4 CIR 76 (1979). 208 Neb. 511, 304 N.W.2d 368. Reversed and remanded with directions. Supplemental Opinion, 209 Neb. 597, 309 N.W.2d 65 (1981).


Petitioner, |
Respondents. |


For the Petitioner:John B. Ashford

For the Respondents:William A. Harding

John J. Reefe, Jr.

Henry Wendt

Before:Kratz, Wall and McGinley, JJ.


This case brings before us the wage dispute for the period August 1, 1979 - July 30, 1980 between the Douglas County Social Service Workers, petitioner, and Douglas County and the State of Nebraska as coemployers, respondents. Douglas County Social

Services, an undefined entity, is also named as a respondent. We find we have jurisdiction of the parties and of the subject matter of the dispute. Since retained counsel for the State handled most of the presentation of evidence, and since the dispute among the respondents over employer status was removed from the case, we will generally refer hereinafter to the respondents in the singular, rather than the plural, without implying any determination of the apparently on-going dispute over the exact nature of the relationship among the respondents.

Both petitioner and respondent are in agreement that the "key class" sampling method, as set forth in IBEW v. OPPD , 3 CIR 548, 563 (1979) should be used here. Because of the large number of job classifications, we also agree that it is an appropriate method to reduce a monumental statistical problem to one of only giant size. In order to further simplify our work, we have taken as indicative of the wage for any given line of progression or job family, the

key class survey of only those jobs surveyed by both petitioner and respondent, where such was possible.

In establishing the key classification sampling technique for use by the court, one consideration we required was: "6. The 'key classifications' or wage rates tendered should have at least one ineach regular line of progression, or lines of progression should be established as comparable, or their relative market value established or apparent to the court from its previous experience." IBEW v. OPPD, supra (Emphasis supplied). It is apparent here that petitioner does not meet the requirement of one key class in each line of progression, since four to five lines of progression or family job groupings are ignored.[1] Were it not for respondent's evidence, we would be obligated to evaluate petitioner's data to determine whether it met any of the secondary tests of requirement 6, supra . Here, however, respondent has provided data with which we can work, and we need pursue the technical requirements of a key classification analysis no further.

Petition used a local survey for semi-skilled and clerical employees and a national survey for professional level jobs. This is in keeping with reality, since an employer competes locally for hourly and clerical workers, but nationally for professionals. See Handbook of Wage and Salary Administration , Rock, Milton L., 1972, pp. 4-12, 4-34, 4-35, 4-46 and 4-59. Respondent proffers national, local and statewide survey results. The evidence shows that respondent State recognized Douglas County not to be comparable within the state by permitting each of the county welfare systems to choose six steps on an eleven step scale for its workers. Respondent Douglas County chose not only the highest set of six steps, but has classifications not utilized anywhere else in the state. See, e.g., RX1. [2] We, therefore, disregard the in-state survey data, finding it admittedly not comparable.

Respondent also proffers data from SMSAs, rather than just counties. While SMSA data is useful in determining the match between the proffered comparables-i.e., here, a county of approximately 420,000 population with a central city of about 320,000 and an SMSA of about 580,000 population-we cannot agree with the respondent's contention that any county within the compared-to SMSA may be used for comparison. At this point in our search for data with which to construct an hypothetical universe of counties for comparison to the county in question, we are not prepared to go beyond the county containing the central city in the SMSA or the metropolitan area, where more than one SMSA is included in the area. This comparison gives us some reassurance of similitude. We disregard the data from non-central-city counties at the professional levels as noncomparable.

Respondent also tenders Little Rock, Arkansas and Memphis, Tennessee. We have traditionally regarded with skepticism proffered comparables i.n the South. This has been based, in fire and police cases, in part, on weather and approach to the job, and in part on the knowledge that wage and salary scales below the 35th parallel tend to drop significantly. That reasoning does not prevail completely here, but with Memphis being consistently low, we drop it from the array because its inclusion is statistically unsound-it obviously skews the result.

