9 CIR 43 (1987)


Petitioner, |
A Municipal Corporation |
Respondent. |


For the Petitioner: James A. Beltzer

Luebs, Dowding, Beltzer,

Leininger, Smith & Busick

Wheeler at First Street

P.O. Box 790

Grand Island, Nebraska 68802

For the Respondent: Keith Sinor, City Attorney

208 North Pine Street

P.O. Box 1968

Grand Island, Nebraska 68802

Before: Judges Mullin, Kratz, and Orr



Petitioner brings this action pursuant to Section 48-8l8 R.R.S. 1943 to resolve an industrial dispute as to wages for the fiscal year beginning August l, l986 for bargaining unit members of the City of Grand Island Fire Department. The Petition alleges that "...the Petitioner and Respondent have bargained with respect to wages of the employees represented by the Petitioner. Petitioner and Respondent have been unable to reach an agreement on the wages for said employees and negotiations are at an impasse." The Respondent admits the described dispute in its Response and alleges that the parties have entered into a labor agreement dated August 26, l985, covering the period August l, l985 to July 3l, l987 which according to Article XXIII, limits negotiations for fiscal year 1986-1987 to rates of pay. Respondent also states that it does not seek and has not requested a reduction in wages. The issues in dispute as listed in the Pretrial Conference Report include 1) array selection 2) rates of pay for the job classes of firefighter, paramedic, lieutenant and captain for fiscal year August 1, 1986 - July 31, 1987, and 3) computation of hours per year in determining rates of pay.

The Pretrial Conference was originally scheduled for September 17, 1986 but a joint stipulation was filed to continue it to a later date as was a joint stipulation waiving the requirement of Section 48-813, that a case be heard within 60 days from filing of the Petition. The Pretrial Conference was rescheduled for November 10th but was postponed orally at the request of the parties because it was felt that if they had more time to work out discrepancies they could shorten trial time. The Pretrial Conference was held on November 14th and continued on November 17th so that the parties might have additional time to telephone Petitioner's contacts in Iowa in an attempt to reach agreement on foundation for the Iowa cities proposed in Petitioner's array.

The trial was held November 18th. The trial which originally was scheduled to be a half day trial took an additional two days to complete. Phone calls were made by the parties to verify data both immediately preceding the trial and overnight between the trial days. There was some dispute over what figures the telephone calls confirmed and qualifications were placed on the agreements that one party may have made to the other as a result of these calls. (T98-102). A motion was made by the Respondent to continue the trial to put evidence together. Respondent claimed that verification by phone was not working well and that information would have been obtained earlier by Respondent if they had understood earlier what cities Petitioner was going to use. (T206-212). The motion was overruled. There was much argument on the record concerning the correct figures, not withstanding the different methods used, including those related to the agreed upon cities. Many of the exhibit figures were changed during trial and both parties were allowed to file amended exhibits after the closing of trial by December 1st, which were to be designated as the "A" series, with an opportunity for each party to file objections by December 8th. No objections were filed and these amended "A" exhibits are received. On February 12, 1987, an order was entered requesting the parties to stipulate to answers, if possible, to four questions to allow us to make a determination without the cost and time of another hearing. An Order was entered on March 4, 1987 setting forth the parties stipulation of facts in response to the questions posed.

We would like to take this opportunity to reiterate to parties practicing before the Commission that important and complicated cases require substantial cooperation between the parties if a decision is to be reached in a timely manner and if the record is to be made in such a way that it can be followed. While it is obvious that we can not compel parties to agree on figures, it is also obvious that the discovery procedures should be carried out in the spirit intended by the rules. It appears that, because the parties asked for pretrial conference continuances to resolve discrepancies, they knew far enough in advance what the other party's array members were going to be and the data for those points. With a little cooperation many of these discrepancies could have been worked out prior to trial.

On a related matter, Respondent's survey exhibits, which were answered, signed and notarized by officials at the various survey points, were later altered by Respondent's expert witness when Respondent took a different approach to calculating hourly rates of pay. We are convinced no deceit was intended by this alteration and there was an explanation offered on the record. The credibility of those surveys was, however, greatly weakened.


