| DOUGLAS COUNTY HEALTH DEPARTMENT | | | CASE NO. 603 |
| EMPLOYEES ASSOCIATION, | | | |
| | | ||
| Petitioner, | | | |
| | | ||
| v. | | | FINDINGS AND ORDER |
| | | ||
| COUNTY OF DOUGLAS, A Political | | | |
| Subdivision of the State of | | | |
| Nebraska, | | | |
| | | ||
| Respondent. | | |
Appearances:
For the Petitioner: Thomas J. Young
Young, LaPuzza & Stoehr
6910 Pacific, Suite 320
Omaha, Nebraska 68106
For the Respondent: William A. Harding
Nelson & Harding
1200 "N" Street, 500 The Atrium
P.O.Box 82028
Lincoln, Nebraska 68501-2028
and
H.L. Wendt
Deputy Douglas County Attorney
906 Omaha-Douglas Civic Center
1819 Farnam Street
Omaha, Nebraska 68183
Before: Judges Orr, Cope, Kratz, Mullin and Cullan (EN BANC)
Dissenting, David J. Cullan
ORR, J:
Nature of the Proceeding:
This is a proceeding under Section 48-818 to determine wages and conditions of employment for members of the Douglas County Health Department Employees Association for the contract period July 1, 1985 to June 30, 1986. The Association initiated the proceedings on October 16, 1985, alleging that the parties' attempt to negotiate had resulted in no agreement and impasse had been reached.
The Petition further alleges that the Commission enter temporary Orders prohibiting the County from taking any unilateral action altering the employment status of any Association members.
The Commission entered an Order on October 21, 1985 for preliminary proceedings, under the provisions of Section 48-816(1), to be held on October 25, 1985. The Commission also entered an Order on October 21, 1985, for a Hearing on the Association's request for temporary orders as contained in the Petition, such hearing to commence immediately following the preliminary proceedings on October 25, 1985.
The Respondent's Answer, filed October 21, 1985 contains a general denial of the Association's allegations and alleges affirmatively the following defenses:
The Petition fails to state a claim upon which relief can be granted.
The Petition fails to make "a clear and concise statement of the facts constituting the industrial dispute" as required by the rules of the Commission.
The Petition and Notice of Pendency herein were served on the administrative assistant to the Douglas County Board of Commissioners and such service of process is not sufficient pursuant to Neb. Rev. Stat. 48-813(1) (Reissue 1984) and 25-510.02(1) (Cum. Supp. 1984).
The Respondent also filed a Motion to Dismiss, pursuant to Rule 7 of the Rules of the Commission, on October 21, 1985. The Motion requests the Commission to dismiss the Petition in its entirety and supports the request as follows:
1. The Petition and Notice of Pendency were served upon the wrong party.
2. This service of process is insufficient pursuant to 48-813(1).
3. Failure to obtain proper service of process deprives the Commission of jurisdiction. Following a Hearing on October 23, 1985 the Commission entered an Order on October 24, 1985 overruling the Respondent's Motion to Dismiss on the grounds that service of process was perfected by the Petitioner in a timely manner.
The Commission entered an Order on October 29, 1985, following the preliminary proceeding with the parties ordering Petitioner to respond to Respondent's Interrogatories and scheduling a pretrial conference on December 9, 1985.
On November 20, 1985 the Commission ordered the Petitioner's Second and Third Causes of Action bifurcated and tried separately from the First Cause of action.
Only the First Cause of action praying that the Commission invoke its jurisdiction under 48-818 and settle the industrial dispute as to wages, hours, fringe benefits and conditions of employment at Douglas County Health Department, is at issue.
By Order of the Commission on December 3, 1985 the Trial date was rescheduled to be heard on December 23, 1985 after an initial continuance of one week. This Trial date was later rescheduled till January 28, 1986 due to the unavailability of Petitioner's expert witness.
The trial was again rescheduled for February 26, 1986, a Pretrial Conference to be held on February 4. On February 4, Respondent filed a Counter claim which alleges that the current wages, fringe benefits and total compensation for certain employees in the bargaining unit are above the prevalent level and should be reduced accordingly by the Commission.
The Pretrial Conference was held on February 4, 1986. Due to the voluminous nature of the evidence presented by both parties, the Commission granted the parties 2 additional weeks to exchange and revise exhibits and complete discovery.
