| LINCOLN FIREFIGHTERS | | | CASE NO. 564 |
| ASSOCIATION, LOCAL | | | |
| NO. 644, | | | |
| | | ||
| Petitioner, | | | |
| | | ||
| v. | | | FINAL FINDINGS AND ORDER |
| | | ||
| CITY OF LINCOLN, NEBRASKA, | | | |
| a Municipal Corporation, | | | |
| | | ||
| Respondent. | | |
Appearances:
For the Petitioner: Hal Bauer
Bauer, Galter, Geier & Flowers
8ll South l3th Street
Lincoln, Nebraska
For the Respondent: Dana W. Roper
Assistant City Attorney
555 South l0th Street
Lincoln, Nebraska
and
William A. Harding
Nelson & Harding
500 The Atrium, 1200 "N" Street
P.O. Box 82028
Lincoln, Nebraska
Before: Judges Gradwohl, Kratz and Mullin.
GRADWOHL,J:
Nature of the Proceeding:
This is a proceeding under Section 48-818 to determine wages and conditions of employment for bargaining unit members of the City of Lincoln Fire Department for the period from September 1, 1984 to August 31, 1985. Firefighters initiated the proceeding on July 26, 1984, alleging that the parties were at impasse in their negotiations for a new contract commencing September 1, 1984.
The Commission entered an Order on August 8, 1984 for preliminary proceedings, under the provisions of Section 48-816(1), to be held on August 21, 1984. The City's Answer and Counterclaim, filed August 20, 1984, contains a general denial of the Firefighters' allegations, an allegation that the Petition fails to state a claim upon which relief can be granted, an allegation that the Petition does not contain a clear and concise statement of facts as required by Rule 4D of the Commission, and a counterclaim that wages and benefits be decreased for the reason that the existing levels were above those of comparable employments under the standards of Section 48-818.
Cases of this important and complicated nature require substantial cooperation if the parties sincerely wish a timely decision. The Commission of Industrial Relations statutes are premised on assumptions that there will be substantial cooperation of the parties in presenting the case for decision, at least in the expeditious presentation of reliable data.
The Commission entered an Order on August 21, 1984, following the preliminary conference with the parties, ordering an exchange of answers to interrogatories and other information on September 10, 1984, scheduling a further preliminary conference on September 17, a pretrial conference on September 24, and a trial on October 2 and 3, and allowing the parties to request further orders to insure a prompt adjudication, secure a resumption of bargaining or mediation, or to protect the interests of the parties or the public pending a final determination. On September 11, 1984, the parties filed a Joint Stipulation continuing the trial to October 24 and 25.
Following the preliminary conference of September 17, 1984, the parties were ordered to exchange trial exhibits and related information on October 1, 1984, as they had both agreed to do during the preliminary conference. The Commission also rescheduled the pretrial conference for October 15, 1984, and ordered that the parties engage in further collective bargaining with the assistance of a federal mediator.
The Association gave Notice on October 2, 1984, pursuant to Section 27-803(7) and (22), of an intent to offer in evidence a number of documents including current contracts in the cities considered in this matter, stating that these documents were available at the Firefighters attorney's office for examination or copying. The City moved to compel the Firefighters to supply it with a complete copy of the documents on October 10, 1984. The Firefighters apparently made several of the documents, including the collective bargaining agreements, available to Counsel for the City (but without giving copies for permanent retention and use) and advised Counsel for the City where the other publications were available in the library.
The pretrial conference previously ordered was commenced on October 15, 1984. It was not possible to complete a pretrial conference at that time. The pretrial conference was continued to October 22, 1984, and the Commission Ordered as follows:
2. The parties are directed forthwith to review the information as both have promised to do in order to resolve or identify differences as to:
(A)the items constituting the industrial dispute,
(B)the evidentiary data,
(C)the foundation for admission of both parties' proposed exhibits in evidence,
(D)other issues which may arise at trial or in arriving at a decision in this matter.
3. The bargaining order previously entered herein is continued in effect and the parties are directed forthwith to resume efforts at mediation and bargaining to voluntarily resolve this industrial dispute by agreement.
It appears that the parties made substantial efforts between October 15 and October 22 to resolve discrepancies in the basic data pertaining to the common portions of their factual exhibits. These efforts, however, did not produce the agreed data expected by both parties and the Commission since the initial preliminary conference on August 21, 1984. Firefighters filed a motion on October 22, which was subsequently withdrawn, seeking an order requiring the City "to produce the wage and benefit tables jointly prepared and computed by the parties."
The pretrial conference was resumed on October 22, 1984. The subjects referred to in paragraph 2 of the Order entered October 15, 1984, were discussed. A number of additional matters, shown in the Pretrial Order entered October 23, 1984, were agreed to, but it was necessary to further continue the pretrial conference until October 24th, with the trial to commence at the conclusion of the pretrial conference.
At the resumed pretrial conference on October 24, 1984, the parties arrived at a Stipulation (Exhibit 61) on several issues, other matters pertaining to procedure were discussed, and the pretrial conference was concluded without further order.
After a short period of testimony by two of the Firefighters' witnesses pertaining to the appropriate array, the trial was continued until the next morning in order to allow the witnesses, particularly the Firefighters expert witness, James J. Kilgallon, from Washington, D.C., to work out discrepancies in the data and to generate reliable calculations necessary to a proper resolution of this matter pursuant to Section 48-818.
When the trial resumed the next morning, October 25th, Firefighters orally moved for a further continuance of one day to allow Kilgallon to complete his refinement of the data and to make the recalculations necessary for his testimony. The City objected to a continuance and an evidentiary hearing was held on the motion. The motion was sustained in part and, after another short segment of the trial, the trial was recessed until 8:00 p.m. that evening.
A several hour evening session was held on October 25, 1984. The parties completed their presentation of evidence the next day, October 26, following which the Commission ruled that the trial would be recessed subject to its being reopened only upon motion of the Commission. See IAFF Local 831 v. City of North Platte , 215 Neb. 89, 337 N.W.2d 716 (1983), affirming 6 CIR 1 (1982) on this issue.
