LINCOLN FIRE FIGHTERS ASSOCIATION, LOCAL 644, APPELLEE,
V.
CITY OF LINCOLN, NEBRASKA, APPELLANT.
198 Neb. 174, 252 N.W.2d 607
Filed April 6, 1977. No. 40798
1.
Court of Industrial Relations: Labor and Labor Relations: Wages:
Contracts. The establishment
of a pay lag is a change in wages, and cannot be established unilaterally
during the term of an operative contract.
2.
Court of Industrial Relations: Trial: Evidence.
The burden of proof is satisfied by actual proof of the facts, of which
proof is necessary, regardless of which party introduces the evidence.
3.
Court of Industrial Relations: Labor and Labor Relations: Wages.
Prevalent wage rates for firemen must of necessity be determined by
comparison with wages paid for comparable services in reasonably similar labor
markets.
4.
Court of Industrial Relations: Labor and Labor Relations: Municipal
Corporations: Wages. In
selecting cities in reasonably similar labor markets, for the purposes of
comparison in arriving at comparable and prevalent wage rates, the question is
whether as a matter of fact the cities selected for comparison are
sufficiently similar and have enough like characteristics to make comparisons
appropriate.
5.
Court of Industrial Relations: Labor and Labor Relations: Wages.
A prevalent wage rate to be determined by the Court of Industrial
Relations must almost invariably be determined after consideration of a
combination of factors.
6.
___: ___: ___: In
determining prevalent wage rates for comparable services in reasonably similar
labor markets, the Court of Industrial Relations is required to weigh,
compare, and adjust for any economic dissimilarities shown to exist which have
a bearing on prevalent wage rates.
7.
Court of Industrial Relations: Labor and Labor Relations: Wages:
Statutes. In establishing wage
rates under section 48-818, R.R.S. 1943, the Court of Industrial Relations is
required to take into consideration the overall compensation received by the
employees, including all fringe benefits.
8. Court of Industrial Relations: Evidence: Judgments: Appeal and Error. An issue depending entirely upon speculation, surmise, or conjecture is never sufficient to sustain a judgment, and one so based must be set aside.
Appeal
from the Nebraska Court of Industrial Relations.
Affirmed in part, and in part reversed and remanded with directions.
Charles
Humble, Dana Roper, Nelson, Harding, Marchetti, Leonard & Tate, and
William A. Harding, for appellant.
Bauer,
Galter & Geier, for appellee.
Eart
D. Ahlschwede, for amicus curiae.
Heard
before WHITE, C.J., SPENCER, BOSLAUGH, McCOWN,
SPENCER,
J.
City
of Lincoln appeals from an order of the Court of Industrial Relations
increasing wages of Lincoln firemen and ordering the city to refund amounts
withheld under a pay lag system. We
affirm in part and reverse in part.
Lincoln
Fire Fighters Association, Local 644, brought this action in the Court of
Industrial Relations pursuant to section 48-811, R.R.S. 1943, alleging that
its employment contract with the city of Lincoln had expired on September 1,
1975, and that the parties had failed to negotiate a new contract.
A pretrial conference narrowed the issues to wages, longevity, clothing
allowance, insurance, fire equipment operator pay, and prevailing rights in
the contract.
By
an order entered on April 5, 1976, the Court of Industrial Relations increased
minimum wages by 12.3 percent and maximum wages by 8.6 percent, with
intermediate wages increased by an amount equal to the average of the two
figures. The court further ordered
the city to refund money that had been withheld from pay checks in connection
with the establishment of a pay lag system.
No order was made on any of the fringe benefits since the court
determined insufficient evidence had been presented on those issues.
We first discuss the pay lag portion of the order.
