| LINCOLN POLICE UNION, INTERNATIONAL | | | CASE NO. 394 |
| INTERNATIONAL BROTHERHOOD OF POLICE | | | |
| OFFICERS, LOCAL 544, | | | |
| | | ||
| Petitioner, | | | |
| | | ||
| v. | | | OPINION AND ORDER |
| | | ||
| THE CITY OF LINCOLN, NEBRASKA, A | | | |
| Municipal Corporation, | | | |
| | | ||
| Respondent. | | |
Appearances:
For the Petitioner: J. Murry Shaeffer.
For the Respondent: William Harding, and Dana Roper.
Before: Judges Orr, Wall, and Berkheimer.
ORR, J.:
This matter came on trial for a determination of wages and other conditions of employment pursuant to Section 48-818. The parties at the pretrial conference on November 26, 1980, stipulated and agreed that the following are the only wages and conditions of employment at issue in this case:
1. Wages
2. Longevity Pay
3. Annual Vacation
4. Number of paid holidays
5. Contribution by employer to dependent hospitalization and medical insurance
6. Contribution by employer to life insurance
7. Number of years between minimum and maximum pay
8. Shift differential
9. Annual clothing allowance
10. Hours of work per week
However, Respondent was allowed to add additional issues concerning wages and conditions of employment if submitted on or before December 15, 1980. The Respondent in a letter dated December 15, 1980, listed the following areas that the City intended to raise as being above the prevalent in comparable wages and fringe benefits:
1.Proficiency merit pay steps
2.Vacation days
3.Conversion of sick leave to funeral leave
4.Dental insurance
5.College pay
6.Transit subsidies
7.Family sick leave
8.Physical fitness center
The parties stipulated at the pretrial conference on January 14, 1981, that the contract year under question is September 1, 1980 to August 31, 1981. 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 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 Commission 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 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 change 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.
See
Fraternal Order of Police, Lodge No. 8 v. County of Douglas
,
4 CIR 185 (1980). The Commission is bound to follow the rules of
evidence applicable to the trial of civil cases. Section 48-809.
See
Plattsmouth Police Department Collective Bargaining Committee
v. City of Plattsmouth
, 205 Neb. 567, 288 N. W. 2d 729 (1980).
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
The burden is on the moving party in a Section 48-818 determination to demonstrate that existing wages, hours of labor and conditions of employment are not comparable to the prevalent wage rates, hours of labor, and conditions of employment. The burden of proof is satisfied by actual proof of the facts, of which proof is necessary, regardless of which party introduces the evidence. Lincoln Fire Fighters Ass'n v. City of Lincoln , 198 Neb. 174, 178, 252 N. W. 2d 607, 610 (1977).
3. Motions to Dismiss.
Respondent made a motion to dismiss on three different occasions in the hearing of this matter: 1) When the Petitioner rested its case, 2) midway through its own case, and 3) and after the Respondent rested its own case. The ground given for dismissal was failure to prove a prima facie case in that Respondent alleged that there is no evidence in the Petitioner's case showing same or similar work is being performed in the Petitioner's array of cities when compared to Lincoln. On each occasion we took the motion under advisement.
The public policy, relating to the Commission of Industrial Relations as set out in Section 48-802, states: "The continuous, uninterrupted, and proper functioning and operation of the governmental service to the people of Nebraska are hereby declared to be essential to their welfare, health, and safety ...
In reviewing the evidence in the record we find lacking evidence that a comparison was made of same or similar work of workers exhibiting like or similar skills under the same or similar working conditions in the selection of the Petitioner's array of cities. Keeping in mind the public policy mandate in Section 48-802, prior decisions of this Commission, and a desire not to prolong an industrial dispute; we therefore, find that it is in the best interests of all parties involved that both parties be allowed the opportunity to present their evidence. Therefore, we overrule the motions to dismiss.
4. Employees.
The Pretrial Conference Order of November 26, 1980, specified that the following four job classifications were involved in this matter: Police Officer, Police Sergeant, Detective and Police Lieutenant. The work of the job classes involved is described in Joint Exhibit #1.
5. Present Wages and Conditions.
The present wages and conditions for the City of Lincoln Police Department bargaining unit employees are contained in the collective bargaining agreement for September 1, 1978, through August 31, 1980 as presented in Joint Exhibit #6.
6. 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." See Crete Educ. Ass'n v. School Dist. of Crete , 193 Neb. 245, 253-258, 226 N. W. 2d 752, 757-760 (1975).