The Bill of Exceptions was filed in the Commission on January 4, 1985. Firefighters filed a timely post-trial Brief on January 21, 1985; the City filed a timely post-trial Brief on February 5, 1985; and Firefighters filed a timely Reply Brief on February 12, 1985. The Commission's files also contain correspondence of the parties after these Briefs were filed.
The Commission entered an Order on March 14, 1985, reopening the trial, after concluding that the record at that point was not sufficient to allow it to make a proper determination of the industrial dispute pursuant to the statutory criteria. The Order states:
At the conclusion of the presentation of evidence by the parties in the trial in this matter, the Commission ruled that the trial would be recessed subject to being reopened upon motion of the Commission (T:314-315).Despite assurances of both parties during the preliminary proceedings that through their cooperative efforts, the discrepancies in the factual information necessary to make the determinations required by Section 48-818 in this matter would be eliminated, reduced, or, at least, identified prior to trial, that simply did not take place. The trial was continued to give the parties further opportunities to put the record in a shape necessary for a decision based upon evidence properly in the record. It appeared at the trial, and it continues to appear, that the evidentiary record is not sufficient to allow the Commission to perform its statutory duties. The written briefs of both parties appear to have gone outside of the data received in evidence at the trial. Both parties have presented supplemental letters, later than the time allowed by the Commission for the filing of briefs, to respond to the other party's reliance upon information not in evidence.
The Order of March 14, 1985, reopening the trial, identified a number of the items with respect to which the Commission was concerned and submitted questions on issues which the Commission felt required further consideration by the parties for the proper resolution of the industrial dispute.
A pretrial conference for the reopened trial was begun on April 3, 1985, recessed, and concluded on April 5, 1985. The reopened trial was held on April 10, 1985. The Bill of Exceptions for the reopened trial was filed in the Commission on April 17, 1985.
The parties were given one week after the filing of the Bill of Exceptions in which to file post-trial Briefs should they so desire. The City filed a Brief on April 24, 1985. The Firefighters did not choose to file a Brief.
The Commission's records contain a letter dated April 26, 1985, from Counsel for the Firefighters responding to the City's Brief and a letter dated May 9, 1985, from the City responding to the Firefighters letter of April 26, 1985.
While Section 48-810 mandates that the Commission shall "settle" industrial disputes brought to it for resolution, Section 48-809 requires that this be done with the observance of the rules of evidence prevailing in the trial of civil cases in Nebraska. The substantive standards for the resolution of the industrial dispute are contained in Section 48-818, set out below. Due to the complexity of the issues and the manner in which the case has been presented for decision, the Commission has been unable to comply with the ordinary time standards for settling industrial disputes as set out in Section 48-813.
There is still some confusion in the evidence concerning the basic data pertaining to this matter. Some of the figures which the City's Brief of April 24, 1985, states were changed at the reopened trial were not altered in the evidence and remain the same as the numbers in the original exhibits. There are instances in which the Firefighters and City figures were in agreement at the first trial but were disputed in the first post-trial briefs. Some of these were corrected by the Firefighters in their calculations introduced at the reopened hearing but not by the City. As a result, there are some discrepant figures from the reopened trial which had not been discrepant in the evidence at the original trial. Although some discrepancies remain in the data, the Commission is now able to make a determination pursuant to the statutory criteria, especially since the applicable collective bargaining agreements are in evidence. To assist in identification of the portions of the record relied upon in making the findings and determinations herein, Roman Numeral "I" is used to denote the record from the October 1984 trial and Roman Numeral "II" is used to denote the record from the April 1985 reopened trial.
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 conditions from those prevailing at the time the original order was entered.
Array:
The parties are agreed that employments in the following six cities should be used for comparison purposes in this matter: Omaha, Nebraska; Wichita, Kansas; Des Moines, Iowa; Springfield, Missouri; Topeka, Kansas; and Cedar Rapids, Iowa. In addition, Firefighters presented data for employments in four other cities which it contends should also be included in the array: St. Paul, Minnesota; Kansas City, Kansas; Davenport, Iowa; and Independence, Missouri.
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." 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). Since this is a factual determination to be made in each case, the use of a particular array in one case does not require that the same group of employment units would be appropriate in a different case. See Crete Educ. Ass'n v. School Dist. of Crete , 193 Neb. 245, 255, 226 N.W.2d 752, 758 (1975).
The parties stipulated (Exhibit 61) as follows with respect to work, skills and working conditions:
2. The parties stipulate that the work done and the skills require for all the various job classifications in the Lincoln Fire Department referred to in the exhibits referenced in Paragraph 1 above are the same or similar to the compared to job classifications set forth in the exhibits referred to in Paragraph 1 above. 10 cities. [sic]
3. The parties agreed that working conditions for all job classifications at issue in the cities of Omaha, Wichita, Des Moines, Springfield, Topeka and Cedar Rapids are the same or similar to those in Lincoln.
4. As to St. Paul, Kansas City, Kansas, Davenport and Independence the parties agree that working conditions for all job classifications at issue are the same or similar to those in Lincoln; provided, that both parties reserve the right to not be bound by this stipulation and offer evidence on said issue for the purposes of array selection. If either party shall offer such evidence for any of such cities, for the purposes of array selection, the evidence so offered shall serve as the basis for the C.I.R. decision. for the purposes of array selection. [sic]
Tables 1 and 2 set out some of the evidence introduced by Firefighters in support of its array selection. In addition, Firefighters presented testimony concerning some conditions relating to fire protection in these cities and expert opinion from James Kilgallon that these cities are suitable for inclusion in an array under the standards of Section 48-818.
The principal position of the City on array selection is that St. Paul, Minnesota, Davenport, Iowa, Kansas City, Kansas, and Independence, Missouri, should not be included because they are integral parts of larger metropolitan areas and, therefore, do not constitute a proper source for comparison with Lincoln. The City introduced evidence through cross-examination and direct testimony of some conditions relative to fire protection in these four cities which are different than those in Lincoln and expert opinion that these four cities are not suitable for inclusion in an array under the standards of Section 48-818.