The city instituted the pay lag system for all city employees, effective September 1, 1975. Under this system the 2-week pay period begins on a Thursday. Pay checks are issued on the second Friday following the completion of the pay period. The net result is that the payroll department has 7 working days to prepare the pay checks. Rather than delaying pay checks for 7 work days, in order to convert to this new accounting system, the city withheld .7 of each city employee's biweekly pay checks, spread over eight pay periods. This money was placed in a pay lag fund to be paid out upon termination of employment. The employee receives no interest on the money placed in the fund.
All
city employees except the firefighters received a 10 percent pay increase,
beginning September 1, 1975. Because
the firefighters had not renegotiated their contract, they were still paid the
rate stipulated in the old contract less .7 for the pay lag fund for the 8
weeks. Even though this money
would eventually be paid, each firefighter experienced a wage reduction of an
amount equal to .7 of a bi-weekly pay check for eight pay periods.
We
agree with the Court of Industrial Relations.
The establishment of the pay lag is a change in wages, and cannot be
established unilaterally during the term of an operative contract.
We affirm that portion of the order which directs the city to pay the
amount of the pay lag which was withheld from wages accruing under the
existing contract.
The
issue in this case was not whether the city could initiate a new accounting
system referred to as a pay lag. The
firefighters concede this may be done. It
is the operation of the pay lag to the contract then in existence to which
they object. Insofar as the order
of the Court of Industrial Relations may be construed to disapprove of the
adoption of a pay lag system as to future contracts, it is reversed.
The
Union presented evidence which compared the Lincoln, Grand Island, and Omaha
fire departments with respect to both wages and fringe benefits.
The city offered wage comparisons from four different groupings of
eight cities. The court rejected
the evidence offered by the Union as not being comparable.
It concluded, however, that one of the comparisons presented by the
city was appropriate for determining prevalent wages and working conditions.
The
court selected the West North Central Array by city population for purposes of
comparison. These cities, with the
estimated 1975 population, are: Des Moines (194,000), Cedar Rapids (109,900),
and Davenport (100,300), Iowa; Wichita (264,000), Topeka (126,580), and Kansas
City (169,000), Kansas; St. Paul (291,000), Minnesota; and Springfield
(128,000), Missouri. Lincoln's
population estimate is 158,500. The
city's expert testified these cities were chosen on the basis of geographical
location and population. Four of
the cities have a greater population than Lincoln, and four have a lesser
population. In selecting this
particular array of cities over the other three presented by the city, the
court also considered similarity of working conditions, including such factors
as the size of firefighting forces, population density, and climatic
conditions.
The minimum rate of pay for Lincoln firefighters was shown to be 9 percent below the arithmetic mean of the minimum rate in the eight cities, as of September 1975. The maximum rate of pay was 5.3 percent below the arithmetic mean. The court ordered the wages for the Lincoln firefighters increased by these amounts.
The
court also found that contracts in five of the eight cities had January 1 for
a starting date, and that Cedar Rapids and Omaha (which was not one of the
cities in the array) showed an increase of 5 percent, or 3.3 percent.
In effect, the minimum wage was ordered increased by 12.3 percent, and
the maximum wage by 8.6 percent with intermediate wages increased by an
average of these two figures.
The
city maintains the court should not have ordered a wage increase after
rejecting the evidence presented by the Union.
This contention is without merit. It
is true the burden is on the moving party in a section 48-818, R.R.S. 1943,
case, to demonstrate that existing wages are not comparable to the prevalent
wage rate, but all evidence contained in the record may be considered for this
purpose. There is no merit to the
city's contention that the city's evidence cannot be used.
The burden of proof is satisfied by actual proof of the facts, of which
proof is necessary, regardless of which party introduces the evidence.
31A C.J.S., Evidence, ยง 104, p. 176.
In
Omaha Assn. of Firefighters v. City of Omaha, 194 Neb. 436, 231 N.W.2d 710
(1975), we held that prevalent wage rates for firemen must of necessity be
determined by comparison with wages paid for comparable services in reasonably
similar labor markets. In section
48-818, R.R.S. 1943, in selecting cities in reasonably similar labor markets,
for the purposes of comparison in arriving at comparable and prevalent wage
rates, the question was whether as a matter of fact the cities selected for
comparison are sufficiently similar and have enough like characteristics to
make comparisons appropriate.
