9 CIR 257 (1988)


LODGE NO. 23, |
Petitioner, |
A Municipal Corporation, |
Respondent. |


For the Petitioner: Bruce G. Mason

Ross & Mason, P.C.

8420 West Dodge Road

Suite 105

Omaha, NE 68114

For the Respondent: Neal Stenberg

Nelson & Harding

500 The Atrium, 1200 N St.

P.O. Box 82028

Lincoln, NE 68501

Before: Judges Orr, Cope, and Peetz



On July 31, 1987 both the above named Petitioner and the above named Respondent filed petitions with the Commission seeking resolution of the industrial dispute existing between the parties. A conference was held on September 25, 1987 at which time the two cases were consolidated for trial with the Fraternal Order of Police being designated the Petitioner and the City being designated the Respondent. The consolidated case number is 684/685.

The Petitioner requested that the Commission make findings and orders establishing wage rates, and the following conditions of employment for those employees within the Petitioner's bargaining unit: holidays, health insurance contribution, sick leave accumulation, vacation leave accumulation, uniform and equipment allowance and longevity.

At the filing of its petition, the Petitioner also filed a Motion for Protective Order requesting that a protective order be issued in order to preserve and protect the status of the parties, property and public interest involved pending final determination of the issues. The Motion alleged that the Holdrege City Council conducted an emergency session on July 29, 1987 and at the session implemented a resolution which would take from bargaining unit members amounts allegedly overpaid for fiscal years 1985-1986 and 1986-1987. On August 10, 1987 a hearing was held on Petitioner's Motion For Protective Order. During that hearing the parties stipulated to the following:

[The Respondent] has not implemented any sort of a program to recover overpayments from any employee of, any member of the bargaining unit and that it is not the intention of the City to implement any such plan while proceedings are pending in the Commission of Industrial Relations...

(T54: 2-8)

On August 19, 1987 the Respondent answered the Petition. The Respondent alleges that the 1986-87 fiscal year expired on July 31, 1987 and that the matters of holidays, health insurance contributions, sick leave accumulation and vacation leave accumulation are therefore moot and should not be decided by the Commission. The Respondent further alleges that all negotiations between the parties related to a "package settlement" for both the 1985-86 and 1986-87 fiscal years and that an industrial dispute exists which should be resolved by the Commission for both fiscal years. Additionally, the Respondent seeks an order of the Commission reducing wages paid to the "Police Officers" and "Police Service Officers" for the reason that the compensation paid to those individuals is above the pay which is comparable to the prevalent. Finally, Respondent alleges the dispute also includes pay plan, vacation carryover and the use of seniority to determine shift bidding and vacation priority.

After the original pleadings were filed the Respondent filed an evidentiary motion to compel discovery and to deem certain matters admitted. Soon after, another evidentiary motion was filed to limit evidence. A scheduling conference was held on September 25, 1987 to rule on the evidentiary motions. At the scheduling conference, the Commission denied Respondent's motion to compel. As to Respondent's motion to limit evidence the Commission sustained the motion as to the 1985-86 evidence but denied the motion as to evidence concerning 1986-87. On October 22, 1987 a pretrial conference was held in which the following was determined, in part:

There are three job classes in dispute. They are, Police Officer, Dispatcher I and Police Service Officer. The fiscal year in dispute is 1986-87. The issues to be resolved at trial are: wages, including retroactive increases or decreases, total compensation, holidays, health insurance, pay plan, vacation carrover and seniority for shift bidding/vacation priority.

Additionally, the parties stipulated that foundation would be waived for all exhibits presented by the parties unless a written request reserving objection thereto was filed on or before October 29, 1987. On October 29, 1987, Respondent filed a written request with the Commission stating that Respondent reserved its foundational objections with respect to Petitioner's Exhibits No. 1 and No. 7-16. The Respondent also reserved all other objections until the time of trial.

The trial was held on November 3, 1987.


At the pretrial conference in this matter the parties stipulated that the work, skill and working conditions of police officers and dispatchers of the Holdrege Police Department and the like classes of employee's of the compared to police departments of all cities presented by the parties, are similar, and satisfy the standards set forth in Section 48-818 to permit a comparison of terms and conditions of employment if included in the array of compared to police departments ultimately utilized by the Commission.

The parties submitted the police departments in the following five cities: Broken Bow, Cozad, Lexington, McCook and York as common cities for comparison purposes. The Respondent proposed the additional cities of Aurora, Central City and Gothenberg. The Association presented data for employments in three cities it contended should be included in the array: Falls City, Seward, and Wayne. Table 1 sets forth the relevant information on each proposed array member.

