|LOCAL NO. 831, INTERNATIONAL ASSOCIA-|||||CASE NO. 426|
|TION OF FIREFIGHTERS, AFL-CIO,||||
|CITY OF NORTH PLATTE, Lincoln County,||||
For the Petitioner: Donald E. Rowlands II
Baskins & Rowlands
306 West 4th Street
North Platte, NE
For the Respondent: William A. Harding
Nelson & Harding 500
1200 N Street
Before: Judges Berkheimer, Gradwohl and Orr
At the conclusion of the trial of this matter on October 23, 1981, after both parties had rested, the Hearing Judge ruled (2 Bill of Exceptions, page 147): "And I will recess the hearing to be reopened only upon motion of the Commission and not upon the motion of either party." On Motion of the Commission, the hearing is reopened, both parties are given leave to withdraw their rest, and both parties may present additional evidence.
Section 48-812 provides that except as modified by Commission rule or other statutes pertaining to the Commission, "proceedings before the commission shall conform to the code of civil procedure applicable to the district courts of the state." Section 48-809 states that "In the taking of evidence, the rules of evidence, prevailing in the trial of civil cases in Nebraska shall be observed by the Commission of Industrial Relations." See Plattssmouth Police Department Collective Bargaining Committee v. City of Plattsmouth , 205 Neb. 567, 288 N.W.2d 729 (1980).
It is within the discretion of a district court in a civil case to allow a party to withdraw its rest and introduce additional evidence. Meyer v. City of Grand Island , 184 Neb. 657, 171 N.W.2d 242 (1969) ("An order allowing a party to withdraw his rest and to adduce evidence is discretionary.").
A pretrial conference was held on October 16, 1981. It was agreed that the testimony and Exhibits 1 to 11 from the hearing on the Association's request for a Temporary Order held September 3, 1981, would be received in evidence without objection as to foundation at the trial. The testimony from the hearing held September 3, 1981, was received in evidence at the trial on October 23, 1981, and is marked as volume one of the Bill of Exceptions. 2
Bill of Exceptions, page 7. The Temporary Order filed herein on September 22, 1981, following the hearing on September 3, 1981, is reported in 5 C.I.R. 248 (1981).
The Association submitted Exhibits which were marked 12 to 23 and it was agreed that they would be received in evidence without objection as to foundation at the trial. Pursuant to this agreement, Counsel for the City stated at the trial that City had "no objection" to the introduction of Exhibits 12 through 23 (which includes Exhibits 16A, 16B, 17A, and 17B). 2 Bill of Exceptions, page 13. It is this documentary evidence, particularly Exhibits 18 through 23, which contains most of the figures necessary for making the comparisons specified in Section 48-818.
It was also determined at the pretrial conference that the Commission would take judicial notice of its prior decision between the same parties filed June 28, 1979, for the period of August 1, 1978, to July 31, 1979. That decision was received in evidence as Exhibit 24 at the trial and is also reported at 4 C.I.R. 12 (1979). 2 Bill of Exceptions, pages 7-8.
The employments in the Association's proposed array are the fire departments in Fremont, Grand Island, Hastings, Norfolk and Scottsbluff, Nebraska. This is the same array which the Commission determined was appropriate for sworn officers in the 1979 determinations. See 4 C.I.R. at 17-18.
The work classifications involved are Firefighter, Unit Officer, Captain, Fire Protection Specialist, and Fire Marshall Aide. The Association contends that North Platte Unit Officers are the equivalent of Lieutenants in the other fire departments. The City contends that Unit Officers are comparable to Firefighters. The City also contends that North Platte Captains are the equivalent of Lieutenants in the other fire departments.
The parties agreed at the Pretrial conference to attempt to arrive at an agreed method for establishing the rates of pay for Fire Protection Specialist and Fire Marshall Aide in this matter. At the commencement of the trial, the parties agreed that Fire Protection Specialist and Fire Marshall Aide could be placed in their relative positions with reference to Firefighter and that their wages and conditions of employment established in this matter be based upon the wages and conditions of employment which are fixed for Firefighters. 2 Bill of Exceptions, pages 11-12.
