6 CIR 111 (1982)


NO. 554 affiliated |
Petitioner, |
Respondent. |


For the Petitioner: David D. Weinberg

Weinberg & Weinberg, P.C.

Omaha, Nebraska

For the Respondent: A. Stevenson Bogue

Nelson & Harding

Omaha, Nebraska

Before: Judges Gradwohl, Berkheimer and Davis.


This matter was heard on Petitioner's Petition seeking a wage determination pursuant to Section 48-818 R.R.S. 1943 and Respondent's Answer.

The jobs in issue are in Respondent's garage and surveyor's office. The jobs in the bargaining unit appear throughout the evidence under somewhat different titles and Respondent's expert translated County job titles to class titles more generally used in surveying wages. For the purpose of this Opinion and Order the Commission uses County job titles and finds the following jobs to be those presently in the bargaining unit:

Clerk III

Communications Operator

Parts Room Clerk

Tool Room Attendant

Parts Services Foreman

Maintenance Aide


Auto Equipment Operator I

Auto Equipment Operator II

Automotive Equipment Operator III


Equipment Mechanic I

Equipment Mechanic II

Equipment Mechanic III

Blacksmith Welder

Traffic Services Technician

Draftsman I

Engineer Aide I

Engineer Aide II

Draftsman II

the title "Welder" appears in the parties' collective bargaining agreement which expired June 30, 1981; however, the evidence is that this position no longer exists.

A contention strongly urged by Petitioner is that because of (a) historical relationships between wages paid by the City of omaha and Douglas County, (b) interchange of work between City and County employees, and (c) side by side work by City and County employees, wages by the City alone are sufficient as a basis for a Section 48-818 determination or at least are entitled to greater weight than wages paid by other employers. The historical relationship between City and County wage scales is not in evidence. A portion of Petitioner's Exhibit 1 purporting to show the history of County and City wages for some jobs was not received because foundational evidence for City of Omaha wages was lacking when the exhibit was offered. Petitioner's Exhibit 5, received in evidence, was identified by the business agent of the City employees union as being current City wage scales, but from examination of the exhibit it appears that the wage rates shown are those for some prior year. Respondent, however, did introduce evidence of current City wages for several jobs. The evidence is that for short periods County employees have operated County equipment on City projects, that a few City and County employees work together in preparing annual vehicle auctions conducted by the City and County and that in winter there is an arrangement whereby the City and County plow portions of each other's roads and streets. Section 48-818 requires that the wage rates and conditions of employment determined by the Commission be comparable to prevalent rates and conditions.

In one of the prior Commission cases between these parties, the Commission did establish Douglas County wages with reference to City of Omaha wages alone. That case, General Drivers & Helpers Union No. 554 vs. Douglas County , 3 CIR 504, was decided on June 30, 1978 and determined Douglas County wages for the period September 1, 1977 to August 30, 1978. On May 24, 1978, the Commission had entered an Order under Section 48-818 determining City of Omaha wages for the calendar year 1978 in Omaha City Employees Local Union No. 251 vs. City of Omaha , 3 CIR 430. The June 30, 1978 Douglas County case was decided largely upon stipulations with only Omaha rates before the Commission. The Commission could conclude with some confidence that because the City of Omaha rates established on May 4, 1978 were comparable to prevalent rates, County rates based on City rates adjusted for the difference in overlapping time periods also would be comparable to prevalent rates for same or similar work. In its June 30, 1978 Opinion the Commission noted that determining prevalent wages with reference to a single employer was unique to that case and should not be viewed as precedent in that regard. Here, there has been no contemporaneous determination of Omaha rates, and we have evidence of rates paid by a substantial number of other employers in eluding the City of Omaha. The Commission concludes that in this case the City of Omaha wages are not entitled to greater weight than those of other employers.

The Petitioner introduced evidence of same and similar work and current wages paid applicable to Equipment Mechanic II by LeRoy Wade & Sons, Inc. and to Auto Equipment Operator II by Haulaway Division of Browning Ferris Industries of Nebraska, Inc. Evidence was also offered by Petitioner and received respecting wages paid for work similar to that of Auto Equipment Operators I, II and III by members of the Omaha Heavy Highway Association under agreement with Petitioner. The Commission finds that LeRoy Wade & Sons, Inc., Haulaway Division, and Omaha Heavy Highway Association should be included as employers for wage comparisons above described. The members of the Association are included as a single employer because all employees work under the same contractual provisions.