We
conclude there was sufficient evidence for the court to find that wages
received by Lincoln firefighters were not comparable to prevalent wage rates.
In selecting the fire departments to be used for comparison, the court
considered the size and complexity of the firefighting forces and the physical
conditions under which the firefighters work is done.
Among those factors considered were geographical proximity to Lincoln
and similarities in population, population density, force size, and weather
conditions. The method of
selection employed was in accord with the requirements of section 48-818,
R.R.S. 1943.
However, the method of comparison used by the court did not comply with the statutory requirements. The evidence in this case showed the eight cities selected for comparison had on the average more than twice as much manufacturing as Lincoln, and presumably more unionization. There was also evidence that the median income in the cities selected was generally higher than the median income in Lincoln. Because the evidence established the cities selected were economically dissimilar to Lincoln, it was error for the court to utilize directly the mean wage rate of those cities in determining the prevalent wage rate.
In
Omaha Assn. of Firefighters v. City of Omaha, 194 Neb. 436, 231 N.W.2d 710
(1975), we stated: "A prevalent wage rate to be determined by the Court
of Industrial Relations must almost invariably be determined after
consideration of a combination of factors.*** It must be noted also that in
this case the Court of Industrial Relations did not determine the prevalent
wage rates for firemen by any direct computation or application of average or
mean rates from seven cities nor from ten cities.
Instead, it weighed, compared, and adjusted all the factors involved in
each of the cities which resulted in a determination of prevalent wages paid
for comparable services in reasonably similar labor markets."
We
hold that in determining prevalent wage rates for comparable services in
reasonably similar labor markets, the Court of Industrial Relations is
required to weigh, compare, and adjust for any economic dissimilarities shown
to exist which have a bearing on prevalent wage rates.
In
Omaha Assn. of Firefighters v. City of Omaha, supra, we further stated:
"In establishing wage rates under section 48-818, R.R.S. 1943, the
Court of Industrial Relations is required to take into consideration the
overall compensation received by the employees, including all fringe
benefits." This was not done
in this case as no evidence was presented on fringe benefits received by the
firemen in those cities used for comparison.
The
Court of Industrial Relations was further in error in adjusting wages upward
by 3.3 percent to compensate for anticipated increases in 1976.
The only evidence presented on this point was that contracts in five of
the eight cities were subject to renewal in January 1976, and that in two
cities, Cedar Rapids and Omaha, wages were to be increased by 5 percent.
Omaha, however, was not one of the cities included in the comparison,
and further, the court had specifically rejected it as not being comparable.
It is evident this figure was arrived at by speculation, surmise, or
conjecture. An issue depending
entirely upon speculation, surmise, or conjecture is never sufficient to
sustain a judgment, and one so based must be set aside.
Mitchell v. Eyre, 190
We
affirm the judgment of the Court of Industrial Relations insofar as it directs
the payment of the pay lag withheld from the wages of the firefighters.
We reverse the judgment in all other particulars, and remand the cause
to the Court of Industrial Relations with directions to make a determination
of the prevalent rate of pay based upon a consideration of overall
compensation received during the relevant period.
We further direct that in its application to Lincoln, the court make an
appropriate adjustment for economic variables as described heretofore.
AFFIRMED
IN PART, AND IN PART REVERSED AND
REMANDED WITH DIRECTIONS.
McCOWN, J., concurring.
The
opinion of the Court of Industrial Relations does not make separate findings
of fact and conclusions of law. It
does contain, however, the only record of the findings of fact and conclusions
of law made by the Court of Industrial Relations.
That record necessarily forms the basis for any appellate review.
