|LOCAL NO. 2088, AMERICAN FEDERATION OF|||||CASE NO. 297|
|STATE, COUNTY AND MUNICIPAL EMPLOYEES,||||
|v.|||||OPINION AND ORDER ON|
|COUNTY OF DOUGLAS, DOUGLAS COUNTY||||
|SOCIAL SERVICE ADMINISTRATION, THE||||
|STATE OF NEBRASKA AND STATE OF NEBRASKA||||
|DEPARTMENT OF PUBLIC WELFARE,||||
For the Petitioner: John B. Ashford
Bradford, Coenen & Ashford
For the Respondents: William A. Harding
A. Stevenson Bogue
Nelson & Harding
Donald L. Knowles
Deputy County Attorney
John J. Reef, Jr.
Before: Judges Kratz, Gradwohl, and Orr
This matter comes on for decision following the reversal and remand with directions of a prior decision of the Commission by the Nebraska Supreme Court. The Commission's prior decision is reported at 4 CIR 76 (November 19, 1979). The Supreme Court's Opinions are reported at 208 Neb. 511, 304 N.W.2d 368 (April 10, 1981), and 209 Neb. 597, 309 N.W.2d 65 (Supplemental Opinion, August 7, 1981).
The Nebraska Supreme Court found three areas of error in the Commission's previous decision: (1) the Commission (4 CIR at 80) declined to consider certain Omaha based employers of professionals for improper reasons (208 Neb. at 519-520); (2) the Commission (4 CIR at 82) declined to consider certain Omaha banks, insurance companies and other private employers of hourly and clerical employees for improper reasons (208 Neb. at 520-521); and
(3) though it was not raised in the Commission or by the parties on appeal, the Supreme Court was concerned "that Douglas County may have granted to county employees not members of AFSCME a raise but withheld the same to members of AFSCME because of the existence of a labor dispute" (208) Neb. at 525; for the full discussion, see 208 Neb. 525-527, as modified by supplemental opinion, 209 Neb. 597-598).
The original opinion (208 Neb. at 526-527) and supplemental opinion (209 Neb. at 598) of the Supreme Court both conclude: "The order of the CIR in the instance case is reversed and the cause remanded for further proceedings in accordance with this opinion, if necessary. REVERSED AND REMANDED WITH DIRECTIONS."
When a determination of the Commission of Industrial Relations has received consideration by the Nebraska Supreme Court and the proceeding has been remanded to the Commission with specific directions, the Commission is obligated to enter an order in accordance with the mandate of the Supreme Court. The Supreme Court stated in Berg v. Midwest Laundry Equipment Corp. , 178 Neb. 770, 773, 135 N.W.2d 457, 460 (1965):
In Jorgensen v. Ainscow , 160 Neb. 208, 69 N.W.2d 856, this court held: 'Public interest requires that there shall be an end to litigation, and when a cause has received the consideration of this court, has had its merits determined, and has been remanded with specific directions, the court to which such mandate is directed has no power to do anything other than to enter judgment in accordance with such mandate.' To the same effect see Regouby v. Dawson County Irr. Co. , 128 Neb. 531, 259 N.W. 365. The trial court had no alternative under the mandate but to enter the judgment it did in this respect and committed no error in so doing.
For subsequent decisions applying this rule, see Weber v. Southwest Nebraska Dairy Suppliers, Inc. , 190 Neb. 389, 208 N.W.2d 667 (1973), and Muller Enterprises, Inc., v. Gerber , 180 Neb. 318, 142 N.W.2d 593 (1966).
Following the remand by the Supreme Court, a conference was held with counsel for all parties to establish procedures for arriving at a determination of this matter in accordance with the decision of the Nebraska Supreme Court. At that conference, the parties agreed (and their agreement, set out in the Report of Conference and Order filed August 26,1981, is hereby approved and made a part of the formal record in this matter) as follows:
a. The effective period for the determination in this proceeding is July 1, 1979, to June 30, 1980 (the previous Commission Order contains erroneous dates);
b. The present determination should not further alter any of the fringe benefits for the period in question (although in accordance with Section 48-818, the Commission must necessarilyconsider fringe benefits as part of "overall compensation" in making determinations under Section 48-818); and
c. Counsel informed the Commission that subsequent to the first Nebraska Supreme Court opinion, the State made a payment to the "members of AFSCME" similar to that granted to other county employees for the period in question.
Section 48-818 requires that the Commission of Industrial Relations "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." This language includes a comparison with both public sector employments and private sector employments in which employees exhibit "like or similar skills under the same or similar working conditions." In AFSCME v. City of Lincoln , 3 CIR 481, 488-489 (1978), the Commission stated:
An employee who operates an electric typewriter for a savings and loan association in Lincoln, Nebraska, does essentially the same work, possesses the same skills, and works under similar working conditions as the employee who operates an electric typewriter for the city of Lincoln, and this would be generally true with regard to stenographers, clerks, and other office employees. The same similarity would apply to the comparison of an equipment operator working for a Lincoln construction company and one working for the city, and a custodian working for a Lincoln bank.