Also in Petitioner's evidence was testimony of wages paid unskilled laborers in the Omaha area under agreements between Laborers Union of North America, Local 1140 and members of the Building and Construction Association and Heavy Highway Construction Association. The evidence shows unskilled laborers' work for members of these associations is highly seasonal. Language in Section 48-818 requires that the Commission take into consideration "the continuity and stability of employment enjoyed by the employees." Accordingly, it is not appropriate to compare wages paid by employers for highly seasonal work with wages paid for year round employment. The Local 1140 business representative did testify as to agreements between his union and Vrana Paving Company which is also included in Respondent's array and according to Respondent's expert provides year-round employment. The business representative further testified that his union represents employees of companies which are not in the construction business and which may provide year-round employment but the wage rates paid by these companies is not in evidence except for Vrana Paving Company noted above.

Respondent proposed a quite extensive array of employers with job matches for most classifications in the unit which will be considered. See Lincoln Fire Fighters Association v. City of Lincoln , 198 Neb. 174, 178, 252 N.W.2d 607, 610 (1977).

Respondent's array consists of the following local public and private employers:

Vrana Paving Company

Fehrs Tractor and Equipment

D & K Truck Repair

Metropolitan Utilities District

Omaha Public Power District

Nebraska Department of Roads

City of Omaha

The Respondent's expert testified that his principal source of information in selecting local employers for comparison was an officer of the Nebraska Job Service from whom he obtained data as to employers for whom he recruited employees performing work which was the same or similar as that in the bargaining unit and whose work was not of a seasonal nature. From these employers the Respondent's expert selected the larger employers considering them more closely comparable to Douglas County. He then surveyed employers who were willing to participate in the survey. Respondent's expert selected County employers on the basis of 1980 population (compared to Douglas County population of 398,000) and distance from Omaha in direct nautical miles as follows:

County 1980 Distance

County State Seat Population from Omaha

Jackson Missouri Independence 629,000 111

Johnson Kansas Olathe 270,000 115

Peoria Illinois Peoria 200,000 270

Polk Iowa Des Moines 303,000 96

Ramsey Minnesota St. Paul 460,000 260

Sedgwick Kansas Wichita 367,000 221

Tulsa Oklahoma Tulsa 171,000 298

In his job matching the expert translated County job titles to class titles resulting in remaining of some positions and combining two or more County job titles he considered to involve the same or similar levels of skills and work. Petitioner strongly objected to this translation but the sameness or similarity of work and skills within the classes is unchallenged by evidence, and as the expert's testimony is credible, it is accepted by the Commission not to change the County's job titles but as bases for comparisons. In determining wages the Commission will use the County titles. There is a separate array for each job because all employers did not have employees in all jobs surveyed.

The Commission finds that all local public and private employers as well as the other counties proposed by Respondent should be included in the arrays for the jobs surveyed.

There was apparently no effort by Respondent, either locally or in other counties, to compare any job if the same job classification was found among other departments of Douglas County. As to these jobs, only "in house" survey evidence was introduced by Respondent.

The City of omaha is proposed by both parties; however, as noted above Petitioner's evidence does not include current City wage data. Therefore, only Respondent's data is available for City of Omaha jobs and there is no City data for those jobs where Respondent offered only "in house" evidence. The Commission is left with only in-house comparisons for the following jobs:

Clerk III

Maintenance Aide

Parts Room Clerk

Parts Service Foreman

Tool Room Attendant

Blacksmith Welder

The Commission does not consider that this in-house data is sufficient to determine prevalent wages.

All but a few of the employers surveyed a pay range of wages for each job while Douglas county pays a single rate for each job. Both the dollar amount and percentage differences between the minimum and maximum wages paid for the same job vary widely among the employers surveyed. The evidence does not show the criteria used by other employers in determining placement within the maximum and minimum rates. It is not possible to determine from the evidence precisely where a Douglas County employee would fall in a range paid by another employer. Respondent's expert testified that it would be appropriate to use only the minimums in determining comparability.