Petitioner tenders Lake County, Indiana. While it is arguable that it should be disregarded because there is no discernible chief city in the Gary-Hammond SMSA, we also cannot ignore that the SMSA is also part of the Chicago-Hammond-Gary megalopolis. We conclude that it may not be used. Petitioner tenders Jefferson County,Colorado which matches Douglas County in such respects as population size, but does not contain the central city-Denver. We reject its use.

While Peoria County, Illinois is somewhat less than one-half the size of Douglas County, Nebraska, its SMSA meets our population parameters, and we note that the Illinois compensation plan is apparently statewide. We, therefore, utilize Peoria. Both parties have tendered Sedgwick County, Kansas, a wholly state-run operation, and both parties have tendered comparables in states where the compensation is apparently uniform throughout the state: Ohio, Oklahoma, Illinois, Indiana, Iowa and Colorado. Since in Nebraska the state is at least a coemployer, we see no reason to exclude either Sedgwick County, Kansas or Jackson County, Missouri just because they are not partially run by the county.

Respondent has tendered one or more Omaha-based employers other than Douglas County as comparable on the professional level. A careful review shows that all of these other local employers pay substantially less than any of respondent's other comparables. We, therefore, reject those comparables for the reason that the consistent low level of salary indicates some non-verbalized difference in the situation of these employers which would make the work, skills and working conditions not comparable.

Where, after the screening process, we have several samples from states with statewide plans, we have taken only one sample from that state, in order not to give a single state plan undue weight in the computations.

We should note here that being supplied with exact and exactingly constructed job descriptions for the key classes, we would not necessarily be bound to make all the comparisons and choice of comparables if we were just comparing work and skills. However, since we are also comparing working conditions and since we do not have job descriptions for all of the positions concerned, we compare employers and employment location as additional assurance of a match of the jobs.

Both parties have demonstrated that there is no linear correlation between salaries and wages in the compared-to counties and percent of manufacturing, employment or unemployment rates, median family income, degree of unionization, or any other factor for which we are required to adjust by Lincoln Firefighters v. City of Lincoln , 198 Neb. 174, 252 N. W. 2d 607 (1977).

We, thus, arrive at the following combined balanced array at the professional level:


This gives us an array of ten samples. Seven counties are smaller than Douglas County and two are larger. It is our judgment that the statewide plans balance out the skewing toward the smaller and lower. A balanced array gives us double assurance that any item which might affect the result has been adjusted for. The results for the professional staff are shown at Appendix "A".

We now turn to the selection of an array for the hourly and clerical workers. Petitioner submits an array of 15 public and non-profit social agencies in the Omaha-Council Bluffs area. Here,we find the Federal Government again, but this time without the addition of the uncertain 5.5% increase assumed to be added on October 1, 1979[3], we find it to be acceptable. See our comments on Wage Board employees in IBEW v. OPPD, supra . Respondent submits an array of 28 banks, hospitals, public employers and social agencies in the Omaha-Council Bluffs area. Responses are not available consistently from all members of the array, however, making the respondent's array, if used alone, theoretically fragile, since it does not measure the same employer for the same jobs throughout. Five of the tendered comparables are duplicates. As noted, responses are not available from all of the samples. Simply putting the two arrays together would ordinarily make a sample too large to be workable for our purposes. It is certainly not a rationally made choice. If, on the other hand, we eliminate the private banks, insurance companies and one miscellaneous company from both surveys, we have a manageable array, having the logical consistency of being public employers, non-profit social service agencies, and non-proprietory hospital corporations as its base. The inclusion of banks, insurance companies and a miscellaneous service company does not fit with the other categories.

This gives us an array, somewhat tilted to the low side, as follows:

NOTE: Table omitted.

This leaves us with six individual classes which do not fit a job family or line of progression. Ordinarily, in a "key class" analysis, we would attempt to match them or develop a compensation rate in some other way without a survey. However, here,

respondent has conducted the survey, and we see no reason not to use the results. Only three persons actually occupy positions in these classes, one professional and two hourly or clerical workers. We utilize the parameters for choosing the array which we used for hourly and clerical workers for all except the lone psychologist, where we use a combination of out-of-state and local samples, as submitted by respondent. The results are shown at Appendix "C".

