| FRATERNAL ORDER OF POLICE, LODGE NO. 8, | | | CASE NO. 347 |
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| Plaintiff, | | | |
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| V. | | | OPINION AND ORDER |
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| COUNTY OF DOUGLAS, NEBRASKA, | | | |
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| Defendant. | | |
Appearances:
For the Plaintiff: Dennis M. Conolly.
For the Defendant: William A. Harding
H. L. Wendt
Rockford G. Meyer
Before: Judges McGinley, Gradwohl, and Orr.
GRADWOHL, P.J.:
This matter came on for trial for a determination of wages and other conditions of employment pursuant to Section 48-818. The Petition seeks an adjustment for bargaining unit officers in the Douglas County Division of Corrections for the contract year commencing July 1, 1979. The Commission has jurisdiction of the parties and of the subject matter.
1. Statute.
The controlling statute is Section 48-818, which states:
"The findings and orders 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 Commission of Industrial Relations shall establish rates of pay and conditions of employment which are comparable to the prevalent wage rates 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 commission 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. Any order or orders entered may be modified on the commission's own motion or on application by any of the parties affected, but only upon a showing of a charge in the conditions from those prevailing at the time the original order was entered."
2. Applicable Rules of Procedure, Evidence and Burdens of Proof.
The procedure in the Commission of Industrial Relations must conform to the code of civil procedure applicable to the district courts of the state except as modified by Commission Rule or by a specific statute pertaining to the Commission. Section 48-812. Decisions must be based solely upon evidence in the record or evidence of which a district court might take judicial notice. Section 48-817; General Drivers and Helpers Union v. City of West Point , 204 Neb. 238, 281 N. W. 2d 772 (1979).
The Commission is bound to follow the rules of evidence applicable to the trial of civil cases. Section 48-809; Plattsmouth Police Department Collective Bargaining Committee v. City of Plattsmouth , 205 Neb. 567, 288 N. W. 2d 729 (1980). Of special importance in the trial of this case are the new Nebraska Evidence Rules pertaining to opinion and expert testimony, particularly Sections 27-702 to 27-705. In general, these opinion and expert testimony statutes allow considerable latitude for an expert to express an opinion but also allow considerable latitude in cross examination as to the basis for such expert opinion. An expert witness, however, is not entitled to express an opinion where the evidence shows there is no adequate basis for the opinion. Plattsmouth Police Department Collective Bargaining Committee v. City of Plattsmouth , 205 Neb. 567, 288 N. W. 2d 729 (1980).
In Lincoln Fire Fighters Assn. v. City of Lincoln , 198 Neb. 174, 178, 252 N. W. 2d 607, 610 (1977), the Supreme Court stated:
"It is true the burden is on the moving party in a section 48-818, R. R. S. 1943, case, to demonstrate the existing wages are not comparable to the prevalent wage rates, but all evidence contained in the record may be considered for this purpose.... The burden of proof is satisfied by actual proof of the facts, of which proof is necessary, regardless of which party introduces the evidence." Where it is alleged that economic dissimilarities exist which have a bearing upon prevalent wage rates, the burden is on the party making that allegation to establish the bearing of any such economic dissimilarities on the prevalent wage rates. See Lincoln Fire Fighters Assn. v. City of Lincoln , 198 Neb. 174, 252 N. W. 2d 607 (1977); North Platte Police Officers Union v. City of North Platte , 3 CIR 647 (1979); Local 831 Int'l Ass'n of Fire*l*ighters v. City of North Platte , 4 CIR 12 (1979); Omaha Education Association v. School District of Omaha , 3 CIR 217 (1977).
In making findings and entering orders under Section 48-818, the Commission's determinations must be supported by substantial evidence justifying the determination, made within the scope of its statutory authority, and not be arbitrary, capricious, or unreasonable. Fraternal Order of Police v. County of Adams , 205 Neb. 682, 289 N. W. 2d 535 (1980). Findings not supported by substantial, legally admissible evidence in the record are improper and will be reversed by the Supreme Court on appeal. Plattsmouth Police Department Bargaining Committee v. City of Plattsmouth , 205 Neb. 567, 288 N. W. 2d 729 (1980); General Drivers and Helpers Union v. City of West Point , 204 Neb. 238, 281 N. W. 2d 772 (1979).