The City submitted prenumbered Defendant Exhibits 1A to 37 at the Pretrial Conference which it was agreed could be received in evidence at the trial without objection as to foundation. The City proposed three arrays: (1) a "Case No. 288" array consistng of the fire departments in Fremont, Grand Island, Hastings, Norfolk, and Scottsbluff, Nebraska; (2) a 200 mile radius array consisting of Scottsbluff, Nebraska, Hays, Kansas, Columbus, Nebraska, Norfolk, Nebraska, Hastings, Nebraska, and Grand Island, Nebraska; and (3) a 225 mile radius array consisting of Beatrice, Nebraska, Scottsbluff, Nebraska, Hays, Kansas, Great Bend, Kansas, Columbus, Nebraska, Norfolk, Nebraska, Hastings, Nebraska, Fremont, Nebraska, Grand Island, Nebraska, Cheyenne, Wyoming, and Greeley, Colorado. This evidence was not introduced at the trial on October 23, 1981, apparently because the City chose, instead, to, challenge the Association's having sustained its burden of proof in this matter.
This case involves the fiscal year commencing August 1, 1981. The parties stipulalated at the trial that agreements for the 1981-1982 fiscal year had not been reached in Hastings and Scottsbluff by the trial date, October 23, 1981, and that the wages and conditions of employment for the 1980-1981 fiscal year had been continued in effect in Hastings and Scottsbluff. 2 Bill of Exceptions, pages 12-13.
At the conclusion of the Association's case, the City moved to dismiss the proceeding for three reasons: (1) that the three cities for which the Association presented evidence as to the 1981-1982 fiscal year was too small an array; (2) that the Association had not presented evidence on fringe benefits which are necessary in making determinations as to overall compensation; and (3) "that there is no record evidence with respect to the issue of same or similar work for employees employed by the City of North Platte versus employees in the other three cities in the array." 2 Bill of Exceptions, pages 102-105. After the Motion to Dismiss was overruled by the Hearing Judge (2 bill of Exceptions, pages 118-119), the City introduced evidence in support of its "economic deflator" argument but did not offer testimony or exhibits with respect to the three items listed in its Motion To Dismiss. Specifically, the City's premarked Defendant Exhibits 1A to 37 were not introduced in evidence at the trial.
There seems to be agreement that a five city array consisting of Fremont, Grand Island, Hastings, Norfolk, and Scottsbluff is an appropriate array for the determination of this matter. This was the array used in the 1979 decision (4 C.I.R. at 17-18). Together with Columbus, they were used as agreed comparisons during negotiations for a 1981-1982 contract (5 C.I.R. at 249-250). Both parties proposed an array of these five cities at the Pretrial Conference. There is a relatively small "universe" of comparable employments within the State of Nebraska from which an "array" with respect to North Platte can be drawn. The 1979 case did not include McCook and York because they were significantly smaller in size.Beatrice was not included because its "fire department employees do not have EMTA certification or perform the emergency medical type duties." 4 C.I.R. at 18. Despite the stipulation of the parties to include Columbus in the 1979 comparisons, the Commission did not include Columbus because ". . . the evidence demonstrated that its department structure is so different from the rest of the array that is should not be used. Its small paid force is composed of principally drivers and crew leaders who surrender command to a ranking volunteer as soon as one comes on the scene." 4 C.I.R. at 17. It is recognized that "the mere fact that one set of school districts was deemed adequate in one case, does not mean that a different set of school districts would necessarily be inadequate in a different case." Crete Education Assn v. School Dist. of Crete , 193 Neb. 245, 226 N.W.2d 752 (1975) (syllabus by the Court; also 193 Neb. at 255, 226 N.W.2d 759). At the same time, consistency and stability of the array applicable to the same parties is a factor for the Commission to consider in making the factual determinations concerning the appropriate array in a specific case from all of the evidence presented. See Fraternal Order of Police v. County of Adams , 205 Neb. 682, 684-685, 289 N.W.2d 535, 536-537 (1980). Insofar as consistency and stability of the array applicable to the same parties is concerned, it is significant that these five cities were used in the 1979 comparisons by the Commission, that they were used by the parties,
themselves, during the current negotiations, that the parties will again be called upon to negotiate in future years, and that the Commission potentially may be called upon to resolve similar industrial disputes in future years.