In Lincoln Fire Fighters Assn. v. City of Lincoln , 198 Neb. 174, 252 N.W.2d 607 (1977), the Supreme Court affirmed the Commission's (then Court) selection of an eight city array proposed by the City:
The court selected the West North Central Array by city population for purposes of comparison. These cities, with the estimated 1975 population, are: Des Moines (194,000), Cedar Rapids (109,900), and Davenport (100,300), Iowa; Wichita (264,000), Topeka (126,580), and Kansas City (169,000), Kansas; St. Paul (291,000), Minnesota; and Springfield (128,000), Missouri. Lincoln's population estimate is 158,500. The city's expert testified these cities were chosen on the basis of geographical location and population. Four of the cities have a greater population than Lincoln, and four have a lesser population. In selecting this particular array of cities over the other three presented by the city, the court also considered similarity of working conditions, including such factors as the size of firefighting forces, population density, and climatic conditions.
In section 48-818, R.R.S. 1943, in selecting cities in reasonably similar labor markets, for the purposes of comparison in arriving at comparable and prevalent wage rates, the question was whether as a matter of fact the cities selected for comparison are sufficiently similar and have enough like characteristics to make comparisons appropriate.
...In selecting the fire departments to be used for comparison, the court considered the size and complexity of the firefighting forces and the physical conditions under which the firefighters work is done. Among those factors considered were geographical proximity to Lincoln and similarities in population, population density, force size, and weather conditions. The method of selection employed was in accord with the requirements of section 48-818, R.R.S. 1943.
(198 Neb. at 177-179; 252 N.W.2d at 610-611)
On another issue, however, the Supreme Court in view of the evidence presented in that record, stated:
Because of the evidence established the cities selected were economically dissimilar to Lincoln, it was error for the court to utilize directly the mean wage rate of those cities in determining the prevalent wage rate.
(198 Neb. 179; 252 N.W.2d at 611)
The Commission has considered the "metropolitan area" factor to be significant in later decisions involving other bargaining units of the City of Lincoln. In American Federation of State, County and Municipal Employees v. City of Lincoln , 3 CIR 481, 487 (1978), the Commission (then Court) stated:
The only other case considered by this court which involved Lincoln, or any of its governmental subdivisions, was the case of City of Lincoln v. Lincoln Firefighters , 3 CIR 153-1. In that case, the array determined by the court included St. Paul, Wichita, Des Moines, Kansas City, Springfield, Topeka, Cedar Rapids, and Davenport. Only four of the eight are used here.
The evidence shows that Lakewood is a suburb of Denver, Kansas City, Kansas, a suburb of Kansas City, Missouri, and Warren, Michigan, a suburb of Detroit. To use these three cities would be to compare Denver, Detroit and Kansas City, Missouri, to Lincoln. Those cities are too large and therefore not comparable. The wages of suburban cities are generally similar to the wages of the principal city, since they are all a part of the same labor market.
Accordingly, Kansas City, Kansas, was not contained in the array used to decide that case.
In Lincoln Police Union v. City of Lincoln , 5 CIR 134, 141-144 (1981), the Commission stated:
The Respondent [City of Lincoln] introduced three arrays for consideration. The first array was the same cities selected by the Commission in Case No. 153. Lincoln Firefighters Ass'n v. City of Lincoln , 3 CIR 130 (1975). In the second array the cities selected were based on geographic proximity to Lincoln and population parameters. In the third array SMSA's (Standard Metropolitan Statistical Areas) were selected based on geographic proximity to Lincoln, and population parameters. In both the second and third arrays six to eight employers were selected so that the sample would be large enough to be statistically significant and to follow the Commission's past preference for arrays of this size. The Respondent also presented testimony that same or similar work is performed in each of the cities of the three arrays presented (T201:9-21). The method of determining same or similar work was done by a "job match analysis." (T189-193).
The Respondent's Array #1 which included the cities used in the comparison array in CIR Case No. 153 ( Lincoln Firefighters Ass'n. v. City of Lincoln ) was not selected because two of the array members were not sufficiently similar to Lincoln. One of the cities is Davenport, Iowa, which is a member of a Tri-city area in which there are three cities of approximately the same size. The other city is St. Paul, Minnesota, which the Respondent discounted as not being comparable to Lincoln because St. Paul is "inexorably entwined" with Minneapolis, Minnesota, thereby, making it a part of a metropolitan area of over two million persons.
The Respondent's Array #3 which included SMSA's within 300 miles of Lincoln was not selected for several reasons. Lincoln's city population comprises over 83% of its SMSA population. The mean (average) of the major city to the SMSA of the eight cities proposed to be compared to Lincoln is less than 65% of the total population of the SMSA. The range of the proposed members is from 50.6% to 76.2%. In addition, the respective city population figures for two of the SMSA's (St. Joseph, Missouri and Waterloo, Iowa) do not meet our population parameter of being at least one-half the city population of Lincoln. Therefore, we find that Respondent's Array #3 is not sufficiently similar to Lincoln to be appropriately compared in this matter.
St. Paul, Minnesota, had also been included in the array presented by the Lincoln Police Union. The Commission rejected the Union's proposed array, which additionally included Independence, Missouri, because of a failure of proof as to similar work, skills and working conditions. The City's Array #2, however, which was adopted by the Commission for use in that case did include Kansas City, Kansas. The decision notes, as we do here, that "Since this is a factual determination to be made in each case, the use of a particular array in one case does not require that the same group of employment units would be appropriate in a different case." Lincoln Police Union v. City of Lincoln , 5 CIR 134, 141-142 (1981).