For all but one job the numbers of employers in the array vary from 8 to 12. For "Communications Operator" there are only four employers in the array with the lowest minimum compensation being $705.00 per month and the highest maximum being $1,466 per month. The Commission does not consider those employers to provide adequate data for determining a prevalent wage for a Communications Operator. For Draftsman I and Engineering Aide I we have only the in house comparisons and for Auto Equipment Operator II we have only an in-house comparison plus one employer proposed by Petitioner. Here also such comparison data is insufficient; however, from job descriptions the Commission can determine that there is a relationship between Auto Equipment Operator II and Auto Equipment Operators I and III in that each represents a level of skill in the same line of work. Similarly, Engineer Aide I and Draftsman I represent lower levels of skill in the same type of work as that performed by Draftsman II, Engineer Aide II. There is adequate data for Auto Equipment Operators I and III and for Engineer Aide II and Draftsman II; therefore, using wage rates found prevalent for these positions the Commission can appropriately determine wages for Auto Equipment Operator II, Engineer Aide I and Draftsman I using existing Douglas County differentials.

Appendices 1 through 7 show wage comparisons with other employers in the array for Equipment Mechanics I and II, Traffic Services Technician, Draftsman II and Engineer Aide II, Auto Equipment Operator I, Laborer, Auto Equipment Operator III and Foreman, and Equipment Mechanic III. The collective bargaining agreements between the parties have a hourly wage rate for jobs within the unit; however, Respondent's exhibits which make up the greater part of available evidence are stated in monthly amounts because apparently a number of other employers pay a monthly wage. In making translations from hourly wages to monthly pay and vice versa, 173.33 hours per month is used.

The Petitioner asks that the Commission determine wage rates in this case by fixing a uniform percentage increase over present rates applicable to all jobs. In General Drivers & Helpers Union, Local No. 554 v. Douglas County , 3 CIR 420 (May 10, 1978), the Commission determined wages for this bargaining unit for the year earlier than that involved in the Douglas County case above discussed, and did so on a percentage increase basis; however, the evidence for so doing was not detailed in the opinion. An across the board increase preserves existing wage differentials among jobs. There are valid personnel relations reasons for maintaining internal wage differentials which the parties have lived with over a period of time; however, Section 48-818 requires establishment of rates of pay based upon comparisons with wages paid by other employers for same or similar work of workers exhibiting like or similar skills under the same or similar working conditions. Internal wage differentials are not a part of the statutory standard for establishing wages, and therefore must give way to the statutory external standards if inconsistent. In this case use of existing job differentials in fixing a single wage rate for a particular job within a comparable range presents a reasonable approach to solving the range comparison problem.

The fact that for most employers in the arrays there is a range of rates for each job while Douglas County jobs carry a single rate has been mentioned above as well as the fact the evidence does not show criteria for placement of Douglas County employees within the ranges. The variation in ranges was noted as a reason for not using a 4-employer array for the job of Communications Operator; however, the arrays of 8 to 12 employers for other positions are usable. The ranges between minimums and maximums in the array, although injecting imprecision into the determination of a comparable single wage rate for each job, do permit some flexibility because no point in a range is under the evidence more precise than any other point. The Commission's determination in this case is based upon applying the existing differentials among jobs where the result falls within means and medians of the range minimums and maximums.

