DOUGLAS
COUNTY HEALTH DEPARTMENT EMPLOYEES ASSOCIATION,
APPELLANT
AND CROSS-APPELLEE
V.
229
Filed
July 29, 1988, No. 86-748
1. Commission of Industrial Relations: Appeal
and Error. In reviewing a decision of the Commission of Industrial Relations,
this court will consider whether the decision is supported by substantial
evidence, whether the commission acted within the scope of its statutory
authority, and whether its action was arbitrary, capricious, or unreasonable.
2. Administrative Law: Evidence: Witnesses:
Appeal and Error. It is not for the Supreme Court to resolve conflicts in the
evidence. Credibility of witnesses and the weight to be given their testimony
are for the administrative agency as the trier of fact.
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. Trial: Evidence. Generally, the reception
of evidence is within the discretion of the trial court.
5. Commission of Industrial Relations:
Evidence. The manner in which the Commission of Industrial Relations is to
determine what is comparable to the prevailing wage rate is left to a large
extent to the discretion of the commission.
6. Commission of Industrial Relations:
Evidence: Proof. The burden is on the moving party in a case to establish or
alter the scale of wages under Neb. Rev. Stat. § 48-818 (Reissue 1984) to
demonstrate that existing wages are not comparable to the prevalent wage rate.
7. Commission of Industrial Relations:
Evidence. As a general rule the factors most often used to determine
comparability in a Commission of Industrial Relations case are geographic
proximity, population, job descriptions, job skills, and job conditions.
8. Commission of Industrial Relations:
Evidence: Appeal and Error. Of necessity, attempting to arrive at comparables
requires granting some discretion to the Commission of Industrial Relations; and
unless there is no substantial evidence upon which the commission could have
concluded that the employers used by it did, indeed, provide comparables, we may
not as a matter of law disallow the action taken by the commission.
9. Commission of Industrial Relations:
Evidence. There are strong policies in favor of using an array of comparable
10. ______: ______. The test in determining
comparability of wages and other conditions of employment generally is work
comparability, not employer comparability.
11. ______: ______. In its measurement, the
Commission of Industrial Relations is required to offset possible unfavorable
comparison between employers with other comparisons which are favorable when
reaching its decision establishing wage rates.
12. ______: ______. In determining prevalent
wage rates for comparable services in reasonably similar labor markets, the
Commission 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.
13. Commission of Industrial Relations:
Jurisdiction: Pleadings: Service of Process. The jurisdiction of the Commission
of Industrial Relations is invoked when a petition is filed with it, not when
service of process is perfected.
Appeal from the
Thomas J. Young, of Young, LaPuzza &
Stoehr, for appellant.
William A. Harding and Jerry L. Pigsley, of
Nelson & Harding, and Ronald L. Staskiewicz, Douglas County Attorney, and
H.L. Wendt for appellee.
HASTINGS, C.J., SHANAHAN, and FAHRNBRUCH, JJ.,
and RILEY and OTTE, D. JJ.
HASTINGS, C.J.
This action
was filed by the plaintiff-appellant, Douglas County Health Department Employees
Association (Association), against the defendant-appellee,
The County
cross-appeals, assigning error in 10 respects, summarized as follows: The CIR
erred in (1) failing to grant the County's motion to dismiss for insufficient
service of process; (2) allowing the Association to submit written
interrogatories after the date of the filing of the petition; (3) sustaining the
Association's objection to the County's counterclaim; (4) failing to grant the
County's motion to limit evidence; (5) failing to consider economic factors in
selecting an "out-state" array; (6) failing to decrease certain wages
at the start of the contract year in dispute; and (7) failing to compare certain
local employers.
In reviewing a
decision of the CIR, this court will consider whether the decision is supported
by substantial evidence, whether the CIR acted within the scope of its statutory
authority, and whether its action was arbitrary, capricious, or unreasonable. IBEW
Local 244 v.
With regard to
the specific assignments of error at hand, we have held that 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. IBEW Local 1536 v.