3. Employees.
The Pre-Trial Order specified that the following classifications were involved in this matter: Corrections Officer 1, Corrections Officer II, Corrections Officer III, Corrections Officer IV, and Corrections Specialist. The work of these workers is described in the Rules of the Douglas County Sheriff's Merit Commission (Joint Exhibit 2), pages 24-30. These employees are assigned within the Division of Corrections, which is separate from the Sheriff's Department. Joint Exhibit 2, pages 7-8. It is significant in applying the statutory criteria of Section 48-818 with respect to "conditions of employment maintained for the same or similar work of workers exhibit like or similar skills under the same or similar working conditions" that the employees involved in this matter are not "sworn officers" in the Sheriff's Department and do not perform the duties of swom officers.
The evidence shows that there are 59 employees in jail staff positions (Exhibit D-1). The evidence does not specify the job classifications to which the individual employees are assigned.
4. Present Wages and Conditions.
The present wages and conditions for the Division of Corrections bargaining unit employees are contained in the collective bargaining agreement for 1978-1979 (Exhibit P-23). These wages and conditions have been continued in effect during the current year pending the outcome of this litigation (Exhibit P-21). The evidence does not specifically recite the present individual wages for the employees repressented by the Plaintiff in this matter.
5. Comparables.
Section 48-818 mandates that wages and conditions of employment ordered by the Commission 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." This is a factual determination to be made upon the evidentiary record presented in this case. See Crete Education Association v. School District of Crete , 193 Neb. 245, 253-258, 226 N. W. 2d 752, 757-760 (1975). It is important to emphasize, further, that the primary thrust of the statutory language is in terms of "the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions." Section 48-818 was amended by the Nebraska Legislature in 1969, eliminating references to labor market areas but retaining the language "like or similar skills performed under the same or similar working conditions."
Crete Education Association v. School District of Crete , 193 Neb. 245, 253-258, 226 N. W. 2d 752, 757-760 (1975). Although at times the abbreviated form of the language used to express the rule may appear to compare "employers", the essence of the statutory test established by Section 48-818 is one of work comparability. See Fremont Education Association v. School District of Fremont , 3 CIR 492, 498 (1978). See also Kramer Power Station Employees Committee v. Loup Public Power District , 1 CIR No. 16 (1963).
In Fraternal Order of Police v. County of Adams , 205 Neb. 682, 684-685, 289 N. W. 2d 535 (1980), the Supreme Court approved the rejection by the Commission of Industrial Relations of evidence pertaining to other employments when the evidence did not establish a similarity of work skills under the same or similar working conditions. The Adams County opinion emphasizes that the Commission must make a factual determination after a consideration and comparison of all of the evidence "whether, as a matter of fact, the units selected for comparison are sufficiently similar and have enough like characteristics or qualities to make comparisons appropriate. "
The Plaintiff's evidence consisted of comparisons with employees of Polk County, Iowa; Hennepin County, Minnesota; Denver County, Colorado; Sedgewick County, Kansas; Lancaster County, Nebraska; Johnson County, Kansas; St. Louis County, Missouri; and Lucas County, Ohio. The Defendant's evidence consisted of comparison with employees of Peoria County, Illinois; Winnebago County, Illinois; Allen County, Indiana; Jackson County, Missouri;
Johnson County, Kansas; St. Louis County, Missouri; and Denver County, Colorado. There were, therefore, three common counties: Denver County, Colorado; Johnson County, Kansas; and St. Louis County, Missouri. Each of the counties in both arrays operates a separate department of corrections.
There are significant differences in the methodology used by the parties in constructing their arrays.
The Plaintiff selected counties primarily through the use of a variety of economic geographic and sociological characteristics. The research method is set out in detail at pages 13-38 of the record of testimony. No counties were added or deleted on the basis of work skills (62:17 to 63:11). There was no direct consideration of work skills in arriving at the array; work skills entered into the comparisons only after the array had been selectd through the application of economic, geographic, and sociological characteristics (62:17 to 21 and 158:25 to 160:24).
The Defendant's array was selected primarily on the basis of a similarity of work skills performed under the same or similar working conditions, although economic, geographic, and sociological charactericstics also entered into the selection process (215:23 to 219:20; 220:16 to 224:4) (Exhibit D-1). Counties were included in the array or excluded from further consideration because of a similarity or dissimilarity of work skills and working conditions. Economic, geographic and sociological characteristics were taken into account, but work skills and working conditions were, unlike Plaintiff's methodology, an integral part of the construction of the Defendant's array.