The jobs of Equipment Mechanic I and Equipment Mechanic II arrayed in Appendix I provides a starting point for translating wage rate ranges of other employers into a single rate for Douglas County. No other classification permits this translation. The Respondent's expert placed Equipment Mechanics I and II in a single classification for comparison purposes. In the Douglas County present rate structure the Equipment Mechanic II job carries a higher rate than Equipment Mechanic I job. Thus, in the expert's analysis, the present rates for these two positions actually represent a minimum and maximum rate for the same classification which is the classification shown on Appendix I. Therefore, using a conservative approach it is reasonable to equate Equipment Mechanic I with the minimum of the range shown on Appendix I. Accordingly, we find $1325 per month, translated to an hourly rate of $7.64, to be comparable to the prevalent rates for Equipment Mechanic I under the standards of 48-818. Our next step is to determine whether applying the existing differential between Equipment Mechanics I and II of approximately 9.27% would result in a wage rate falling within the means and medians of the range maximum and minimums shown in Appendix I. Applying 9.27% differential to $1325 results in a monthly wage of $1450 for Equipment Mechanic II which is within the prescribed limits. Thus, the Commission finds an hourly rate of $8.37 per hour for Equipment Mechanic II to be comparable to the prevalent rate for that job under Section 48-818 standards. Applying the same methodology the Commission finds the following wage rates to be comparable to prevalent rates under Section 48-818 standards for the jobs indicated:

Job Title Appendix # Hour Rate

Traffic Services Technician 2 $8.26

Draftsman II 3 8.16

Engineer Aide II 3 8.16

Auto Equipment Operator I 4 7.45

Laborer 5 7.18

Auto Equipment Operator III 6 8.94

Foreman 6 8.94

Of the jobs surveyed and shown in the arrays of other employers, only Equipment Mechanic III (Appendix 7) will not fit this pattern. The existing differential between Equipment Mechanic II and Equipment Mechanic III is 6.93%, which would produce an hourly wage of $8.95 being a monthly wage of $1551. This wage is lower than either of the mean or median of minimum monthly rates for Equipment Mechanic III shown on Appendix 7. It will therefore be necessary that Equipment Mechanic III carry a wage rate of $9.03 to attain comparability to prevalent rates according to 48-818 standards. This wage is higher than determined for "Foreman" above; however, no supervisory discrepancy should result since under the evidence, the "Foreman" is a working foreman and his supervisory authority is limited to Auto Equipment Operators and Laborers.

As stated earlier in this Opinion the Commission can determine the wage rates for Auto Equipment Operator II with reference to those of Auto Equipment Operators I and III and the rate for Engineer Aide I and Draftsman I with reference to Engineer Aide II and Draftsman II and does so as follows:

Auto Equipment Operator II $8.16 per hour

Engineer Aide I 7.45 per hour

Draftsman I 7.45 per hour

Turning back to the seven jobs for which no adequate comparison data are available, we find each is held by only one employee and therefore there are only seven employees in the bargaining unit for whom the Commission cannot test the use of existing internal wage differentials. It is in the public interest that the Commission completely settle the dispute in a Section 48-818 case. Wage rates heretofore determined result in an approximate 9% wage increase for all but one job. The Commission concludes that any comparability error resulting from a 9% increase for the remaining jobs should be de minimis when considered in relation to the unit as a whole. The Commission determines that the hourly rate for each of the following jobs for the period July 1, 1981 through June 30, 1982 should be 9% above the present hourly rate for that job rounded to the nearest cent per hour.

Clerk III

Maintenance Aide

Parts Room Clerk

Parts Service Foreman

Tool Room Attendant

Blacksmith Welder

Communications Operator

The methods used by the Commission in determining wages in this case are based on the evidence before the Commission which is or should be unique to this case. Therefore, this methodology should not be viewed as a pattern for presenting a 48-818 case or as a precedent.


The only change sought by Petitioner in non-wage benefits is that dependent medical and hospital insurance be provided by Respondent. Respondent presently provides only single employee medical and hospital insurance. Petitioner introduced evidence that dependents' medical and hospital benefits are provided to a great number of employees in the Omaha area under union contracts with the amounts contributed by employers being usually determined by the number of hours worked.