City of
In reference
to the County's objection to the CIR's ruling on certain evidence, the standard
is that, generally, the reception of evidence is within the broad discretion of
the trial court. Turner v. Welliver, 226 Neb. 275, 411 N.W.2d 298 (1987).
On July 1,
1984, the Association became a department of the County and was no longer a
joint city/county operation. A 1984-85 collective bargaining agreement had been
reached. The County reassigned certain job classifications--consolidating and
eliminating classifications such as Environmental Health Scientist III and
Laboratory Scientist III. Involved in this dispute are a total of 23 job
classifications.
The 71
bargaining unit employees of the Association involved in this action are divided
into two categories: professional/paraprofessional and clerical/support
personnel. An impasse had been reached for the contract wage and fringe benefits
for the year July 1, 1985, through June 30, 1986. On October 16, 1985, the
Association petitioned the CIR to settle the industrial dispute, listing the
disputed items as hours of work, seniority, layoffs and recalls, sick leave,
vacation leave, holidays, insurance, travel expenses, overtime, promotions,
wages, and classifications within the bargaining unit. The petition sets forth
three causes of action, but only the first cause of action is involved in this
appeal.
On October 21,
1985, the County filed a motion to dismiss for insufficient service of process.
The petition and notice of pendency were served upon Richard Schoettger, the
administrative assistant to the Douglas County Board of Commissioners. The
County claimed that this was improper under Neb. Rev. Stat. § 25-510.02(2)
(Reissue 1985) and denied the CIR jurisdiction. On October 23, 1985, the
Association then served process upon the
Upon a hearing
by telephone conference call, the CIR overruled the County's motion to dismiss,
finding that it obtained jurisdiction when the Association filed its petition.
Another trial
agency ruling involved the service of interrogatories upon the County with the
supplemental service upon the clerk. The interrogatories did not accompany the
originally served petition, but were served on October 23, 1985, with a
supplemental notice of pendency. The County's oral objection was overruled.
The County
filed a counterclaim on February 4, 1986, urging the CIR to reduce wages, fringe
benefits, and total compensation of certain workers to correspond to prevalent
comparability levels. The Association objected to the counterclaim, as it was
not filed within the rules prescribed by the CIR. The objection was sustained.
On February
21, 1986, the County filed a motion to limit evidence. The motion was overruled
at the time of trial. A hearing was held before the CIR on February 24, 25, and
26, 1986. Evidence before the CIR included expert testimony from both parties
regarding the criteria to be utilized in selecting comparable employers for
inclusion in an array to determine the prevalent wage rates paid and conditions
of employment for establishing wages and fringe benefits for the Association.
Testifying for the Association was expert Dr. Robert L. Otteman and for the
County were experts Dr. Jerome F. Sherman and Thomas A. Haller.
The
Association introduced one survey for consideration by the CIR, combining
several local and national employers. The County introduced three separate,
prospective arrays: national employers, local employers, and a third survey
which contained only County departments.
Dr. Otteman
testified that he selected comparables using a gross screening process and then
a finer screening process. He selected health departments based upon their being
in the north central census region and qualifying under four characteristics
within certain limitations (not less than one-half the size of
Dr. Sherman
testified for the County that the factors of paramount importance are geographic
proximity, percentage of state unionization, percentage of county manufacturing,
and population of the SMSA.
Dr. Otteman
further conducted interviews with department heads, supervisors, and
representatives of personnel departments to determine specific job content, the
degree of comparability with the Douglas County Health Department, fringe
benefits, and related working conditions. He reviewed the existing contracts,
job descriptions, fringe benefit booklets, and related documents to determine
the level of job match, prevalent wage rates, and other conditions of
employment. These materials are in evidence.
The CIR issued
a 60-page findings and order in which it composed two separate arrays. The first
array consisted of nonlocal health departments. The second array was termed a
local array. The local array was utilized by the CIR for clerical (secretarial)
and custodial job classifications.