The opinion establishes that the wage rates for Lincoln were determined
by making a direct mathematical computation of the mean (average) minimum and
maximum wage rates for firefighters in the eight cities used in the array as
of September 11, 1975. The only
adjustment made to that mathematical average was a percentage increase based
upon the estimated or anticipated percentages of increase which might be
granted in the eight cities of the array in succeeding contracts.
This adjustment was made to adjust the mathematical average of
September 11, 1975, to a contract year of August 1, 1975, to July 31, 1976.
The
record also shows that the mean population of the eight cities used in the
array was 48.5 percent larger than Lincoln, and the median population of these
cities was 36.5 percent larger than the population of Lincoln.
The opinion specifically states that the Court of Industrial Relations
was not comparing cities, populations, and amenities, but was comparing work
done in fire departments in the eight locations.
It
would be unusual indeed if any eight cities could be found which would be
sufficiently comparable that an appropriate prevalent wage rate to be applied
in a ninth city could be properly determined by simply making ana arithmetical
computaion. Certainly it is
appropriate for the Court of Industrial Relations to consider mean and median
figures. Its determination of the
prevalent wage rate to be applied in the case before it, however, needs to be
made after weighing, comparing, and adjusting all comparable relevant factors
in the cities making up the array. For
purposes of appellate review the record presented in this court must support
the determination of the Court of Industrial Relations.
The record here does not support the determination.
BOSLAUGH,
J., joins in this concurrence.
CLINTON, J., concurring in part, and dissenting in part.
The
majority opinion acknowledges that the evidence "was sufficient for the
court to find that wages received by Lincoln firefighters were not comparable
to prevalent wage rates" and expressly approves the selection of cities
used in making comparison to determine the "prevalent wage."
It goes on, however, to hold that the Court of Industrial Relations
erred in its determination of the wage rate increase to which Lincoln
firefighters were entitled, because the "court did not comply with
statutory requirements." In
so saying, this court relies upon our opinion in Omaha Assn. of Firefighters
v. City of Omaha, 194 Neb. 436, 231 N.W.2d 710.
I am unable, however, to determine from the opinion with what
"statutory requirements" the Court of Industrial Relations did not
comply. An even more serious
matter perhaps is the fact that the majority opinion offers no concrete
guidance as to how the Court of Industrial Relations should go about making
its wage determinations in this case on the remand.
The majority opinion says: "it
was error for the court to utilize directly the mean wage rate of those cities
in determining the prevalent wage rate."
Section
48-818, R.R.S. 1943, prescribes the statutory standard.
In Orleans Education Assn. v. School Dist. of Orleans, 193 Neb. 675,
229 N.W.2d 172, we held that the statutory standard was constitutionally
adequate. The statute says that
the Court 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." (Emphasis
supplied.) It also requires that
overall compensation and benefits be considered.
It seems apparent to me that as applied to this case the statute
requires comparison of the wages of firefighters, not a comparison of the
income of persons in all other parts of the economy.
Yet if one looks behind the words of the majority opinion to the record
upon which it is based, that appears to be what this court would require.
The
statement that the "comparison...did not comply with the statutory
requirements" is, in my judgment, incorrect and apparently arises from
three things, to wit, (1) a misunderstanding of what was being compared in
Omaha Assn. of Firefighters v. City of Omaha, supra; (2) a failure to
apply the provisions of section 48-818, R.R.S. 1943, which establishes the
appropriate standard; and (3) perhaps a misunderstanding of the evidence in
the case before us.
In Omaha Assn. of Firefighters v. City of Omaha, supra, the Court of Industrial Relations and we on appeal compared firemen's wages with firemen's wages, and everything that was said in that case was premised upon that fact. In the case now before us the majority opinion would require not a comparison of firemen's wages with firemen's wages under comparable conditions, but holds as a matter of law that such comparison must be adjusted by a factor which compares income of other than firemen in Lincoln with income of other than firemen in the comparable cities. We will demonstrate this in a little more detail later.
