9 CIR 219 (1987), Appeal Dismissed March 8, 1989.


Petitioner, |
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

500 The Atrium, 1200 "N" St.

P.O. Box 82028

Lincoln, NE 68501


H.L. Wendt

Deputy Douglas County Attorney

906 Omaha-Douglas Civic Center

1819 Farnam Street

Omaha, Nebraska 68183

Before: Judges Cope, Mullin, and Orr



The Douglas County Health Department Employees Association filed a Petition with the Commission on June 25, 1987 seeking to have an industrial dispute resolved pursuant to Neb. Rev. Stat. 48-818. The dispute concerns wages and conditions of employment for the fiscal year July 1, 1986 to June 30, 1987. This case brings before the Commission a dispute very similar to the dispute over the 1985-1986 fiscal year between the same parties, resolved in Douglas County Health Department Employees Ass'n v. County of Douglas, 8 CIR 208 (1986). The Association has appealed the order entered in the previous Douglas County case and such appeal is still pending.

The Association's Petition seeks a 48-818 determination as to wages, hours of work, fringe benefits and conditions of employment. The Petition also asked that the Commission enter a temporary order to protect the status of the members of the Association. At the same time that the Petition was filed the Association filed a Motion to Extend Time for the submission of the Petitioner's Request for Admissions. A hearing was held on July 1, 1987 on the Petitioner's Motion and Request for Temporary Order, at which time the Commission allowed an extension of time for the submission of Petitioner's Request for Admissions and found that the Final Order issued in Douglas County Health Department Employees Ass'n v. County of Douglas, 8 CIR 208, had the same effect on the date of the hearing as it did on the date it was issued so a temporary order was unnecessary.

The Respondent's Answer, filed July 15, 1987 generally denies most of the Association's allegations and affirmatively alleges that:

1. The Petition fails to state a claim upon which relief may be granted.

2. 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.

3. The Petition and Notice of Pendency was (sic) not served pursuant to Neb. Rev. Stat. 48-813(1) (Reissue 1984) and 25-510.02(2) (Reissue 1985) since Mr. Walter Spellman is deceased.

On August 5, 1987, the Commission ordered that a Pretrial Conference in the matter be held on September 17, 1987, and that the trial in this case be held on September 29 and if necessary September 30, 1987. On September 11, 1987, the Respondent filed a Motion to Limit Evidence which was heard and decided at the pretrial conference. The pretrial conference was actually held on September 25, 1987 after it was moved pursuant to Petitioner's Motion for Extension of Time. At the pretrial conference, the parties agreed that the issues to be decided are wages, payment progression schedule, overall compensation and fringe benefits. The parties stipulated as to the qualifications of the experts to be called at trial and that the placement of individual employees on a payment progression schedule is not at issue in this case. The parties further stipulated that the establishment of new job classifications is likewise not at issue in this case, thus sustaining Respondents Motion to Limit Evidence. There are numerous job classifications in dispute. They are:

a) Clerk I

b) Clerk II

c) Clerk-Typist II

d) Clerk Typist III

e) Secretary I

f) Custodian

g) Custodian/Driver

h) Environmental Health Scientist I

i) Environmental Health Scientist II

j) Air Pollution

k) Lab Scientist I

l) Lab Scientist II

m) Lab Scientist/Air Pollution

n) Comm Health Ed I

o) Comm Health Ed II

p) Health Program Rep.

q) Dental Assistant

r) Dental Program Specialist

s) Sanitation Aide/Rodent

t) Sanitation Aide/Lead

u) Info Specialist/Health Ed

v) Lab Aide

w) Data Processing Coordinator*

*This position was eliminated by the county sometime during the July 1, 1986 to June 30, 1987 fiscal year. We will not set wages for a position that does not presently exist.

The Association presented Exhibits P:1-43 and the County presented Exhibits R:1-24, A1-A31, and B1-B52. Because of the extensive nature of the evidence the parties were given until the morning of trial to revise all exhibits and enter into any stipulations concerning the foundation or relevancy of the exhibits.