In Fraternal Order of Police v. County of Adams , 205 Neb. 682, 684-685, 289 N. W. 2d 535, 537 (1980), the Supreme Court approved the rejection by the Commission of Industrial Relations of evidence pertaining to other employment units when the evidence did not establish a similarity of work skills under the same or similar working conditions.
The Petitioner's evidence consisted of comparisons with employees of Bloomington, Minnesota; Cedar Rapids, Iowa; Independence, Missouri; Madison, Wisconsin; St. Paul, Minnesota; Sioux City, Iowa; and Springfield, Missouri. The Respondent's
evidence consisted of comparisons with employees of Cedar Rapids, Iowa; Davenport, Iowa; Des Moines, Iowa; Kansas City, Kansas; St. Joseph, Missouri; St. Paul, Minnesota; Sioux City, Iowa; Sioux Falls, South Dakota; Springfield, Missouri; Topeka, Kansas; Waterloo, Iowa; and Wichita, Kansas. From both parties arrays there were four common cities: Cedar Rapids, Iowa; St. Paul, Minnesota; Sioux City, Iowa; and Springfield, Missouri.
There are significant differences in the methodology used by the parties in selecting members to their arrays. See Joint Exhibit 6. The Petitioner selected cities primarily on geographic proximity to Lincoln, population parameters, economic similarities, and similarity of working conditions with those found in Lincoln, Nebraska. Cities were excluded on the basis that they responded too late to be considered for the array, or were too far away from Lincoln, or on the basis of dissimilarity of working conditions.
The Respondent introduced three arrays for consideration. The first array was the same cities selected by the Commission in Case No. 153, Lincoln Firefighters Ass'n v. City of Lincoln , 3 CIR 130 (1975). In the second array the cities selected were based on geographic proximity to Lincoln and population parameters. In the third array SMSA's (Standard Metropolitan Statistical Areas) were selected based on geographic proximity to Lincoln, and population parameters. In both the second and third arrays six to eight employers were selected so that the sample would be large enough to be statistically significant and to follow the Commission's past preference for arrays of this size. The Respondent also presented testimony that same or similar work is performed in each of the cities of the three arrays presented (T201:9-21). The method of determining same or similar work was done by a "job match analysis. " (Tl89-193).
In selecting employment units for the purpose of comparisons to arrive at comparable and prevalent wage rates and conditions of employment in accordance with Section 48-818, the question is whether, as a matter of fact, the employment units selected for comparison are sufficiently similar and have enough like characteristics or qualities to make comparison appropriate in that situation. Fraternal Order of Police v. County of Adams , 205 Neb. 682, 685, 289 N.W. 2d 535, 537 (1980); Omaha Ass'n of Firefighters v. City of Omaha , 194 Neb. 436, 441, 231 N. W 2d 710, 713 (1975); Crete Educ. Ass'n v. School Dist. of Crete , 193 Neb. 245, 255, 226 N. W. 2d 752, 758 (1975). Since this is a factual determination to be made in each case, the use of a particular array in one case does not require that the same group of employment units would be appropriate in a different case. Crete Educ. Ass'n v. School Dist. of Crete , 193 Neb. 245, 255, 226 N. W. 2d 752, 758 (1975).
From the evidence in this matter we find that Respondent's array #2 which includes cities within a 300 mile radius from Lincoln is a properly constructed array in accordance with the requirements of Section 48-818. The population, geographical, economic, and other general characteristics of the cities included in this proposed array are in compliance with Section 48-818 and the prior determinations of this Commission and the Nebraska Supreme Court. Most importantly, in this array there is established a similarity of work skills under the same or similar working conditions. We find this array is appropriately balanced, sufficiently similar, and has enough like characteristics and qualities to make an appropriate comparison. Of the seven cities included in the Petitioner's array, the following three are also included in the Respondent's array #2: Cedar Rapids, Iowa; Sioux City, Iowa; and Springfield, Missouri.
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).
The Petitioner's array was not selected because of a lack of substantial evidence establishing that the array selected was based on a comparison of same or similar work of workers exhibiting like or similar skills under the same or similar working conditions. The Petitioner's evidence failed to establish that a comparison was made of same or similar work exhibiting like or similar skills under the same or similar working conditions in selecting their array of cities for comparison purposes as required by Section 48-818.
The Respondent's Array #1 which included the cities used in the comparison array in CIR Case No. 153 ( Lincoln Firefighters Ass'n. v. City of Lincoln ) was not selected because two of the array members were not sufficiently similar to Lincoln. One of the cities is Davenport, Iowa, which is a member of a Tri-city area in which there are three cities of approximately the same size. The other city is St. Paul, Minnesota, which the Respondent discounted as not being comparable to Lincoln because St. Paul is "inexorably entwined" with Minneapolis, Minnesota, thereby, making it a part of a metropolitan area of over two million persons.