Table 1 sets out some of the "Information on Compared to Cities and Their Fire Departments" contained in the evidence.
The City is wrong in its assertion (2 Bill of Exceptions, page 104) that "there is no record evidence with respect to the issue of same or similar work for employees employed by the City of North Platte versus employees in the other three cities in the array." The work and skills of the North Platte classifications is shown in Exhibits 5, 6, and 7 and extensive testimony at both the hearing on the Association's request for a Temporary Order and the trial. The information concerning employees in the fire department in Grand Island is contained in Exhibit 19;Fremont is contained in Exhibit 20; Norfolk is contained in Exhibit 21; and these Exhibits were received in evidence without objection at the trial. Similar information concerning Scottsbluff is contained in Exhibit 18.
Furthermore, the Supreme Court stated in General Drivers and Helpers Union v. City of West Point , 204 Neb. 238, 239-240, 281 N.W.2d 772, 774 (1979): "It could be said without much argument that Union simply obtained wage information from the various cities by job title only without reference to job descriptions, skills or requirements. Nevertheless, where as here the job titles were in and of themselves rather descriptive, we are not that concerned with the absence of a more detailed recitation of the nature of the jobs." In the present case, the Association's evidence concerning North Platte, Scottsbluff, Grand Island, Fremont, and Norfolk does show job descriptions, skills and requirements as well as the titles. The evidence on Hastings (Exhibit 22; see Exhibits 16Band 17B) shows the job titles of Firefighter and Captain.
The Pretrial Order (received in evidence on the Commission's Motion as Exhibit 26) states in Paragraph 8 that "The parties agreed that Firefighters in each of the fire departments in the Association's proposed array perform the same or similar skills under the same or similar working conditions." In arguing its Motion To Dismiss after the Association had rested, Counsel for the City stated that this factual recitation of what took place at the Pretrial Conference was incorrect. 2 Bill of Exceptions, pages 106 to 108. Since the commission now determines that the hearing will be reopened for the presentation of evidence by both parties, Paragraph 8 of the Pretrial order is hereby withdrawn,
The City's reliance upon Plattsmouth Police Department Collective Bargaining Committee v. City of Plattsmouth , 205 Neb. 567, 288 N.W.2d 729 (1980), in objecting to the Association's evidence as to work and skills of employees in the other Cities (see 2 Bill of Exceptions, pages 104 and 108) is also misplaced. Plattsmouth Police did not directly involve a comparison of work and skills throughout the array. Rather, in Plattsmouth Police (205 Neb. at 570, 288 N.W.2d at 732):
The plaintiff was allowed, over objection, to introduce exhibits compiled from questionnaires concerning salaries paid in 22 first-class cities. The plaintiff called an expert witness who, over objection, was allowed to testify as to his opinion based upon these exhibits.
The questionnaires had been prepared by the expert witness. The plaintiff had mailed the questionnaires to the police departments in the 22 cities. The questionnaires which were returned to the plaintiff through the mail were not authenticated in any way. The questionnaires listed minimum and maximum salaries but there was no indication as to whether the salaries listed were actually being paid or under what conditions employees would be entitled to receive the maximum salaries.
The holding of Plattsmouth Police as to this evidence was (205 Neb. at 571, 288 N.W.2d 732):
Because of the lack of foundation evidence to establish the source and reliability of the information contained on the questionnaires which was the basis for the compilations offered by the plaintiff, the defendant's objections to these exhibits should have been sustained. Since the exhibits were the basis for the opinion testimony given by the Plaintiff's expert witness, the defendant's objections to his testimony should have been sustained.