In general, therefore, the Defendant's array is in more preceise conformity to the statutory criteria of Section 48-818 because it has taken into account more significantly and appropriately the statutory factors of "same or similar work of workers exhibiting like or similar skills under the same or similar working conditions".
The Plaintiff's array included corrections facilities using sworn Deputy Sheriffs as well as corrections facilities which do not use sworn officers in these classifications. The Defendant's array excluded corrections facilities with sworn Deputy Sheriffs in these classifications. The Douglas County Division of Corrections does not employ swom Deputy Sheriffs in these corrections classifications.
Polk County, Iowa, Sedgewick County, Kansas and Lucas County, Ohio, fill corrections positions with Sworn Deputy Sheriffs (Exhibit D-21). The evidence also establishes that positions for sworn officers may have different entrance requirements (such as physical characteristics), different training requirements (such as the Nebraska Statutory requirement for training), different skills (such as the use of firearms and criminal investigations) and different working conditions (such as searches and seizures, crime investigations, and arrests). See Fraternal Order of Police v. County of Adams , 205 Neb. 682, 289 N. W. 2d 535 (1980) (determination as to secretaries and clerk typists). The evidence further establishes an actual interchange of assignments and performance of duties between sworn officer functions and corrections functions in at least one of the departments in the Plaintiff's array (222:7 to 12).
From the evidence in this matter we find that the Defendant's proposed array is a properly constructed array in accordance with the requirements of Section 48-818. The populations, geographical, economic, and other general characteristics of the Counties included in the Defendant's proposed array are in compliance with Section 48-818 and the prior determinations of this Commission and the Supreme Court. Most importantly, in the Defendant's proposed array, there is established a similarity of work skills under the same or similar working conditions. We find that this array is appropriately balanced, sufficiently similar, and has enough like characteristics and qualities to make comparison appropriate in this matter.
Of the eight counties included in the Plaintiff's proposed array, three, Johnson County, Kansas, St. Louis County, Missouri, and Denver County, Colorado, are also included in the Defendant's proposed array. Polk County, Iowa, Sedgewick County, Kansas, and Lucas County, Ohio, use sworn Deputy Sheriffs as corrections officers. The other two counties in the Plaintiff's proposed array are Hennepin County, Minnesota, and Lancaster County, Nebraska.
There are several reasons why Hennepin County, Minnesota, and Lancaster County, Nebraska, should not be included in the array utilized by the Commission for the decision in this matter. We have found, above, as a matter of fact, that the seven counties in Defendant's proposed array are sufficiently similar and have enough like characteristics to make comparisons appropriate for a determination of this case. See Fraternal Order of Police v. County of Adams , 205 Neb. 682, 684-685, 289 N. W. 2d 535 (1980). The evidence shows (Exhibit D-21) that Lancaster County, Nebraska, is smaller and Hennepin County, Minnesota, is larger than the population parameters (i.e., one-half to double the size) the Commission attempts to use in most circumstances. See, e.g., Tecumseh Education Association v. School District of Tecumseh , 2 CIR No. 119, page 4 (1975); Beatrice Education Association v. School District of Beatrice , 3 CIR 323, 327 (1978). Although Hennepin County, Minnesota, is smaller than St. Louis County, Missouri (Exhibit D-21), included in both proposed arrays, and Lancaster County, Nebraska, is only slightly smaller than Peoria County, Illinois (Exhibits D-21 and D-1), included in the Defendant's proposed array, the operations of their corrections departments have not been subjected to the same close scrutiny as to work skills and working conditions as the departments included in the Defendant's proposed array. Some information on Hennepin County, Minnesota, and Lancaster County, Nebraska, in these respects is contained in Exhibit D21 and testimony at the trial, but there was less scrutiny of the actual operations and duties involved throughout Plaintiff's proposed array than Defendant's proposed array. In addition, the record does not contain as complete information for these two counties on wages (see, particularly, Corrections Officer II, Exhibit P-2) and fringe benefits (fewer items, Exhibit P-1) as for the seven counties in the Defendant's proposed array.
We find, therefore, that the comparisons to be made in the determination of this matter should be with Peoria County, Illinois; Winnebago County, Illinois; Allen County, Indiana; Jackson County, Missouri; Johnson County, Kansas; St. Louis County, Missouri; and Denver County, Colorado.
