8 CIR 156 (1986)


LODGE NO. 17, |
Petitioner, |
Respondents. |


For the Petitioner: Bruce G. Mason

8420 W. Dodge Road

Omaha, Nebraska

For the Respondent: William A. Harding

Suite 500

1200 "N" Street

Lincoln, Nebraska


Dean Skokan

Dodge County Attorney

Dodge County Courthouse

Fremont, Nebraska

Before: Judges Mullin, Orr and Kratz.


Petitioner brings this action pursuant to Section 48-818 R.R.S. 1943 to resolve an industrial dispute over terms and conditions of employment. The amended petition alleges that "despite continued negotiations for two years, the parties are unable to reach agreement for a collective bargaining agreement concerning rates of pay, terms and conditions of employment..." Specifically, the petitioner seeks an increase in the rates of pay and asks the Commission to establish terms and conditions of employment with respect to a number of non-economic items on which the parties could not agree. The respondent admitted in its Amended Answer and Counterclaim that the bargaining had taken place and was unsuccessful and further admitted that an industrial dispute existed between the parties as alleged by petitioner. Respondent denies that the wages are below prevalent for the fiscal year 1985-86 and by way of counterclaim, seeks a setoff against any increase in wages for amounts paid in fiscal year 1984-85 when respondent alleges it paid above comparability.

The Report of Pretrial Conference lists the job classifications in dispute as Clerk Typist I, Clerk Typist II, Patrol Deputy, Investigator, Jailer, and Dispatcher. It further lists the contract year in dispute as July 1, 1985 to June 30, 1986 with a counterclaim by respondent for an offset against wages for that year due to the amount of wages paid in the previous fiscal year. Both parties stipulated at trial that no one is currently employed in the position of Clerk Typist I (148:18-25). The Report of Pretrial Conference divided the issues for resolution between economic issues and non-economic issues. The economic items in dispute are salary, longevity, life insurance, vacation leave accumulation, vacation leave maximum, uniform items, call-in pay policy, and off duty firearms-practice time. The non-economic items in dispute are grievance procedure, automatic dues checkoff, bulletin board access, non-discrimination provisions, employee bill of rights, seniority provisions, layoff or reduction-in-force standards, leave for FOP officers on official FOP business and negotiations, and the establishment of a joint employer-employee Safety Committee.

In this case, the Commission is being asked by the Petitioner to find two arrays appropriate, one for economic items and one for non-economic items. The Report of Pretrial Conference sets forth the array members common to each party's list as including the counties of Adams, Buffalo, Cass, Dawson, Gage, Hall, Lincoln, Madison, Platte, and Saunders. In addition, the Petitioner submitted the counties of Sarpy and Scotts Bluff but subsequently deleted Scottsbluff from its array. For the non-economic items, the Petitioner submitted an array of the counties of Douglas, Hall, Lancaster, Lincoln, Sarpy and Scotts Bluff and the cities of Bellevue, Omaha and Papillion while Respondent contended that one array should be used for all comparisons.

The Commission has jurisdiction over the parties and the subject matter of this action.


The controlling statute is Section 48-818 R.R.S. 1943 which provides in part:

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.


The Petitioner feels a separate array for non-economic items is necessary because, it contends, it is difficult to find comparable employments in Nebraska that engage in collective bargaining. Petitioner argues that employments without written contracts do not have these terms and conditions of employment. The only counties in the Petitioner's proposed economic array which have collective bargaining contracts are Hall, Sarpy and Lincoln. It requests that we select those three survey points from the economic array and that we add other cities and counties which have written collective bargaining agreements in the development of a non-economic array. The supplemental survey points it requests are the cities of Bellevue, Omaha and Papillion and the counties of Scotts Bluff, Lancaster and Douglas.

