|PATRICK|||||Case No. 278|
|v.|||||OPINION AND ORDER|
|CITY OF OMAHA,||||
For the Plaintiff:Jeffrey McKain
For the Defendant:Kent N. Whinnery
Before: Judges Kratz, McGinley and Gradwohl
Plaintiff is a civilian identification Technician II in the Omaha Police Division. This suit seeks additional pay for working in the higher classification of police Sergeant at various times from January 1976 to January 1978. Plaintiff contends that he is entitled to higher pay under the provisions of Article XII, Section 10, of the Agreement between The City of Omaha, Nebraska, and the Omaha City Employees, Local No. 251, American Federation of State, County and Municipal Employees, AFL-CIO, and by virtue of Section 48-818. Defendant denies Plaintiff's allegations on the merits. With respect to the contract claim, Defendant's position is that job classifications under the civilian employees' agreement cannot be mixed with job classifications of the "sworn" police officers and, additionally, that, even so, the Plaintiff did not perform work in the classification of Police Sergeant. Defendant did not seek to have the dispute resolved under the grievance procedures of the collective bargaining agreement. See Transport Workers of America, Local 223 AFL-CIO v. Transit Authority of the City of Omaha, d/b/a Metro Area Transit , Case No. 220, Opinion and Order November 13, 1978. This Court has jurisdiction of the parties and of the subject matter.
Plaintiff's contract claim is based on Article XII, Section 10, of the Omaha City Employees collective bargaining agreement, which provides:
"Where an employee works a full shift in classification higher than that to which he has been appointed in excess of three(3) work days in a payroll period, he shall be compensated at the rate of pay provided for such higher classification for all hours worked in such higher classification. Each payroll period shall be considered separately. "
This collective bargaining agreement covers City of Omaha civilian employees. Separate agreements with different Unions have been entered into by the City of Omaha with the "sworn" members of the Omaha Police Division and the regular members of the Omaha Fire Division.
Plaintiff is employed in the Criminalistics Section of the Technical Services Bureau. There are two other Sections of the Technical Services Bureau, the Records Section and the Detention Section. Criminalistics is the smallest Section and, as a practical matter, is relatively self-operating.
There are three police Sergeants assigned to the Criminalistics Section. Each of the three Police Sergeants is in charge of one of the three shifts. The Section has no "Relief Sergeant", however, and when the assigned Sergeant was absent from work for any reason, some of the normal duties of a Police Sergeant were done by the senior civilian employee. It is that work done in the absence of the Police Sergeant which is the subject matter of this litigation. The assigned Police Sergeant would routinely be off two days per week, receive annual and sick leave, and be absent for other reasons. The difference in pay between a Police Sergeant and an Identification Technician II in 1976 was 89 cents per hour and in 1977 was $1.34 per hour. A new civilian classification of Criminalist was initiated in 1978 and has substantially relieved the precise situation involved in this case.
The job of Police Sergeant in the Criminalistics Section is largely supervisory. The job of Identification Technician II involved technical and skilled work in the field of criminal identification, including fingerprints, processing photographs, and performing various tests and procedures to obtain and preserve reliable criminal evidence. Plaintiff has a specialty as an examiner of questioned documents in addition to his ability to perform the general duties of the Criminalistics Section. Plaintiff is recognized as a well-qualified and competent employee.
When the Police Sergeant was absent, Plaintiff performed several of the duties which the Police Sergeant would have performed for that shift if he were on duty. In the absence of the Police Sergeant, Plaintiff discussed the duties of the day with the Officer in charge when he came to work. Plaintiff assigned the work which needed to be done on that shift, received calls which came in, and assigned the work of the Section regarding crime situations which arose during the shift. In addition, Plaintiff signed the daily detail sheets and he maintained a log of the services performed. These same duties were also performed by the other senior civilian employees in the Criminalistics Section in the absence of the regularly assigned shift Police Sergeant. This situation had existed for many years, even prior to the time civilians were employed to perform the work previously done by a Police Patrolman.
Plaintiff and other civilian employees testified that it was their understanding that in the absence of the Police Sergeant in the Criminalistics Section, the senior civilian employee was "in charge". Defendant's evidence was that in the absence of the Police Sergeant in the Criminalistics Section, the chain of command reverts to the Records Section or the Detention Section. Further, the undisputed testimony of the Defendant's witnesses was that a Police Sergeant when on duty had significantly different responsibilities than a civilian employee acting in the absence of the Police Sergeant. The civilian merely allocated work duties and maintained relatively basic operational information, whereas the Police Sergeant possessed the entire responsibility for the operation of the Section. The Police Sergeant could discipline persons within the Section; the civilian (like any employee) could only report facts to others for action. The Police Sergeant could approve annual leave and sick leave; the civilian could accept a request for such leave but the actual approval had to be done by others. The Police Sergeant was responsible for the proper performance of duties by all of the personnel in the Section; the civilian assigned work to others but was not responsible for the performance of those duties by the person to whom they were assigned. The civilian employee had no inspection responsibility for persons or equipment in the Section and no authority to change the detail, as a Police Sergeant could do. The civilian employee continued to perform his ordinary work duties, together with the added tasks, in the absence of the Police Sergeant.
