INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 1536, APPELLEE
v.
216
Filed
February 3, 1984, No. 82-633
1. Commission of Industrial Relations: Appeal
and Error. The standard of review by the Supreme Court of orders and decisions
of the Commission of Industrial Relations is generally restricted to considering
whether the order of the commission is supported by substantial evidence,
whether it acted within the scope of statutory authority, and whether its action
was arbitrary, capricious, or unreasonable.
2. Commission of Industrial Relations:
Evidence: Proof. The burden is on the moving party in a Neb. Rev. Stat. §
48-818 (Cum. Supp. 1982) case to demonstrate that existing wages are not
comparable to the prevalent wage rate.
3. Commission of Industrial Relations:
Evidence: Appeal and Error. Determinations made by the Commission of Industrial
Relations in accepting or rejecting claimed comparables are within the field of
expertise of the commission and should be given due deference.
4. Commission of Industrial Relations: Wages:
Evidence. With regard to a determination of conditions of employment under Neb.
Rev. Stat. § 48-818 (Cum. Supp. 1982), the Commission of Industrial Relations
will enter an order either adjusting the condition of employment or find a
subject city's condition to be lesser or greater than the prevalent, and adjust
the overall compensation accordingly, if, in the compared-to cities, the exact
content of a condition of employment is clear from the total evidence.
5. ______: ______: ______. Experience and
longevity are proper matters to be considered in determining the wages to be
paid to employees within the same job classification.
6. ______: ______: ______. Where the employer
has a large number of job classifications, but established lines of progression
and established relationships between lines of progression, "key
classifications" may be utilized to establish wages for all classes,
provided reasonable requirements of prevalence and relevance are met.
7. Commission of Industrial Relations: Wages:
Evidence: Appeal and Error. Guidelines used by the Commission of Industrial
Relations to be followed in using the "key job classification" in a
proceeding to determine compensation for public employees are not statutory
requirements, and failure of evidence to strictly comply with guidelines does
not require the Supreme Court to find that the action of the commission in
developing the "key job classification" was arbitrary and capricious.
8. Commission of Industrial Relations:
Evidence: Expert Witnesses. In a proceeding before the Commission of Industrial
Relations, the hearing performs a truth-seeking function in settling
controversies between the parties. It runs contrary to that function to suggest
that unfavorable evidence in the form of an expert's opinion may be kept from
either party in the interest of justice and to prevent prejudice.
9. Expert Witnesses. An expert witness should
not be allowed to express an opinion where the evidence showed there was no
adequate basis for the opinion.
Appeal from the
Kelley Baker and Gerald B. Buechler, Jr., of
Nelson & Harding, for appellant.
Thomas C. Lansworth of Bauer, Galter & Geier, for appellee.
KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS,
CAPORALE, SHANAHAN, and GRANT, JJ.
HASTINGS, J.
The
respondent,
The
International Brotherhood of Electrical Workers Local 1536 (Union) filed a
petition with the CIR on August 28, 1981, alleging an industrial dispute existed
because the Union and the City had reached an impasse in the negotiation of a
new collective bargaining agreement.
At the
pretrial conference the Union orally moved to be allowed to call James L.
Jensen, the City's expert witness, as a witness for the
The City
contends the CIR erred in (1) failing to grant the City's motion to dismiss,
since the Union failed to prove "same or similar work" or a prima
facie case of noncomparability; (2) ordering wages without taking into account
the differences in pay schedules in compared-to locations regarding the length
of time it takes a worker to advance from the minimum to maximum pay level on
the salary schedule; (3) establishing wages without sufficient data; (4)
ordering wage increases in excess of the evidence regarding certain
classifications of workers; (5) calculating of overall compensation, since
evidence shows that the City was above the prevalent in payment of fringe
benefits; (6) allowing the Union to use the City's expert witness when competent
expert witnesses were available; and (7) ordering wage and fringe benefits for
nonbargaining Union employees.
