of usage, i.e., percent of workers riding transit to work and respondent's data on ridership per square mile. This is generally the data we used in IBEW v. OPPD , 3 CIR 270-1, 3 CIR Adv. 554 (1978) to measure another type of utility, and we find it to be a sound approach, merely substituting the product measured-revenue mileage-for kilowatt hours, etc.

We note again that the purpose of comparison of systems is to give us some additional assurance of the comparability of work, skills and working conditions within the system, not to compare systems themselves.

All of the systems are unionized. All are publicly owned. Neither party introduced evidence of correlation or causation between wages paid and median family income, or percent of employment in manufacturing. There is, thus, no adjustment to be made for these factors. Lincoln Firefighters v. City of Lincoln , 198 Neb. 174, 252 N.W.2d 607 (1977).

Of the fourteen systems in the combined array, seven are within our usual parameters of not substantially larger than twice as large, or substantially less than one-half as small as to revenue miles. Omaha had 5,302,000 revenue miles. Those comparables within the limits are:

Albany 5,215,000

Ft. Worth 3,137,000

Syracuse 5,042,000

Kansas City 9,476,000

Toledo 5,622,000

Dayton 3,649,000

Akron 2,200,000

Population variables give us this array of 12:

Urban Area "Served" Central City

OMAHA 471,776 480,000 347,480

Albany 486,525 759,100 115,876

Ft. Worth 676,944 415,500 393,463

Gr. Rapids 352,703 450,000 197,534

Oklahoma City 579,788 750,000 366,734

Syracuse 376,169 560,000 197,270

Kansas City 1,101,787 1,300,000 507,242

Cincinnati 1,110,514 751,186 452,550

Toledo 487,789 436,363 384,015

Akron 542,775 364,000 275,420

Wichita 302,334 265,455 276,699

Dayton 683,942 315,465 243,459

Des Moines 255,824 280,453 200,772

Workers riders and ridership per square mile gave us this array of 9 and 7 systems:

% of workers riding Ridership per mile [2]

OMAHA 9.30 102

Albany 20.30 138

Ft. Worth 4.8 22*

Gr. Rapids 4.9 31*

Syracuse 15.7 167

Kansas City 10.4 59

Cincinnati 15.3 131

Toledo 6.3 62

Dayton 13.9 83

Des Moines 6.1 54

*=outside limits

We will not burden the opinion with the other arrays; suffice it to say that in reviewing all of the factors involved, we find the following 10 system array to be comparable in more of the significant areas than the others and to present a balanced and proper, and, therefore, an appropriate array:


Ft. Worth

Gr. Rapids



Kansas City




Des Moines

Since we now have data showing the wages effective at the midpoint of the contract year, we use the average wage for the year. This approach produces a wage that is less than a weighted average, but is also less burdensome to the commission to compute. The array, mean, medians and midpoint (wage found) are set forth at Appendix "A". We find that 80% of the unit is composed of drivers, and that we may properly use the "key classification" system (see IBEW v. OPPD, supra) to determine wages for related jobs on which data is insufficient, from the three key jobs of driver, First Class Mechanic, and Cleaner. The wages found and set are set out at Appendix "B".

Respondent has asked us to add a cost of living clause to the contract. We have taken into account the increases given in other systems due to COLA clauses by our sampling technique. While COLA clauses are prevalent in the array, no single wording of the clause is prevalent. There is no cost of living index computed for Omaha. The contract has only a few more days to run. In this posture of the case, we find the addition of a COLA clause to be inappropriate.

The parties have stipulated that items listed on Exhibit 3 and marked with a check are to be continued in the 1977-79 contract. We treat as agreed, and order the continuation of the clauses on Life Insurance, Retiree Life Insurance, Supplementary Disability Benefits (interpreted in accordance with our Opinion in Case #220), Vacation, Personal Holiday, Assault Pay, Tool Allowance, Contract Language and Health Insurance. The only items remaining to be decided are overtime and pension questions.

The overtime dispute is simply disposed of...all of the systems on which we have data pay time and one-half for any time over eight hours per day, or forty hours per week, and the overtime provisions herein are ordered to conform to that practice.

We then turn to the question of retirement and administration of the pension system. We now have enough data to use the same array for determination of this item as for wages. However, we have counted only one Ohio city and we have not used Fort Worth or Grand Rapids. The latter two cities were propounded by petitioner and petitioner has not come forward with data on those systems. The array is set out at Appendix C-1 and C-2. We find the midpoint of the percentage of Income Protection at Maximum to be 63.8%. Giving credit for primary Social Security coverage at $392.00 per month, we find the maximum pension for 1977-78 to be $289.82 and the maximum pension for 1978-79 to be $337.47. Taking the words"at maximum" in their most restrictive sense, that is, age 65 and 35 years service, the pension per month for those retiring in 1977-78 should be $8.28 per month per year of service. The pension per month per year of service for those retiring in 1978-79 should be $9.64.

Early Retirement . This benefit is prevalent. We adopt the most restrictive provision-age 58 or 25 years service are required to qualify. Benefits shall be computed as for normal retirement.

Disability Retirement . This benefit is prevalent. Again, we adopt the most restrictive provision. Entitlement is limited to those age 45 or having 10 years service. Benefits shall be computed as for normal retirement.

Vesting . This benefit is prevalent. Benefits shall vest 25% after 5 years service and attainment of age 30, and an additional 5% shall vest each year there-after until 100% is vested.

Death Benefit . This benefit is prevalent. The employee's beneficiaries shall receive $3,000.00 plus return of his contributions plus interest at the average rate earned.

Options . A choice of joint and survivor option at 50%, 66 1/3% and 100% is prevalent, as is an option for 10 years certain, and it is so ordered.

Financing . Joint financing is prevalent. Akron distorts the mean; and we, therefore, adopt the median of 3.05% of wages to be contributed by the employee and a 4.525% of wages to be contributed by the Authority.

Funding . Any unfunded current or accruing liability not covered by the specified contributions shall be funded by petitioner over the 50 year period commencing July 1, 1977. Petitioner shall bear the costs of administration. Funds shall be invested in U.S. Treasury obligations or Money Market Certificates, or similar low-risk, high-yield investments until otherwise agreed by the parties. If invested in other than U.S. Treasury obligations, the depository shall be selected by bid, and if bids are identical, by lot. Nothing herein shall require the funding of pensions for those retiring before July 1, 1977.

Severance . The $60.00 severance pay benefit is not prevalent. If it has been paid to anyone retiring since July 1, 1977, it may be recouped out of funds due under the plan herein ordered.

We have carefully reviewed all items of compensation, wages, the agreed fringe benefits, and the ordered retirement provisions. We find the total package to be in conformity with the requirements of ยง 48-818, R.R.S. 1943.

ORDERED, that the dispute is settled as herein above set forth.

[1]A mass transit term of art indicating the number of people within a specified distance of a service route.

NOTE: Appendix A, B & C Deleted.