In this case, the city expressly raised no objection to the Exhibits containing the Association's questionnaires. 2 Bill of Exceptions, page 13. These Exhibits and the information contained in the questionnaires are properly a part of the evidence in this case under the rules of evidenee prevailing in the trial of civil cases.
The evidence, therefore, shows a suitable array of five cities, four of which have a similiarity of job titles, descriptions, skills and requirements, and the fifth a similarity of two job titles. These are the same five cities represented in the 1979 array. In reaching the 1979 decision, figures from all five cities are shown for the Firefighters classification (4 C.I.R. at 18-19), but, for reasons stated in the decision, only three cities were used in reaching the decision as to Emergency Unit Officer (4 C.I.R. at 19-20) and four cities were used in reaching the decision, as to Captain (4 C.I.R. at 20-21).
Hastings and Scottsbluff had not established figures for the 1981-1982 year at the time of the trial on October 23, 1981. It has come to the attention of the Commission through the Association's Motion to reopen the hearing filed January 20, 1982, that these two cities may now have fixed compensation figures for the 1981-1982 year. It is desirable for the Commission to settle the pending dispute upon the basis of all information which may be available to it. Accordingly, we choose to exercise the authority reserved at the conclusion of the trial on October 23, 1981, to reopen the hearing for the presentation of additional evidence by either party.
Table 2 sets out a "Comparison Of Monthly Entry and Maximum Salary Figures For Firefighter, Lieutenant or Emergency Unit Officer, and Captain." The grouping of Lieutenant and Emergency Unit Officer and the listing of North Platte Captain figures under the Captain columns on Table 2 is not intended to be a final determination of those issues raised by the City (that North Platte Emergency Unit Officer is the equivalent of Firefighter in the other Cities and that North Platte Captain is the equivalent of Lieutenant in the other Cities). Also, Table 2 and the following tables in this Order show only the figures applicable to the 1981-1982 year. There are figures contained in the evidence for Hastings and Scottsbluff for the 1980-1981 year which are not reffected in the Tables.
Table 3 contains "General Salary Information In Compared To Cities." Table 4 some additional "Compensation Policy In Compared To Cities."
The City also asserted in support of its Motion To Disniss that "the record reflects that the petitioner has not presented evidence on other fringe benefits available to 'the bargaining unit members, such as sick leave, vacation, et cetera, as the record shows." 2 Bill of Exceptions, page 103. The City cross examined as to the existence of a number of benefits and conditions of employment, among which were vacations, sick leave, pensions, life insurance, longevity pay, overtime, and call back pay (see 2 Bill of Exceptions, pages 35-37 and 53-54), but did not, otherwise, inquire into what those benefits and conditions consisted of. With respect to North Platte employees this evidence is set out in Exhibit 23, the Collective Bargaining Agreement Between the City of North Platte and International Association of Firefighters, Local No. 831, AFL-CIO, for August 1, 1980-July 31, 1981, the terms and provisions of which have remained in effect since August 1, 1981, pending the resolution of the present industrial dispute. There is also some additional evidence in the record from testimony and other exhibits. The following Table 5 through Table 12 summarizes evidence concerning employee benefits and conditions of employment.
The Association requested that the Commission determination of this matter include a voluntary union dues checkoff. Table 13 shows the evidence as to "Union Activities in Compared To Cities." Section 48-224 authorizes voluntary union dues checkoff plans for municipal employees. See International Brotherhood of Electrical Workers, Local Number 1537, AFL-CIO, v. Board of Public Works , City of Fremont , 3 C.I.R. 164 (1976).
The City relied heavily on General Drivers and Helpers Union v. City of West Point , 204 Neb. 238, 281 N.W.2d 772 (1979), in support of its Motion To Dismiss. See 2 Bill of Exceptions, pages 113-114. Although the evidence and procedure are quite different, West Point very strongly supports the Commission's determination that the hearing in this matter should be reopened.