From the record in this matter, we conclude that the six cities agreed to by the parties constitute the most suitable array for the settlement of this case pursuant to Section 48-818. The population, geographical, economic, and other general characteristics of the cities included in this array are in compliance with the criteria of the statutes and the prior determinations of the Commission and the Nebraska Supreme Court. There is, in addition to comparable work, skills and working conditions, an appropriate balance and enough like characteristics and qualities to make an appropriate comparison. The other four cities proposed by Firefighters are, at least, suspect or of a lower quality because of their presence in a larger metropolitan area. Each case must be decided on its own circumstances. We determine in this case that the standards of Section 48-818 can be best applied by a comparison of Lincoln fire employments with those in Omaha, Nebraska, Wichita, Kansas, Des Moines, Iowa, Springfield, Missouri, Topeka, Kansas, and Cedar Rapids, Iowa.
Job Classifications:
The bargaining unit involves employees with the following designations:
Firefighter
Fire captain
District fire chief
Fire prevention inspector
Chief fire prevention inspector
District fire chief - training
Drill master
Fire alarm operator (E.S.D. II)
Fire alarm supervisor (E.S.D. III)
Fire equipment mechanic
Fire equipment supervisor
Fire equipment operator
Firefighters tried the case on a "bench mark" theory. Its data pertained to four groups: firefighter, fire captain, district fire chief, and fire equipment operator (also known as "engineer"). It contended that the wages for the other groups should be based upon the nearest "bench mark".
The City presented data at the initial trial for all of the groups listed above except fire equipment operator. It contended that wages for each group should be established by comparison with the other cities in the array.
The Commission was unclear following the initial trial whether or not there was, in fact, a classification of fire equipment operator or engineer. The Order reopening the trial inquired:
Does the classification of engineer exist at Lincoln? This position seems to be going by several names throughout the evidence. Is it's real name that of fire equipment operator and its present pay policy that which is outlined on page 5 of Exhibit 10?
The parties stipulated in response (Exhibit 97):
The classification of "Engineer" in the cities in Petitioner's or Respondent's universe is the same classification as "Fire Equipment Operator" in Lincoln. In Lincoln, Fire Equipment Operators are specific individuals designated as such. They are always Firefighter rank. Page 5 of Exhibit 10 sets out the pay policy.
The 1983-1984 collective bargaining agreement between the parties, Exhibit 10, Page 5, states:
Any employee who operates an engine company, truck company, district fire car, and the relief drivers who operate Red Two or Red Three as their assigned duty shall be paid two and one-half percent (2 1/2%) above base pay per pay period.
Relief drivers shall receive $4.00 per shift when operating an engine company, truck company, district fire car, Red Two, or Red Three as their assigned duty.
The Collective bargaining agreement does not list fire equipment operator or engineer in the definition or pay scale plan positions.
The City introduced evidence on practices as to pay for driving out of class, as shown on Table 3. In response to the Commission's inquiry, the City also presented data on an engineer designation at the reopened hearing (Exhibit 92, Table 4 and 5).
We conclude that in settling the pending industrial dispute, the Commission should continue the present relationship of wages between firefighter and those of employees who perform the duties of fire equipment operator. Accordingly, the Order below contains the same two and one-half percent (2 1/2%) provision as Article 13 set out above.
According to Exhibits 26 to 36 (I) and the testimony of the Union President, there are approximately 243 persons in the bargaining unit, distributed as follows:
Firefighter 169
Fire captain 54
District fire chief 6
Fire prevention inspector 6
Chief fire prevention inspector 1
District fire chief - training 1
Drill master 1
Fire alarm operator (E.S.D. II) 1
Fire alarm supervisor (E.S.D. III) 1
Fire equipment mechanic 2
Fire equipment supervisor 1
We conclude that in settling the pending industrial dispute, the Commission should use the classifications of firefighter, fire captain, or district fire chief as a "bench mark" for establishing the wages of other bargaining unit classifications. There are 229 of the bargaining unit's 243 members in these three classifications. The other 14 persons are spread throughout the remaining 8 classifications. The City's data for these 8 classifications presented at the initial trial are based upon what would be Lincoln's "F" Step, rather than the "I" Step which we determine in this Order is proper. There are several "no match" entries in the data. Primarily, however, are the considerations that the fiscal year to which this determination applies is nearly over and there is an important industrial policy in maintaining existing wage relationships within the unit if it is otherwise appropriate to do so, leaving this matter for further collective bargaining negotiations between the parties. See Diller Education Association v. Diller Community School , 7 CIR 196 (1984); Medicine Valley Public Schools v. Curtis Education Association , 7 CIR 96 (1983); West Holt Faculty Association v. School District , 5 CIR 301 (1981) (decisions in which the Commission has declined on this basis to alter index salary schedules or supplemental salary schedules for teachers).
Wages:
Salary comparisons from the evidence in this matter are set out in the following tables: Table 4, Firefighter; Table 5, Captain; and Table 6, District Fire Chief. As indicated in the explanation of contested wage calculation items and the citations in the Tables, the data relied upon is primarily that from the reopened trial. The data from the initial trial was not sufficiently complete or sufficiently reliable to allow the Commission to properly settle the dispute in accordance with the controlling statutes.
Where there are discrepancies between the Firefighters' (Petitioner's) Exhibit 88(II) and the City's (Respondent's) Exhibit 92(II), they have been resolved in the following manner: (1) the respective collective bargaining contracts which are in evidence were examined; (2) if there was no contract or it could not be determined from the contract, the explanatory exhibits which are in evidence were examined (that is, Exhibits 89-91(II) and 93-96(II)); (3) if neither figure was so verified, the City's figure was utilized since the burden of proof is on the Firefighters. In most situations, the discrepancies are small. The differences in some figures for Wichita stem from Firefighters' use of longevity at 21 years and the City's use of longevity at 26 years, for which the Commission utilized the City's figures since Firefighters had the burden of proof on the item.
Table 7 shows the "% Differential" for the eight classifications whose wages are established herein by comparison with those established for Firefighter, Captain, or District Fire Chief and shows the classification with which it was compared.
I LEFT IN THESE FOOTNOTES FOR THIS TABLE:
(a) In determining these salaries, the Commission looked at Exhibit 10(I), current pay scale, to see which of the three positions we have set wages for (Firefighter, Captain, and District Fire Chief) are closest in pay to the positions in this table and then used the same current differential to set wages for these positions.