At the time of the Pretrial Conference thirteen (13) specific issues were identified for Trial. As listed in the Report of Pretrial Conference they are: Wages, Salary Ranges, Placement and Movement of Employees Within Job Steps, Health Insurance, Vacation Accrual, Sick Leave Accrual, Number of Paid Holidays, Travel Expenses Reimbursements, Hours of Work in Eight Hour Day, Overtime and Compensation time, Promotions, Calculations of Seniority for lay-offs and Arrangements of classifications within single job family.
Twenty-three (23) job classifications are in dispute. They are the following: Sanitation Aide-Lead, Sanitation Aide-Rodent, Air Pollution Technician, Dental Assistant, Dental Program Specialist, Community Health Educator I and II, Health Program Representative, Custodian, Custodial Assistant/Driver, Laboratory Scientist I and II, Data Process Coordinator, Laboratory Scientist/Air Pollution, Secretary I, Information Specialist, Environmental Health Scientist I and II, Clerk I and II, Clerk-Typist II and III and Laboratory Aide.
On February 18 the parties entered into a Stipulation agreeing as follows:
1. Both parties waive foundation objections with respect to the comparability exhibits of the other party and agree that such comparability exhibits may be received into evidence. However, each party reserves any objections as to relevancy it may have with respect to the comparability exhibits of the other party.
2. Although not required by this Stipulation, should either party desire to introduce into evidence any survey form or document from which its comparability exhibits were prepared, each party waives foundation objections with respect to any such survey form or underlying document and agrees that such material may be received into evidence. However, each party reserves any relevancy objections it may have as to any such material introduced by the other party.
On February 18, 1986, the Petitioner filed an Objection to Counterclaim for reason that the Counterclaim was not filed within the time period prescribed by the Rules of the Commission. The Commission sustained Petitioners Objection on February 19, 1986.
Respondent filed a Motion to Limit Evidence on February 21, 1986. This Motion was overruled at the time of trial. Trial commenced on February 24, 1986.
Jurisdiction -
The Commission has jurisdiction of the parties and of the subject matter.
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 conditions from those prevailing at the time the original order was entered.
General Array Information -
Respondent has introduced three prospective arrays for consideration by the Commission, and the Petitioner, one.
In following past practices of the Commission, we will use a local survey for custodial and clerical employees and a national survey for skilled and professional level jobs. See, AFSCME v. County of Douglas , 4 CIR 76 (1979), rev'd and rem'd with directions , 208 Neb. 511, 304 N.W.2d 368 (1981). "This is in keeping with reality, since an employer competes locally for hourly and clerical workers, but nationally for professionals." Id at 78.
The Respondent's 3 separate arrays, are national, local employers, and a third survey which contains only Douglas County Depts. Petitioner's survey combines several local employers as well as national employers.
Section 48-818 requires that Orders be based on 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." Furthermore,
[I]n 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 Firefighters Association v. City of Lincoln , 8 CIR 31 at 38 (1985).
Table 1 sets out the evidence introduced by the parties in support of their individual array selections. In addition, each party had its expert testify that these survey points are suitable for inclusion in an array under the standards of Section 48-818.
The position of the Respondent on array selection is twofold. First an array composed primarily of local employers most accurately reflects the labor market for clerical and custodial employees, (T323:16-18) and secondly, in choosing a balanced national array, factors of paramount importance are: geographic proximity, percentage of state unionization, percentage of county manufacturing, and population of Standard Metropolitan Statistical Area. (T53-57).
Using the Respondent's analysis, Respondent would exclude the following cities from the Petitioner's array: Indianapolis, IN., Grand Rapids, MI., St. Paul, MN., St. Louis, MO., Kansas City, MO., Akron, OH., Cincinnati, OH., Columbus, OH., Toledo, OH., Madison, WS., and Milwaukee, WS.
The Respondent's expert witness, testified that the degree of manufacturing and unionization influences wage levels; as the degree of each increases, salaries tend to also increase. He further testified that those cities he identified as having higher degrees of manufacturing and unionization should be excluded from the Petitioner's proposed array. (T59-60). Although the Supreme Court in Lincoln Firefighters Ass'n. v. City of Lincoln , 198 Neb. 174, 252 N.W.2d 607 (1977) held that in determining prevalent wage rates for comparable services in similar labor markets the CIR must weigh, compare and adjust for any economic dissimilarities shown to exist, the Court further mandated that such economic dissimilarities must "have a bearing on prevalent wage rates." Id at 180.
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 on any such economic dissimilarities on prevalent wage rates. Lincoln Police Union v. City of Lincoln , 5 CIR 134 at 156 (1981).
