6 CIR 289 (1982). Affirmed. 216 Neb. 274, 343 N.W.2d 735 (1984).

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

LINCOLN COUNTY SHERIFFS' | CASE NO. 466
EMPLOYEES ASSOCIATION LOCAL NUMBER |
546 INTERNATIONAL BROTHERHOOD |
OF POLICE OFFICERS, |
|
Plaintiff, |
|
v. | OPINION AND ORDER
|
COUNTY OF LINCOLN, NEBRASKA, |
|
Defendant. |

Appearances:

For the Plaintiff:Ronald Rosenberg

Rosenberg, Gibson & Taute

800 Terminal Building

Lincoln, Nebraska

For the Defendant: William A. Harding

Nelson & Harding

500 The Atrium

1200 N Street

Lincoln, Nebraska

Before: Judges Orr, Berkheimer and Davis.

DAVIS, J:

This is a proceeding under Section 48-818 to determine wages and working conditions for bargaining unit members of the Lincoln County Sheriff s Department for the period from July 1, 1981 to June 30,1982.

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. Array .

The county sheriffs departments proposed by the Association as

comparable were: Butler (Kansas), Campbell (Wyoming), Dawson

(Nebraska), Finney (Kansas), Morgan (Colorado), Reno (Kansas), and

Sheridan (Wyoming).

The County proposed two arrays: (1) a "Case No. 426" array consisting of the Nebraska counties: Adams, Buffalo, Dodge, Hall,

Madison, and Scotts Bluff, and (2) a 200 mile radius array consisting of the Colorado counties of Logan and Morgan, Ellis County in Kansas, and the Nebraska counties: Adams, Buffalo, Dawson, Hall, Madison, Platte, and Scotts Bluff.

Based upon the evidence presented, we determine that an array consisting of the Nebraska counties of Adams, Buffalo, Dawson, Dodge, Hall, Madison, Platte, and Scotts Bluff is an appropriate array for the determination of this matter. This array fully complies with the standard stated in Fraternal Order of Police v. County of Adams , 205 Neb. 682, 685, 289 N.W.2d 535, 537 (1980), that "In selecting employment units in reasonably similar labor markets for the purpose of comparison as to wage rates and other benefits, the question is whether, as a matter of fact, the units selected for comparison are sufficiently similar and have enough like characteristics or qualities to make comparison appropriate." Table 1 sets out some of the "Information on Lincoln County and Compared to Counties and their Sheriff's Departments" contained in the evidence.

The only counties excluded were those outside the State of Nebraska. In Local No. 831, International Association of Firefighters v. City of North Platte , 6 CIR 1, 10-11 (1982) the Commission stated:

"There are strong policies in favor of using an array of comparable Nebraska employments, rather than using employments from outside of the State of Nebraska, when an appropriate array for the purposes of Section 48-818 exists within the State of Nebraska. Section 48-818 required comparisons to be made from "within the state" from 1947 to 1969. While that language was deleted from the Section in 1969 (L.B.15, Section 6), the policy persists in those cases in which there is an appropriate array within the State of Nebraska. Nebraska public employers of the same type are generally subject to the same governmental, personnel, and fiscal rules. All Nebraska public employers are, of course, subject to the same public employment bargaining statutes, which differ greatly from the laws of all other states particularly insofar as impasse resolution is concerned. As a matter of pragmatics in the administration of Nebraska's public employment bargaining statutes, there are advantages from using employers from within the State of Nebraska in that information should be more readily available, the information should be available in a more uniform format, the comparisons in terms of overall compensation should be easier to determine and more reliable due to the likelihood of closer identity in terminology, pay systems, conditions of employment (as demonstrated by the record in the present case), and other fiscal and governmental considerations.