(b) Exhibit 10(I), current pay scale for Step F. Figures have been rounded.
(C) The figure shown is for Step F. All steps on the current pay scale for each classification have the same "% Differential" from the "bench mark" classification with which it is compared.
Contested Wage Computation Items:
(a) Effective dates.
The period in question in this case is September 1, 1984 to August 31, 1985. Increases which the evidence establishes will become effective in Cedar Rapids, Des Moines, Springfield, and Topeka during that year have been included in the calculations for the portion of Lincoln's year to which they are applicable, as shown on Tables 4, 5, and 6. Other "anticipated increases" of the Firefighters have not been received in evidence or considered in the calculations. See Lincoln Firefighters Assn. v. City of Lincoln , 198 Neb. 174, 180, 252 N.W.2d 607, 611 (1977). The Commission also sustained the City's objections to certain information offered by the Firefighters pertaining to 1985 wages in Omaha and Wichita at the reopened trial.
(b) Annual scheduled hours.
Table 8 contains a column showing the annual scheduled hours for firefighter, fire captain and district fire chief. Persons in Cedar Rapids, Des Moines, Omaha, Springfield, and Lincoln have 2,912 annual scheduled hours. Persons in Topeka and Wichita have fewer annual scheduled hours. The base salary figures for Topeka and Wichita have been adjusted for differences in annual scheduled hours. See State Code Agencies Education Association v. Department of Public Institutions , 7 CIR 186, 192 (1984), affirmed, 219 Neb. 555, 346 N.W.2d 44 (1985); Fraternal Order of Police v. County of Adams , 3 CIR 585, 590 (1978), affirmed 205 Neb. 682, 289 N.W.2d 535(1980).
Information on vacation hours and holiday hours is also contained in Table 8. Vacation hours and holiday hours are considered as a part of "overall compensation" under Section 48-818. Some of the City's evidence at the initial trial tended to double count vacation hours and holiday hours in its calculations.
(c) Longevity.
Firefighters' data at the initial trial treated Step I as the "maximum" step on the Lincoln pay scale. The City's data at the initial trial treated Step F as the "maximum" step on the Lincoln pay scale. This difference in approach carried into the comparative figures presented from other cities.
The Lincoln pay scale is designated alphabetically A through I. Steps A through F, based on performance, allow for routine advancement over a period of time. Steps G, H, and I are part of a "merit proficiency pay plan" which is based on a qualifying period of time in each step and maintenance of acceptable performance. That performance need not necessarily be an improving level of performance, but must, at least, represent a maintenance of existing skills and achievements.
While it is possible to deny advancement under the "merit proficiency pay plan", Fire chief Mike Merwick testified that to his knowledge, during the time he has been Fire Chief, only one person has been denied advancement under the "merit proficiency pay plan" and then only delayed for a period of six months.
In IAFF Local 831 v. City of North Platte , 6 CIR 1, 2 (1982), affirmed on this issue, 215 Neb. 89, 337 N.W.2d 716 (1983), the Commission stated:
In making calculations under Section 48-818 of "wages" pertaining to comparable employments, training and proficiency pay and longevity pay should be treated as a part of "wages" if the evidence establishes that employees routinely receive such pay; otherwise, such pay should be treated as a separate benefit in calculating "overall compensation".
Since Lincoln firefighting personnel routinely receive advancement to Steps G, H, and I, the "maximum" step on the Lincoln pay scale is Step I. The wage calculations herein are based upon Step I rather than Step F being the "maximum" step.
(d) EMT certification.
All Lincoln firefighting personnel are required to secure a 280 hour emergency medical technical (EMT) certificate within four years of employment. Lincoln does not pay a premium for EMT certification. Topeka and Wichita pay a premium for EMT certification. Since EMT certification is a work skill required of all Lincoln firefighting personnel with four years of service, the EMT premium pay of other cities which provide such pay should be included in the wage figures for the comparable employments. From an examination of the Lincoln Personnel Rules and Regulations (Exhibit 12(I)), it appears that Lincoln firefighting personnel will have achieved EMT certification before or shortly after the time they reach Step F. For that reason, EMT premium pay of other cities is included in the pay calculations for comparable employments at Step F and Step I for firefighters and captains. The evidence did not establish the amount of premium pay for EMT certification, if any, received by district fire chiefs in Topeka and Wichita.
(e) Food allowance.
Lincoln does not pay a food allowance. Topeka pays a $399.00 food allowance (See Table 16). Although a food allowance is a "paycheck" item to the recipient, the Commission treats this item as a nonwage benefit rather than as a part of wages. See IAFF Local 831 v. City of North Platte , 6 CIR 1, 18 (1982), affirmed, 215 Neb. 89, 337 N.W.2d 716 (1983) ("Although the meal allowance may be a factor in an employee's paycheck, it is more similar to clothing allowance or union dues checkoff as separate benefits than to wages. The Commission's calculations in the following portions of this Opinion and Order treat the Scottsbluff meal allowance as a separate component in overall compensation.").
(f) College credit pay plan.
Lincoln firefighting personnel are eligible for pay for college credit for courses pertaining to fire technology in accordance with the following provisions:
2.58.364 College credit pay plan; Lincoln Fire Department . Uniformed personnel of the Lincoln Fire Department shall be eligible for an additional two and one-half percent (2 1/2%) increase in pay for the first 30 semester hours of college credit satisfactorily completed leading to an Associate Degree in Fire Technology as granted by any accredited college or university. An additional two and one-half percent (2 1/2%) increase shall be granted upon attainment of the Associate Degree. Only material leading to the Associate Degree will be approved by the personnel director.
An additional five percent (5%) shall be granted upon attainment of a Bachelor Degree in fire technology.
Members of the bargaining unit who currently earn 5% premium college pay may submit credits toward the additional 5% until September 1, 1983. After that date, bargaining unit members earning 10% premium college pay will be grandfathered and all other bargaining unit members will be eligible to earn a maximum of 5% premium college pay.
Exhibit 10(I), Appendix "C", Pertinent Sections of Lincoln Municipal Code, Chapter 2.58, page "20".