From the evidence and testimony presented in this case, we find that the Respondent has not established that the economic dissimilarities (higher degrees of manufacturing and unionization) have a direct bearing on the wage rates of the employers in the cities of the Petitioner's proposed array. The Petitioner introduced evidence through cross-examination of Respondent's expert that there was no discernable cause and effect between higher degrees of unionization and manufacturing and salaries paid to employees of the health departments included in the arrays of the parties. (T73-74.).
ARRAY I - National
From the record in this matter, we conclude that the three common survey points of the parties, Wichita, KS., Des Moines, IA. and Lincoln, NE., as well as, Peoria IL., Oklahoma City, OK., Colorado Springs, CO., Madison, WS., Milwaukee, WS., and State of Nebraska constitute the most suitable array.
Array II - Local
The parties did agree that the following employments should be used for comparison purposes in this matter: Omaha Public Power District, City of Omaha and Lancaster County Health Department. In addition, the Petitioner presented data for the State of Nebraska and Metropolitan Utilities District for inclusion in the array. Respondent presented data for an additional six local employers which it contends should also be included in the array: Saint Joseph's Hospital, Immanuel Hospital, HNG Internorth, Creighton University, Bishop Clarkson Hospital and UNO Medical Center.
In determining a local array for the clerical and custodial job classifications, we conclude that based upon the evidence presented in this case the three common survey points of the parties, Omaha Public Power District, City of Omaha, and City of Lincoln, as well as, Bishop Clarkson Hospital, University of Nebraska Medical Center, Creighton University, St. Joseph's Hospital, and Metropolitan Utilities District constitute the most suitable array for the purpose of settling this case pursuant to Section 48-818.
The Commission finds both Arrays to be appropriately balanced and sufficiently similar with enough like characteristics to be appropriate. In reaching this conclusion, the Commission used the figures presented by both parties whenever possible. Minor adjustments have been made for discrepancies. The reasons for the discrepancies include: (1) The parties did not always agree which job class in a specific locality matched the "Key job Class" at Douglas County; and (2) The County provided adjusted wage figures to take into account varying contract years.
"Determinations made by the CIR in accepting or rejecting claimed comparables are within the field of expertise of the CIR and should be given due deference, and by necessity, in attempting to arrive at comparables, require granting some discretion to the CIR."
IBEW v. City of Fremont , 216 Neb. 357 at 361, 345 N.W.2d 291 (1984).
Key Classifications -
Before discussing the proper use of the key classification method in a Section 48-818 case, we would stress that the Commission finds market wage surveys on each job classification represented in the given bargaining unit to be the most accurate and favorable method of obtaining wage information from comparable employers.
The key classification method was first recognized by the CIR in IBEW v. O.P.P.D. 3 CIR 554 (1978). Judge Ben Wall set out the guidelines (hereinafter referred to as the 270 guidelines) for a method that could be used to determine by empirical, parametric study, the job classifications most populated and most representative of the entire employee population. Id. at 560. The key classification approach was adopted by the parties in IBEW because of the large number of job classifications involved in the case. The Commission recognized the onerous burden and expense involved in obtaining wage information on such a large scale, and consequently developed the guidelines for future use of the key classification method.
As evident from the language of Judge Wall's opinion, the purpose of the key classification method was to reduce the burden on the parties of extensive wage surveying in cases where the Commission was faced with setting wage rates for employers with large numbers of job classifications. In setting out these guidelines, Judge Wall summarized the Commission's minimum requirements in accepting utilization of key classification evidence.
Since IBEW v. O.P.P.D. , the Key classification approach has been applied in only four CIR cases. AFSCME v. County of Douglas , 4 CIR 76 (1979), IBEW v. M.U.D. , 5 CIR 1 (1980), IBEW v. City of Fremont , 6 CIR 82 (1982), IBEW v. M.U.D. , 6 CIR 246 (1982).
The two earliest cases reflect the appropriate utilization of the method. In AFSCME the Commission applied the key classification approach, "...to reduce a monumental statistical problem to one of only giant size." Id. at 77, and in IBEW v. M.U.D. (1980), the approach was used, "...[b]ecause of the many and varied job descriptions involved..." Id. at 2. These two cases clearly indicate the true purpose in the development of the key classification approach.
Though no numerical parameters have been set by the Commission, the key classification approach was originally developed to be utilized in a case where over 100 job classifications existed. See, IBEW v. O.P.P.D. Since it's inception in 1978, the approach has been applied in cases with 33, 44, 58 and 106 job classifications. IBEW v. Fremont , 6 CIR 82 (l982); See: AFSCME v. County of Douglas , 4 CIR 76 (l979); IBEW v. M.U.D. , 5 CIR l (l980); IBEW v. M.U.D. , 6 CIR 246 (l982). The present case includes only 23 job classifications.