The order
established wages and benefits, increasing some wages effective July 1, 1985,
and decreasing some wages effective July 10, 1986. The CIR refused to review the
County's reassignment of individuals within certain job classes, stating:
The Commission will not enter the realm of management prerogative and review the
reassignment of individuals within certain job classifications. However, where
evidence conclusively shows that salary anomalies exist as a result of
extenuating circumstances, in this case the consolidation of the Department, the
Commission will take this into consideration when adjusting current wages to the
prevalent rate, if necessary.
The CIR also
found two characteristics propounded by the County to be inappropriate. These
aspects were percentage of state unionization and percentage of county
manufacturing. The CIR found that the County had not established that economic
dissimilarities had a direct bearing on the wage rates.
Our analysis
begins with Neb. Rev. Stat. §
48-818 (Reissue 1984), which provides in relevant 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.
There is no dispute that the CIR was acting
within its authority in composing arrays and adjusting wages and benefits
accordingly.
The manner in
which the CIR is to determine what is comparable to the prevailing wage rate is
left to a large extent to the discretion of the CIR. AFSCME Local 2088 v.
County of Douglas, 208 Neb. 511, 304 N.W.2d 368 (1981). It is the selection
of comparables which is the most critical part of the process performed by the
CIR, as the task of the CIR is to determine prevalent wage rates paid and
conditions of employment. Once these are established, they are compared with
those of the employer before the CIR, and then wage rates and fringe benefits
are adjusted accordingly.
The law is
clear that the burden is on the moving party in a § 48-818 case to demonstrate
that existing wages are not comparable to the prevalent wage rate. IBEW Local
1536 v. City of
"In
selecting employment units in reasonably similar labor markets for the purpose
of comparison as to wage rates and other benefits, the question is whether, as a
matter of fact, the units selected for comparison are sufficiently similar and
have enough like characteristics or qualities to make comparison
appropriate." Lincoln Co. Sheriff's Emp. Assn. v. Co. of Lincoln,
216 Neb. 274, 278, 343 N.W.2d 735, 739 (1984). The CIR need not consider every
conceivable comparable, but only has to consider a sufficient number in a
representative array so that it can determine whether the wages paid or the
benefits conferred are comparable.
As a general
rule it may be said that factors most often used to determine comparability are
geographic proximity, population, job descriptions, job skills, and job
conditions. AFSCME Local 2088, supra.
Due to the
apparent fact that the employees fall into two separate categories of
professional and clerical, the CIR composed a national and a local array. The
local array was developed for custodial and clerical/secretarial employees and
the nonlocal array for professional and paraprofessional employees. This is
consistent with past practice and in keeping with reality, since an employer
competes locally for hourly and clerical workers, but nationally as well for
professionals. See AFSCME Local 2088, supra.
Composing the
nonlocal array were Lincoln/Lancaster County; Des Moines, Iowa (Polk County);
Wichita, Kansas; Madison, Wisconsin; Peoria, Illinois; Oklahoma City, Oklahoma;
State of Nebraska; Milwaukee, Wisconsin; and Colorado Springs, Colorado (El Paso
County).
From the
arrays of both parties, there were three common employers: Lincoln/Lancaster
County;
In its first
series of errors, the Association challenges the CIR's selection of proposed
comparables. The Association presented statistics on Lincoln/Lancaster County,
The proposed
comparable of
Considering
the high number of job matches and the conformity with the great majority of the
characteristics before the CIR, it was also appropriate for the CIR to include
The County's
evidence consisted of comparisons with employees in
The Peoria
County Health Department is within the north central census region and is within
limits with regard to organizational size (1,200 to 1,900). Departmental size is
very close (106 to 90), and the SMSA is within one-half (355,900 to 607,400). It
is reasonably close to the County (325 miles), and the employees work the same
number of hours (2,080). This sector does not serve the core city of
The Oklahoma
City Health Department was a joint city/county operation and is within
guidelines with regard to organizational size (2,000 to 1,900) and with regard
to departmental size (151 to 90). The SMSA is within acceptable limits (962,600
to 607,400). The population served is the same as the SMSA, and the Oklahoma
City/County Health Department does serve the core city of
The
organizational size of
Considering
the fact that the actual population served is unknown, the Association submits
that this health department should not have been included within the CIR array
for comparison purposes. We disagree. The CIR accurately determined that
The CIR chose
entities west and south as well as east of the County. Thus, some were not
necessarily located in the north central census region.