The Trial commenced on September 29, 1987 as scheduled. Immediately prior to Trial the parties stipulated that they were waiving objection to foundation as to the exhibits presented at the pretrial. The Respondent County also agreed that the County had, in fact, been properly served thereby dropping the third affirmative defense raised in their Answer. At the Trial of this matter, the Respondent chose as a trial strategy to attack the evidence of the Petitioner but to present no evidence of its own. The Commission of Industrial Relations is a creature of statute and is obligated to insure the "continuous, uninterrupted, and proper functioning and operation of the governmental service." Neb. Rev. Stat. 48 802. The Commission is given limited judicial power but is at the same time an administrative agency organized to give public employees some redress in an arena whereby they are statutorily prevented from interrupting their governmental service by strike or other economic pressure. Thus, while the evidence presented at trial may not be as extensive as the Commission would prefer, there is a sufficient basis, in light of the public policy involved, on which a Section 48-818 decision can rest.


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.


Section 48-818 requires that all rates of pay and conditions of employment established by the Commission 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." The evidence presented to the Commission must therefore, set out an array of comparable employments which are sufficiently similar and have enough like characteristics to make comparison appropriate. See Lincoln Firefighters Association v. City of Lincoln, 8 CIR 31 at 38 (1985). No precise formula has been established for mechanical application in selecting an array, and thus each determination made by the Commission is a factual one. The use of one array in a particular case does not require that it be used again in a subsequent case involving the same parties. See Crete Education Ass'n v. School Dist. of Crete, 2 CIR No. 64 (1974), Aff'd, 193 Neb. 245, 226 N.W. 2d 752 (1975). At the same time, consistency and stability of the array applicable to the same parties, is a factor for the Commission to consider in making factual determinations concerning the appropriate array in a specific case. Local No. 831, International Ass'n of Firefighters, AFL-CIO v. City of North Platte, 6 CIR 1 at 9 (1982).

The Association presented an array consisting of 14 members and as previously stated the County did not produce any evidence. Table 1 sets out the evidence used by the Association in support of its array selection.

The Commission is called upon to determine wages and terms of employment for 22 job classifications. There are 7 positions which are clerical or custodial in nature and the rest are professional or skilled positions. In the past we have used a local survey for custodial and clerical employees and a national survey for skilled or professional employees. This is in keeping with the Supreme Court's finding that an employer competes locally for hourly and clerical workers but nationally for professionals, See AFSCME v. County of Douglas, 4 CIR 76, rev'd and rem'd with directions, 208 Neb. 511, 304 N.W. 2d 368 (1981).


Characteristics of Proposed Array Members (a)


MilesOrganiz. Dept. Pop. Hrs. Jobs

Array Member from Omaha Size Size Served Worked Surveyed(b)

City of Omaha, - 2,565 - - 2080 5 of 6


Colorado Springs, 475 1,200 120 235,972 2080 8


Des Moines, Iowa 100 890 44 303,170 1950 11

Grand Rapids,490 1,970 230 444,506 2080 15


Kansas City,160 1,770 60 220,000 2080 8


Lansing, Michigan 470 825 180 275,520 2080 13

Lincoln/Lancaster, 50 2,720 90 192,884 2080 14


Madison, Wisconsin 310 2,860 61 170,616 2015 14

Milwaukee, Wisconsin 400 5,500 460 636,236 2080 18

M.U.D.-785 - - 2080 4 of 6

O.P.P.D.-1,980 - - 2080 3 of 6

St. Paul, Minnesota 300 2,050 150 270,230 2080 19

Wichita/Sedgwick, 250 2,600 153 279,835 2080 13


State of Nebraska 50 - 296 - 2080 14

Douglas County 1,800 90 315,000 2080

(a)From Petitioner's Exhibit No. P-4.

(b)Petitioner's goal was to match 19 job classifications.


The Association contends that all of the eleven health departments it submitted are sufficiently comparable for inclusion within the array used to establish the prevalent for the present dispute. Seven of the departments presented were judged to be comparable to this same group of employees in the last Douglas County Case.