We have lost sight of the original purpose of the key classification approach and have relaxed the guidelines as originally set out by the Commission in IBEW v. O.P.P.D. The original requirements of the Commission are as follows:
(1) Job descriptions must exist, be generated, or be apparent to the Court from its previous experience. A job description is defined as a narrative statement of the work, skills and working conditions of a particular employee or a number of employees as a part of the whole function of the employer.
(2) Job descriptions must match, as between employees, within 20%, to be considered comparable.
(3) The wage rates surveyed of the job descriptions tendered must cover a plurality of not less than 40% of the employees employed by the employer whose wages are sought to be adjusted.
(4) The wage rates surveyed of the job descriptions tendered must cover not less than 20% of the total job descriptions of the employer whose wages are sought to be adjusted.
(5) The "key classifications" together with the related lines of progression, must permit direct or computed establishment of at least 85% of the classes involved.
(6) The "key classifications" or wage rates tendered should have at least one in each regular line of progression, or lines of progression should be established as comparable, or their relative market value established or apparent to the Court from its previous experience.
(7) The "key classifications" must be subject to checking for accuracy of assessment of job content, lines of progression, and similarity or dissimilarity of other key classes and lines of progression within the several employers offered as sources of comparables.
(8) In setting wages from the key classifications, where more than one class is surveyed in a single line of progression, the Court will not average the percentage of increase or decrease, but will apply the percentage indicated to the classes not surveyed which are most closely related to the "key classification."
(9) The Court, pursuant to Section 48-818, will not average the percentages of all of the key classifications surveyed to obtain an overall percentage of increase or decrease for all classifications.
In addition, the Commission will adhere to the following:
1) The more data available on the key classes surveyed, (job matches) the greater the indication of similarity of operation between the Respondent employer and the surveyed employer. IBEW v. O.P.P.D. at 559. Consequently, an employer offering only 2 or 3 job matches out of a potential 23 will not be considered as comparable as an employer with a larger number of job matches, all other factors being equal.
2) Where computed wage rates and actual survey wage rates conflict, the Commission will use market data. Data anomalies will be resolved by the Commission's use of current job survey data.
3) Key jobs surveyed should include, whenever possible, one job in each line of progression.
4) The key classification approach is to be supplemented by a brief job content study that will assist the Commission in determining wages for those jobs not in a line of progression. (See, guideline #7)
We, reaffirm the use of the key classification approach, but advise that it is not appropriate for many cases. Furthermore, if appropriate, the Commission will strictly enforce the original 270 guidelines.
The Issue of Lowering Some Wage Rates in this Case
The Commission is faced, once again, with a situation where the evidence clearly establishes that some of the job classifications are being paid above the prevalent rate. When previously faced with this situation in IBEW v. M.U.D. , 6 CIR 246 (1982), hereinafter referred to as M.U.D. , the Commission chose not to reduce the wage rates for jobs carrying rates above those found to be prevalent. The Commission held:
While reductions in wages should be ordered in a proper case, the starting point for reductions should be at the bargaining table and not before the Commission. Accordingly, the Commission in this case will not alter wage rates above those found to be prevalent.
Id at 264.
In M.U.D. the Commission set out the following criteria for lowering wages in the future:
...[i]f an employer has in good faith sought a wage reduction in collective bargaining and the wage reduction is a genuine issue in the industrial dispute which brings the parties before the Commission, and if the evidence shows as it does here that wages for some jobs are higher than prevalent wages under Section 48-818 criteria, the Commission should establish wage rates for those jobs at prevalent rates despite difficult implementation and policy questions.
Id at 263.
The dissent by Judges Orr and Kratz stated:
The respondent alleged in its pleading that the wages were above the prevalent and should be lowered. The evidence supports respondent's allegation.
As far as this Commission is concerned, it is immaterial whether the possibility of lowering wages was an issue at the bargaining table. We have consistently held the negotiations prior to filing with the Commission are immaterial and irrelevant. Milford Education Association v. School District of Milford 1 CIR 43 (1971); Centennial Education Association v. School District 67-R of Seward County , 1 CIR 44 (1971); Fremont Education Association v. School District of Fremont 1 CIR 50 (1972).
Therefore, it was sufficient for the parties to plead and ask for an order lowering wages. The mandate of 48-818 then requires the Commission to enter the appropriate order based upon the evidence.
Based upon the evidence before the Commission, some wages must be lowered to be comparable to the prevalent.