We are bound
by the fundamental: Of necessity, attempting to arrive at comparables requires
granting some discretion to the CIR; and unless there is no substantial evidence
upon which the CIR could have concluded that the counties used by the CIR did,
indeed, provide comparables, we may not as a matter of law disallow the action
taken by the CIR. AFSCME Local 2088 v. County of Douglas, 208 Neb. 511,
518, 304 N.W.2d 368, 373 (1981). See, also, IBEW Local 1536 v. City of
With regard to
the second array, the County argues that the CIR erred in failing to include in
its array the two local employers of Immanuel hospital and HNG Internorth. The
County quotes at length from the case of AFSCME Local 2088 v.
Whenever there is another
employer in the same market hiring employees to perform same or similar skills,
the salaries paid to those employees must be considered by the CIR unless
evidence establishes that there are substantial differences which cause the work
or conditions of employment to be dissimilar. Having failed to consider the
salaries paid by the other Omaha-based facilities, the order of the CIR in this
matter must be reversed.
(Emphasis supplied.)
The local
array chosen consisted of: Omaha Public Power District; city of
The three
common survey points of the parties were the Omaha Public Power District, the
city of
In response to
the County's assignment of error regarding exclusion of Immanuel hospital and
HNG Internorth, it is observed that both employers had only one of four job
matches. Further, HNG Internorth's employee size was 1,373, the lowest of the
proposed comparables; thus, they were not hiring employees to perform the same
or similar skills. The CIR did not act arbitrarily or capriciously in attempting
to arrive at comparable wages. Its decision is given due deference.
The County
advances the argument that the CIR erred in "establishing a new
comparability standard based on job matches." In its order, the CIR ruled:
The more data available on the key classes surveyed, (job matches) the greater
the indication of similarity of operation between the Respondent employer and
the surveyed employer. IBEW v. O.P.P.D. at 559. Consequently, an employer
offering only 2 or 3 job matches out of a potential 23 will not be considered as
comparable as an employer with a larger number of job matches, all other factors
being equal.
(Emphasis supplied.)
While it is
true that the essence of the statutory test established by § 48-818 is one of
work comparability, not employer comparability, the CIR has not, by its ruling,
unfairly excluded employers with low numbers of job matches. The County has
overlooked the last key clause emphasized above, "all other factors being
equal." For practicality purposes, the CIR is entitled to work the above
guideline into its structure of work comparability.
Another
assignment of error on cross-appeal challenges the CIR's exclusion of the
County's proposed array No. 1. This array proposed the organizations of
It is most
difficult to second-guess the CIR's motive in arriving at a manageable array.
The local array chosen was certainly adequate. We affirm the CIR's decision, as
it does not have to compare every possible employer, and its decision should be
given due deference.
The CIR did
not order that the County incorporate a longevity plan into its present pay
structure. The Association's expert, Dr. Otteman, testified in favor of such a
plan, as the County does not currently have such a plan. The CIR's failure to
institute a plan, based upon data of the Lincoln/Lancaster County Health
Department, is assigned as the Association's third series of errors.
Clearly, the
majority of compared counties and businesses did not have longevity pay plans.
The County was thus comparable with the prevalent in this regard.
In its fourth
assignment of error, the Association insists that the CIR erred in finding that
the County had an established wage-step progression schedule and in failing to
institute one. The CIR was correct in finding that the current progression
process at the County is comparable in length to the prevalent.