The City does not pay or reimburse the costs of tuition, books, and fees, but pays approximately 110 firefighting personnel roughly $110,297 in annual percentage pay increases under the plan. These figures are contained in Respondent's (City's) Exhibit 41(I) and Table 12, below.
Some of the cities calculations use the amount of this college credit pay plan directly in calculating the pay for Lincoln firefighting personnel. In the methodology applied for comparative purposes under Section 48-818, some of the City's calculations effectively place most of the cost of this plan upon the firefighting personnel rather than the City inasmuch as only Wichita has a similar program.
The college credit pay plan clearly is of benefit to both the City and the firefighting personnel. It is not a general college credit program but pertains to fire technology education. It is clearly a benefit to Lincoln firefighting personnel, but it also involves a significant benefit to the City. It should not be allocated primarily to employees' wages as some of the City's calculations have effectively done, but it should properly be considered as a part of "overall compensation" in the application of Section 48-818 in more general terms as another employee benefit. See Table 12, showing data from Respondent's (City's) Exhibit 41(I).
The college pay policy for the Lincoln Police Department was similarly considered an element in "overall compensation" in Lincoln Police Union v. City of Lincoln , 5 CIR 134, 153-154 (Table 15), 159 (1981). See also City of Omaha v. Omaha Police Union , 5 CIR 171, 182-183 (Tables 5 and 6), 208 (1981). The college credit pay plan in this case is also considered by the Commission as a component in the "overall compensation" determinations under Section 48-818.
(g) Des Moines Lieutenant/Captain.
The Des Moines fire force contains both a Lieutenant and Captain rank. The Firefighters used the Captain rank in comparison to Lincoln Fire Captain. The City used the Lieutenant rank in comparison to Lincoln Fire Captain.
The Commission's calculations match Lincoln Fire Captain with the Des Moines Captains. Based upon their job responsibilities, particularly the responsibilities pertaining to station commander, the work, work skills and working conditions of a Lincoln Fire Captain appear to be more like those of a Des Moines Captain than those of a Des Moines Lieutenant.
Overall Compensation:
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 the employees." The rule of overall compensation contained in Section 48-818 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 48-818 may, therefore, vary from case to case depending upon the evidence introduced by the parties. The following Tables 9-16 summarize a substantial portion of the evidence with respect to overall compensation of Lincoln firefighting personnel. In addition to wage information in Table 4, 5, and 6, above, Table 3 shows provisions for "driving out of class" and Table 8 shows scheduled hours, vacation hours, holiday hours, and hours worked.
Table 9
Pension Benefits
Table 10
Health Insurance (a)
Table 11
Dental Insurance (a)
Table 12
Educational Incentive/College Pay (a)
Table 13
Life Insurance (a)
Table 14
Physicals (a)
Table 15
Contribution To Cost of
Utilization Of Transit System (a)
TABLE 16
Uniform and Food Allowances (a)
The Supreme Court stated in IBEW Local 1536 v. City of Fremont , 216 Neb. 357, 362, 345 N.W.2d 291, 296 (1984):
With regard to a determination of conditions of employment under ยง48-818, the CIR has the following alternatives: If, in the compared-to cities, the exact content of a condition of employment is clear from the total evidence, the CIR may enter an order either as to that condition of employment or find that the subject city's condition in this regard is lesser or greater than the prevalent, and adjust the "overall compensation" accordingly.
Similarly, in Crete Education Association v. School Dist. of Crete , 193 Neb. 245, 258, 226 N.W.2d 752, 760 (1975), the Court stated that the Commission of Industrial Relations "is required to offset possible unfavorable comparisons between districts with other comparisons which are favorable when reaching its decisions establishing wage rates" as a part of its determinations concerning "overall compensation".
Both parties introduced a substantial amount of evidence concerning pensions. Some of this information is set out on Table 9. In addition, both parties presented expert opinion testimony on the comparability of the pension plans. The City's Exhibit 98(II), and expert opinion testimony offered in connection therewith at the reopened trial, were not received in evidence for foundational reasons. See Plattsmouth Pol. Dept. Coll. Barg. Comm. v. City of Plattsmouth , 205 Neb. 567, 288 N.W.2d 729 (1980).
Both parties also presented hypothetical calculations of the benefits which might be paid, and the relative costs to the employee, in certain circumstances under the various pension plans. Each party, of course, selected those factors which would illustrate a result most favorable to its position as to comparability.
A number of factors enter into a valuation of pension benefits in individual cases, such as length of service, retirement age, level and method of calculation of retirement benefits, vesting provisions in the case of termination short of retirement, survivors' benefits, disability provisions, employee contributions and many others. Lincoln firefighting personnel enjoy a unique pension provision of receiving a refund with interest of employee contributions made prior to the last 21 years of service.
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 . . . to . . . all benefits received, including insurance and pensions. . . ." It is clear that the Commission has no authority to order any change in the pension plan, itself. See Plattsmouth Pol. Dept. Coll. Barg. Comm. v. City of Plattsmouth , 205 Neb. 567, 288 N.W.2d 729 (1980). What this amounts to is that the Commission of Industrial Relations "is compelled by section 48-818, R.R.S. 1943, to consider the entire situation regarding the fringe benefits made available by the subject school district and those made available by comparable school districts." Crete Education Association v. School District of Crete , 193 Neb. 245, 257-258, 226 N.W.2d 752, 760 (1975).
Based upon its hypothetical calculations of pension benefits payable in certain situations, the City contends that the Commission should directly adjust wage rates in a specific dollar amount. Rather than alter wage rates on the basis of this sort of speculation and conjecture, Section 48-818 requires that pensions, like other aspects of overall compensation, be considered as a part of the "entire situation regarding fringe benefits." This is analogous to the approach taken in considering similar pension benefits as a general part of the entire marital estate in some marriage dissolution situations. Cf. Rockwood v. Rockwood , 219 Neb. 21, 360 N.W.2d 497 (1985); Kullbom v. Kullbom , 209 Neb. 145, 306 N.W.2d 844 (1981).