At Trial, the Respondent questioned the Association's use of three of the array members listed. The Respondent inquired whether Grand Rapids, Michigan did in fact fit within the Commission's general, not more than double nor less than half, size criteria (T70:13-24). The Respondent also suggested that perhaps the Association might eliminate Grand Rapids, Michigan and Lansing, Michigan as being too distant (T70:25 to 71:21). Lastly, the Respondent challenged the Association's inclusion of St. Paul, Minnesota on the basis that it is adversely effected economically by Minneapolis, Minnesota (T72:17 to 73:9)

We find that by eliminating the three array members suggested by the Association but challenged by the Respondent, we arrive at an array which consists of the seven departments which were used in the previous Douglas County case, plus Kansas City, Kansas. Kansas City, Kansas fits within the Commission's general size and geographic proximity criteria and is suitable for inclusion within our array.

The Commission finds that the array arrived at is appropriately balanced and sufficiently similar with enough like characteristics to make comparison appropriate.

"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).


The petitioner presented 4 array points which would be considered locals in relation to Douglas County. They are O.P.P.D., M.U.D., City of Omaha, and Lincoln/Lancaster. Although the Commission prefers a larger array we have in the past used a 4 member array to set wages. See South Sioux City Education Association v. School Dist. of South Sioux City, 3 CIR 90 (1976).

The four locals submitted by the Association appear to be comparable and were used in the previous Douglas County opinion. However, the Association's expert witness testified that he was "not able to determine that there was work being performed under the same or similar working conditions...." (T40:21-24). His theory was that "the working conditions were not equivalent to the local employers because the professional staffs of the local employers were not performing functions comparable to the (Douglas County) Health Department" (T97:3-6). While we do not adopt the contention of the Association's expert that the only comparable secretary is a similar secretary in a comparable health department, we are unable to find in the record any evidence that would suggest any similarity of working conditions between the Health Department employees and the employees of the locals presented. Absent any evidence that the working conditions are similar, we are precluded under Section 48-818 from establishing rates of pay and conditions of employment for the job classifications concerned.


Tables 2 to 16 set out the salary comparisons for the various skilled and professional positions in dispute in this case. Although the exhibits revealed that some of the array members have different contract years, the figures were not adjusted by the petitioner nor by the Commission. There was no evidence in the record that such adjustments were necessary.

The Supreme Court when faced with a similar situation found that absent any evidence from the County that the evidence for the first 6 month period would be significantly different or would make any significant change in the figures, it was not necessary to adjust the salary figures. Lincoln County Sheriff's Employees Association, Local 546, IBPO v. County of Lincoln, 6 CIR 289 (1982), aff'd, 216 Neb. 274, 343 N.W.2d 735 (1984). In Lincoln County Sheriff's the County, on appeal, argued for reversal on the grounds that the array presented by the Association Petitioner contained evidence only with respect to the second half of the fiscal year in dispute. The Supreme Court, after reviewing the evidence and failing to find any evidence that would suggest that there would be any significant change had the evidence for the first six month period been considered, held that "The burden to establish this was upon the County, and the CIR did not act arbitrarily in finding that the County had not established its burden of proof in that regard." Lincoln County Sheriff's, 216 Neb. at 282.

Although in the present case the Respondent County's expert testified that the Commission should prorate the Petitioner's figures and that prorating was impossible based on the Petitioner's exhibits, (T121:13 to 123:3) such testimony was unsubstantiated by any evidence that would show that proration would produce a significant change. For these reasons we find that the County did not establish its burden of proof in this regard and we choose to use the Association's evidence as presented.

The evidence does establish that wages for the skilled and professional job classifications, for which there is sufficient evidence under Section 48-818, are below the prevalent rate for the 1986-87 fiscal year. The Commission will establish wage rates for these job classifications at the prevalent rate.

The evidence presented establishes that there are some salary anomilies which result from extenuating circumstances and which merit special consideration in determining the wages for specific job classifications. These salary anomilies occur due to the County taking complete control over what was previously a City/County Health Department (T11:24 to 13:10). Although the department remained much the same after the Douglas County takeover, the County consolidated certain job classifications and eliminated previous job titles (T21:6-18). The County did not at the time of the consolidation reduce any salaries of the employees whose job titles were consolidated into lower classifications (T25: to 26:8). Thus, persons who were Environmental Health Scientist III's and who were lowered to Environmental Health Scientist's I and II and the Laboratory Scientist III who was lowered to a Laboratory Scientist II, were allowed to keep the salaries they were earning in the higher classification. We maintain that such reassignment of individuals within job classifications is clearly management prerogative and will not be disturbed by the Commission. The Commission will follow the County's lead and remove these individuals when adjusting the maximum salary range for the affected job classifications to the prevalent rate. These individuals as listed on Petitioner's Exhibits P-12, P-13, and P-17, will be removed from the range and their salaries will remain unchanged. It is important to note that the situation created by the County's takeover of the Health Department is unique and requires a unique resolution.