6. Wage Comparisons.
(a) Corrections Officer I.
The record does not contain evidence by which a comparison of the wages for Douglas County Corrections Officer I can be made directly with those of employees in the seven other counties. Corrections Officer I in Douglas County is essentially a six
month introductory training position. It is a probationary period with significantly reduced employment duties. At the end of six months, there is a determination whether the employee should be retained and if he or she is retained, there is a promotion to Corrections Officer II. The Defendant's evidence was that most other corrections departments did not have a classification comparable to Corrections Officer I (see 274:11-19). Plaintiff's evidence contained a Corrections Officer I figure for only one of the three counties included in both proposed arrays (Exhibit P-2). Defendant's evidence, however, was that it would be permissible to establish a relationship between the levels of Corrections Officer I and Corrections Officer II in Douglas County, recognizing that Corrections Officer I is an entry level, probationary, training position (see 274:20 to 275:13).
(b) Corrections Officer II.
The evidence shows that the wages of Douglas County Corrections Officer II are slightly below those paid in the other comparable departments.
(c) Corrections officer III.
The evidence shows that the wages of Douglas County Corrections Officer Ill are above the minimum figure for the five other departments for which comparisons were made and below the maximum figure for these five other departments by approximately the same amount. Note that there are no steps on the Douglas County schedule for this classification. The minimum and maximum figure for Douglas County is $1,220.00. The Plaintiff contends that this Commission should institute a step schedule for Corrections Officer III in Douglas County, although there was no statement by the Plaintiff that the minimum figure should be reduced, if needed, in order to do so.
(d) Corrections Officer IV.
The evidence for Corrections Officer IV also shows a single Douglas County wage ($1,360.00) which is above the minimum figure for the six other departments for which comparisons were made and below the maximum figure for these six other departments.
(e) Corrections Specialist.
The record does not contain sufficient evidence for the Commission to make a determination with respect to the classification of Corrections Specialist in accordance with the statutory criteria.
7. Comparisons of Other Conditions of Employment.
The individual conditions compared in the evidence are:
[NOTE: The tables were left out but the conditions of employment are listed below:]
(a) Health Insurance for Employees and Families
(b) Health Insurance For Retirees; Dental Insurance(c) Life Insurance
(d) Uniforms
(e) Holidays
(f) Sick Leave
(g) Longevity Pay
(h) Vacations
(i) Cost of Living Pay.
Exhibit P-1 shows no cost of living pay for Denver Co., Co., Johnson Co., Ks., St. Louis Co., Mo., or Douglas Co., Ne.
(j) Paid Injury Leave
(k) Call Back Pay
(l) Pay Differential
(m) Overtime
(n) Meals
8. Economic "Deflator".
Defendant introduced evidence (see Exhibit D-19) and expert opinion that the per capita personal income for Douglas County, Nebraska, is approximately 13% lower than for the group consisting of Denver County, Colorado, Peoria County, Illinois, Winnebago County, Illinois, Allen County, Indiana, Johnson County, Kansas, Jackson County, Missouri, and St. Louis County, Missouri. Relying on the rules enunciated in Lincoln Fire Fighters Assn. v. City of Lincoln , 198 Neb. 174, 252 N. W. 2d 607 (1977), the Defendant argued that the wages established for the Douglas County corrections officers in this case be 13% lower than in its own proposed array, adopted by the Commission, even if that means lowering the existing rates of pay (see 287:18 to 289:19).
The rule in Lincoln Fire Fighters is clearly stated in headnote 6 (198 Neb. 174) and the text of the opinion (194 Neb. at 180):
"In determining prevalent wage rates for comparable services in reasonably similar labor markets, the Court of Industrial Relations is required to weigh, compare, and adjust for any economic dissimilarities shown to exist which have a bearing on prevalent wage rates."
From the entire evidence in this case, we find that the Defendant has not established any correlation between the single factor of per capita personal income and prevalent wage rates. The rule in Lincoln Fire Fighters mandates that any economic dissimilarities shown to exist "have a bearing on prevalent wage rates".
Whether any economic dissimilarities shown to exist do, in fact, "have a bearing on prevalent wage rates" is a factual determination to be made upon the evidence in the record in that particular case. The Commission is bound by the general rules of evidence and cannot go outside of the record in making its determinations. See Section 48-817; Plattsmouth Police Department Bargaining Committee v. City of Plattsmouth , 205 Neb. 567, 288 N. W. 2d 729 (1980); General Drivers and Helpers Union v. City of West Point , 204 Neb. 238, 281 N. W. 2d 772 (1979).