The Petitioner's contention is that since all law enforcement officers in the State of Nebraska have to attend the Nebraska Law Enforcement Training Center in Grand Island, including sheriffs and policemen, all law enforcement officers receive minimum standards of training and are fungible. It was noted that the exception to this in Nebraska is Omaha which has its own police academy which is fairly typical of larger cities. Petitioner's expert witness testified that sheriff's departments are organized along the same lines with a chain of command flow and deputies all have common duties with their powers being defined by statutes and supreme court rulings. There is also a uniformity of risk inherent in the work itself, transferable experience, and cooperation between the various jurisdictions in the apprehension of criminals. Sheriffs have similar responsibilities in the areas of 1) law enforcement, 2) as officers of the court (civil duties) and 3) correctional responsibilities. It was noted that certain larger counties in metropolitan areas often separate out the correctional duties into a separate department of corrections. This is true in Douglas and Lancaster County. While jailers and radio dispatchers do not have to be sworn officers in all jurisdictions, the Nebraska Crime Commission requires that anyone acting in the capacity of a jailor or dispatcher has to have one week of training in the Grand Island academy. In addition, a merit system for all counties with a population over 25,000 has been established by statute, section 23-1721 R.R.S. 1943, et. seq. Such a merit system promotes uniformity of personnel standards, reducing the potential for abuse, favoritism, political influence, etc.

The Respondent provided population data, distance and county seat information on its array in Table l. There was also testimony that the population of Sarpy County is around 9l,000 (74:6-l0). Petitioner's witness undertook an analysis of workload (Table 2), in both arrays and concluded that, while the large counties may have a larger total volume of work, the workload per sworn officer is very similar to those of the smaller counties. On cross-examination, however, the witness admitted that his opinion was that sheriffs' deputies in Dodge County had identical functions to sheriffs' deputies throughout the United States and, therefore, any sheriffs' departments were sufficiently comparable for use in an array. He further admitted that he did not perform sophisticated statistical analyses which were available, but rather used an "eyeball" test of comparison.

In selecting employments for the purpose of comparison in arriving at comparable and prevalent wage rates and conditions of employment, the question is whether, as a matter of fact, the employments selected for comparison are sufficiently similar and have enough like characteristics or qualities to make comparison appropriate in that situation. Lincoln County Sheriff's Employees Association v. County of Lincoln , 216 Neb. 274, 343 N.W.2d 735 (1984); IAFF Local 831 v. City of North Platte , 215 Neb. 89, 337 N.W.2d 716 (1983); Fraternal Order of Police v. County of Adams , 205 Neb. 682, 685, 289 N.W.2d 535, 537 (1980). See AFSCME Local 2088 v. County of Douglas , 208 Neb. 511, 304 N.W.2d 368 (1981); Omaha Ass'n of Firefighters v. City of Omaha 194 Neb. 436, 441, 231 N.W.2d 710, 713 (1975). As a general rule it may be said that factors most often used to determine comparability are geographic proximity, population, job descriptions, job skills, and job conditions. AFSCME Local 2088 v. County of Douglas , 208 Neb. 511, 304 N.W.2d 368 (1981). Based on the evidence, we have selected an array of the ten common counties and Sarpy County. Although Sarpy County is more than twice the size of Dodge County, it is geographically close to Dodge County and a reasonably close scrutiny of job comparisons was performed by Petitioner's expert with respect to Sarpy County. In addition, inclusion of Sarpy County in the array adds some balance to the array which otherwise would have only two counties larger than the subject county.

We do not accept Petitioner's invitation to use two separate arrays to determine the wages and conditions of employment for a single classification of employees. Two separate arrays were used in AFSCME Local 2088 v. County of Douglas , 208 Neb. 511, 304 N.W.2d 368 (1981), because the presence of separate classes of employees required a consideration of more than one array. The use of multiple arrays, however, to determine wages and conditions of employment for a single category of employees impairs the overall integrity of the comparison intended by Section 48-818. Section 48-818 should be applied in terms of the total package of "prevalent wage rates paid and conditions of employment maintained" throughout a single array for the same category of employees. The use of more than one array, selecting only those employments which compare favorably or unfavorably on any given term or condition of employment, effectively undermines the standard of decision by comparability under Section 48-818.


Petitioner has not requested an upward adjustment in wages, but has rather requested the establishment of those specific terms and conditions of employment. We cannot order a specific condition of employment unless there is evidence in some detail defining the prevalent condition. Section 48-818 does not authorize us to enter an order from a composite of generalized statements. City of Omaha v. Omaha Police Union Local 101 , 5 CIR 171 (1981). Petitioner offered collective bargaining agreements from those employers on its proposed array which had such agreements and offered proposed language from its expert witness for our use in establishing these non-economic items. No evidence was offered to establish the status of any of these non-economic items with any of the employers which did not have collective bargaining agreements. Consequently, the terms and conditions requested are not prevalent among the array members.