Taken in their totality, we determine that the Lincoln "fringe benefits" are "comparable" to those of the six compared to cities. Some of the Lincoln benefits appear to be more favorable than those of the other six cities. Some of the Lincoln benefits appear to be less favorable than those of the other six cities. The evidence indicates, for example, that the Lincoln pension plan is comparable to or more favorable than those of the other six cities with which the comparison is made. The evidence also indicates, however, that the City's contribution to health insurance premiums is comparable to or less favorable than those of the other six cities with which the comparison is made.
In making the determination that Lincoln benefits in their totality are comparable to those of the other six cities, we have considered all of the benefits reflected in the evidence.
Having determined that in their totality Lincoln's benefit package is comparable to the prevalent benefit packages of the other six cities with which comparison is made in this case, the wages should be adjusted to a position of comparability with the prevalent wages in the other six cities. The Order is based upon midpoint figures as reflected from Tables 4, 5 and 6 for the "Minimum", Step F, and Step I rates for firefighter, fire captain, and district fire chief. The intervening steps have been completed with equal dollar increments per step.
The Commission has established a "Minimum" rate for fire captain and district fire chief based upon the City's evidence. The Union did not present evidence on "Minimum" rates for these classifications. The City's evidence indicates that two fire captains were below Step F. While the Step C rate for district fire chief is lower than the prior rate, it appears that all persons in that classification are currently at Step F or above. Cf. International Brotherhood of Electrical Workers, Local No. 1521, v. Metropolitan Utilities District , 6 CIR 246, 258-264 (1982).
The wages for the other eight classifications have been set for Step F and Step I based upon the factors shown on Table 7. The intervening steps are in equal dollar increments per step. The City's Exhibits indicate that all persons in these eight classifications are on Step G, H, and I.
Posttrial Conference:
Following entry of the Commission's Findings and Order on June 27, 1985, both parties filed motions for a posttrial conference in accordance with Section 48-816(7)(d). Both parties made showings on short notice, which showings were placed in the Commission's files in this case.
The posttrial conference was held on July 10, 1985. Both parties were represented by counsel. Neither party called to the Commission's attention data in the Findings and Order of June 27, 1985, which was not based on evidence in the record. The showings and conference dealt with portions of the Findings and Order which a party alleged "mischaracterizes evidence in the record."
(a) Longevity.
The City's Motion For Post Trial Conference alleges:
The CIR utilized the maximum longevity available in its comparison to Lincoln's Step I without making appropriate adjustments for the length of time required to achieve the maximum step. In Lincoln, this step is reached in 12.5 years, but in the cities in the array, it is reached as follows:
Cedar Rapids . . . . . . 25 years
Des Moines . . . . . . . 26 years
Omaha . . . . . . . . . 21 years
Springfield . . . . . . 20 years
Topeka . . . . . . . . . 25 years
Wichita . . . . . . . . 25 years
Failure to make an appropriate adjustment substantially prejudices the Defendant City of Lincoln.
The Step F determinations in this matter rest solidly upon data introduced by both parties in evidence. The longevity in arriving at a "Step F" in the compared to employments is comparable. The area in which there is a significant difference in longevity pay timing occurs between Step F and Step I on the Lincoln schedule.
In IBEW Local 1536 v. City of Fremont , 216 Neb. 357, 365, 345 N.W.2d 291, 297 (1984), the Supreme Court stated:
There may be a logical explanation for what the CIR did in this regard, but it does not appear in its order. For that reason the order of the CIR must be reversed and the cause remanded with directions to adjust the wage schedules for timing differences, or to justify its failure to do so.
The City did not directly respond to the Commission's request in the Order For Post Trial Conference for "a proposed order incorporating the longevity factors referred to in the Motion For Post Trial Conference into the Findings and Order of the Commission entered June 27, 1985." The City's proposed findings of fact involved a total recalculation of the pay schedule and not merely the range from Step F to Step I.
The Lincoln Personnel System presently states (Exhibit 12, page 113 (I)):
2.58.245 Compensation plan-proficiency merit pay plan established; standards for administration and duties of department heads. (a) For the purpose of compensating those employees who continue to demonstrate that performance which enabled them to attain the highest basic merit pay step, there is hereby established a proficiency merit pay plan to supplement the basic merit pay plan. The proficiency merit pay plan shall consist of proficiency merit steps "G", "H," "I," and "J," representing a 2 1/2, 5 7 1/2, and 10 percent proficiency merit step separation over and above the basic step "F" for each pay range established in the basic merit pay plan.
(b) No employee shall be considered for a proficiency merit step increase until he or she shall have been in the continuous employment of the city for a period of two years since advancement to step "F" in the basic merit pay plan, or a period of three years since advancement to step "G," or a period of four years since advancement to step "H," or a period of five years since advancement to step "I," all in the proficiency merit pay plan. A department head shall not grant a proficiency merit step increase to any eligible employee unless there is an affirmative finding by said department head that such employee has continued to demonstrate that degree of performance which enabled such employee to attain the highest basic merit pay step in the same or similar job classification.
Following the posttrial conference, the Commission has again examined the overall compensation of the comparable employments in their totality. From that examination, we conclude that the timing of the attainment of Steps G, H, and I pay grades should be delayed to reflect the difference in timing in attaining the Step I level in Lincoln and in the comparable employments.
The Step I figures shown on Tables 4, 5, and 6 reflect reliable determinations in accordance with Section 48-818 for the maximum steps. The Step F figures on those Tables reflect reliable determinations in accordance with Section 48-818 at that point on the pay schedules. The Step G and H figures contained in the Findings and Order entered June 27, 1985, were completed with equal dollar increments per step, as under the current Lincoln Personnel System, set out above.
We conclude that the appropriate method of reflecting the difference in timing in attaining the Step I level in Lincoln is to initiate the Step G rate at five years since advancement to Step F; to initiate the Step H rate at 10 years since advancement to Step F; and to initiate the Step I rate at 19 years since advancement to Step F. These calculations are a part of the Order entered herein.