The only duties performed by an Identification Technician II in the absence of a Police Sergeant within the written job description of a Police Sergeant were those of "supervision". The written job description of an Identification Technician II does not include any reference to "supervision" although there has been no change in the actual duties performed by the civilian employees in the Criminalistics Section over the years. Until 1977, there was simply a classification of Identification Technician. The classification of Identification Technician II was added early in 1977 and the Plaintiff was appointed to that classification at the outset. Early in 1978, another new classification was added, Criminalist. The job description for Criminalist is essentially that of an Identification Technician II with the added work duty of shift supervisor and a four year prior experience requirement in place of a two year requirement. None of the dispute involved in this litigation involves the time since the new Criminalist classification has been in effect.
We agree with Defendant's position that the Plaintiff did not come within the contractual language "where an employee works a full shift in a classification higher than that to which he has been appointed." See Chambers v. City of Omaha and Omaha City Employees, Local 251 , 3 CIR 296 (No. 216, Sept. 13, 1977). Plaintiff performed some of the duties of a Police Sergeant during the absence of a Police Sergeant in accordance with long standing work practices of the Criminalistics Section. These duties were not described in Plaintiff's written job classification. We do not decide whether or not the performance of some supervisory duties by the Identification Technician II in these circumstances was outside of that classification merely because they were not contained in the written Classification Specification. Similarly, we do not decide whether the term "classification higher than that to which he has been appointed" authorizes the classifications for civilian employees to be interrelated with classifications for the "sworn" police force. In any event, the duties performed by the Plaintiff continued to be predominantly those of an Identification Technician II throughout the employment, whether or not a Police Sergeant was on duty. The Plaintiff did not perform the preponderant duties of a Police Sergeant in the absence of the Police Sergeant, but continued to serve preponderantly as an Identification Technician II despite taking on some supervisory duties the Police Sergeant would have performed had he been on duty. Fortunately, initiation of the new Criminalist classification has eased the situation.
The language of Article XII, Section 10, of the collective bargaining agreement requires that an employee must work predominantly in the higher classification and not merely perform some of the duties of the higher classification in addition to his own regular work duties. Chambers v. City of Omaha and Omaha City Employees, Local 251 , 3 CIR 296 (No. 216, Sept. 13, 1977). We find that the Plaintiff did not work in a classification higher than that to which he had been appointed within the meaning of Articel XII, Section 10.
Secton 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. 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."
Plaintiff's evidence supporting his claim under this section is that he, as an Identification Technician II, performed the same or similar skills as a Police Sergeant in the Criminalistics Section of the Technical Services Bureau under the same or similar working conditions on a number of specified dates during 1976 and 1977. The burden of proof is on the Plaintiff to establish the statutory requirements in seeking relief under Section 48-818. See
Omaha City Employees Local Union No. 251 v. City of Omaha , 3 CIR 430 (No. 239, May 24, 1978).
Plaintiff's proof on his Section 48-818 claim is deficient in several respects. There are differences in both similarity of skills and similar working conditions from the absence of full supervisory responsibilities by the Identification Technician II which are borne by the Police Sergeant in the Criminalistics Section. The evidence does not show "prevalent wage rates" or "prevalent ... conditions of employment" as required by the second sentence of Section 48-818. Plaintiff offered no evidence as to overall compensation in accordance with the third sentence of the section. Defendant's evidence, furthermore, was that there are differences in overall compensation between Identification Technician II and Police Sergeant other than the wage differential claimed by the Plaintiff.
The Defendant contends, additionally, that Plaintiff's claim is barred by virtue of the Civilian Employees collective bargaining agreement. In view of the Plaintiff's lack of proof under Section 48-818 in any event, the Court does not decide whether or not the collective bargaining agreement, by itself, precludes Plaintiff's claim under Section 48-818. The same is true as to Defendant's contentions that Section 48-817 precludes a retroactive wage order pursuant to Section 48-818 in this instance and that the matter is res judicata under the decision in Omaha City Employees Local Union No. 251 v. City of Omaha , 3 CIR 430, 447 (No. 239, May 24, 1978).
For the foregoing reasons, the Court finds that the Petition herein, as amended, should be, and it hereby is, dismissed.
Entered December 1, 1978.