Several of these terms have been previously determined to be mandatorily bargainable. In Central City Education Association v. School District of Central City , 1 CIR 35 (1971), we held that "grievance procedures fall within the scope of the phrase 'terms and conditions of employment'." Additionally, our statutes make the "administration of grievances" bargainable as a matter of right. See sections 48-816(2) and 48-837. Automatic dues check off likewise has been held to be bargainable in International Association of Firefighters Local 831 v. City of North Platte, affirmed , 215 Neb. 89 at 100, 337 N.W.2d 716 (1983). While we have not specifically ruled on seniority provisions, the United States Supreme Court has ruled, under legislation similar to ours, that seniority is a condition of employment and commonly exists in union contracts. Ford Motor Co. v. Huffman , 345 U.S. 330 (1953). Non-discrimination provisions, United Packinghouse, Food, & Allied Workers v. NLRB, 416 F.2d 1126 (D.C. Cir. 1969), are bargainable according to the NLRB. In general, establishing a reduction in force policy is a management prerogative and not bargainable, however, the impact of such policy on economic aspects of the employees is mandatorily bargainable, Hastings Education Association v. School District of Hastings , 4 CIR 226 (1980), Metropolitan Technical Community College Education Association v. Metropolitan Technical Community College Area , 203 Neb. 832, 281 N.W.2d 201 (1979). If the evidence had shown any of those terms as prevalent among the array members, we could have established that condition for the contract year in question. Where, however, the evidence establishes that those conditions are not prevalent among the comparable employments, we cannot do so.

Base Salary

While the Report of Pretrial Conference lists Clerk Typist I, Clerk Typist II, Patrol Deputy, Investigator, Jailer, and Dispatcher as the job classifications for the Commission to set wages for, the parties stipulated at trial that there is no one in the Clerk Typist I position and the Commission therefore will not set salaries for this position.

The Respondent has made a counterclaim that an offset should be made to Fiscal Year l985-1986 wages due to paying above comparability in Fiscal Year l984-l985 and Joint Exhibit 4, Petitioner's Response to Request for Admissions, shows that this was requested by Dodge County at the bargaining table. The Respondent, by their payment of this wage during a previous fiscal year, has declared it to be the minimal appropriate wage and has entered into a contract. See American Federation of State, County, and Municipal Employees Local 2088 v. County of Douglas , 208 Neb. 5ll, 304 N.W.2d 368; Supplemental Opinion, 209 Neb. 597, 309 N.W.2d 65 (l98l). Respondent cannot circumvent the prohibition against retroactive orders set forth in Section 48-817 R.R.S. 1943 by tacking prior years' wages onto the dispute. We will, therefore, set wages for the Fiscal Year l985-l986 without any consideration of what was paid in the previous year.

The Petitioner has asked the Commission to give an across the board percentage increase rather than setting wages for each individual job because that is what the unit employees wanted. The Respondent has not asked for an across the board change. Unless both parties request that wages be set across the board, we must set wages for individual positions according to comparability.

We have listed Step G as the maximum pay for Dodge County on our wage tables. The Petitioner contends that employees have been frozen on the next to the last step, Step F, and that performance evaluations have been stopped altogether and that these evaluations are necessary for them to be promoted to Step G. They contend that while the pay grid may show seven steps to a maximum of Step G, Step F should actually be considered the maximum. Joint Exhibit 3 shows that some people are on Step G and the Respondent's witness stated that there is no freeze between Step F and Step G. Since there are currently employees on Step G and since freezes, even if there was a freeze, which the Respondent denies, are usually of a temporary nature, we use Step G.