The
findings of the Court of Industrial Relations in this case was founded upon
the City's evidence, not that presented by the Union.
The Court of Industrial Relations simply did not buy the theory of the
City's economist that after the comparison is made there must be a further
adjusting factor arrived at by comparing nonfiremen's income in Lincoln with
non-firemen's income in other cities.
All
this is contained in a relatively small portion of the bill of exceptions:
Exhibit 27, pages 5 and 6, and pages 138, 139, 140, 141, 142, and 143
of the testimony of Dr. Sherman. Columns
one and two (not numbered) of page 6 of exhibit 27 compares firemen's wages
with firemen's wages in the various comparable cities and shows that a 9
percent increase in Lincoln firemen's minimum pay is needed for Lincoln
firemen to reach the mean or average minimum wage of that in the other cities
and that a 5.3 percent increase is needed to reach the maximum (or top of the
pay scale) in Lincoln to reach the mean maximum in the comparable cities.
This is the figure the Court of Industrial Relations used, disregarding
for the moment the 3.3 percent additional increase which the Court of
Industrial Relations added because of possible pay increases in other cities
occurring after the date. This
clearly conforms with the statutory standard for it compares firemen's
salaries with firemen's salaries.
The remaining four columns (unnumbered) of page 6 of exhibit 27 compares nonfiremen's income with nonfiremen's income. This is explained on page 139 of the testimony where Dr. Sherman says: "...you have to make everything relative. So, therefore, a wage should be relative to the income in the prevailing city." (Emphasis supplied.) The witness is here comparing nonfiremen's income, including that of bank presidents, businessmen, professionals such as doctors and lawyers, salesmen, factory workers, government workers including judges, capitalists, and all other segments of society. Of course the statute requires no such thing, but by this means the witness arrives at required increases of 4.4 percent and 1.1 percent. See the appropriate line on columns 3 and 4. How ludicrous this is highlighted by the fact that it is apparently undisputed that Lincoln offered a 10 percent increase to firefighters. I would suggest that doctors, lawyers, bank presidents, judges, etc., form no part of the market from which the firefighters come.
As
already noted, the majority opinion relies upon Omaha Assn. of Firefighters v.
City of Omaha, supra, and quotes that case as follows:
"'A prevalent wage rate to be determined by the Court of
Industrial Relations must almost invariably be determined after consideration
of a combination of factors.*** It must be noted also that in this case the
Court of Industrial Relations did not determine the prevalent wage rates for
firemen by any direct computation or application of average or mean rates from
seven cities, nor from ten cities. Instead,
it weighed, compared, and adjusted all the factors involved in each of the
cities which resulted in a determination of prevalent wages paid for
comparable services in reasonably similar labor markets.'"
As I read the
A comparison of the opinion of the Court of Industrial Relations in the case now before us and its opinion in the Omaha firefighters case shows that in each that body did essentially the same thing.
In
the Omaha case the seventh syllabus of the Court of Industrial Relations
opinion was as follows: "Section
48-818 does not fix any single formula or combination of formulas whereby the
prevalent wage rate is to be determined. Rather
the Court must make the pragmatic adjustments which may be called for by
particular circumstances." In
the Omaha case we approved what the Court of Industrial Relations did and its
opinion was before us for review. An
examination of that opinion shows that the Court of Industrial Relations was
establishing a "hypothetical market," because no actual comparable
market existed. In that case the
Court of Industrial Relations had before it the testimony and statistics
provided by two economists, one Kilgallon for the firefighters, and one
Connell for the City of
"In
an unregulated labor market, labor and management test their relative market
power through bargaining. This
testing may include resort to the strike or the lockout.
However, the Legislature decided that the services provided by
employees subject to our jurisdiction were too vital to allow interruption
while employer and employees tested the merits of their claims by trial by
battle. When discussion is barren,
employers and employees in the public sector are routed here.
Judicial mandate replaces economic power as the determinate of wages.