Id at 267.
The present case gives the Commission the opportunity to review the criteria set forth in M. U.D. for lowering wages.
The Nebraska Commission of Industrial Relations is primarily governed by Section 48-801 through 48-837 R.R.S.(1943), subject of course, to Supreme Court interpretation and constitutional mandates. In considering this issue we must first look to the specific statutory language of Section 48-818. Section 48-818, which outlines the Commission's authority to set wages, reads 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. (emphasis added)
In all cases where the Commission is asked to establish wages, hours and conditions of employment, Section 48-818 is the basis of our authority. The mandate of this Statute is clear and unequivocal. The Commission shall establish rates of pay and conditions of employment which are comparable to the prevalent. The charge of the Statute is clearly mandatory. Section 49-802 R.R.S. (1943) which establishes the general rules of construction for Nebraska Statutes provides that when the word "shall" appears in a Statute, mandatory or ministerial action is presumed.
Applying this rule of construction to Section 48-818 there is little doubt that whether the wages are raised or lowered by the Commission the end result is that the Commission must set the wages at a level comparable to the prevalent. The concept of ordering wages to prevalent level is not restricted to Orders which only increase or maintain present wage levels. The clear and irrefutable intent and specific mandate of Section 48-818 is to take whatever action necessary, whether it be to increase or decrease wages, to establish a rate of pay comparable to the prevalent.
In M.U.D. the Commission, in the majority opinion, established the requirement that wages could only be lowered if reduction of wages had, in fact, been an issue on the table during collective bargaining. Thus, the M.U.D. Opinion made material and relevant at trial the conduct of the parties and the issues raised during the collective bargaining process. This holding clearly broke with precedent previously established by the Commission. Prior to IBEW v. M.U.D. , the Commission has consistently ruled that initial negotiations held before filing with the Commission are immaterial and irrelevant. See , Milford Education Association v. School District of Milford , 1 CIR 43 (1971); Centennial Education Association v. School District 67-R of Seward County , 1 CIR 44 (1971); Fremont Education Association v. School District of Fremont , 1 CIR 50 (1972). The Commission has consistently relied upon the above cited opinions to hold that any evidence as to actual negotiations is immaterial at the time of trial.
Moreover, the Commission is charged under Section 48-812 to conform to the code of civil procedure applicable to the district courts of the state. Rule 408 of the Nebraska Rules of Evidence clearly states that all evidence of conduct or statements made in compromise negotiations is inadmissible.
During negotiations the parties should be free to attempt to settle disputes and achieve predetermined goals without fear or concern that the Commission may later be prejudiced by their actions. Therefore, the Commission should follow the requirements and the wisdom of its pre M.U.D. decisions and exclude all evidence of negotiations when establishing rates of pay and conditions of employment.
The Respondent alleges in its pleading (Counter Claim filed February 4, 1986) that wages, fringe benefits and total compensation are above the prevalent and should be reduced accordingly. In specific instances set forth by the Commission in this decision, the evidence supports Respondent's allegations.
Based upon the statutory mandate of Section 48-818 and the pleadings and evidence of the Respondent, the Commission is required to enter the appropriate order reducing some wages to the prevalent. To the extent set out above, IBEW v. M.U.D. is hereby overruled.
RETROACTIVE ORDERS
The Commission clearly has authority to order wage increases, effective back to the start of the contract year, Local No. 831, International Association of Firefighters v. City of North Platte , 6 CIR 1 (1982), implying the authority to order decreases relating back to the start of the contract year as well. However, the problems encountered in such a decrease could well outweigh any benefits received.
...[e]stablishing lower wage rates presents difficult practical problems and public policy considerations. Usually the year involved in the dispute has partially elapsed and sometimes, as here, entirely elapsed before the case can be tried by the Commission. During all of the elapsed time, the employees have been receiving wages at the higher levels. The question of how a wage reduction order for the year in question could be implemented is not easy to answer. For employees to be required to repay excessive wages or to require future wages to be still further reduced by the already paid excess would create severe hardship on employees and place severe strain on the employer - employee relationship. The lowering of wages should not be lightly undertaken. However, the Commission must be on notice that a reduction in compensation is not now an infrequent issue in both public and private sector collective bargaining.
M.U.D. , at 264.
The contract year for Douglas County employees ends June 30, 1986. The effective date of any reduction in wages shall be the date of this Order.