There have also been strong legislative and judicial expressions that personnel matters of the type involved in Section 48-818 cases are matters of state-wide concern throughout the State of Nebraska. In Axberg v. City of Lincoln , 141 Neb. 55, 2 N.W.2d 613 (1942), the Supreme Court held that the Legislature's act on pensions for retired and disabled firefighters was a matter of statewide concern and was applicable to home rule charter cities. Similarly, Simpson v. City of Grand Island , 166 Neb. 393, 89 N.W.2d 117 (1958), held that a civil service law applicable to cities of a specified size having paid fire or police departments was a matter of state-wide concern. In addition to the pension and civil service laws, state statutes presently specify a rebuttable presumption of work-connection for firefighters who have served five years and suffer death or disability as a result of hypertension or heart or respiratory defect (Section 18-1723), minimum pay (Section 19-1824, 1980Cum. Supp., $350.00 per month), and maximum hours (Section 35-302, 1980 Cum. Supp., average of 60 hours per week on alternating day shifts)."

The County argues that its 200 mile radius array is the better of the two arrays submitted by it. The Commission has selected an array that includes all the Nebraska counties in that 200 mile radius array and also Nebraska's Dodge County (included in Defendant's other array) and excludes all counties outside Nebraska. As reflected in the language of Fraternal Order of Police v. County of Adams , supra, the object of Section 48-818 is to arrive at an "appropriate" determination in terms of the overall compensation of "reasonably similar labor markets." The eight Nebraska counties included in the array selected fit that standard well in terms of the evidence and the industrial dispute involved in this matter. It does not improve the operation of Section 48-818 to add to the eight well-suited Nebraska counties other employments outside the State of Nebraska, which are, in the judgment of the Commission from the evidence presented, significantly less suitable for a determination of this matter. It is true that if statistical sampling is involved, greater numbers may produce more reliable or more valid statistical results. It does not follow, however, that adding further employments to an otherwise appropriate array will improve the quality of the array for purposes of Section 48-818, unless the additional employments also contain a general quality equivalent to the employments constituting the otherwise appropriate array. Local No. 831, International Association of Firefighters v. City of North Platte, supra .

Section 48-818 also 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." Crete Educ. Assn v. School Dist. of Crete , 193 Neb. 245, 226 N.W.2d 752 (1975). There has been sufficient evidence presented that the compared to positions in the counties selected for the array perform the same or similar work and exhibit like or similar skills under the same or similar working conditions as the positions in Lincoln County.

3. Wage and Fringe Benefit Comparisons .

Defendant presented wage and fringe benefit surveys conducted in the Fall of 1981 and the Spring of 1982. In reviewing the surveys the Commission finds that the Spring surveys of the counties selected have the same contract year as Lincoln County, except Buffalo County and Platte County. No adjustment can be made for the difference in contract years in Buffalo County since only one survey was introduced for that county. Adjustments have been made in the wage rates reported for the three similar job classes in Platte County that received increases.

Defendant adjusted all wage figures reported to a 40-hour work week since not all of the array members worked the same work week. The Commission finds the evidence is unclear as to whether the work week reflected in the surveys take into account all the hours compensated. (2:137:5-144:6, 2:163-13-16).1 Because of this ambiguity the Commission will not adjust the reported wage rates to a 40-hour work week.

Defendant adjusted the actual wage rates for each job classification by multiplying the number of incumbents in that job classification by the reported wage. The Commission has not made this adjustment because the factor of number of incumbents has been considered already in selecting the array for comparative purposes. Fraternal Order of Police, Lodge No. 12 v. County of Adams , 3 CIR 585, 590 (1978), affd , 205 Neb. 682, 289 N.W.2d 535 (1980).

The following tables compare the evidence presented on the wages and fringe benefits in the array selected with Lincoln County.