The contract prohibits us from making any changes in fringe benefits (Petitioner's Exhibit 112, Article XXIII). The controlling statute, however, requires that we take all benefits into consideration in establishing wage rates. Section 48-818, R.R.S. 1943 (Reissue 1984) provides in part:

The findings and order or orders may establish or alter the scale of wages, hours of labor, or conditions of employment, or any one or more of the same. In making such findings and order or orders, the Commission of Industrial Relations shall establish rates of pay and conditions of employment which are comparable to the prevalent wage rates paid and conditions of employment maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions. 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.(emphasis added).

We have previously said:

.... This rule of overall compensation 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 R.R.S. 1943, may, therefore, vary from case to case depending upon the evidence introduced by the parties.

Board of Regents of the University of Nebraska v. American Ass'n of University Professors ; 7 CIR 1, 15 (1983).

Here, both parties offered evidence of the "cost per hour" of certain fringe benefits. In our opinion this is a reasonable method of comparison even though it requires an assumption that "cost" is directly related to "value" of the benefit in question. Respondent quantified a few fringes which we decline to accept for several reasons. Some fringes are not easily quantifiable in terms of cost. One of these is sick leave (T 186-190; T 440-442). The number of sick days earned per year become an actual cost only if one uses them or can accumulate them for a payback. There is insufficient evidence in the record on the actual cost of sick leave taken or accumulated in the cities in the array and, therefore, a cost comparison of this fringe benefit cannot be made. A value cannot be put on sick leave accumulation at array points that list accumulation as unlimited. Respondent gave us amounts spent on clothing at each array site. Petitioner points out that clothing expenditures have a mixture of provisions not easy to equate. Gross expenditures will vary on the size of the force and is a function of usage (amount of previous damage to uniforms). Even the Respondent did not calculate a per hour amount for clothing, lending credence to its difficulty. We do not cost out dental insurance because it appears to us by examining the surveys that these premiums are included in the health insurance premiums. We decline to cost out disability insurance because we do not know what the coverage is at the array points and therefore, cannot calculate the employer's contribution towards bargaining unit positions. The total dollar amount paid for disability insurance premiums by Grand Island included non-bargaining unit positions as well. Many of these types of fringes are also not significant in amount when costed out, as shown in Respondent's exhibits.

While annual employer pension contribution amounts were given to us by the Petitioner, we decline to cost them. We have seen how difficult it is to enter into a valuation of pension benefits due to the number of factors which can be involved. Lincoln Firefighters Ass'n, Local No. 644 v. City of Lincoln , 8 CIR 31, 66 (1985). It is also clear that we do not have 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). We will not directly adjust wage rates in a specific dollar amount when such an adjustment will be based on speculation and conjecture. Rather than alter wage rates on this basis:

....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).

Lincoln Firefighters, at 66, 67.

The compensation tables set forth in this Findings and Order reflect those fringe benefits which are easily quantifiable and are not based on pure speculation and conjecture. We are of the opinion that the balance of the fringes, as set forth in the exhibits, are comparable in total. Lincoln Firefighters, supra .


Both of the parties agreed that five cities in Kansas - Emporia, Hutchinson, Lawrence, Manhattan, and Salina - are comparable employments to Grand Island. The Petitioner further gave us the Iowa cities of Ames, Cedar Falls, Fort Dodge, Iowa City, Marshalltown, Mason City, and Ottumwa, as comparables. Respondent gave us four additional Nebraska cities, Fremont, Hastings, Norfolk, and North Platte. The parties have further stipulated in Exhibit 36 that:

The positions of firefighter, lieutenant and captain in Grand Island require the same or similar skills and have the same or similar job requirements as the same named positions in the cities offered by the Petitioner and by the Respondent for comparison except for the following: a. The classification of Firefighter 2 at Emporia. The Petitioner claims the Firefighter 2 classification is within the classification of firefighter in Grand Island. The City contests that claim.