The Respondent's Array #3 which included SMSA's within 300 miles of Lincoln was not selected for several reasons. Lincoln's city population comprises over 83% of its SMSA population. The mean (average) of the major city to the SMSA of the eight cities proposed to be compared to Lincoln is less than 65% of the total population of the SMSA. The range of the proposed members is from 50.6% to 76.2%. In addition, the respective city population figures for two of the SMSA's (St. Joseph, Missouri and Waterloo, Iowa) do not meet our population parameter of being at least one-half the city population of Lincoln. Therefore, we find that Respondent's Array #3 is not sufficiently similar to Lincoln to be appropriately compared in this matter.
We find, therefore, that the comparisons to be made in the determination of this matter should be with Cedar Rapids, Iowa; Des Moines, Iowa; Kansas City, Kansas; Sioux City, Iowa; Sioux Falls, South Dakota; Springfield, Missouri; Topeka, Kansas; and Wichita, Kansas.
7. Wage Comparisons.
The parties agreed in Joint Exhibit #3 that the minimum salary figures for employees within the bargaining unit shall be taken from Step B of the pay grid. See Appendix B to Joint Exhibit 3-A. The maximum salary figures presented into evidence by both parties are in conflict. The Petitioner is taking the figure from Step J (maximum step) of the pay grid and the Respondent is taking the figure from Step F (maximum step on Basic Merit Pay Plan, not taking into account Proficiency Merit Pay Plan). Since the maximum salary that one can be paid in each of the job classes is on Step J, that is where we will consider the maximum salary to be.
Respondent, in addition to presenting into evidence the minimum and maximum monthly salaries of the job classes involved in this dispute, also made two separate adjustments to the salary figures reported. These two adjustments are reflected in columns, 4, 5, 7, and 8 of Respondent's Exhibits 2AD, 3A-D, and 4A-D. One of the adjustments (columns 4 and 7) called "Minimum Salary Adjusted by Salary" and "Maximum Salary Adjusted by Salary" takes into account differences in the work performed. For example, a reporting city would report 90% of their salary paid is devoted to work which is the same as performed in Lincoln. An adjustment would then be made to the reported salary by 90% in other words a 10% discount is reflected in the salary figure listed in the exhibit (Tl95:8-22). The other adjustment (columns 5 and 8) called "Minimum Salary Adjusted by F.T.E." and "Maximum Salary Adjusted by F.T.E." takes into account the reporting city's estimate of how much time on the average their employees spend performing the work which is like the work performed in Lincoln. For example, if the reporting city reported they spent 90% of their time performing the same work, an adjustment was made in full time equivalents (F.T.E.) performing that work. So, if the number of employees in that job class was 100, it was adjusted downward by 10% or to 90 employees to come up with the total salary figure paid for work performed in that job class (Tl96:24 to 197:24).
In reviewing these adjustments, we find that they cannot be considered as the minimum and maximum salary figures to be utilized in determining what these other cities pay for "same or similar work of workers exhibiting like or similar skills under the same or similar working conditions." One of the Respondent's witnesses testified that same or similar work is being performed in each and every city presented in their arrays (T201:9-21). Section 48-818 requires the Commission to consider "same or similar work" and does not require exactness when comparing job duties.
The following tables set out the minimum and maximum monthly salaries of the job classes in dispute in the cities selected by the Commission for comparison purposes.
8. Comparisons of Other Conditions of Employment in Dispute.
In the following tables are comparisons of other conditions of employment in dispute as presented into evidence.
9. Consideration of Economic Variable Information.
Respondent introduced evidence (see exhibits 5A5E, 6A-6E, and 7A-7E) and expert opinion testimony that wages established for the job classes in dispute be adjusted accordingly to reflect the difference in the per capita income of those cities to Lincoln, Nebraska (T315-365). The argument raised by the Respondent is that if there are higher wage levels in a particular area, then those officers should be paid higher wages in that area. Likewise, if there are lower wages in a particular area, then the officers should be paid lower wages in that area. According to testimony (T351) the adjustments made to salary figures were based only on per capita personal income figures, even though many other economic variables were presented. The expert testified that this factor was the best economic indicator to base wages on (T382).
In determining prevalent wage rates for comparable services in reasonably similar labor markets, the Commission 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. Lincoln Fire Fighters Ass'n v. City of Lincoln , 198 Neb. 174, 180, 252 N. W. 2d 607, 611 (1977); Fraternal Order of Police, Lodge No. 8 v. County of Douglas , 4 CIR 185, 206 (1980).