The West Point Opinion succinctly sets out the facts as follows (204 Neb..at 238-240, 281 N.W.2d at 774):
Petitioner-appellee, a labor union (Union) and the certified collective bargaining agent for most of the employees of the respondent-appellant, City of West Point, filed its petition in the Court of Industrial Relations (CIR) on July 1, 1977, alleging that the parties had attempted, without success, to negotiate an agreement as to wages, hours, and conditions of employment,thereby creating an industrial dispute as defined in the Court of Industrial Relations Act, sections 48-801 et seq., R.R.S. 1943. After a hearing, the Court of Industrial Relations entered an opinion and order dated July 26, 1978, establishing wages for certain linemen, light plant operators, sewage treatment plant operators, and street laborers effective August 1, 1976-77 and August 1, 1977-78. The City of West Point has appealed to this court.
The City's primary complaint as expressed in its assignments of error is that the CIR had no authority to conduct its own investigation as to wage comparability after Union had failed to sustain its burden of proof on that issue, and because of such failure, the case should have been dismissed. We agree.
Union, through two employees of the City and an international representative of another union, offered evidence of wages being paid certain employees of the City together with a description of the various jobs as compared with the cities of Fairbury, Beatrice, Grant' Island, Fremont, and Cuming County, covering both years involved, except that Cuming County was not used for the year 1977-78. The populations of the City of West Point and the various political subdivisions in the array listed above were 3,385, 5,265, 11,600, 31,200, 23,900, and 11,817 respectively. The various job descriptions furnished by the witnesses were at best vague and indefinite. The two witnesses, employees of the City who were the electric line foreman and light plant foreman respectively, were able to give comprehensive descriptions of those two job areas. However, they knew little about the duties of the street laborers or sewer treatment employees other than what might be expected of the average man on the street. The other witness, the union representative, had virtually no independent knowledge of the job skills for the various job descriptions, particularly for linemen and street laborers, and merely stated that street laborers repair the streets and keep them clean.
It could be said without much argument that Union simply obtained wage information from the various cities by job title only without reference to job descriptions, skills, or requirements. Nevertheless, where as here the job titles were in and of themselves rather descriptive, we are not that concerned with the absence of a more detailed recitation of the nature of the jobs. However, there was no evidence offered of fringe benefits paid by the units within the array, nor was there anything from which any conclusion could be drawn either as to the labor market, job opportunities, or work opportunities anywhere.
The Opinion recites that the Commission conducted its own investigation to secure additional data from other cities in the state operating their own generation plants and within a population range of 2,000 to 3,500, which data was made a part of the record and formed the basis for the Order of the Commission of Industrial Relations entered under Section 48-818. The Supreme Court framed the issue presented (204 Neb. at 241, 281 N.W.2d at 775):
The question we are called upon to decide is whether the CIR is empowered to go out in the first instance and conduct an investigation as to whether a particular wage is comparable to the prevalent, or whether it is entitied only to utilize this method to supplement and refine evidence which it finds to be sufficient, but not altogether satisfactory.
The West Point decision held that the Commission's investigaton was not proper and that the evidence secured thereby was not properly admissable for a determination under Section 48-818. The Opinion reasoned (204 Neb. at 241-242, 281 N.W.2d at 775-776):
As we stated in Lincoln Fire Fighters Assn. v. City of Lincoln , 198 Neb. 174, 252 N.W.2d 607 (1977), '* * * * the burden is on the moving party in a section 48-818, R.R.S. 1943, case, to demonstrate that existing wages are not comparable to the prevalent wage rate, * * *. It is obvious that to do this it was necessary for Union first to establish by the evidence what were '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.'§48-818, R.R.S. 1943. In making this comparison it is necessary to take into consideration not only the wage for time actually worked but also wages for time not worked, including vacatons, holidays, and other excused time; all other benefits received including insurance and pensions; and the continuity and stability of employment. 'This was not done in this case as no evidence was presented on fringe benefits received by the firemen in those cities used for comparison.' Lincoln Fire Fighters Assn. v. City of Lincoln , supra . See, also, Crete Education Assn. v. School Dist. of Crete , 193 Neb. 245, 226 N.W.2d 752 (1975).