Respondent correctly contends that the Commission must consider overall compensation. Section 48-818 provides in part: "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 . . ." Respondent introduced evidence as to injury and funeral leave, sick leave with pay, special pay, vacation pay, holidays, life insurance and allowances provided by Douglas County as as to such of those items as are provided by other employers in its proposed array of employers which was described earlier in this opinion and accepted by the Commission for comparison. Respondent contends not only that its existing fringe benefits are so superior to those in the array that no dependent's medical and hospital insurance is called for but also that the benefits are so superior that they should operate to reduce wages. The Commission has considered the Respondent's fringe benefit package and the packages of other employers in the array as well as expert testimony introduced by Respondent with respect to comparability and finds that fringe benefits other than dependent's medical and hospital insurance to be generally comparable to prevalent benefits but not so superior as to impact wages or preclude extension of medical and hospital insurance coverage to dependents to the extent that such benefit is a prevalent condition of employment. Appendix 8 sets forth medical and hospital insurance provided by employers in the array. From the evidence the Commission finds that the amount contributed by Douglas County for single employee insurance is comparable to prevalent contributions. From the evidence the Commission also finds that dependent coverage medical and hospital insurance is a comparable condition of employment and that the sum of $106.96 per hour is the prevalent premium amount for "employee and dependent insurance." The wage period in issue here has expired, and the Respondent has paid $76.94 per month for single employee coverage. Therefore, to achieve comparability the Respondent shall pay in lieu of dependent coverage the sum of $30.02 per month to all employees who would have been eligible for dependent coverage if it had been provided for the twelve months in the wage period before the Commission.

Economic "Deflator"

The Respondent introduced evidence and expert opinion that the per capita income was lower in Douglas County than the other County employers in the comparative array. Respondent argues that the wages established for the job classifications in dispute should be adjusted accordingly to reflect the difference in the per capita income of those counties compared to Douglas County.

In Lincoln Fire Fighters Ass'n v. City of Lincoln , 198 Neb. 174, 180, 252 N.W. 2d 607, 611 (1977), the Supreme Court held that, "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".

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); Lincoln Police Union, International Brotherhood of Police Officers, Local 544 v. City of Lincoln , 5 CIR 134, 156 (1981).

Implicit in the Lincoln Fire Fighters opinion is a determination by the Supreme Court that the factors of amount of manufacturing, extent of unionization and median income were shown by the evidence in that record to have had a bearing on prevalent wage rates. There is no such evidence in the present case. The single factor upon which the Respondent seeks a wage adjustment is per capita income which can be equated to the median income figure in Lincoln Fire Fighters . From the entire evidence in this case, we find that the Respondent has not established any correlation between the single factor of per capita income and prevalent wage rates. The rule in Lincoln Fire Fighters mandates that any economic dissimilarities shown to exist "have a bearing on prevalent wage rates". The per capita income figure includes factors other than wages. It includes non wage sources of income and, when averaged by county, includes a reflection of a broad variety of economic and social characteristics which must be accounted for in giving application to the Supreme Court's rule of Lincoln Fire Fighters .

Mindful of the obligation to make factual determinations solely upon the evidence in the record, the Commission finds that the wages paid and conditions of employment for the other seven counties selected for the comparison array, need not be adjusted in making the determination under Section 48-818 in this case. See North Platte Police Officers Union v. City of North Platte , 3 CIR 647, 665-670 (1979).


1. That for the period July 1, 1981 through June 30, 1982, Respondent shall pay to employees in the following classifications the hourly wage rates set forth below less the hourly wage rate actually paid:

Equipment Mechanic I $7.61

Equipment Mechanic II $8.37

Traffic Services Technician $8.26

Draftsman II $8.16

Engineer Aide II $8.16

Auto Equipment Operator I $7.15

Laborer $7.18

Auto Equipment Operator III $8.91

Foreman $8.91

Auto Equipment Operator II $8.16

Engineer Aide I $7.45

Draftsman I $7.45

Equipment Mechanic III $9.03

2. That for the period july 1, 1981 through June 30, 1982, Respondent shall pay to employees in the following classifications additional wages equal to 9% of the amount actually paid:

Clerk III

Maintenance Aid

Parts Room Clerk

Parts Service Foreman

Tool Room Attendant

Blacksmith Welder

Communications Operator

3. That for the 12 month period July 1, 1981 through June 30, 1982, the Respondent shall pay to all employees who would have been eligible for dependents' hospital and medical insurance coverage if such coverage had been provided, the sum of $30.02 per month for each month in which they would have been eligible for such insurance.

4. That the payments required by this Order be paid as soon as practicable.

All judges assigned to the panel in this case join in the entry of this Opinion and Order.

Filed July 15, 1982.