We have stated
that the manner in which an individual moves from the minimum to the maximum
salary rate of a job classification is a timing difference in the salary
schedule, which must be adjusted to reach a comparability determination. IBEW
Local 1536 v. City of
The
Association contends that the testimony of Haller, John Taylor, and Dr. Otteman
reflects that there are no salary steps for health department employees. The
exhibits entitled "Salary Range Progression" list the timeframe
between wage steps as "Not defined."
The CIR has
set a minimum and maximum salary to be paid without providing a basis upon which
employees can move within that range. A wage-step progression schedule is a
condition of employment which the CIR has been given statutory authority to
establish. See, also, Plattsmouth Pol. Dept. Coll. Barg. Comm. v. City of
Although the
evidence is not entirely clear, it appears as though the County has some sort of
step schedule to which it adheres, for purposes of vacation leave for example.
Haller did receive a pay scale from the department for his review. The County
apparently utilizes the civil service system of classification, moving from the
minimum to the maximum position of pay within approximately 10 years.
The
Association is also critical of the manner in which the CIR arrived at a fringe
benefit determination toward its overall compensation award. In this area, the
CIR is to consider vacations, holidays, other excused time, and all benefits
received, including insurance and pensions. § 48-818. The Association focuses
on the alleged deficient pension contributions made by the County and the
inclusion of local employers, especially
In its
measurement, the CIR is required to offset possible unfavorable comparison
between employers with other comparisons which are favorable when reaching its
decision establishing wage rates. Crete Education Assn. v. School Dist. of
Crete, 193 Neb. 245, 226 N.W.2d 752 (1975). Table 30 of the CIR's findings
and order included both the local and the national arrays. The Association
points out that the local employers contribute substantially less for pensions.
The County ranked last, along with
The
Association is aware that the CIR has no general jurisdiction over contractual
disputes and is unable to amend pension plans. See Plattsmouth Pol. Dept. Coll.
Barg. Comm. v. City of
Tables 23
through 29 and table 31 of the CIR's order show that the County fringe benefits
are comparable with the prevalent under the titles of longevity and seniority,
progression (in general), health insurance, vacations, sick leave, holidays and
holiday pay rates, travel expenses, and hours of work. The CIR properly
considered all fringe benefits in arriving at an overall compensation package.
See
With regard to
pensions, the CIR found little evidence beyond the percentage of employer
contribution with which it could evaluate the individual pension benefits
received. The statistics for the other elements of a pension review were not
thorough.
The CIR
properly refrained from adjusting wages according to pension benefits received
as an issue depending entirely upon speculation, surmise, or conjecture, which
is never sufficient to sustain a judgment, and one so based would be set aside
by this court. Lincoln Fire Fighters Assn., supra.
We reject the
Association's contention that the CIR erred in prorating wages paid by
employers. Stipulation No. 3 reflects the various wages and contract years
utilized for comparison. Adjustments in wages may be made for differences in
contract years.
Changes which
had taken place from July 1, 1985, until the time of the hearing in February of
1986 were prorated to reflect those changes that would have taken place during
the year. For example, if a wage raise was given in January of 1986 of 6
percent, the figures were updated by 3 percent. This situation involved only
four employers selected for the national array.
Under this
theory, all wage increases are essentially for the prior year's work. The
Association claims that employers who had given a wage increase prior to the
contract year in question should have their wage rates adjusted too, so as not
to skew the prevalent rate downward. The CIR was not required to impute an
increase to the wage rate of an employer whose contract year preceded that of
the County.
The fifth
assignment of error challenges the CIR's action in ordering certain wage
decreases. On cross-appeal, the date of the adjustment is also challenged. It is
clearly within the authority of the CIR to order a reduction of wages. This is
so whether or not lowering wages was an issue at the bargaining table, because
§ 48-818 allows for a wage decrease: "[The CIR] shall establish rates of
pay and conditions of employment which are comparable to the prevalent wage
rates paid . . . ." (Emphasis supplied.)