We note the following about the results shown in Appendix "C". With regard to Nursing Care Consultant, if petitioner had submitted only one comparable, it might, under some circumstances, be in-

sufficient to carry petitioner's burden of proof. When submitted by a respondent, however, a single comparison may be treated as an admission. Second, with regard to Transportation Service Workers,

where the array results in a figure lower than that being paid by respondent, and respondent has filed no cross-petition, no adjustment will be made. Thus, the minimum rate for Transportation Service Workers remains at $668.00 per month, the current

rate being paid by respondent.

Douglas County works a 383/4 hour week, or 3 1/8% less than the standard 40-hour week. Two of the ten comparables at the professional level work 37 1/2 hour weeks, (6 1/4% less than 40 hours). Depending on the particular array, one or more of the comparables at the hourly and clerical level work 37 1/2 or 38 hours. To obtain uniformity, we utilize only the professionallevel. Thus, put one way, 80% of the comparables work longer hours. Eighty percent of 3 1/8% is 2.5%. Computed on the basis of 400 hours in the total array of 10, the total is 11/4% less than 400. In order to be conservative, we use the largest discount, or 2 1/2%. We reduce each adjustment by 2.5% to assure comparability. Petitioner's conclusory evidence that "a full work week is a full work week" is not deemed sufficiently established by exposition of its foundation to be relied upon, whether true or not. The results are at Appendix "D". The spread of the key classes to all the classifications is at Appendix "E".[5] If the parties are unable to agree on the steps between the minimum and maximum, they may apply to the Court to have them set.

We have arrayed the fringe benefits at Appendix "F".[6] We find no adjustment required for holidays, sick leave, vacation, health, dental or life insurance, pension amounts or pension contributions. We do find that Douglas County's accumulation of sick leave to be out of step with that obtaining in the sampled comparables. The mode is unlimited accumulation, the median is somewhere between 156 days and infinity, and the mean is 422.5/+ infinity/9. Exercising our legislative discretion, we increase the accumulation to 185 days.

As thus adjusted, we find that the total package of wages and fringe benefits to be comparable to the prevalent and to have met in full the requirements of ยง48-818, R. R. S. 1943.

ORDERED, that the dispute is ordered settled as provided herein.

NOTE: Appendices omitted. They were the wage tables and tables on health insurance, pension, sick leave and vacation.

Filed November 19, 1979.

[1] Messenger I and II, Quality Control Reviewer I and II, Clerk-Steno I & II, Secretary I & II and Legal Secretary I and II. The total number of non-evaluated groupings varies depending on whether one counts Secretary and Legal Secretary separately. In the past, respondent has treated them as comparable by paying the same wage. The job descriptions, however, may establish them as separate skills. The total also varies depending on whether one counts unfilled positions.

[2] Petitioner and Respondent each numbered their exhibits sequentially from 1. We, therefore, in referring to the exhibits add, before the number, "RX" to designate respondent's exhibits and "PX" to designate petitioner's exhibits.

[3].At the time of trial, 5.5% was assumed to be the amount. Actually, unless Congress or the President took other action, a 7.5% salary increase would go into effect for federal workers October 1, 1979. The President then set 7% as the figure. However, departmental secretaries are authorized, in at least some cases, to split the dollars available between direct compensation and indirect or "fringe" compensation. We deem the possibilities toonumerous to use the possible October 1st figure as a comparable, even though it might have been in effect for most of the period of time with which we are concerned.

[4] Respondent promised its surveyed, non-public employers confidentiality. For purposes of review, the key to the code numbers is in Respondent's Exhibit 5a (Confidential). NOTE: This footnote appeared in a table I deleted.

[5] We have not set rates for Homemaker II and Chore Service Worker, since it appears that in the over 200 exhibits introduced, the present salaries for those positions were not included. They are readily computable, however, as a percentage of Homemaker I. If the parties cannot agree, they may retum for a determination.

[6] We judicially notice Rule 15(11), Paid Holidays, Rules & Regulations, Nebraska Merit System, Feb. 16, 1978, providing 11 paid holidays for employees of the class here before us.