At Trial, objections to Petitioner's exhibits as to wages, fringe benefits and terms and conditions of employment in effect in the additional cities proposed by the Petitioner were sustained. Thus, the Commission is without sufficient evidence to consider the cities of Falls City, Seward and Wayne.

The Petitioner argues that the cities of Aurora, Central City, and Gothenberg are not comparable and should not be included in the Commission's array. The Petitioner's expert witness testified that upon receipt of the City's array he examined it and felt that Falls City, Seward and Wayne were more comparable than Aurora, Central City and Gothenberg. He then testified that he looked at population, job descriptions, the number of officers employed and various other demographic factors. However the expert did not produce any consistent evidence as to what factors he found important or how the array was impacted by those factors. On rebuttal Petitioner's expert stated the cities of Aurora, Central City and Gothenberg were just "somewhat lacking" but did not testify that Aurora, Central City and Gothenberg were not comparable.

The Commission finds that the five common cities plus the three additional cities proposed by the Respondent constitute the most suitable array for resolution of this pending Section 48-818 dispute. The parties stipulated as to the comparability of the chosen cities and we independently find that these cities are in compliance with the criteria of the statutes and the prior determinations of both this Commission and the Nebraska Supreme Court. We conclude that the cities of Aurora, Broken Bow, Central City, Cozad, Gothenberg, Lexington, McCook and York constitute an appropriately balanced array of cities that are sufficiently similar and with enough like characteristics so as to make comparison appropriate.


There are three job classifications at dispute in this matter: Dispatcher I, Police Officer and Police Service Officer. Salary comparisons for the positions of Police Officer and Dispatcher I are set out in Tables 2 and 4. Neither the Petitioner nor the Respondent was able to find a job match in any of the proposed cities for the Police Service Officer (Table 3). The issue is thus what is the prevalent wage for the Service Officer position based on the array of comparables.

The Petitioner contends that the position of Service Officer should be compensated at the same rate as other Police Officers with comparable service. The Respondent City argues that the same historical difference between the salaries of Police Officers and the salary of the Police Service Officer should be maintained. The Police Service Officer testified that she currently makes almost $2.00 per hour less than Police Officers.

It is clear that the position of Police Service Officer is unique, in title at least, to the City of Holdrege. This Commission has found that in some instances a job title alone is not indicative of the work or skills entailed in the job, Rodeo Telephone Inc. Employees Ass'n v. Rodeo Telephone Inc., 9 CIR 118, 124. Thus, "The emphasis in determining job matches must be on the skills, duties and requirements of the compared to positions..." Id.

There was considerable evidence introduced at trial on this issue. The person currently occupying the Police Service Officer position testified extensively concerning her duties, training and qualifications. The record also contains formal job descriptions for both the Service Officer and the Police Officer positions in the City of Holdrege. A comparison of the formal job descriptions indicates that individuals in both positions must meet the same qualifications and similar objectives. While the examples of work listed on the job descriptions do not precisely coincide, the Police Service Officer testified that the department as a whole is very specialized and nearly every officer has an area of specialization. The Police Service Officer specializes in non-moving traffic violations and investigation of all criminal offenses involving women and children. In essence the testimony of the Police Service Officer indicated that she has all the duties and responsibilities of all other sworn officers but is not compensated at a comparable rate.

We find that the evidence introduced supports a finding that the position of Police Service Officer and Police Officer do involve the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions. We thus conclude that the Police Service Officer's salary should be the same as the Police Officers which is the prevalent wage of the chosen array of comparable police departments.


In considering overall compensation the Commission is required to look at fringe benefits as well as wages for the comparable public employments. 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 6 through 12 summarize some of the evidence presented by the parties with respect to overall compensation.

At pretrial the parties agreed that the only fringe benefit issues before the Commission are holidays, pay plan, vacation carryover, seniority for shift bidding/vacation priority and health insurance. The fiscal year in dispute was very nearly over at the time these parties filed their petitions and as this Commission has previously determined, this necessitates a finding that some of the disputed fringe benefit issues are moot. We find that the issues of holidays and seniority for shift bidding/vacation priority are moot. See Trenton Education Association v. School District of Trenton, 9 CIR 201 (1987). The contract year has passed as has the dispute concerning these issues. Any ruling would only have future application and we decline to make such advisory type rulings.

The issues of pay plan, vacation carryover, and health insurance are not moot. The pay plan in use has a direct and consequential effect on the wages and wage rates paid for the contract year in dispute. A non-prevalent pay plan must be adjusted to reflect the prevalent practice in the chosen array prior to setting wages for the contract year in dispute. Vacation carryover is a provision whereby employees are allowed to carry over up to fifteen days of unused vacation to the following year. This provision spans beyond any given contract year and is thus not moot.