The County
urges that the CIR should have ordered more wage decreases where it found
"anomalies" to exist. The CIR removed certain individuals (six) from
any salary adjustment because their titles had been changed from Environmental
Health Scientist III to Environmental Health Scientist II. Despite the
reclassification, job duties and responsibilities remained the same. Due to this
unique circumstance, the salaries of these six highest paid individuals properly
remained the same.
A similar
situation arose with an individual who was reclassified to a Laboratory
Scientist II position from a prior Laboratory Scientist III position. This
individual's salary was again properly removed from the wage range.
According to
the testimony before the CIR, the individuals in the former Class III had
performed the same duties as those in Class II. The promotion to Class III has
simply been a way to better compensate some. Salaries of health department
personnel had been relatively low, so the third classification was a way of
giving some a raise. The CIR must have trusted that these persons' previous wage
increases were deserved and left them undisturbed due to extenuating
circumstances upon reclassification.
On the same
subject, the CIR did not determine that the County improperly eliminated or
consolidated these job classifications. The Association assigns this as error
No. 7. In the secretarial positions, a large number of the incumbents were
placed in the job classification entitled "Clerk Typist II,"
notwithstanding the fact that their salary and job duties and responsibilities
were greater than the incumbents in the Clerk Typist III position.
The
actions of the County in unilaterally modifying the collective bargaining
agreement in existence between the parties without conducting negotiations with
the Association is presently at issue in the District Court of Douglas County,
Nebraska, in an action captioned, Douglas County Health Department Employees
Association, Plaintiff vs. County of Douglas, Defendant and indexed at Docket
849, Page 735. Brief for appellant at 37.
The CIR
rightly refused to enter into the realm of management prerogative and review the
reassignment of individuals within certain job classifications or order wages
based upon both groups of job classifications.
In University
Police Officers Union v. University of Nebraska, 203 Neb. 4, 14-15, 277
N.W.2d 529, 536 (1979), this court stated: The adoption of sections 48-801 to
48-838, R.R.S. 1943, was not intended to in any way remove the lawful
responsibility or the proper prerogative of public employers in the exercise of
their recognized management rights, or in the exercise of their lawful duties,
except as may otherwise have been specifically entrusted to the CIR in resolving
industrial disputes as prescribed by the statutes.
In a similar situation involving a school district, we attempted in some small
measure to point out that there are certain areas under the
. . . [N]ot all matters about which the public employer and its employees
disagree constitute an industrial dispute over which the CIR obtains
jurisdiction.
(Emphasis supplied.)
The wage
reduction order that was issued was not retroactive, as it was to take effect on
July 10, 1986. The increase, however, was retroactive, taking effect at the
start of the contract year in dispute. A retroactive wage increase is within the
authority of the CIR.
The CIR did
not act arbitrarily in failing to order a retroactive wage decrease, especially
in light of difficult implementation and policy questions. The County's sixth
assignment of error on cross-appeal is meritless. Also, the employees' failure
to receive a 5-percent across-the-board increase tends to buttress the CIR's
failure to make the wage decrease order retroactive. However, the 5-percent
increase is not in issue.
The
Association's sixth assignment of error states that the CIR erred in not
determining that the County's action in not instituting an overall 5-percent
wage increase given to all other County employees was improper. The Association
submits that the County openly discriminated against its employees for
exercising their right to come before the CIR. According to Daniel Worthing, the
employees did not receive an overall 5-percent wage increase because they had
filed this particular action.
The
Association cites AFSCME Local 2088 v. County of Douglas, 208 Neb. 511,
304 N.W.2d 368 (1981), for the proposition that a reduction of wages was
inappropriate in light of the withholding of the 5-percent wage increase by the
County. The issue of the 5-percent wage increase was raised in the Association's
second cause of action. Only the first cause of action was addressed by the CIR
and is properly before this court. This is admitted in the appellant's brief.
Thus, the issue is not addressed here and is to be tried separately.
