| LOCAL NO. 831, INTERNATIONAL ASSOCIA- | | | CASE NO. 288 |
| TION OF FIREFIGHTERS, AFL-CIO, | | | |
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| Plaintiff, | | | |
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| V. | | | OPINION AND ORDER |
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| THE CITY OF NORTH PLATTE, LINCOLN | | | |
| COUNTY, NEBRASKA, | | | |
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| Defendant. | | |
Appearances:
For the Plaintiff:Steven D. Burns
For the Defendant: William A. Harding
Before: Judges Wall, Kratz, McGinley, Gradwohl, and Orr (EN BANC); Wall dissenting.
GRADWOHL, J.:
This matter came on for trial on May 31, 1979, for a determination of wages and other conditions of employment pursuant to Section 48-818. The Court has jurisdiction of the parties and of the subject matter.
1. Statute.
The controlling statute is Section 48-818, which states:
"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 all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees. Any order or orders entered may be modified on the court's own motion or on application by any of the parties affected, but only upon a showing of a change in the conditions from those prevailing at the time the original order was entered."
2. Employees.
Plaintiff was certified as the representative of the North Platte Firefighters by this Commission on August 24, 1978. The employees represented by the Plaintiff in this matter are employed as firefighters, emergency unit officer (lieutenant), captain, and clerk typist.
3. Present Wages.
The present wages of Fire Department employees were set by Ordinance No. 2093 adopted July 15, 1978. These wages for the 1978-1979 fiscal year are the same as for the 1977-1978 fiscal year. All other City of North Platte employees received an 8% pay increase for the current year under Ordinance No. 2092 adopted July 15, 1978. The City contemplates a reclassification of Job Descriptions but has not taken such action during the pendency of this suit. See Section 48-811. There has been no bargaining between the parties at any time concerning wages, working conditions, or job classifications and descriptions.
4. Nature of Retrial.
The wages and conditions of employment involved in this case are for the period from August 1, 1978, to July 31, 1979. Section 48-818 requires that the Court "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."
The case was presented by the plaintiff primarily upon a comparison of wages and conditions of employment for fiscal year 1978-1979 with wages between 1974 and fiscal year 1977-1978 and conditions of employment for the current fiscal year. The primary thrust of Plaintiff's evidence was not to compare 1978-1979 North Platte firefighter wages directly to 1978-1979 firefighter wages in the other comparable firefighter employments. It compares 1978-1979 firefighter wages to the 1977-1978 North Platte firefighter wages. Plaintiff argues that to the 1977-1978 North Platte firefighter wages there should be added the same percentage of increase as was given firefighters in the other cities in the comparative array. This argument is, essentially, that the North Platte Firefighters are entitled to maintain the same relative position within the comparative array as the wages that they enjoyed during the prior years dating back to 1974. In essence, this argument is that since the North Platte Firefighters may have enjoyed a comparatively favorable position in prior years, that comparatively favorable position should or must be maintained for the current year under the statutory standard of Section 48-818. Plaintiff's approach is supported by expert testimony from a standpoint of personnel management theory.
Plaintiff's position on comparability, however, does not follow the mandatory standard of Section 48-818. The Legislature has mandated statutory criteria in terms of the "overall compensation presently received by the employees" for the determination of this matter. The actual firefighter wages for1978-1979 of other comparable firefighter employments, rather than percentage increases over the prior fiscal year, must be used for the comparison. Under Section 48-818, the 1978-1979 North Platte firefighter wages must be set at a dollar figure comparable to the 1978-1979 wages of the other firefighters.
The difference in the two approaches can be illustrated by the following hypothetical example.
Suppose that firefighter wages in City C for 1977-1978 were $105 and that firefighter wages in other comparable fire departments throughout the array were $100. Next, assume that the firefighters wages in the comparable fire departments were increased from $100 to $108 for 1978-1979. By the Plaintiff's reasoning, firefighter wages in City C should be raised by 8% in 1978-1979 over the prior year, increasing from $105 to $113.40. The result required by Section 48-818 is to raise the firefighter wages in City C to the wages of the firefighters exhibiting like or similar skills, etc., which is $108 in this example.
The hearing judge at the first trial admitted and relied upon evidence of relationships expressed in percentages of prior years' wages to establish comparability. Thereafter, the matter was referred to the court en banc for decision and the other judges disagreed with these rulings. To avoid substantial inequities, a mistrial was declared on the Court's motion and a retrial ordered before another hearing judge. At the retrial, the parties stipulated the evidence at the original trial and agreed that the determination be made upon the basis of that evidence. The matter comes on for decision upon the entire evidence in the record presented by both parties. See Lincoln Fire Fighter Assn. v. City of Lincol n , 198 Neb. 174, 252 N. W. 2d 607 (1977).
5. Comparables.
Section 48-818 mandates that wages and conditions of employment ordered by the Court be comparable to those "maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions." Applying this statutory standard to the evidence in this case, we find that workers exhibiting like or similar skills under the same or similar working conditions with whom the comparisions should be made are as follows:
(a) Clerk Typist.