With the exception of Fairbury, the municipalities tendered in Union's array were from over 3 to nearly 10 times the size of the City of West Point. Fairbury, retained by the CIR to construct its array, was almost twice as large. This is not to say that such cities could not have been used if there was evidence of the labor market generally in those locations establishing comparable conditions. Beyond that, and perhaps of even more significance, is the finding of the CIR itself that 'We find these comparables, properly ad justed , to be sufficient to carry the petitioner's burden of showing that West Point wages are not comparable to the prevalent.' (Emphasis supplied.) The CIR is saying that the evidence presented, without adjustment, was not sufficient to carry Union's burden. We are in complete agreement with this position. However, there is nothing in the record to indicate what adjustment was made. This was a critical finding to have been made, and to permit it to stand without support in the record would eliminate the requirement of burden of proof. While this position may seem to exalt form over substance, it must be remembered that the CIR's sole function is to settle industrial disputes, and the principal onus in producing evidence is on the parties. The adversary nature of proceedings has been preserved in the CIR by the Legislature in providing that proceedings shall conform to the code of civil procedure applicable to District Courts, section 48-812, R.R.S. 1943; by the decision of this court as to burden of proof, Lincoln Fire Assn. v. City of Lincoln, supra ; and, for that matter, by the procedures adopted and followed by the CIR itself. The result is that the CIR cannot, in a section 48-818, R.R.S. 1943, case, obtain evidence on its own motion unless the moving party has first made a prima facie case by satisfying the burden of proof of establishing noncomparability with prevalent conditions. Therefore, we must disregard the evidence obtained by the CIR on its own motion and are left with findings not supported by substantial evidence, resulting in the entry of an unjustifiable order which is therefore arbitrary, capricious, and unreasonable.
It is clear that the Association has, on the evidence in the record in this case, fully met the burden of proof required by West Point . Here the Association's evidence demonstrates the existence of a suitable array; in West Point , it did not. Here, the Association has introduced more extensive evidence as to the similarity of work and work skills. Here, there is current evidence as to overall compensation for the three cities in the array for which such evidence existed at the time of the trial; in West Point , that evidence was not presented by the parties. Here, the trial was recessed; in West Point , it was closed. This hearing is being reopened pursuant to the Commission's reservation on the record at the trial of the right to do so. In West Point , the Commission initiated and conducted its own investigation of the matter. The procedures followed in this matter are proper under the rules of procedure applicable in civil cases; the action in West Point was held to be outside of the authorization of Section 48-817 upon which it was based.
Upon consideration of the applicable statutes, decisions, evidence, interests of the parties in this litigation, the prior, current and future relationships of the parties to this litigation, and the general public interests and policies to be served by the Commission of Industrial Relations, it is determined that the hearing should be reopened generally for the presentation of evidence by either party.
It is, therefore, Ordered on the Commission's Motion that the hearing is reopened. Both parties are given leave to withdraw their rest. Both parties may present additional evidence. The matter will be set for a further Pretrial Conference and Trial as rapidly as possible. The City's pending Motion To Dismiss found at 2 Bill of Exceptions, page 147, is Overruled. Paragraph 8 of the Pretrial Order filed October 20, 1981 (Exhibit 26), is withdrawn. The Association's Motion filed January 20, 1982, to reopen the hearing on the Association's Motion for the reasons stated therein (to which the City filed an Opposition To Petitioner's Motion To Reopen on January 21, 1982) is Overruled.
All Judges assigned to the panel in this case join in the entry of this Order.
Filed February 5, 1982.