The Supreme Court held that the Commission had improperly failed to consider private sector local employments involving employees performing the same or similar skills as Respondents' employees. In its headnotes, the Supreme Court stated:
Where there are local comparisons which can or should be made, they may not be disregarded if in fact it appears from the evidence that the local employers are comparable in that they meet the requirements of Neb. Rev. Stat. §48-818 (Reissue 1978).
Whenever there is another employer in the same market hiring employees to perform same or similar skills, the salaries paid to those employees must be considered by the Commission of Industrial Relations unless evidence establishes that there are substantial differences which cause the work or conditions of employment to be dissimilar.
Similarly, the Commission stated in a headnote in AFSCME v. City of Lincoln , 3 CIR 481 (1978):
The determination of prevalent wages and conditions under Section 48-818 is based on the labor market of the employer before the court, and if that is possible to compare employeeswithin the same city this would provide the most applicable comparison under the rule of comparable to the prevalent.
The Supreme Court decision approved the employments included in the arrays utilized in the former decision of the Commission. Upon reconsideration of the record in accordance with the Supreme Court decision, we conclude that additional private sector local employments referred to in the Supreme Court decision do meet the criteria of Section 48-818. The additional employments included in the revised arrays upon which the present decision is based are identified in revised Appendices A, B, and C hereto by an "*". We conclude, further, that the revised arrays contained in revised Appendices A, B, and C, which include both the previous employments and the additional local employments, meet the criteria for the selection of an array under Section 48-818 and, specifically, the rules stated by the Supreme Court in its decision in this case (208 Neb. at 516-519).
With respect to employers in the array considered for professionals, the Commission has now made recalculations on the same basis as its previous decision including those additional employers of professionals whom the Supreme Court stated should be considered by the Commission in accordance with its opinion. The recalculations are set out in revised Appendix A and revised Appendix C hereto. The additional employers included in the revised appendices have been marked with an "*" on the appendices.
With respect to employers in the array considered for hourly and clerical employees, the Commission has now made recalculations on the same basis as its previous decision including those additional employers of hourly and clerical employees whom the Supreme Court stated should be considered by the Commission in accordance with its opinion. The recalculations are set out in revised Appendix B and revised Appendix C hereto. The additional employers included in the revised appendices have been marked with an "*" on the appendices.
Appendix D adjusts for the fact that Douglas County works a 38 3/4 hour week which is less than the standard 40-hour week (see 4 CIR at 83-84). The revised Appendix D hereto follows the same adjustments for the key classifications as in the previous Commission decision. The revised Appendix E hereto spreads the key classification rates of pay to all classifications in the same manner as the previous Commission decision.
Appendix F (4 CIR at 91-93) has not been revised for the purpose of the entry of this order. The parties stipulated that the Commission should not further alter any of the fringe benefits for the period in question. Although requested to identify the evidence upon which the Order On Remand should be based and to recalculate the Appendices to reflect the use of such evidence, neither party suggested in the Briefs that Appendix F should be recalculated or should otherwise influence the present determination in this matter. From the Commission's examination of the evidence in therecord pertaining to fringe benefits of employers in the revised arrays, the Commission is convinced that the prevalent fringebenefits of employers in the revised arrays are comparable to those of the Respondents in this matter for the period in question and should be treated as comparable both insofar as establishing the level of the Respondents' benefits and insofar as "overall compensation" is concerned in making determinations pursuant to Section 48-818. As revised in this Order on Mandate, we find that the total wages and fringe benefits are "comparable to the prevalent" wages and conditions of employment in terms of "overall compensation" as required by Section 48-818.
The revised rates of pay are contained in revised Appendix E. The percentage of increase over the 1978-1979 rates of pay are shown for the key classifications on Appendix D. The State has now (since the first Supreme Court opinion) made a payment to the employees represented by the Petitioner of an increase similar to that granted other county employees for the 1979-1980
fiscal year. See L.B. 589 (1979). While the issue of a delayed payment to the employees directly considered by the Supreme Court in both the original (208 Neb. at 525-527) and supplemental (209 Neb. 597-598) opinions is, apparently, now settled, moot, or outside of the issues remaining in this litigation, the Petitioner contends that it serves as the basis for the Commission's award of interest on wages ordered to be paid by this Order On Remand. Without deciding whether or not there would be authority for entry of an order containing interest, we conclude that, in any event, the record is not adequate to support such an order in this case. The matter was not considered by either party in preparing the evidentiary record at trial. There is a great disparity in the adjustments in wage rates made by this decision. The record does not indicate what was done or agreed to with respect to the State's payment of wages following the first Supreme Court opinion. For these reasons, we decline to enter any order other than that establishing rates of pay for the period in question.
It is, therefore, Ordered that the wages for Respondents' employees represented by the Petitioner in this matter for the period July l, 1979, to June 30, 1980, shall be those fixed by and pursuant to revised Appendix E hereto.
All judges assigned to the Panel in this matter join in the entry of this Opinion and Order on Remand.
Entered October 28, 1981.