WAGES
Salary comparisons from the evidence are set out in Tables 2 through 22. Wherever possible, wages have been adjusted to reflect differing contract years. Respondent's evidence was submitted to the Commission adjusted to take into account varying contract years. Stipulation 3, filed with the Commission on February 28, 1986, provided us with the necessary figures for adjusting the wages at Petitioner's array points. Another post-trial stipulation was filed with the Commission on May 8, l986 to further clarify the parties' figures.
Sizeable increases in the minimum salary structure of the Douglas County Health Department prove necessary to achieve the prevalent rate, however the evidence established that there are not any employees presently being paid at the minimum level set forth in Exhibit No. 15 (Current pay grid). Actual minimum salaries, as provided in Exhibit No. 14, show current monthly wages to be a great deal higher than those listed on Exhibit No. 15. In many instances, the wage increases granted by the Commission will not effect the current salaries the incumbent employee is now receiving. The maximum salaries listed on Exhibit No. 15 reflect either the highest paid individual currently in the job classification or, the maximum established range, whichever is higher. (T394: 19-21).
The evidence presented in this case establishes that maximum wages for some job classifications are higher than prevalent wages under Section 48-818 criteria. The Commission will establish wage rates for the majority of these job classifications at the prevalent rate. However, a few salary anomalies exist that do not warrant a reduction in wages.
Prior to July 1, 1984 the Douglas County Health Department was a combined city/county health department operating under the State Merit System. Job descriptions for positions within the department were the State of Nebraska job descriptions.
At the time the County took over the health department the actual nature of the operations did not change, (T253: 21-24) however, shortly thereafter certain job titles did. (T258: 13-24). Previous Environmental Health Scientist IIIs became Environmental Health Scientist IIs and Lab Scientist IIIs became Lab Scientist IIs. The merger of job titles has caused some salary anomalies. Expert testimony at the trial revealed that the highest paid individual in the Environmental Health scientist I position who received a monthly salary of $2,025 had originally been an Environmental Health Scientist III, reduced to a II after the Department consolidated, and eventually was "laid off" to a I position. (T106: 15-18). The Petitioner claims this individual's present maximum salary is skewing up the maximum range for Environmental Health Scientist I and consequently, should be removed when computing range maximums. The Petitioner does not suggest we create a new job classification for this individual.
The Commission will not enter the realm of management prerogative and review the reassignment of individuals within certain job classifications. However, where evidence conclusively shows that salary anomalies exist as a result of extenuating circumstances, in this case the consolidation of the Department, the Commission will take this into consideration when adjusting current wages to the prevalent rate, if necessary.
In the Environmental Health Scientist II job classification there are six individuals who prior to November of 1984 were Environmental Health Scientist IIIs. (T111: 1-25). Their current salaries are reflective of their previous higher positioning. As stated previously, the Commission finds such reassignment of personnel wholly within management prerogative and a policy decision best left to the employer. However, in this case these six individuals were reclassified but retained their previous salary level. In establishing the wage range for Environmental Health Scientist IIs the Commission has removed the six highest paid individuals from the range and will not adjust their salaries. These individuals and their salaries are listed on Petitioner's Exhibit No. H-7. It should be noted that the Commission's decision to remove these individuals from any salary adjustment is based upon the evidence presented in this case and the unique circumstances responsible for these specific salary anomalies.
A similar situation is evident with the individual currently holding the position of Laboratory Scientist II. Testimony from the evidentiary hearing held on October 25, 1985, in this matter reveals that the current Laboratory Scientist II was a Laboratory Scientist III prior to the elimination of that job classification by the County. (T 27-28: 24-9). Therefore, the Commission will remove this individual's salary from the wage range when adjusting the salary of Laboratory Scientist II to the prevalent rate. Although the adjustment to the prevalent rate will not effect the only incumbent in the position of Laboratory Scientist II, it will establish a minimum and maximum range to be used by the County at a later date.
Additional salary anomalies exist in the clerical and custodial array. Presently, five individuals within the Clerk-Typist II job classification make between $231.00 and $54.00 per month more than the salary maximum for Clerk-Typist III. The record indicates that the Clerk-Typist III position is a promotional position from Clerk-Typist II. More experience is necessary as well as improved typing skills. (T101: 16-22). We conclude from the evidence presented at trial that the higher salaries of these five individuals are a direct result of the departments reorganization subsequent to it becoming strictly a County operation. Therefore, we are hesitant to lower these individual salaries. By removing the salaries of the five individuals set out in Petitioner's Exhibit No. H-3 from the Clerk-Typist II salary range, the salary anomaly is resolved. The salaries of the five individuals designated above will remain unchanged.