The determinations in this matter concerning the Clerk Typist position should be based upon other employees of the City of North Platte holding the same job descriptions for the same reasons stated in North Platte Police Officers Union v. City of North Platte , Opinion and Order filed May 17, 1979 (Case No. 287).
b) Sworn Officers.
The determinations in this matter concerning the sworn officers of the North Platte Fire Department should be based upon employees in the fire departments of Fremont, Grand Island,Hastings, Norfolk and Scottsbluff.
The parties stipulated that fire officers (firefighters), fire lieutenants (emergency unit officers) and fire captains, all perform the same or similar work under the same or similar working conditions in North Platte, Columbus, Fremont, Grand Island, Hastings, Norfolk and Scottsbluff, for the purposes of this proceeding. There are all first class cities. Their populations and number of fire department employees, and their distances from North Platte, are set forth in the following table:
Plaintiff sought to add three additional first class cities to the array: Beatrice (population 11,600), McCook (population 7,700), and York (population 6,778).
While both parties stipulated that Columbus should be included in the array, the evidence demonstrated that its departmental structure is so different from the rest of the array that it should not be used. Its small paid force is composed of principally drivers and crew leaders who surrender command to a ranking volunteer as soon as one comes on the scene.
Defendant objected to the inclusion of Beatrice, McCook and York on several grounds. McCook and York are significantly smaller in terms of population and force size. The testimony showed that their supervisory structure also varied considerably from that of North Platte. Beatrice fire department employees do not have EMTA certification or perform the emergency medical type duties, while in the North Platte department, 1250 of the total 1879 calls in the previous year were of the EMTA variety.
While the above reasons seem sufficient to exclude Beatrice, McCook and York from the array, an additional problem is evident. Plaintiff has offered no salary data on the entry levels of the classifications at issue.
An array of Fremont, Grand Island, Hastings, Norfolk and Scottsbluff is suitable for the determinations in this case. The evidence indicates that Columbus should not be included in the array despite the stipulation of the parties. As previously stated in North Platte Police Officers Union v. City of North Platte , Case No. 287, filed May, 17, 1979: "A stipulation of the parties for inclusion of a particular employer in the comparative array for a determination under Section 48-818 is not binding . . . if the other evidence does not support its inclusion." The plaintiff has not sustained the burden of proof for inclusion of Beatrice, McCook and York in the array.
6. Wage Comparisons.
(a) Firefighter.
The evidence demonstrates that the North Platte Firefighter wage rate is below the average wage paid in other comparable departments at the maximum level, but not at the minimum.
(b) Emergency Unit Officer (lieutenant).
The evidence is that the basic wages of North Platte Emergency Unit Officers are below the average wage paid in the other departments. The evidence submitted by the parties is in conflict concerning the comparability of the Norfolk supervisory
classification to that existing in North Platte. Plaintiff's Exhibit 9 shows both lieutenant and captain classifications in Norfolk. The testimony of defendant's expert witness was that the Norfolk lieutenant duties were actually comparable to the North Platte captain, being second in command on a shift. This
assertion was based on a response by the Norfolk chief to defendant's survey. This inconsistency in the evidence must be resolved in favor of the defendant, as plaintiff has not sustained the burden of proof.
The resulting array for the lieutenant classification contains fewer comparable employments than is preferable, but is minimally sufficient upon which to base a finding.
(c) Captain.
The evidence is that the basic wages of North Platte captains are below the average wage paid in other comparable departments. The evidence submitted by the parties conflicts on the comparability of the Hastings captain to that position in the North Platte department. Plaintiff's Exhibit 9 lists a captain in Norfolk, while defendant's exhibits 19 and 20 do not. Defendant's witness testified that Hastings had no supervisory personnel between the firefighter and the shift commander, a step beyond the captain level at North Platte. Again, this testimony was not refutted and plaintiff has not sustained its burden of proof.
(d) Clerk Typist.
The wages of the clerk typist should be the same as other workers of the City of North Platte in the same classification under Ordinance 2092 adopted July 15, 1978, and related documents.
7. Comparison of Other Conditions of Employment.
(a) Sworn Officers.
The comparisons of the other conditions of employment for these employees should be made with respect to the conditions of employment for the fire departments in Fremont, Grand Island, Hastings, Norfolk and Scottsbluff. The individual conditions compared in the evidence are as follows:
(1) Paid Holidays (Exhibits 10 and 21):
(2) Life Insurance (Exhibits 10c and 21):
(3) Overtime Pay
(4) Sick Leave
(Exhibits 10, 10b, and 21):
(5) Longevity
(Exhibit 8):
(6) Medical Insurance
(Exhibits 10, loc and 21):
(7) Vacation Leave
(Exhibit 10a):
(8) Clothing Allowance and Turn Out Gear (Exhibit 10):
(b) Clerk Typist.
The conditions of employment of the clerk typist should be the same as other workers of the City of North Platte in the same classification under Ordinance 2092 adopted July 15, 1978, and related documents.