Table 1 sets forth the evidence introduced by the parties in support of their array selection. In determining comparability and, therefore, an appropriate array, we have looked at the population guideline of not less than one-half nor more than twice as large and have expressed a preference for a balanced array of larger and smaller comparables in an array. Diller Education Ass'n v. School Dist. No. 103, Jefferson County , 7 CIR 196 (1984). We also look at geographic proximity. There is a preference for staying within the State of Nebraska when choosing comparables if an appropriate array exists within the State. Lincoln Co. Sheriff's Employees Ass'n v. Co. of Lincoln , 216 Neb. 274, 343 N.W.2d 735 (1984). In selecting employments for the purpose of comparison in arriving at comparables 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. Id .

The Petitioner testified that, in choosing its array, it used geographic proximity and went out 350 miles. Relying upon a Supreme Court decision in Lincoln Firefighters Ass'n v. City of Lincoln , 198 Neb. 174, 252 N.W.2d 607 (1977) which affirmed our selection of an array consisting of cities in the West North Central region to compare to the city of Lincoln, the Petitioner then eliminated any cities which were not in the West North Central region. They further eliminated cities which were not within the one-half to twice as large guideline and they used our stated preference for a balanced array in eliminating cities which they felt would skew the array in favor of cities smaller than Grand Island. They also did not pick some cities because of the lack of collective bargaining at those sites because they felt that should be an important similar working condition.

The Respondent testified that it based its array selection on the Commission's criteria of size and geographic proximity, and went out far enough to find a suitable array of six to ten cities. They could obtain this array by going out 225 miles.

We have never used the existence or nonexistence of collective bargaining as a criterion for choosing an array member. It is not clear from the evidence whether or not Grand Island is also in the West North Central region but even if it were this does not necessarily mean that comparables should be limited to the West North Central region. The use of a particular array in one case does not require that the same group of employments would be appropriate in a different case. Crete Education Ass'n v. School Dist. of Crete , 193 Neb. 245, 255, 226 N.W.2d 752, 758 (1975).

We have selected an array of the five agreed upon Kansas cities plus Fremont, Nebraska. While the population of all of the Nebraska cities is within the guideline, to use more than one Nebraska city would skew the array towards smaller communities so we select the largest of the Nebraska communities. There is no need to go out the 350 miles to bring in any of the Iowa communities because the agreed upon communities of Emporia, Hutchinson, Lawrence, Manhattan, and Salina plus Fremont make a sufficiently large enough array which also meets the population and proximity guidelines and makes for a balanced array, with three cities larger and three cities smaller than Grand Island.


The largest part of trial time was spent on trying to communicate the differences in the two methodologies that the parties employed to determine hourly rate of pay. In determining what the parties did, particularly the Respondent's approach, it is helpful to understand the Fair Labor Standards Act (hereafter known as FLSA) and its applicability to the determination of overtime pay. When the FLSA was determined to be applicable to state and local government employees, Garcia v. San Antonio Metropolitan Transit Authority , US Sup. Ct. Case Nos. 82-1913 and 82-1951, Feb. 19, 1985, overtime was required to be paid for all hours worked over 40 in a workweek. Due to the special nature of firefighters, who usually work a 24 hour on and 48 hour off shift, a partial overtime exemption for firefighters (and police officers) is provided in Section 7K of the FLSA. Such exemption provides that overtime for firefighters can be based on a 28 consecutive day period, or a proportionally shorter period down to seven days. The maximum work hours standard for firefighters is 212 hours for a 28 day work cycle. Therefore, if an employer chooses to use a 28 day work cycle, he must pay overtime for any hours worked by an employee over 212 hours. Other shorter cycles can be chosen with overtime being paid over a prorated shorter number of hours.1 We will be focusing on the 28 day - 212 hour work period since that is what exists in Grand Island. Through understanding Grand Island, we can come to a determination of which parties' methodology for determining hourly rate of pay is correct.