In our review
of orders and decisions of the CIR, we are restricted to considering whether the
order of that agency is supported by substantial evidence justifying the order
made, whether it acted within the scope of statutory authority, and whether its
action was arbitrary, capricious, or unreasonable. IAFF Local 831 v. City of No.
Platte, 215 Neb. 89, 337 N.W.2d 716 (1983); AFSCME Local 2088 v. County of
Douglas, 208 Neb. 511, 304 N.W.2d 368 (1981), modified 209 Neb. 597, 309 N.W.2d 65 (1981).
The law is
clear that the burden is on the moving party in a Neb. Rev. Stat. § 48-818
(Cum. Supp. 1982) case to demonstrate that existing wages are not comparable to
the prevalent wage rate. General Drivers and Helpers Union v. City of
In making the
comparison required by statute, it is necessary to 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 employee.
In the present
case the
The City's
evidence consisted of comparisons with employees of the Nebraska cities of
Beatrice, Bellevue, Columbus, Grand Island, Hastings, Kearney, Norfolk, and
North Platte; the public power districts of Norris Public Power District, Loup
Public Power District, and the Nebraska Public Power District (Kramer plant);
and the following cities outside Nebraska: McPherson and Manhattan, Kansas; Ames
and Ankeny, Iowa; and Yankton, South Dakota.
From the
arrays of both parties there were seven common employers: the
The CIR, in
reaching its conclusion that the seven-member array was appropriately balanced
and sufficiently similar with enough like characteristics to be appropriate,
used the figures presented by both parties, with minor adjustments for
discrepancies. Reasons given for the discrepancies were that (1) the parties did
not always agree which job class in a specific locality matched the key job
class in Fremont; (2) the parties disagreed on what the maximum pay scale is on
Grand Island's pay plan; and (3) the Union provided adjusted wage figures which
took into account changes in pay rate since the filing of the petition.
Determinations
made by the CIR in accepting or rejecting claimed comparables are within the
field of expertise of the CIR and should be given due deference, and, by
necessity, in attempting to arrive at comparables, require granting some
discretion to the CIR. AFSCME Local 2088 v. County of Douglas, supra.
The second
assignment of error and primary contention of the City is that the CIR failed to
take into account the differences in pay schedules in compared-to locations
regarding the length of time it takes a worker to advance from the minimum to
the maximum pay level. The CIR, in denying the motion for new trial and
reconsideration, found that this issue had been considered by the CIR when it
rendered its original decision.
The
In the
pretrial order the structure of the salary schedule was not among the items
listed by the
The City
contends adjustments should have been made in other employers' compared-to
schedules to reflect the differences in salary schedules, or, at the very least,
the City should now be permitted to adjust its salary schedule to the comparable
employers. We do not agree with the
The Union
further argues an adjustment in the salary schedule to reflect a 2 1/2-year
midrange adjustment would be inappropriate because the method of adjustment is
one used for determining compensation in teacher pay cases and may not
necessarily be applied to nonteacher cases.
With regard to
a determination of conditions of employment under § 48-818, the CIR has the
following alternatives: If, in the compared-to cities, the exact content of a
condition of employment is clear from the total evidence, the CIR may enter an
order either as to that condition of employment or find that the subject city's
condition in this regard is lesser or greater than the prevalent, and adjust the
"overall compensation" accordingly.
Section 48-818
states 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." We believe the timing difference in the salary
schedules--which, it seems to us, is another way of defining experience and
longevity in employment--is a condition of employment in this situation which
must be adjusted to reach a comparability determination.
"The
salary step schedule merely determined that employees with less than 1 year's
experience, employees with 1 year's experience, and employees with more than 2
years' experience, all within the same job classification, should be paid wages
differently depending upon their experience. It was a recognition that
experience and longevity in employment may provide a basis for an increase in
compensation over the starting salary fixed for a particular job
classification." Plattsmouth Pol. Dept. Coll. Barg. Comm. v. City of
Evidence
offered by the City, but apparently disregarded in part by the CIR, was a series
of exhibits, Nos. 2 to 12, prepared by James L. Jensen. These exhibits consisted
of minimum, midrange, and maximum salary ranges for a variety of occupations in
the various cities surveyed. He explained the purpose of using midrange figures
as follows: "We use the mid-range salary for a number of reasons. I want,
first of all, to determine that they have a range of salary and how they're
generally structured for any given class of work. And so that we know that after
a person's been on the job for two, two and a half years, normally think of that
person as being able to function at a journeyman level for whatever that job
might be. So I'd like to know what the salary is for -- at that stage of a
person's development of the job. Also we need to know the maximum salaries. . .