"However,
the Legislature in providing for a judicial determination of wages did not
deprive either management or labor of its market power.
Rather, it commanded that we so set wages and conditions of
employment that employers are required to pay the market price of labor.
In other words, we are to set wages at the level on which the parties
ultimately would have settled if they were free to exert the range of leverage
available in an unregulated labor market.
"The
'prevalent' then is to be found in the market where the employer before the
Court hires labor and in which the employees before the court offer their
services. However, in many
instances, and this case is one of them, the only employer of a particular
service in a relevant market area is the employer before the court.
Because of the statutory limitation on the employees' right to strike,
the wages paid by such an employer cannot be treated as determinative of the
prevalent free market wage rate. In
such a situation, we must structure a hypothetical market in order to
determine wages." (Emphasis
supplied.)
The court went on to discuss the testimony of the expert witnesses for each side and to point out that the evidence did not show that firemen's salaries in the cities in the array varied in direct proportion to the amount of manufacture and unionization and that in fact in some instances the opposite was true.
The
court then said: "We have
already noted that Connell utilized state by state figures in his critique of
Kilgallon's evidence. However,
Kilgallon's evidence involves a comparison of cities.
The evidence in this case demonstrates that the presence of higher
levels of unionization or higher wages in one state than in another do not
directly lead to higher wages for firemen in cities in
the higher state over those paid firemen in cities in
the lower state. Connell's
testimony indicates that both levels of unionization and wage rates are higher
in Ohio than in Minnesota. However,
as Table 2 of plaintiff's Exhibit 2 demonstrates, wages paid to firemen in
Minneapolis and Saint Paul are higher than those paid to firemen in any of the
four arrayed Ohio cities.
"Connell's
testimony demonstrates that a direct determination of wages for Omaha firemen
cannot be made from plaintiff's Exhibit 2, Table 2.
Nevertheless, his testimony does not destroy the central point made by
that exhibit. Even making due allowance
for the variables of unionization and presence of manufacture, nevertheless,
Exhibit 2, Table 2, demonstrates that Omaha firemen are entitled to a
substantial wage increase." (Emphasis
supplied.)
The
Court of Industrial Relations then pointed out that:
"While the Union may have presented us an array which is skewed
upward, the City's array is skewed downward from the appropriate level...
The evidence presented by the parties gives us a range within which
we may act. Clearly, the
evidence presented by the City sets a bottom line.
The City's proposed 8.2% wage increase is too low.
Even accepting the City's theory that a differential with Lincoln
should be maintained, at least 9% would be justified.
On the other hand, the 12% requested by the Union is too high.
It finds its base in an array of cities where wages should be higher
than Omaha's because of economic circumstances not present in Omaha.
Thus, somewhere between 9% and 12% lies an appropriate figure at which
to find the prevalent.... In the
teacher pay cases, we have traditionally used the mid-point of arrayed data
as the basis of decision...." (Emphasis
supplied.)
The
Court of Industrial Relations then went on to compare the salaries of
firefighters in the various cities in the array and determined the Omaha
firefighters' percentage of wage increase in the following language:
"The differential which we believe to be justified lies in the
range from 9% to 12%. The
mid-point of this range is 10.5%. If
we utilize the City's 8.2% figure as the bottom line, the mid-point of the
range from 8.2% to 12% is still 10.1%. We,
therefore, believe that a wage increase of 10.2% over existing Omaha wages
represents a conservative judgment as to a wage level comparable to the
prevalent."
It is thus demonstrated that the Court of Industrial Relations in the Omaha case did not use any factoring method such as appears in exhibit 27, pages 5 and 6, and the results of which are shown in the columns on page 6 under the heading "To Lincoln Minimum Maximum." Yet that is apparently what the proposed opinion would require in the case before us.