Petitioner's expert testified that before FLSA became applicable to firefighters in April 1986, the standard was a 56 hour work week x 52 weeks or 2,912 hours and this was what their annual salary was based upon. In response to FLSA, Grand Island adopted a 28 day work cycle which would mean there are 13.04 cycles in a year (365 days/28 = 13.04). A 28 day work cycle would cover four weeks. Due to the way firefighters are scheduled to work, there would be four work cycles per year which would contain 240 scheduled hours, with the other work cycles containing 216 scheduled hours for a total of 2,912 hours.

In response to the FLSA, Grand Island, and some of the other cities introduced the concept of a Kelly day to reduce their overtime liability. For each cycle that contains 240 scheduled hours, the firefighters are given one 24 hour shift off which they do not have to work, similar to a vacation day, and such a day is called a Kelly day. They get four Kelly days per year in Grand Island or 96 hours. This now reduces all of the work cycles to 216 scheduled hours for which they receive four hours overtime premium because they get paid overtime for all hours worked over 212. If

anyone takes time off during the pay cycle, such as sick or vacation leave, however, that reduces the actual time worked and they don't receive overtime unless they actually work over 212 hours (T83:16-21; T16:15-23). Some cities did not implement a Kelly day concept but rather decided to do nothing. Therefore if those cities have chosen a 28 day cycle, they pay overtime for all hours worked between 212 and 216 or 240, depending upon the shift. Still other cities renegotiated their contract and actually reduced their scheduled annual hours of work and put those hours in the contract upon which the contractual salary is now based. Fewer contractual hours increases the pay per hour.


Both parties assign a dollar amount to fringe benefits, although they use different methods to do so, and arrive at a total compensation per hour including wages and fringes. Since we can only adjust wages in this contract year, the difference between Grand Island and the array's total compensation per hour determines how much needs to be added to wages to bring Grand Island to comparable. In order to arrive at a per hour amount, it is necessary to divide the dollar amounts by some number of hours and it is the appropriate number of hours that should be used as the divisor that is in dispute.

Petitioner contends that the per hour worked figure is arrived at by dividing total compensation by however many scheduled annual hours covers the contractual annual salary less the hours not worked because of vacation, holiday, personal or Kelly days. The number of scheduled annual hours covering the contractual annual salary would be the same number of hours which the salary was based upon prior to FLSA, 2,912 hours, except for those cities which actually reduced the number of hours in the contract itself and stated that the rate per hour would be based on the reduced hours. Such an example would be Emporia where the contract hours were reduced to 2,766. Holiday pay and overtime at these cities would then be paid on the basis of this method of calculating hourly pay. Kelly days are treated like any other time off with pay.

Respondent calculated an hourly rate of pay using a different divisor. Respondent had a problem with the Petitioner including scheduled overtime hours in its divisor. Respondent's expert witness testified that the hourly rates originally recorded were a function of a different set of hours from the contracts or wage schedules and usually based on 2,912 hours. He changed his approach because he thought it confusing to try to put in whether they have a Kelly day or special operation for holiday pay. He says that using his method, the hourly rate of pay changes but the annual pay does not. The divisor that he used was the number of hours after which overtime must be paid. For most cities in their array this number is 2764 (212 x 13.04). See Respondent's Exhibit 2. In all of their array points, the Respondent's divisor is smaller which makes the hourly rate larger than that used by the Petitioner.

Looking at Grand Island's paycheck stubs and pay period time sheets, we can determine the hourly rate the firefighters are presently being paid at and, therefore, which method is correct in determining hourly rate of pay.

The firefighters at Grand Island are paid bi-weekly so they get paid for 112 hours each paycheck (2,912 hours/26 biweekly periods). Looking at Respondent's Exhibit 33, one can see that they do not necessarily work 112 hours in a biweekly pay period. The Labor Department's rules and regulations, 29 CFR Part 553.16, allow this because the work period does not need to coincide with the pay period.2 The number of hours they are actually scheduled to work will vary from pay period to pay period because of the nature of the scheduling. However, the average is 112 hours and it is this that their paycheck is based on. One can see further proof of this when looking at the pay stubs and pay period schedules.