. The mid-range salary I use is, if we can determine it is -- and usually we can
-- is what the person would normally be paid in that job after being on the job
for two to two and a half years."
If we
understand what the CIR did, it computed a minimum and maximum salary for
Referring to
the City's exhibits 2, 6, and 9, as well as table 23 of the CIR's opinion and
order, we can perhaps demonstrate the objection raised by the City. The
following is a listing of the minimum, midrange, and maximum hourly wages paid
by comparable cities surveyed for three randomly selected occupations:
Water Serviceman II
Grand Island $5.43
$6.29 $6.86
North Platte
6.16 6.82 7.50
Norfolk
5.43 6.00 7.23
Ames, Iowa
6.33 7.56 8.45
Fremont *
5.93
7.90 7.90
Lineman First Class
Grand Island
7.68 8.99 9.86
North Platte
8.24
9.04 11.37
Norfolk N/A
Ames, Iowa
9.74 11.04(?) 11.04
Fremont *
8.63 11.87 11.87
Meter Reader
Grand Island
5.10 5.94 6.49
North Platte
5.87 6.48 7.16
Norfolk
5.16 5.70
6.91
Ames, Iowa
5.56 6.30 7.41
Fremont *
5.22 6.96 6.96
* As a result of the order of the CIR.
We may accept
from the record the fact that the relationship between the minimum and maximum
salaries of the surveyed cities and
There may be a
logical explanation for what the CIR did in this regard, but it does not appear
in its order. For that reason the order of the CIR must be reversed and the
cause remanded with directions to adjust the wage schedules for timing
differences, or to justify its failure to do so.
The City also
complains that the CIR erred in establishing wages without sufficient data to
utilize the key class method. In establishing the wages for the 33 job classes,
the CIR surveyed 13 key job classes to set wages within each progression.
Specifically, the City argues that (1) the CIR did not meet two of the nine
criteria established by the CIR to promote use of the key class method; (2) the
CIR established wages for Lineman First Class in excess of the evidence for that
class of workers; and (3) the CIR did not provide the City with an offset for
more favorable fringe benefits or adjust the fringe benefits according to what
was prevalent.
The City
contends the Union failed to satisfy guidelines (5) and (6), which, in summary
form, are: (5) "Key classifications" together with related lines of
progression must permit direct or computed establishment of at least 85 percent
of the classes involved; and (6) The "key classifications" or wage
rates tendered should have at least one in each regular line of progression, or
lines of progression should be established as comparable, or their relative
market value established or apparent to the commission from its previous
experience.
The City
argued that Utility Technician II, Tree Trimmer IV, and Electric Serviceman II
classifications should be eliminated because there were four or fewer
comparisons within the seven-employer array and that such a reduction would
leave only 25 classes, or 75.75 percent of the 33 classes of work.
Furthermore, the
City also argued that the nonbargaining classes of Electrical Technician II and
Engineering Technician II should be eliminated to reduce the figure to 74.19
percent.
In AFSCME
Local 2088 v.
The City
contends job classifications based upon three and four comparisons should be
rejected because they fall short of the CIR's expressed preference, suggesting
that it has rejected the use of two employers and three employers where there
were other comparable employments available. However, we believe the CIR should
be allowed to make a statistically significant determination with three
comparisons in a seven-employer array.
We believe
that where the employer has a large number of job classifications, but
established lines of progression and established relationships between lines of
progression, "key job classifications" may be utilized to establish
wages for all classes, provided reasonable requirements of prevalence and
relevance are met. We think that to set down a specific mathematical rule in §
48-818 cases would limit the discretion allowed the CIR to make comparability
determinations.