In its fifth
assignment of error on cross-appeal, the County alleges that the CIR erred in
failing to consider economic factors in selecting an "out-state"
array. We have held that in determining prevalent wage rates for comparable
services in reasonably similar labor markets, the CIR is required to weigh,
compare, and adjust for any economic dissimilarities shown to exist which have a
bearing on prevalent wage rates.
Where it is
alleged that economic dissimilarities exist which have a bearing on prevalent
wage rates, the burden is on the party making that allegation to establish the
bearing of any such economic dissimilarities on prevalent wage rates.
The alleged
economic dissimilarities are higher degrees of state unionization and county
manufacturing. These have a tendency to increase wage levels in a particular
area, according to the County's expert, Dr. Sherman. He testified that those
states he identified as having higher degrees of manufacturing and unionization
should be excluded from the Association's proposed array. The states which Dr.
Sherman would have excluded from which employers were eventually chosen for the
CIR's nonlocal array were
On
cross-examination, however, it was elicited from Dr. Sherman that no discernible
cause and effect could be shown between higher degrees of unionization and
manufacturing and salaries paid to health department employees included in the
arrays of the parties. The County did not meet its burden of proof on this
point.
The County
charges that the CIR erred in the preliminary matter of failing to dismiss the
Association's petition for failure to obtain proper service of process. The CIR
was correct in finding that jurisdiction is invoked when a petition is filed
with it, not when service of process is perfected. Neb.
Rev. Stat. § 48-811 (Reissue 1984) provides for the filing of a
petition with the CIR invoking its jurisdiction. Furthermore, Neb. Rev. Stat. §
48-813(1) (Reissue 1984) provides that once the jurisdiction of the CIR is
invoked, service may be had upon the adverse party. We hold that the CIR was
sufficiently vested with jurisdiction when the Association filed its petition.
The second
assignment of error on cross-appeal involves the related issue of service of
interrogatories. The County was served with interrogatories when the petition
was properly served with a supplemental proof of service upon the county clerk
on October 23, 1985. The CIR ruled that its rule 21A would not preclude
discovery in this case, but was meant to apply at the time a petition is
properly filed with the county clerk. Rule 21A states that interrogatories shall
be served at the time the petition is filed. The CIR's overruling of the
County's oral objection is consistent with its earlier ruling regarding service
of process.
The third
challenge on cross-appeal is also without merit, as the CIR properly sustained
the Association's objection to the County's filing of a counterclaim beyond the
time period prescribed by the rules of the CIR. The answer in this case was
filed on October 21, 1985, and the amended answer on November 6. The
counterclaim was filed on February 4, 1986. This filing was in violation of rule
6 of the CIR, which states in part that the only responsive pleading that
"is permitted shall be an answer in which the responding pleader shall
assert every defense, objection, and claim. . . ." (Emphasis supplied.)
The CIR's
overruling of the County's motion to limit evidence is the subject of the
County's fourth assignment of error. The County's written brief in support of
the motion is not before this court. The evidence in question consists of the
Association's exhibits J-1 through J-4 on job class series progression. The
exhibits listed job duties as well as salaries for two job titles in the various
comparable regions. The exhibits were relevant, as the Association has requested
the CIR to resolve "[a]rrangements of classifications within [a] single job
family," as reflected in the report of pretrial conference.
The exhibits
did not affect a management prerogative or right delineated in University
Police Officers Union v. University of Nebraska, 203 Neb. 4, 277 N.W.2d 529
(1979). The CIR did not abuse its discretion in receiving the evidence.
We conclude
there was sufficient evidence for the CIR to find that wages received by
employees of the Douglas County Health Department were not comparable to
prevalent wage rates. In selecting the employers to be used for comparison, the
CIR considered relevant factors and did not act arbitrarily or capriciously in
using the communities it did in fact use. The method of selection employed was
in accord with the requirements of § 48-818. See Fraternal Order of Police
v.
AFFIRMED.