8. Economic "Deflator"
Defendant introduced evidence and expert opinion that the wages paid in other comparable Nebraska fire departments should be subjected to a "deflator" factor in making the Section 48-818 determination in this case under the rules enunciated in Lincoln Fire Fighters Assn. v. City of Lincoln , 198 Neb. 174, 252
N. W. 2d 607 (1977). The evidence and argument in this case was substantially the same as in North Platte Police Officers Union v. City of North Platte , Opinion and Order filed May 17, 1979 (Case No. 287). We follow the rulings made in that Opinion and Order concerning adjustments within the State of Nebraska. Adjustments for possible economic differences are not generally required within the relative homogeneity of the State of Nebraska where a proper array can determine comparability of work, skills, and working conditions. Adjustments for possible economic differences within the relative homogeneity of the State of Nebraska will be made only where the evidence establishes a bearing of the economic differences upon the wages in question.
9. Determination as to "Overall Compensation." Section 48-818 states that "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." As stated in North Platte Officers Union v. City of North Platte , this does not require an identity of benefits, but that the overall compensation be "comparable to the prevalent wage rates paid and conditions of employment for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions." These determinations must be made on the basis of the evidence introduced by the parties in the trial and may, therefore, vary from case to case. They may vary with respect to different categories of employees interested in the same case depending upon the evidence introduced by the parties in a particular case.
Applying the statutory requirements to the evidence in this case, we find that the wages of employees of the North Platte Fire Department should be increased as follows, effective August 1, 1978:
(1) for Firefighters, the entrance wage, no increase per month, and the maximum wage by $30.00 per month, with equal increments applied to the intervening steps (rounded to the nearest dollar);
(2) for Emergency Unit Officer, the entrance wage by $110.00 per month and the maximum wage by $120.00 per month, with equal increments applied to the intervening steps (rounded to the nearest dollar);
(3) for Captain the entrance wage by $150.00 per month and the maximum wage by $130.00 per month, with equal increments applied to the intervening steps (rounded to the nearest dollar);
(4) for Clerk Typist, the same wages as other workers of the City of North Platte in the same classifications under Ordinance 2092 adopted July 15, 1978, and related documents.
The conditions of employment for Firefighter, Emergency Unit Officer and Captain should be adjusted as follows:
(1) The employer's family health insurance contribution should be increased to $62.00 per month, effective August 1, 1978, and;
(2) The yearly clothing allowance should be increased to $205 per officer, effective August 1, 1978.
No adjustment is ordered for any other condition of employment for these officers.
The conditions of employment for the clerk typist should be the same as other workers of the City of North Platte in the same classification under Ordinance 2092 adopted July 15, 1978, and related documents effective August 1, 1978.
IT IS THEREFORE ORDERED THAT:
A) the wages of employees of the North Platte Fire Department shall be increased as follows, effective August 1, 1978:
(1) for Firefighters, the entrance wage, no increase per month, and the maximum wage by $30.00 per month, with equal increments applied to the intervening steps (rounded to the nearest dollar);
(2) for Emergency Unit Officer, the entrance wage by $110.00 per month and the maximum wage by $120.00 per month, with equal increments applied to the intervening steps (rounded to the nearest dollar); and
(3) for Captain the entrance wage by $150.00 per month and the maximum wage by $130.00 per month, with equal increments applied to the intervening steps (rounded to the nearest dollar);
(4) for Clerk Typist, the same wages as other workers of the City of North Platte in the same classifications under Ordinance 2092 adopted July 15, 1978, and related documents.
B) The conditions of employment for Firefighter, Emergency Unit Officer, and Captain shall be adjusted as follows:
(1) The employer's family health insurance contribution should be increased to $62.00 per month, effective August 1, 1978; and,
(2) The yearly clothing allowance should be increased to $205 per officer, effective August 1, 1978.
C) The conditions of employment for clerk typist shall be the same as other workers of City of North Platte in the same classification under Ordinance 2092 adopted July 15, 1978, and related documents, effective August 1, 1978.
This Order shall be effective for wages and conditions of employment for the period from August 1, 1978, to July 31, 1979.
Judges Kratz, McGinley, Gradwohl, and Orr join in the entry of this Opinion and Order. Presiding Judge Wall dissents in a separate Opinion.
WALL, P.J.:
I dissent.
Without so much as a single citation of authority, reference to a dictionary, or mention of a text on statistics, the commission majority now overrules sub silentio years of accumulated precedent. It rejects a standard statistical procedure without examining its validity, and somehow finds in Section 48-818, R. R. S. 1943 the authority to bulldoze all salaries in a given class of cities into the same level, no matter what the historic relationship of the several markets have been.
Again here, as in North Platte Police v. City of North Platte , 3 CIR 287-1 (1979), the majority permits the respondent to punish the members of the petitioner for joining a union, a punishment prohibited by statute, without even mentioning that they are doing so, or deigning to attempt to justify the action.
The commission owes the parties and the bar a better explanation of its newly adopted direction of travel.
Entered June 28, 1979.
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