We have included appropriate sections of Petitioner's Exhibits 115 and 121, marked as Attachment A, at the end of this Findings and Order to assist in understanding the remainder of this section.

Exhibit 115, a payroll period occurring after FLSA implementation, shows that Jim Badorek was paid for 112 biweekly hours at a rate of $8.371 per hour. This equals his regular earnings of $937.55. In addition he received pay for two hours of overtime, for hours he worked above the 216 scheduled hours, and eight hours of holiday pay, each of which is paid at time and 1/2, for an additional ten hours of overtime pay or $125.57. These two items added together equal the $1,063.12 total written in beside this firefighter's signature. The $16.74 written in above his total on the exhibit is in addition to the $1,063.12 and is paid for the additional four hours he was scheduled to work above the 212 FLSA standard. For these four hours he receives an additional half time which equals two hours of straight time, which in his case equals $16.74. These amounts are verified by examining his pay stub on Petitioner's Exhibit 121. These figures establish that, even after FLSA, the Grand Island firefighters' wages are presently being paid based on 2,912 hours because his pay is currently based on the hourly rate of $8.371 which comes from the Grand Island contract which was originally negotiated at 2,912 hours and these hours were never renegotiated. The payroll information establishes that Grand Island's hourly amounts as presently paid are based on 2,912 hours. This is true for their regular pay, as well as holiday and overtime pay.

While the Respondent may have trouble with the Petitioner including hours of scheduled overtime, those hours between 212 and 216, we do not. It is clear that the straight time pay for those four hours is already included in the annual salary. Respondent's own expert witness confirmed this (T 383-384). This is as it should be since they are scheduled to work these hours. If no leave is taken and those four scheduled overtime hours are worked, the firefighter gets paid an additional half time for four hours or 2 hours of straight time as seen in the example above. If they do not work those four hours normally scheduled, they will still get paid straight time for those hours because they are obviously not working them due to taking off paid leave such as vacation or sick leave. The firefighters do not actually work 2,912 hours but they will get paid annually for a full 2,912 hours, except Emporia, at straight time regardless of whether the work cycles include vacation or sick leave, Kelly days (which is a paid day off, just like vacation) or the regularly scheduled 216 hours. The hourly rate of pay remains the same after FLSA as before FLSA except for Emporia where the number of scheduled hours in the contract was reduced.


The parties offered us different methods in determining the hourly rate of total compensation per hour worked. The Respondent calculated the cost per hour value of each fringe benefit, which they calculated by arriving at an annual fringe benefit amount and then divided by the number of hours which they felt were the correct annual hours to be used. The per hour cost of fringe benefits was then added to the wage per hour for a total compensation per hour.

Petitioner added salary to the annual amounts of all fringe benefits they felt were easily quantifiable and significant in cost. They then divided this total annual compensation by the number of hours worked, arrived at by subtracting personal, Kelly, holiday and vacation hours from the scheduled annual hours. They then gave us a formula, Petitioners Exhibit 126, for calculating the salary change necessary. Tables 11, 12, and 13 use Petitioner's formula. This formula involves utilizing either the midpoint (1), median, or mean (whichever we decide most appropriate) and multiplying by the number of hours worked (2), arriving at the required annual compensation which would include all fringes (3). They then subtracted out all Grand Island fringes which would not be affected by a salary increase, such as insurance premiums (4). The resulting figure would include salary and holiday pay because holiday pay would increase due to the salary increase (5). They then determined the proportion which current salary is of total salary and holiday pay (6) and then applied that same percentage (6) to the previously calculated new figure for salary plus holiday pay (5). This results in the portion of this total which represents only the new required salary (8). To arrive at a new hourly rate, divide by 2,912 hours (9) and to compute the new holiday pay multiply holiday hours by the new hourly rate (10). Subtracting the old salary from the new salary (12) and dividing by the old salary gives the % increase required to bring Grand Island to comparable (13).