There are some skilled/professional job classifications for which there is insufficient market wage data to enable the Commission to set wages. These job classifications are:

Dental Program Specialist, and

Sanitation Aide-Lead Section

In the previous Douglas County case the evidence necessitated that we impute the wages for these two positions by comparison to the Laboratory Aide position. It was shown that the Laboratory Aide position had the same pay grade, grade level, function level and category as the job classes in dispute. The evidence in the present case, however, does not show that the same relationship or compatibility still exists. We therefore determined the salaries for these positions either by looking at the historical difference in the salaries between jobs in the line of progression or by preserving the existing salary relationships between clearly comparable positions.

The salary for the Dental Program Specialist was computed by determining the historical percentage differential between it and the Dental Assistant position. There was expert testimony that the Dental Assistant position is directly below the Dental Program Specialist position in the existing line of progression (T60:2-16). On the basis of the historic percentage differential between the Dental Assistant and the Dental Program Specialist we find the minimum salary for a Dental Program Specialist to be $1,253 and the maximum to be $1,560.

The Sanitation Aide-Lead Section position is similar in title and description to the Sanitation Aide-Rodent Control position. In fact, in the previous Douglas County case we treated these two positions as a single position for the purpose of setting the salary range. The job descriptions in the present case show that both positions require similar qualifications and both consist of various field testing, surveying, and inspecting. In the previous case there was insufficient market wage data for either position to allow the Commission to set wages at the prevalent. However, in the current case there is sufficient market wage data to set wages for the Sanitation Aide-Rodent Control position at the prevalent and we set the wages for the Sanitation Aide-Lead Section position at the same level in order to preserve the existing salary relationship between these two clearly comparable positions. The minimum salary for the Sanitation Aide-Lead Section position is thus $1,546 and the maximum is $1,778. We hereby maintain the existing salary relationships while setting wages for these positions at the prevalent.


In Plattsmouth Police Dept. Collective Bargaining Committee v. Plattsmouth, 3 CIR 597 (1979), 205 Neb. 567, 288 N.W.2d 729 (1980), the Supreme Court affirmed the Commission's recognition that employees with differing years of experience, within the same job classification, should be paid wages differently depending upon their experience. The Court has also recognized that experience and longevity are proper matters to be considered in determining wages to be paid to employees within the same job classification. See IBEW Local 1536 v. City of Fremont, 6 CIR 82 (1982), Rev'd & Rem'd, 216 Neb. 357, 345 N.W.2d 291 (1984). Most employers recognize this concept and implement a system whereby an employee within a certain job class will advance from a minimum to a maximum salary in a set number of years. This system is set out as a salary range progression plan or salary schedule.

Table No. 17 sets forth the evidence submitted with respect to the current practices of the array members as to salary range progression. It is clear that having an established progression plan or schedule is prevalent. All of the members of the array have some type of set salary schedule.

The testimony elicited at trial indicated that while it may appear from the previous Douglas County case that Douglas County has a set salary schedule, in fact, they have never had a salary progression schedule for Health Department employees (T 11:8-23). Section 48-818 mandates that we "establish rates of pay and conditions of employment which are comparable to the prevalent wage rates paid and conditions of employment maintained..." Therefore, in keeping with this mandate we find that Douglas County is not in keeping with the comparable rates of pay or conditions of employment and must establish a salary progression plan.

The prevalent salary schedule contains six steps between minimum and maximum, with an employee attaining the maximum salary after six years. Advancement on the schedule is based on seniority with acceptable merit (See Table 17). As noted earlier, parties stipulated that the placement of individual employees on a payment progression schedule is not at issue.


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."

