9 CIR 76 (1987)


Petitioner, |
NEBRASKA, 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


This Matter is pending before the Commission on Petitioner's Motion for Post-Trial Conference and Rehearing Or, In The Alternative, For New Trial. Hearing was held on April 8, 1987, in Courtroom No. 2, Hall County Courthouse, Grand Island, Nebraska, and the matter taken under advisement.

The post trial conference is based on Section 48-616(7)(d) (1986 Cum. Supp.) and is limited to allowing the Commission to correct errors resulting from a failure to consider evidence or a mischaracterization of the evidence. The request for a rehearing or, alternatively, a new trial is controlled by the Code of Civil Procedure applicable to the district courts of this state. See Section 48-612 R.R.S. 1943 (Reissue 1984). The grounds for a new trial are set forth in Section 25-1142 R.R.S. 1943 (Reissue 1985). The procedure on a Motion for New Trial is much broader than the post trial conference in that it requires a reconsideration of the entire body of evidence as well as the applicable law.

Petitioner contends that the array was not sufficiently large to enable each job classification at issue to be compared to a balanced array. Petitioner argues that the law requires an array for each contested job description which satisfies previously announced guidelines on the selection of arrays generally.

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 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).

In choosing our array, we picked those that the parties agreed upon, the Kansas cities, which gave us three larger and two smaller than Grand Island. To keep that array in balance, we chose Fremont, a smaller city, which was the closest to Grand Island but which was the largest of the Nebraska communities presented to us. None of these towns are further away than 200 miles (see Table 1 of our Findings and Order). Both parties were obviously in agreement that 200 miles distance was acceptable since the communities that were 200 miles away were the agreed upon Kansas communities. While there is nothing particularly magic about 200 miles, we had a balanced array by stopping at that point and we had six array members. We have used six array members in the past although, as pointed out by the Petitioner in its Motion Brief, we have also often used eight or more. All of the Iowa communities are beyond 200 miles and we did not include them. Also, the Iowa communities have a considerably longer time to reach their maximum pay (see Respondent's Exhibits 37-39) than most of the communities in our array. The advantage gained by the Petitioner in including Iowa cities, where longevity pay is clearly a prevalently practice, would be offset by the additional years that it takes them to reach the maximum. The Supreme Court has said that we must adjust for these "timing differences." IBEW, Local 1536 v. City of Fremont , 216 Neb. 357, 345 N.W.2d 291 (1984). In this case we have a six member array but only four matches for Lieutenant and five for Captain within that array. Petitioner argues a larger array was required to permit more matches and contends that the law requires us to select an array based upon the number of matches available for each job description or a sufficiently large array to assure a balance of matches from employments larger than and smaller than the subject. The process of selecting an array involves a comparison of the overall staffing and responsibilities of proposed employments and not of individual jobs within those employments. It is not uncommon for actual job matches within an array to be significantly smaller than the array itself or unbalanced when compared to the array. See, International Brotherhood of Electrical Workers, Local Union 1536 v. City of Fremont, rev'd and remanded on other grounds , 216 Neb. 357, 345 N.W.2d 291 (1984); Fraternal Order of Police v. County of Adams ; 205 Neb. 682, 289 N.W.2d 535 (1980); Lincoln Firefighters Ass'n, Local No. 644 v.City of Lincoln , 8 CIR 31 (1985).

After review of all the evidence and applicable law, we feel Petitioner's motion should be overruled.

It is so Ordered.

Entered May 21, 1987.