This is the first non-teacher wage case where we have costed out some fringe benefits. We have seen a trend in recent cases where parties encourage this type of approach. We have declined to do so up until now because of the many problems inherent in trying to cost out some types of fringe benefits. In this particular case, however, since we can adjust wages only, it is necessary to cost out the benefits to provide overall comparability.


The wages for each position on three steps are set forth in Tables 2-10. The formula and the resulting computations are set forth in Tables 11-13. Salaries are summarized in Table 14.

Tables 11-13 show that some positions would actually receive decreases. However, these wages have been left at the present levels and not reduced because Respondent specifically states in its Response that the "Respondent does not seek and has not requested a reduction in wages".

When using an approach, such as the present one, that takes into account the hours worked when arriving at a dollar amount per hour, it is not necessary to adjust upwards, as we normally would do, for those array points that might have fewer scheduled hours in their contract - in this case, Emporia.


a) Paramedic - The parties stipulated that the wage adjustment for paramedic should be based on a historical progression to be determined by the Commission, to either the firefighter or the lieutenant position. The existing pay plan supports the Chief's testimony that historically the paramedics salary has been closer to lieutenant than to firefighter. The Chief also argues that if we were to base paramedic's salary on the firefighter's position we might run into the problem of finding that the paramedics would make more than those who supervise them (the lieutenants). In looking at the salary summary in Table 14, we find this to be true and for the above stated reasons have based the paramedics salary on the lieutenant position.

b) Longevity - The Supreme Court has stated that we are to take longevity into consideration when establishing rates of pay. IBEW Local 1536 v. City of Fremont , 216 Neb. 357, 345 N.W.2d 291 (1984). Table 15 shows that Grand Island is comparable and no adjustment is necessary.

c) Setting the Steps - Petitioner argues that we should set maximum without longevity as well as maximum with longevity and has provided us with salary information on both steps. Respondent did not provide us with maximum without longevity salary information. We agree with Petitioner. Petitioner also requests that we keep the same percentage differential that currently exists between the steps (T198-199). Respondent's counsel stated at trial that there was no issue in changing the steps in the pay schedule (T311:19-21). These increases should be allocated to the intervening steps in the same proportionate relationships as the current steps.

d) EMT Pay - All Grand Island firefighting personnel are required to receive EMT certification within one year of employment but they do not receive extra pay for it. In some array cities they do receive extra pay. A firefighter who receives certification could be on either Step 1 or Step 2 according to the Chief, and conceivably almost on Step 3, depending on whether the classes he has to take for certification are scheduled during the lst or 2nd six months of his employment. We have ruled previously that, where EMT is a required work skill for those employees for whom we are setting wages, the EMT premium pay of other cities which provide such pay should be included in the wage figures for those comparable employments. Lincoln Firefighters, supra . Since Grand Island firefighters do not necessarily have EMT certification when they are on the entry step, we have not included EMT pay but we have included it on the maximum without and with longevity steps. Firefighters do not arrive on the maximum without longevity step until they have worked four years but receive certification by the end of the first year. Since we have included EMT pay on the maximum without longevity steps and have asked the parties to arrive at the intervening steps, some benefit of the EMT pay will be received by those on the intervening steps before they get to maximum without longevity.


1. The annual wages of employees in the City of Grand Island Fire Department are established as set forth in Table 14, with the parties setting the intervening steps.

2. This Order shall be effective for wages for the period from August 1, 1986 to July 31, 1987. 3. 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.

NOTE - Attachment "A" has not been printed but is available from the Commission upon request.

Entered March 17, 1987.

1 This explanation of applicability of FLSA was taken from "Public Sector Overtime Pay: The Impact of 'Garcia' on State and local Governments - a BNA Special Report" GERR No. 1117 - Part II, June 10, 1985, PP.15-17, 21.

2 Ibid, p. 75.