Tables 17 to 26 set out the evidence submitted as to the fringe benefits received by the Association's members. 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. See, Lincoln Firefighters Ass'n v. City of Lincoln, 8 CIR 31 (1985).

The Supreme Court stated in IBEW Local 1536 v. City of Fremont, 6 CIR 82 (1982), 216 Neb. 357, 362, 345 N.W.2d 291, 296 (1984):

With regard to a determination of conditions of employment under 48-818, 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.

In looking at the fringe benefit package offered the Health Department employees some benefits appear more favorable while others appear less favorable. However, the benefit of reporting pay is not comparable and is not in keeping with the prevalent practice. Douglas County pays 4 hours of straight time if the employee reports. See, Table 19. Six of the eight array members do not have reporting pay. We find Douglas County's practice of having reporting pay is not comparable to the prevalent and should be eliminated.

When the Commission deletes a benefit the problem of the benefit having already been paid to the employees must be addressed. Generally, the Commission will not ask the employees to repay the employer out of their own pockets for the extra compensation they received. The Commission has held that to do so would strain the employee-employer relationship and would be against public policy. Rodeo Telephone, Inc. Supervisory Employees Ass'n v. Rodeo Telephone, Inc. 9 CIR (1987), (Case No. 647). See, I.B.E.W. v. Metropolitan Utilities District, 6 CIR 246 (1982).

However, to be fair and equitable to both parties, those employees entitled to lump sum settlements who also received any reporting pay from the employer, shall be obligated for those overpayments. Thus, any employee entitled to a lump sum payment as a result of this Order shall have that amount offset by any payment he received for reporting pay. By ordering an offset for overpayment we prevent the employees from receiving a windfall and credit the employer for benefits paid in excess of the prevalent practice in the Commission's array. Rodeo Telephone, Inc. Supervisory Employees Ass'n v. Rodeo Telephone, Inc., 9 CIR (1987), (Case No. 647). See, Winnebago Education Association v. School District of Winnebago, 8 CIR 138 (1985).

Aside from the deletion of the reporting pay provision, the Commission finds that the benefit package as a whole is comparable to the benefit packages received at the comparable employments of the Commission's array. Those benefits which are more favorable are offset by those benefits which are less favorable. In making this determination we have considered all of the benefits as reflected in the evidence received.


1. The monthly salary range of the Douglas County Health Department employees in the following job classifications, are established at these rates:

Job Classification Minimum Maximum

Environmental Health Scientist I 1,632 2,146

Environmental Health Scientist II 1,757 2,382

Air Pollution Technician 1,996 2,445

Laboratory Scientist I 1,632 2,003

Laboratory Scientist II 1,742 2,278

Laboratory Scientist/Air Pollution 2,080 2,403

Community Health Educator I 1,615 2,155

Community Health Educator II 1,779 2,404

Health Program Representative 1,775 2,287

Dental Assistant 979 1,368

Dental Program Specialist 1,253 1,560

Information Specialist/Health

Education 1,581 2,138

Sanitation Aide/Rodent Control 1,546 1,778

Sanitation Aide/Lead Section 1,546 1,778

Laboratory Aide 1,369 1,717

2. Douglas County establish a salary progression plan containing six steps between minimum and maximum, with an employee attaining the maximum salary after six years - advancement on the schedule being based on seniority with acceptable merit.

3. The Environmental Health Scientist I, identified as O.L.on Petitioner's Exhibit P-12, and the Environmental Health Scientist II's, identified as D.C., E.P., D.K., D.N., E.E., and D.G. on Petitioner's Exhibit P-13, will retain their current salary levels.

4. The Laboratory Scientist II, identified as L.C. on Petitioner's Exhibit P-17, will retain her current salary level.

5. This Order shall be effective for the period from July 1, 1986 to June 30, 1987.

6. Any additional compensation due the Health Department employees for the 1986-1987 fiscal year be paid in a reasonable time following the entry of this Order.

7. Any compensation due to employees pursuant to this Order shall be offset by all overpayment received during the 1986-1987 fiscal year for reporting pay and that the reporting pay provision be eliminated.

8. All other terms and conditions of employment are not affected by this Order.

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

Entered November 25, 1987.