Where it is alleged that economic dissimilarities exist which have a bearing on prevalent wage rates, the burden is on the party making that allegation to establish the bearing of any such economic dissimilarities on prevalent wage rates. The burden of proof is satisfied by actual proof of the facts, of which proof is necessary, regardless of which party introduces the evidence. Lincoln Fire Fighters Ass'n v. City of Lincoln , 198 Neb. 174, 178, 252 N.W. 2d 607, 610 (1977), Fraternal Order of Police, Lodge NO. 8 v. County of Douglas , 4 CIR 185, 188-189, 207 (1980).
From the evidence presented in this case, we find that Respondent has not established that the economic dissimilarities shown to exist through per capita personal income have a bearing on prevalent wage rates for the job classes in this dispute. The rule in Lincoln Fire Fighters mandates that any economic dissimilarities shown to exist "have a bearing on prevalent wages." The expert witness, called by the Respondent to explain the economic variable information collected, testified that he did not know whether per capita personal income (only factor used in adjusting salaries) has a bearing on wages of police officers [T356).
Mindful of the obligation to make factual determinations solely upon the evidence in the record, we find that the wages paid and conditions of employment for the other eight cities selected for the comparison array, need not be adjusted in making the determination under Section 48-818 in this case.
10. 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, holidays, 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 job classes in the same case depending upon the evidence introduced by the parties in the case.
When analyzing the wages paid by the Respondent as compared to the array cities, it becomes apparent that Respondent is paying less wages at the minimum level for the job classes of Police Sergeant, Detective, and Police Lieutenant. However, at the maximum level, the wages of the job classes involved in this dispute are near or above the prevalent of the cities selected as comparable.
In considering "overall compensation" the Commission finds the following condition of employment in Lincoln to be less than the prevalent in the comparable cities: Employer Contribution to Dependent Hospitalization and Medical Insurance (Table 6). In addition, the Commission finds these conditions of employment in Lincoln to be comparable or more than the prevalent in the array of cities selected: Employer Contribution to Life Insurance (Table 7), Proficiency Pay Policy (Table 12), Utilization Of Sick Leave with Funeral Leave (Table 13), College Pay (Table 15), Transit Subsidy (Table 16), and Use of Sick Leave for Family Illness (Table 17). We find that the College Pay benefit (Table 15) is a significant benefit in determining the "overall compensation" for the job classes in this dispute. There was testimony that the City of Lincoln spent last year $173,000 for College Pay and budgeted $178,000 for the current year [T405].
We were unable to make a determination as to what is the prevalent practice in the comparable cities for the following conditions of employment, because of a lack of evidence presented on them: Number of Years Between Minimum and Maximum Pay Steps (Table 8), Shift Differential Pay Policy (Table 9), Clothing Allowance (Table 10), and Dental Insurance (Table 14).
Applying the statutory requirements to the evidence in this case, we find that the wages and conditions of employment for the job class of Police Officers should not be changed since they are receiving total compensation comparable to the prevalent for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions. However, in taking into account the entire evidence in this case applicable to the job classes of Police Sergeant, Detective, and Police Lieutenant, we determine that the wages for Police Sergeant and Detective, which are the same, should be raised at the minimum level to $1,379.02, and that the wages for Police Lieutenant should be raised at the minimum level to $1,621.35. However, the maximum level of wages for these job classes are comparable to the prevalent and shall remain unchanged.
IT IS THEREFORE ORDERED that:
A) The wages of Police Officer shall remain unchanged.
B) For Police Sergeant and Detective the minimum monthly wage shall increase to $1,379.02 (Step C); the maximum monthly wage shall remain unchanged at $1,609.75 (Step J); the intervening steps shall be set as follows: Step D, $1,425.17; Step E, $1,471.32; Step F, $1,517.47; Step G, $1,540.54; Step H, $1,563.61; and Step I, $1,586.68.
C) For Police Lieutenant the minimum monthly wage shall increase to $1,621.35 (Step D); the maximum monthly wage shall remain unchanged at $1,773.20 (Step J); the intervening steps shall be set as follows: Step E, $1,659.31; Step F, $1,697.27; Step G, $1,716.25; Step H, $1,735.23; and Step 1, $1,754.21.
D) All other conditions of employment for Police Officer, Police Sergeant, Detective, and Police Lieutenant shall remain unchanged.
E) This Order shall be effective for the period from September 1, 1980, to August 31, 1981. The amount due for the portion of the contract year already elapsed shall be paid as soon as feasible following the entry of this Order.
All Judges assigned to the panel in this case join in the entry of this Opinion and Order.
Entered May 19,1981
_______________________________