IMPUTED WAGES
The available market wage information was not sufficient to enable the Commission to set wages for the following positions:
Clerk-Typist III
Sanitation Aide (Lead and Rodent)
Dental Program Specialist
Custodial Assistant/Driver
Therefore, the salary ranges for these positions were established by either determining historical percentage differentials between jobs in existing lines of progression or by preserving existing salary relationships between comparable positions.
Consistent with the guidelines set out in IBEW v. O.P.P.D. for determining wages by the Key Classification Method we have arrived at the minimum and maximum wage rate for Clerk-Typist III.
On the basis of the historic percentage differential between Clerk-Typist II and Clerk-Typist III we find the minimum salary for Clerk-Typist III to be $1,120 and the maximum to be $1,371 .
The positions of Sanitation Aide-Rodent Control and Sanitation Aid-Lead Control are treated by the Commission as a single position for the purpose of setting wage minimums and maximums. Because market wage data for this position was attained from only one survey point, we will determine the salary range for the Sanitation Aides by comparison. As there is no formal line of progression for this position, comparisons must be drawn outside the job classification.
Respondent's Exhibit 15 provides the current pay grade for each Douglas County position in the bargaining unit. The Sanitation Aide position is assigned the same pay grade (7) as the Laboratory Aide position. Additionally, the Civil Service Commission position descriptions for Sanitation Aide and Laboratory Aide list the same: grade level 1, function level 8, and the same category 3, for both positions. See, Respondent's Exhibits 12A-1, 12A-2 and 12A-23. Current salary information on these two positions also reflects their comparability of range. These similarities allow us to compare these two positions for the purpose of setting the wages for Sanitation Aide while fulfilling the statutory standard of setting comparable wages for similar work, skills and working conditions.
The minimum salary for the Sanitation Aide position shall be $1,204 per month and the maximum salary, $1,517 per month. This salary range corresponds directly with the new wages set for the Laboratory Aide position.
In setting the wages for the Dental Program Specialist, the Commission must look to other comparable jobs within the Douglas County Health Department to determine the appropriate salary range. Due to the uniqueness of this position, no wage information was obtained by either party.
Looking once again to the Douglas County Pay Grid and the Civil Service Commission Position Descriptions, the Commission notes that the Dental Program Specialist position has the same pay grade level and the same grade, function level and category as the Laboratory Aide position. The position description also indicates that the Dental Program Specialist position is the normal progression/promotion from Dental Assistant, though no formal line of progression exists.
By setting the Dental Program Specialist salary range at $1,204 per month for the minimum and $1,517 per month for the maximum, we have preserved the comparability of the salary ranges established by Douglas County. The evidence reflects that currently Sanitation Aides, Laboratory Aides and Dental Program Specialist all receive comparable salaries. We have maintained the wage relationship that previously existed between these positions while establishing the prevalent rate.
The final position for which wages have to be set is that of Custodial Assistant/Driver. As indicative of its title, this position encompasses a variety of duties and was probably created around the skills of a particular individual. (T136: 3-7). Pursuant to the Civil Service Commission position description, this position is the normal progression/promotion from Custodian. However, actual salaries paid to the incumbents in this position contradict the descriptions.
Currently, the maximum range for Custodian at Douglas County exceeds by over $200 per month the range maximum for Custodial Assistant/Driver. The testimony on the Custodial Assistant/Driver position was confusing and neither party seemed able to reconcile the salary discrepancies or explain the progression between the two positions.
To adjust the current wage range of the Custodial Assistant/Driver without market data or comparable salary information would require too much speculation and conjecture on the part of the Commission. Therefore, due to the incompatibility of the available evidence on wage information, the current salary of the Custodial Assistant/Driver will remain unchanged.
LONGEVITY PAY PLAN AND PROGRESSION
Table No. 23 summarizes the evidence presented by the parties with respect to longevity pay. Petitioner's expert, Dr. Robert Ottemann, testified at trial that a longevity pay plan should be incorporated into the County's present pay structure. (T154:1-6).
The burden of proof is on the moving party in a Section 48-818 determination to demonstrate that existing wages, hours and conditions of employment are not comparable to the prevalent. Absent such proof, the Commission will not order a change of the current conditions of employment. Presently, Douglas County has no longevity pay plan. As evident from the information provided in Table No. 23, well over a majority of the compared to counties and businesses also do not have longevity pay plans. Clearly, the County is comparable to the prevalent in refraining from implementing such a plan.
Petitioner has failed to meet the burden of proof necessary to incorporate the longevity pay plan into the current pay structure.
