9 CIR 252 (1988), Appeal Dismissed March 8, 1989.


Petitioner, |
Subdivision of the State of |
Nebraska, |
Respondent. |


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


This matter came on for posttrial hearing on December 18, 1987 before the Honorable Thom Cope. both the Petitioner and the Respondent had filed requests for posttrial conference. The parties were represented by their attorneys of record: Thomas Young for the Petitioner and William Harding, Jerry Pigsley and H.L. Wendt for the Respondent.

The respondent made an oral motion to have posttrial arguments heard en banc. Rule 26 of the Rules of the Nebraska Commission of Industrial Relations sets out that hearings or rehearings en banc shall be granted only upon a majority vote of all judges in active service. Since a majority of the judges voted against an en banc posttrial hearing, Respondent's motion is hereby overruled.

The Respondent also made a motion, in the alternative, to have the record in this case reopened so as to allow it to present its evidence. The Respondent chose as its strategy to attack the evidence presented by the Petitioner but to present no evidence of its own. The case has now been decided by the Commission and Respondent, would now like to, in effect, try again. At this point in the proceedings it would be inequitable to the Petitioner to allow the Respondent to retry the case. The Respondent's Motion in the alternative is also overruled.

The posttrial conference is provided for in Neb. Rev. Stat. 48-816(7)(d) (1987 Cumm. Supp.) and is therein statutorily limited to allowing "the Commission to hear from the parties on those portions of the recommended decision and order which is not based upon or which mischaracterizes evidence in the record..." The Commission after such posttrial conference will only issue such corrections as are necessary to the published opinion to have it comply with the evidence in the record. The posttrial conference is not a proper forum for arguments concerning the admissibility of the evidence presented. Nor will the Commission consider arguments concerning array selection that do not focus on a mischaracterization or misuse of the evidence presented.

Both parties raise arguments concerning the Commission's array selection in the present case. The Petitioner contends that there was no basis for excluding any of its proposed array members. The Respondent argues that based on the Commission's previously stated criteria all of the Petitioner's proposed array members must be eliminated and the Petitioner has therefore failed to prove a prima facie case so the matter should be dismissed. The Petitioner further contends that the Commission is obligated to set wages for clerical employees based on the evidence presented. Both parties seek a clarification of our order concerning the establishment of a salary progression plan.


After thorough and intense review of the record and of our findings and order of November 25, 1987 we again conclude that the array chosen is appropriately balanced and sufficiently similar with enough like characteristics to make comparison appropriate and is supported by the evidence. We would like to point out that even though the entire array chosen by the Commission was designated as common at the pretrial hearing, the Commission did not consider that fact as evidence since the Respondent did not ultimately introduce its array.


The Petitioner argues that AFSCME v. County of Douglas , 4 CIR 76, rev'd and rem'd with directions , 208 Neb. 511, 304 N.W.2d 368 (1981), mandates that we set clerical and custodial salaries based upon the non-local data presented by the Petitioner. However the Supreme Court in AFSCME admonished this Commission that "absent evidence to show dissimilarities of work performed or conditions, the CIR cannot create an array which is not reflective of the local labor market." AFSCME, Supra at 521.

The only evidence in the record concerning dissimilarity of working conditions is the Petitioners' expert's testimony that the professionals within the organization determine the working conditions of the clerical staff and thus, since there are no local health departments, no similar working conditions can be found in any local employer. The expert, however, did not provide any evidence of dissimilar working conditions and was even hard pressed to define working conditions... "It could mean the hours of work, the type of environment one works under, the mission of the organization, in other words how one-what is necessary when one accomplishes their duties of their position..." This Commission did not find substantial evidence of dissimilar conditions and to create a national array for positions without such evidence would be arbitrary and capricious.


The Respondent argues that the Commission erred in adjusting the wages for Madison and Des Moines because of different contract hours worked. In effect the Commission merely compared the hourly as opposed to monthly salaries of the job classifications listed. Employees who are paid the same monthly salary but who work different contract hours are not making comparable wages regardless of any overtime policy in effect. Thus, to accurately compare the actual wages earned it is necessary to divide monthly wages by the hours worked and either compare the hourly figures or to then multiply that hourly figure by the same number of monthly hours. The Commission employed this process to bring Madison and Des Moines, which both work fewer hours, to a level where in fact we are comparing the actual wage received.

The Respondent also argues that it was improper for the Commission to set wages for certain job classifications due to insufficient market wage data. The Supreme Court has stated that "the actual number of comparisons needed is a question of reasonableness for the CIR." IBEW Local 1536 v. City of Fremont , 216 Neb. 357, 366-67, 345 N.W.2d 291 (1984). Based on the evidence presented we find that it is reasonable, given the uniqueness of the positions at issue, to set wages as we did.


To clarify our position, we find that in order to receive comparable wages an employee must be place on the salary progression plan at a step commensurate with their seniority and merit.

The Order section of the original Findings and Order issued November 25, 1987 is amended to read:

2. Douglas County establish a salary progression plan containing six steps including minimum and maximum with an employee attaining the maximum salary after five years of acceptable performance in the same job classification - advancement on the schedule being based on seniority with acceptable merit.


We are herein correcting certain typographical errors that appeared in our Findings and Order of November 25, 1987;

1. The minimum monthly salary for Health Program Representative as shown in the Order is $1,755.

2. Table 1 is amended whereby the organization size for Colorado Springs is 1,250; the organization size for Kansas City is 1,700; and the population served for Douglas County is 397,000.

3. Table 5 is amended to read Madison - Chemical Analyst I.

4. Table 6 is amended to read Colorado Springs - Laboratory Technologist II.

5. Table 12 is amended so that the information in the Structural Minimum column is actually in a column entitled Job Title. The Structural Minimum for Dental Program Specialist in Douglas County is 1,204, the Range Maximum is 1,517, and the Range Effective is 7/1/85.

6. Table 24 is amended so the employer contribution for family health coverage in Madison is $174.26.

IT IS THEREFORE ORDERED that the Findings and Order of November 25, 1987 shall be amended to reflect the change to Section 2 of our order and the corrections of the typographical errors as set out above. The remainder of the Findings and Order shall stand as originally issued by the Commission on November 25, 1987.

All judges assigned to the panel in this case join in the entry of this Final Order.

Entered January 19, 1988