Although certain aspects of health insurance coverage may be rendered moot by the expiration of the contract year, e.q. naming the provider, see Trenton supra, this Commission has also found that health insurance is such a basic need that the economic burden of the coverage may have to be adjusted in order to consider and compare overall compensation. See ESU No. 12 Ed Ass'n v. ESU No. 12, 9 CIR 108, 109-110 (1987). Thus we will address the issues of pay plan, vacation carryover and health insurance.


The Respondent seeks to have this Commission lengthen the pay plan used at Holdrege by adding a step and increasing the years needed to reach to maximum. The Respondent contends that the modal or prevalent practice is to have a plan with ten steps where employees reach maximum in eight years. The evidence relied on by Respondent is set out in Table 5.

The Commission finds that Table 5 shows that one-half of the array members have some type of pay plan while one-half do not have a pay plan at all. There can be no prevalent or modal practice if there is no clear majority of array members implementing the practice. We thus decline to order Holdrege to alter their pay plan.

Similarly, Table 10 shows that four array members allow vacation carryover, while four do not. There is no prevalent practice, and we thus decline to order Holdrege to alter their current practice.


Table 7 shows clearly that the prevalent practice among the array members chosen is for the employer to pay 100% of the premium as a benefit to the employees. Holdrege pays only 60% of the premium for either single or family coverage. The employee is thus forced to pay the other 40% of the premium. The evidence introduced at trial indicates that the coverage provided by Holdrege is comparable to the coverage provided by the array members. Table 7 shows that while Holdrege pays the smallest percentage of the premium they also pay the highest dollar amount per employee for family coverage and nearly the highest dollar amount for single coverage. No explanation was given for the large discrepancy in cost for similar coverage between Holdrege and the array members.

The Respondent argues that the Commission should look at Holdrege's total cost of all fringe benefits paid to employees which is comparable to the total costs paid by the array members. However, we have held that in a situation where the costs are materially different, we will, if possible, compare the benefits to the employees and not the costs to the employer. See Bellevue Police Officers Association v. The City of Bellevue, 8 CIR 186 (1986); Sherman County Teachers Ass'n v. School District 15, Sherman County, 8 CIR 77 (1985); Millard Education Ass'n v. School District of Millard, 5 CIR 425 & 6 CIR 58 (1982).

A benefit financed entirely by the employer is not comparable to a benefit financed partly by the employer and partly by the employee. We find that in order to achieve comparability Holdrege should pay 100% of the monthly insurance premium for its employees for both single and family coverage. It would be unfair to the employees not to rectify this non-comparable payment. We therefore find that those employees who paid the required 40% of the monthly premium for health insurance during the fiscal year in dispute shall be compensated for their out of pocket expense.


As evidenced by Tables 2 and 4, the Police Officers in Holdrege were paid above the prevalent wage rate for the 1986-1987 fiscal year while the Dispatcher I's were paid below prevalent. The Respondent argues that we must order that both a reduction and an increase in wages be retroactive to the commencement of the period in dispute. We will not break with our previous holdings that wage reductions will not be retroactive and we will not order employees to payback any overpayment to the employer. See Trenton Education Ass'n v. School District of Trenton, 9 CIR 201 (1987); Douglas County Health Dept. Employees Ass'n v. County of Douglas, 8 CIR 207 (1986), appealed September 6, 1986.

We do, however, find that the current situation as far as overall compensation for Police Officers for the 1986-1987 fiscal year is unique in that the Officers received wages that were above the prevalent, yet fringe benefits were below the prevalent because the employees were required to incur out of pocket expenses to secure health insurance. We find that in order to prevent either party from being unfairly treated, any employee that will receive a lump sum payment in compensation for paid health insurance premiums will have that amount offset by the total amount of wages paid which were above the prevalent. Officers shall not be required to reimburse the Department for any amount of overpaid wage which is above the lump sum health insurance compensation ordered.

With the changes as set out above we find that overall compensation at Holdrege is comparable to the overall compensation received at the comparable employers. In making this determination we have considered all of the evidence of benefits received by the Commission.


1. The hourly wages for the Holdrege Police Department employees are established at the following rates:

Minimum Maximum

Police Officer $7.03 $8.44

Police Service Officer 7.03 8.44

Dispatcher I 4.94 5.92

2. For the 1986-1987 fiscal year the Respondent City shall pay 100% of the cost of health insurance and to the extent that an employee paid 40% of such cost the City shall reimburse the employee for such payment.

3. Any lump sum health insurance compensation due any Police Officer shall be offset by the amount of overpayment of wages actually received by that Officer during the 1986-1987 fiscal year.

4. Any additional compensation due any Police Department employee be paid in a reasonable time following entry of this Order.

5. All other terms and conditions of employment governing the 1986-1987 fiscal year are not effected by this Order.

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

Entered January 26 1988.