Table No. 24 sets forth the evidence on the number of years necessary to achieve the maximum salary range at each survey point. After a thorough review of the evidence presented we find that the number of years necessary to progress from the minimum wage rate to the maximum wage rate at Douglas County is comparable to the prevalent length of time necessary to achieve the maximum wage level in the Commission's array. Because the current progression process at Douglas County is comparable in length to the prevalent, the Commission will not change this condition of employment.
OVERALL COMPENSATION:
In considering fringe benefits as a part of overall compensation, the Commission of Industrial Relations is required by Section 48-818 to consider the entire situation in the subject public employment and those made available by the comparable public employments. What this amounts to is that the Commission is required to offset possible unfavorable comparison between employments with other comparisons which are favorable when reaching its decision establishing wage rates. See, Crete Education Ass'n v. School District of Crete , 193 Neb. 245, 226 N.W.2d 752, 760 (1975).
Section 48-818 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 employees.
(emphasis added)
Tables 25 through 31 summarize the evidence presented by the parties with respect to overall compensation of the Douglas County Health Department employees. The rule of overall compensation contained in Section 48-818 does not require an identity of benefits but that the overall compensation by "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." Id. As we stated previously in Lincoln Firefighters Ass'n v. City of Lincoln, 8 CIR 31 (1985):
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.
Id. at 56.
Table No. 30 reflects the compatible evidence presented by the parties concerning pension plans. A review of Petitioner's Exhibit I-3 and Respondent's Exhibits B-9 and C-18 reveals that the parties each viewed the issue of pension/retirement plans differently.
It has been established that the Commission has no authority to order any changes in the provisions of the Douglas County pension plan, See, Plattsmouth Pol. Dept. Coll. Barg. Comm. v. City of Plattsmouth , 205 Neb. 567, 288 N.W.2d 729 (1980). Table No. 30 provides only the basic elements of the pension plans for the Commission's array. There is little evidence beyond the percentage of employer contribution with which we can valuate the individual pension benefits presented.
Like other aspects of overall compensation, pensions will be considered as part of the entire situation regarding fringe benefits. Lincoln Fire Fighters at 66 .
Taken in their totality, we determine the Douglas County fringe benefits are comparable to the prevalent to the sixteen compared to entities. In making this determination, we have considered all the benefits reflected in the evidence.
Because we have found Douglas County's fringe benefit package to be comparable to the prevalent, the wages for the Health Dept. employees should be adjusted to reflect the prevalent wages of the Commission's array.
IT IS THEREFORE ORDERED ...
1. The monthly wages of the Douglas County Health Department are established at the following rates:
Job Classification Minimum Maximum
Clerk I $887 $1,137
Clerk II 1,061 1,266
Clerk-Typist II 957 1,293
*Clerk-Typist III 1,120 1,371
Secretary I 997 1,366
Environmental Health
Scient. I 1,550 2,033
Environmental Health
Scient. II 1,690 2,205
Air Pollution
Technician 1,878 2,369
Laboratory Scientist
I 1,627 1,976
Laboratory Scientist
II 1,732 2,228
Laboratory Scientist-
A.P. 1,972 2,344
Data Processing
Coordinator 1,654 2,115
Community Health
Educator I 1,563 1,971
Community Health
Educator II 1,686 2,210
Health Program
Representative 1,581 2,058
Dental Assistant 941 1,331
*Dental Program
Specialist 1,204 1,517
Custodian 1,038 1,260
Custodial Assistant/
Driver 1,204 1,517
*Sanitation Aide/
Rodent 1,204 1,517
*Sanitation Aide/
Lead 1,204 1,517
Information
Specialist 1,382 1,934
Laboratory Aide 1,204 1,517
*Imputed Wages.
2. The Environmental Health Scientist IIs, identified as D.C., E.P., D.K., D.N., E.E., and D.G. on Petitioner's Exhibit H-7, will retain their current salary level.
3. The Laboratory Scientist II, identified as L.C. on Petitioner's Exhibit H-11, will retain her current salary level.
4. The Clerk-Typist IIs, identified as L.S., P. McG., J.M., V.R., and J.B. on Petitioner's Exhibit H-4, will retain their current salary level.
5. The effective date of the wage reductions ordered shall be the date of this Order.
6. The remainder of this Order shall be effective for the period from July 1, 1985, to June 30, 1986.
7. The amounts due for the portion of the year already elapsed shall be paid promptly following the entry of this Order.
8. All other conditions of employment shall not be effected by this Order.
9. Upon motion this decision was made En Banc.
Entered July 10, 1986.
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