In
this case the Court of Industrial Relations did not so elaborately discuss the
evidence, but it is clear that it was applying the same standards as it did in
the Omaha case. Beginning on page
28 of the transcript, the Court of Industrial Relations' opinion is in part as
follows: "The second issue
for the Court to determine is the appropriate universe to consider in
determining prevalent wages and working conditions.
As the Court said in Verdigre Education
Association v. The School District of Verdigre, at 111-4:
"'***The
purpose of groupings (e.g. conference, locality, size) is basically to find a
representative sample of manageable size within which comparable work, skills
and working conditions exist.***'
"Before
determining what the appropriate groupings are, the Court rejects the
Plaintiff's contention that the grouping be limited to Grand Island, Lincoln,
and Omaha for several reasons.
"First,
there is no testimony that there is any similarity in working conditions
between the firemen in all three cities. In
fact, the testimony is quite the opposite.
Second, this Court in both Grand Island Firefighters v. City of Grand
Island and Omaha Firefighters v. City of Omaha essentially rejected the
comparability of Lincoln to either of the other cities; and third, and most
important, the pay scales of each of the cities have already been set by this
Court for Grand Island for 1976 and for Omaha for 1975.
The essential standard set in 48-818 relates to prevalent wages for
similar work. The underpining of
this concept is the market. If
this Court looks to its own decisions as to what are the prevalent wages
instead of market, its findings will become essentially circular and the
standard will become simply what this Court thinks is fair, as such a standard
was never contemplated in 48-818. The
standard of pay in the act is what other employees similarly situated as to
work and skills received. The
Court can receive evidence on this point and apply this evidence to this
standard.
"The Court also rejects the contention of the Plaintiff's that the cost of living is relevant. The fact that the cost of living has either gone up or down does not in any way affect what the firefighters should receive. There is no guarantee that a standard requiring that firefighters receive the prevalent wages for similar work insures that such workers maintain a particular standard of living. In fact, the law is just the opposite. If the market rate for such work being considered increases faster than the cost of living, then the workers are entitled to the market rate; the reciprocal, of course, is just as true.
"This
Court recognizes that in labor negotiations that cost of living considerations
are always present and probably more so in public employment than in the
private sector. However, cost of
living considerations will reflect themselves in wage determinations made in
contracts of firefighters in the other cities and thus be indirectly
considered." (Emphasis
supplied.)
The
court then went on to discuss similarity of working conditions and then said:
"Turning then to the salaries on Page 6, the pay raise necessary
for Lincoln to reach mean (average) of minimum salaries of the array is 9% and
the pay raise necessary to reach the mean (average) of the maximum salaries of
the array is 5.3%."
Thus
I think it is demonstrated that the Court of Industrial Relations applied
essentially the same methods and standards in the case now before us that it
did in the
It
is important to observe that: (a) The Court of Industrial Relations exercises
a legislative function and we have said so in no uncertain terms.
See Orleans Education Assn. v. School Dist. of Orleans, supra,
pages 682, 685, and that despite what the statute says about review de novo in
this court we cannot constitutionally review de novo legislative functions.
Scott v. State ex rel. Board of Nursing, 196
In
any event, de novo review does not mean that we may disregard the provisions
of section 48-818, R.R.S. 1943. That
statute provides the principle which is applicable to wage determinations.
It requires comparison of teachers' wages with teachers' wages,
firefighters' wages with firefighters' wages, etc.
We can determine only whether the Court of Industrial Relations applied
the proper standard and whether there was evidence to support that it did.
I
am at a complete loss to understand the significance of the concurring opinion
of McCown, J. If that opinion
means that firefighters' wages are to be fixed directly in the proportion that
the population of Lincoln bears to the population of the other cities in the
array, then again such a principle finds no support in the statutory standard.
One need not be an economist to know and the evidence here demonstrates
that firefighters' salaries are not scaled in direct proportion to the
population of the cities.
I
would affirm the order of the Court of Industrial Relations insofar as the
basic wage rate increase is concerned. In
other respects I concur in the majority opinion.