(b) Fringe benefit calculations.
The City states in its Motion For Post Trial Conference that "The CIR has failed to compute or articulate any basis of weighing fringe benefits." The foregoing findings do "articulate" the basis for the Commission's determinations. That "articulation" is in accordance with the prior procedures followed in Commission and Supreme Court decisions. What the City primarily seeks, however, in this regard is that the Commission quantify with precise dollar figures each item of fringe benefit and each "condition of employment." Among other things, to do so would require "speculation, surmise, or conjecture" in certain calculations, such as comparative pension and health insurance benefits, of a type invalidated in Lincoln Fire Fighters v. City of Lincoln , 198 Neb. 174, 180, 252 N.W. 607, 611 (1977).
(c) Benchmark approach.
The City objects to the Commission's use of the benchmark approach for classifications other than Fire Alarm Supervisor and Drill Master. The Commission determined on pages 16-19 above that this method of settling the present industrial dispute is the soundest method of establishing wages in this matter. The evidence shows that 229 of the bargaining unit's 243 members are in these three primary firefighting classifications and that the other 14 members are spread throughout 8 additional classifications. The maintenance of pay relationships is of importance. It was exceedingly difficult to secure reliable data for the decisions in this case with respect to the three classifications of firefighter, fire captain and district fire chief. The policies of the Commission of Industrial Relations statutes, both substantively and procedurally, have been best served by the use of the benchmark approach in this instance.
(d) City's expert testimony.
The City alleged in its Motion For Post Trial Conference that the Commission had failed to consider the evidence provided by its expert witness concerning overall compensation. The Commission certainly did consider carefully all of this expert testimony, both at the time of the determination to reopen the trial and in the Findings and Order entered June 27, 1985. There were substantial deficiencies in the evidence presented by the witness at the initial trial, both substantively and methodologically. His testimony at the reopened trial was extremely limited because his opinions, to which Firefighters' objections were sustained, were based in part on data not received in evidence. See Plattsmouth Police Department Collective Bargaining Committee v. City of Plattsmouth , 205 Neb. 567, 288 N.W.2d 729 (1980).
(e) EMT pay.
The City also objected to the Commission's consideration of EMT pay in its calculations for Wichita and Topeka since EMT premium pay is not a "prevalent practice" in the array. All Lincoln firefighting personnel are required to be EMT certified within four years of employment. They receive no separate pay for attaining and performing these work skills. See page 26 above. Wichita and Topeka do pay a premium for firefighters and captains holding EMT certification. Therefore, in comparing Lincoln's compensation to that provided by Wichita and Topeka, it is necessary to include in Wichita's and Topeka's comparative pay rates at Lincoln's Step F and above, the pay for EMT certification, as was done in Table 4 and Table 5 above. That is the amount the Lincoln firefighters and captains would be paid in Wichita and Topeka for being EMT certified.
(f) College pay (fire technology training).
The City objected to a sentence in the Findings and Order of June 27th (page 44) that in considering overall compensation, "We have, in doing so, also considered that some of the 'benefits', particularly the educational incentive for fire technology training and annual physical examinations, are of very substantial advantage to the City as well." This was intended to state that persons holding certificates for fire technology training and complete annual physical examinations also give a special added benefit to the City for having done so. The college credit pay plan is for work in fire technology. See pages 27-28, above. One completing the 30 semester hours toward an Associate Degree in Fire Technology or attaining that Degree possesses special skills pertaining to his firefighting duties. The apparent purpose of the City's calculations with respect to this item is to effectively place the primary incidence of this benefit directly on the bargaining unit members. The different educational incentives paid in the compared to employments are shown on Table 12, pages 36-37, above. The annual physical examinations not only benefit the employee but tend to provide more able firefighting personnel, better personnel attendance and reliability, and lower costs to the city insofar as sick leave, workmen's compensation and occupational diseases and hazards may be involved. Rather than add more complication to an already highly complicated matter, however, the sentence has been deleted in the Final Findings and Order.
(g) 40-hour employees.
The City contends that the Commission failed to make appropriate adjustments for Lincoln personnel working 40-hour weeks. Actually, this turns out to be nothing more than another objection to the benchmark approach discussed above or, perhaps, a failure to understand the methodology of the benchmark approach. The Lincoln classifications of firefighter, fire captain, and district fire chief work 56 hours per week. The other Lincoln classifications work 40-hour weeks. There has been no change in these numbers of work hours during the year in question. Having determined to maintain the pay relationship of fire alarm supervisor to fire captain at 102.31%, it is irrelevant how many hours either of them works in a week or how many hours a fire alarm supervisor in some other city works in a week. The rate of Lincoln fire alarm supervisor is maintained at 102.31% of that of a Lincoln fire captain.
(h) Fire prevention inspector, Step E.
Firefighters' Motion For Post-Trial Conference asks that the Findings and Order be corrected to include in the pay schedule a rate for fire prevention inspector, Step E. The evidence shows six fire prevention inspectors, all at Steps G, H and I. See Exhibit 28 (I). Since the evidence did not show fire prevention inspectors below Step F, the Commission has not set rates below Step F. This was also true for the other seven classifications whose wage rates were set by reference to a benchmark. See page 44 above. The Commission has simply not established any wage rate in this proceeding for fire prevention inspector, Step E. The City interpreted this ruling to freeze the 1983-1984 rate in effect for the period of this decision because of the second paragraph of the Order of June 27th which stated that "All other conditions of employment shall remain unchanged." To make clear the Commission's ruling, that sentence now states "All nonwage conditions of employment shall remain unchanged."
IT IS, THEREFORE, ORDERED:
1. The monthly wages of employees in the City of Lincoln Fire Department are established at the following rates:
2. All nonwage conditions of employment shall remain unchanged.
3. This Order shall be effective for wages and conditions of employment for the period from September 1, 1984, to August 31, 1985.
4. The amounts due for the portion of the year already elapsed shall be paid promptly following the entry of this Order.
All judges assigned to the panel in this case join in the entry of this Findings and Order.
Entered July 17, l985.
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