The testimony on the Dispatcher and Jailer positions, as to whether they are sworn officers in Dodge and Sarpy Counties, is somewhat contradictory. The Commission has previously ruled that sworn officers should not ordinarily be compared to nonsworn officers, Fraternal Order of Police, Lodge No. 12 v. County of Adams , 3 CIR 585 (1978), 205 Neb. 682, 289 N.W.2d 535 (1980). Petitioner's witness, Mr. Walker, testified that he believed Dodge County Jailers are sworn and didn't know about their Dispatchers nor did he know about these positions at Sarpy County. Petitioner's witness, Mr. Wakefield, says that Dodge County Jailers and Dispatchers are not sworn and that at Sarpy County they have both sworn (rookie lst year deputy sheriffs) and unsworn jailers and that the majority of dispatchers at Sarpy Co. are unsworn, though they may have one sworn officer. In the job descriptions of Dodge County there is no requirement that these positions be sworn. The job description for Dispatcher in Sarpy County does not indicate they are sworn officers and there is no job description for Jailer at Sarpy Co. Since the job descriptions would indicate that being a sworn officer is not required in either county and since we give more credence to the testimony of Mr. Wakefield that there are both sworn and unsworn officers in those positions at Sarpy County, we believe that the positions of Jailer and Dispatcher at Sarpy and Dodge Counties are comparable.

Base salary figures are shown in Tables 3 through 7.

Other Economic Conditions of Employment

The Petitioner argues that the following are lower than prevalent: Longevity (Tables l7 and l8), life insurance (Table ll), vacation leave accumulation and vacation leave maximum (Table 9), uniform items (Table l2), call in pay policy (Table l3) and off duty firearms - practice time (Table l4).

After reviewing these tables, the Commission finds that Dodge County is comparable or above on vacation leave accumulation and vacation leave maximum, longevity, sick leave, holidays and monthly clothing allowance and below comparable on uniform items, life insurance, call-in pay and off-duty firearms-practice time. The Commission finds that the following economic conditions should be changed: Call-in pay and off-duty firearms-practice time should be compensated at 1 1/2 hourly pay.

Determination as to Overall Compensation

Section 48-8l8 provides 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 maintained 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 48-8l8, R.R.S. l943, may, therefore, vary from case to case, depending upon the evidence introduced by the parties. Lincoln Firefighters Association Local No. 644 v. City of Lincoln , 8 CIR 31 (1985).

The Respondent offered fringe benefit information in two forms. They have provided us fringe benefit evidence in the way traditionally presented to the Commission, a listing of the various fringes received at the array points. They have also calculated a cost basis for each benefit and added it to the hourly base salary figures to come up with a dollar amount per hour of total compensation. The evidence is insufficient to permit using a cost basis on fringe benefits in comparing overall compensation. The statutory direction that we consider all benefits received in arriving at overall compensation (48-818) neither requires an identity of benefits nor an identity of costs, Sherman County Teachers Ass'n v. School Dist. No. 15, Sherman County , 8 CIR 77 (1985). Cross-examination of Respondent's expert witness who calculated the cost figures established that the figures were the product of more speculation than fact. We have compared these benefits separately from base wage and have determined that they compare favorably with the exceptions noted above regarding off-duty practice time and call-in pay. See, I.B.E.W. Local 1536 v. City of Fremont , 216 Neb. 357, 345 N.W.2d 291 (1984).

It is therefore Ordered that:

1. For the following positions, the hourly base salary based on Tables 3 through 7 for FY l985-l986 shall be:

Clerk Typist II - Minimum $4.89, Maximum $5.80

Patrol Deputy - Minimum $6.84, Maximum $8.47

Detective/Investigator - Minimum $7.46, Maximum $9.06

Dispatcher - Minimum $5.91, Maximum $6.82

Jailer - Minimum $5.84, Maximum $7.00

2. The wages on the intervening steps between minimum and maximum should be allocated in the same proportionate relationship as the current steps.

3. Call in pay and off-duty firearms-practice time shall be compensated at 1 1/2 hourly pay.

4. All nonwage conditions of employment shall remain unchanged by this Order.

5. This Order shall be effective for wages and conditions of employment for the period from July l, l985 to June 30, l986.

6. The amounts due for the portion of the year already elapsed shall be paid promptly following the entry of this Order. Decreases in salary as a result of this ruling shall be applied prospectively only.

All Judges assigned to the panel in this case join in the entry of this Findings and Order.

Entered June 5, l986.