Also,
guidelines used by the CIR are not statutory requirements, and the failure of
the evidence to strictly comply with the guidelines does not require us to find
the action of the CIR in developing "key job classifications" was
arbitrary and capricious. Thus, despite the CIR's past expressed preference for
six to eight comparisons, the actual number of comparisons needed is a question
of reasonableness for the CIR.
The City next
argues guideline (6) is not met because (1) there is not a key class in each
line of progression, (2) there is no evidence to conclude the lines of
progression are comparable, and (3) there is no proof of the relative market
value. In AFSCME Local 2088 v.
In the present
case a comparison of the job classifications in the bargaining unit with the
Union wage rate exhibits proves the Union submitted key classification data in
every line of progression, and computation of wage rates based on the key
classification data is possible for 100 percent of the classes involved in the
bargaining unit. The City's contention is unsupported by the evidence.
The City also
claimed the CIR established wages for Lineman First Class in excess of the
evidence for that classification of workers. The basis of the City's argument is
that the selection of Lineman Apprentice as the "key job
classification" was inappropriate because the duties of the class were in
dispute. Again, the City's contention is unsupported. The
The
utilization of percentages of key classifications may distort the value of jobs
below and above the key classification by valuing a class below the key class
somewhat lower than what might be established by the market, while at the same
time valuing a class above the key class somewhat higher than what might be
established by the market. However, we believe this risk of somewhat higher
valuation is acceptable in order to make the task of analyzing large numbers of
job classifications manageable.
We affirm the
use of the "key job classification" by the CIR in arriving at
comparable salaries for public employees having a large number of
classifications.
In addition,
the City contends there should have been an offset or adjustment because almost
every one of the fringe benefits was above the prevalent. This contention that
the CIR failed to consider fringe benefits is unsupported by the record. The
CIR's order specifically states: "In considering 'overall compensation' the
Commission finds that fringe benefits and other working conditions in dispute
shall remain unchanged." Furthermore, tables 14 through 22, attached to the
CIR order, are sufficient substantial evidence to support the CIR's decision,
and we conclude the CIR decision is not arbitrary or unreasonable in this
regard.
The sixth
assignment of error argued by the City is the CIR's allowing the
In the case
before us Mr. Jensen was not called upon to make any additional investigation,
but was called upon to express opinions he had already formed prior to trial. We
believe the CIR was correct to allow Mr. Jensen to testify.
The City
further argues that although Mr. Jensen is a qualified expert witness in this
matter, his expert testimony should have been excluded because he had
insufficient foundation upon which to base his opinion. An expert witness should
not be allowed to express an opinion where the evidence reveals there is no
adequate basis for the opinion. Plattsmouth Pol. Dept. Coll. Barg. Comm. v. City
of
The City
relies on our holding in Plattsmouth Pol. Dept., supra, to argue the expert's
testimony did not include a verification of actual work performed by those
classified under various job positions.
In the present
case Mr. Jensen is not without knowledge of the working conditions and content
of individual job classifications in the compared-to utilities offered by both
sides. First, the
Prior to his
consulting work, Mr. Jensen was employed as an administrative assistant by the
city of
The third
reason to find sufficient foundation is that Mr. Jensen personally visited the
surveyed utilities, and upon arriving at a given site checked with and visited
with supervisors, department heads, or employees in verifying the job
descriptions for comparability. Mr. Jensen did not always contact the actual
personnel filling positions for every job in the survey, but, instead, used his
judgment whether it was practical or feasible to track down and observe crews of
personnel in action. We find that sufficient foundation existed to form an
adequate basis to express an opinion.
The last
assignment of error is that the CIR erred in ordering wages and fringe benefits
for nonbargaining units Electrical Technician II and Engineering Technician II.
The
The action of
the CIR in this case is reversed, and the cause is remanded for further
proceedings in accordance with this opinion.
REVERSED AND REMANDED WITH DIRECTIONS.