4. Consideration of Economic Variables .

The County introduced evidence (see Defendant exhibits Fl-F8) and expert opinion testimony on various economic variables on the counties presented by both Plaintiff and Defendant. Some of these economic variables were estimated median family income, estimated per capita income, employment distribution by classification of work such as in manufacturing, transportation & public utilities, wholesale trade, retail trade, finance, insurance & real estate, and services. The expert testified that a deputy sheriff in a county with more manufacturing and with a higher median family income might be paid more. (2:168:20-169:8). The expert computed the mean, median and midpoint of median family income and per capita income of the counties in the arrays and found Lincoln County lower than those calculations. Based on this difference in income figures the Defendant's theory is that the Commission should reduce the wages found to be comparable in Lincoln County by this percentage difference. (2:171:12-173:5). The expert on cross examination, however, gave examples where counties were high on per capita income but wages paid some of their sheriff personnel were lower as compared to the other counties with even lower per capita income figures. (2:184:8-188:8). The expert admitted that the exhibits presented on the employment distribution do not take into account people working for the government. (2:181:3-25). Also the expert admitted that the figures presented do not show any direct relationship between wages earned in the public sector and wages earned in the private sector. (2:182:1-4).

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).

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).

From the evidence presented in this case, we find that defendant has not established that the economic dissimilarities shown to exist have a bearing on prevalent wage rates for the job classes in this dispute and, therefore, no adjustments have been made in the wage figures for economic dissimilarities. See North Platte Police Officers Union v. City of North Platte , 3 CIR 647, 665-670 (1979), Local #831, International Association of Firefighters v. City of North Platte , 4 CIR 12, 23-24 (1979), Fraternal Order of Police, Lodge #8 v. County of Douglas , 4 CIR 185, 206-208 (1980), Lincoln Police Union, International Brotherhood of Police Officers, Local #554 v. City of Lincoln , 5 CIR 134, 155-157 (1981), Local #831, International Association of Firefighters v. City of North Platte , 6 CIR 1, 35 (1982), General Drivers and Helpers Union, Local #554 v. Douglas County , 6 CIR 111.

5. 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.

Applying the statutory criteria of Section 48-818 to the evidence in this case, we find that the monthly wages for Corporal, Investigator, Patrol Deputy, Sergeant, Dispatcher, Jail Supervisor (maximum only), and Jailer should be increased. The Commission also determines that the monthly wages should not be changed for Office Deputy and Jail Supervisor (minimum only) since these positions 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. Furthermore, the Commission determines that no other condition of employment shall be changed. The following are the job classes in this dispute and their current wages and the Commission's determination:

IT IS THEREFORE ORDERED:

1. That the wages of the following job classifications in the Lincoln County Sheriff's Department shall be increased as follows, effective July 1, 1981:

a) For Corporal the minimum monthly wage shall be increased to $1,180.00 and the maximum monthly wage shall be increased to

$1,180.00.

b) For Investigator the minimum monthly wage shall be increased to $1,250.00 and the maximum monthly wage shall be increased to $1,290.00.

c) For Patrol Deputy the minimum monthly wage shall be increased to $1,080.00 and the maximum monthly wage shall be increased to $1,190.00.

d) For Sergeant the minimum monthly wage shall be increased to $1,260.00 and the maximum monthly wage shall be increased to

$1,350.00.

e) For Dispatcher the minimum monthly wage shall be increased to $810.00 and the maximum monthly wage shall be increased to $855.00.

f) For Jail Supervisor the maximum monthly wage shall be increased to $1,210.00.

g) For Jailer the minimum monthly wage shall be increased to $870.00 and the maximum monthly wage shall be increased to $960.00.

2. The minimum and maximum monthly wages for Office Deputy shall remain unchanged.

3. The minimum monthly wage for Jail Supervisor shall remain unchanged.

4. All other conditions of employment shall remain unchanged.

5. The wage increases ordered should be allocated to the intervening steps between the minimum and maximum monthly wage levels in the same proportionate relationships as the current steps.

6. This Order shall be effective for the period from July 1, 1981, to June 30, 1982. The amount due 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 October 15, 1982.

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