The Lincoln Fire Fighters opinion also makes clear that the burden of proof as to the existence and effect of any such economic dissimilarities is on the party making that allegation. This burden of proof is satisfied by actual proof of the facts, regardless of which party introduces the evidence (see 198 Neb. at 178, 252 N. W. 2d at 610, set out above). In the present case, this means that the Defendant has the burden of proof on the economic dissimilarities issues, which issues must be decided by the Commission from the entire evidence contained in the record.
Implicit in the Lincoln Fire Fighters opinion is a determination by the Supreme Court that the factors of amount of manufacturing, extent of unionization and median income were shown by the evidence in that record to have had a bearing on prevalent wage rates. There is no such evidence in the present case. The single factor upon which the Defendant seeks the economic "deflator" is per capita personal income (which can be equated to the median income figure in Lincoln Fire Fighters ). Neither the Defendant's nor the Plaintiff's evidence (documentary, testimony or opinion) supports a determination that the disparity in per capita personal income (reflected in Exhibit D-19) has a bearing on prevalent wage rates in this case. The per capita personal income figure includes factors other than wages. It includes non-wage sources of income and, when averaged by county, includes a reflection of a broad variety of economic and social characteristics which must be accounted for in giving application to the Supreme Court's rule of Lincoln Fire Fighters . The Supreme Court direction is to "weigh, compare and adjust" for the dissimilarities. In that case, there were other factors, such as the extent of manufacturing and unionization, apparently allowing this weighing to take place to make an "appropriate adjustment for economic variables" (198 Neb. at 181). In the present case, there is simply no linkage between per capita personal income and prevalent wage rates within the rule of Lincoln Fire Fighters . As a further consequence, there is no method by which the Commission could make an "appropriate adjustment for economic variables" in this case. Mindful of the obligation to make factual deter-minations solely upon the evidence in the record, we find that the wages paid and conditions of employment for the other seven counties, set out above, need not be subjected to a "deflator" factor in making the determinations under Section 48-818 in this case.
9. Determination as to "Overall Compensation.
Section 48-818 states that "In establishing wage rates the commission 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, holiday, and other excused time, and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees." This rule of overall compensation 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 of the case. The determinations under Section 48-818 may, therefore, vary from case to case depending upon the evidence introduced by the parties. They may vary with respect to different categories of employees interested in the same case depending upon the evidence introduced by the parties in the case.
Applying the statutory requirements to the evidence in this case, we find that the wages and conditions of employment for the classifications of Corrections Officer III, Corrections Officer IV, and Corrections Specialist should not be changed. The wages for Corrections Officer II are lower than those for other workers under the statutory test and the conditions of employment for Corrections Officer Ii are more favorable than those for other workers under the statutory test. Taking into account the entire evidence in this case applicable to the classification of Corrections Officer II, we determine that the wages for Corrections Officer II should be raised by $8.00 per month (from $880.00 to $888.00) at the minimum level and $75.00 per month (from $1,075.00 to $1,150.00) at the maximum level. This increases the existing spread of $195.00 between the minimum and maximum rates to $262.00 which should be allocated to the intervening steps in the same proportionate relationships as the current steps. The other conditions of employment for Corrections Officer II should not be changed. The minimum wage of Corrections Officer I should be raised by $8.00 per month (from $760.00 to $768.00). The other conditions of employment for Corrections Officer I should not be changed.
The current (Exhibit P-23, page 35) and changed wages can be shown as follows: [WAGES DELETED]
IT IS THEREFORE ORDERED that for Corrections Officer I, the starting wage shall be $768.00 per month and the 6 Month wage shall be $888.00 per month and that Corrections Officer II, the 6 Month
wage shall be $888.00 per month, and 1 Year wage shall be $938.00 per month, the 2 Year wage shall be $1,009.00 per month, the 3 Year wage shall be $1,077.00 per month, and the 4 Year wage shall be$1,150.00 per month. No other adjustment is ordered concerning the wages and conditions of employment for the employees represented by the Plaintiff in this matter.
This Order shall be effective for the period from July 1, 1979, to June 30, 1980.
All of the Judges assigned to the Panel in this matter join in the entry of this Opinion and Order.
Filed May 2, 1980.
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