Summary
In General Drivers and Helpers Union v. City of West Point, 204 Neb. 238, 281 N.W.2d 772 (1979), the trial between the parties had been closed when the CIR initiated and conducted its own investigation of the matter.
Summary of this case from International Ass'n of Firefighters Local 831 v. City of North PlatteOpinion
No. 42300.
Filed July 31, 1979.
1. Court of Industrial Relations: Evidence: Burden of Proof. The Court of Industrial Relations cannot in a section 48-818, R.R.S. 1943, case, obtain evidence on its own motion unless the moving party has first made a prima facie case by satisfying the burden of proof of establishing noncomparability with prevalent conditions.
2. Court of Industrial Relations: Evidence: Judgments. Findings made by the Court of Industrial Relations not supported by substantial evidence do not justify the entry of an order which therefore must be said to be arbitrary, capricious, and unreasonable.
Appeal from the Nebraska Court of Industrial Relations. Reversed and dismissed.
Nelson Harding and Roger J. Miller, for appellant.
David D. Weinberg of Weinberg Weinberg, P.C., for appellee.
Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
Petitioner-appellee, a labor union (Union) and the certified collective bargaining agent for most of the employees of the respondent-appellant, City of West Point, filed its petition in the Court of Industrial Relations (CIR) on July 1, 1977, alleging that the parties had attempted, without success, to negotiate an agreement as to wages, hours, and conditions of employment, thereby creating an industrial dispute as defined in the Court of Industrial Relations Act, sections 48-801 et seq., R.R.S. 1943. After a hearing, the Court of Industrial Relations entered an opinion and order dated July 26, 1978, establishing wages for certain linemen, light plant operators, sewage treatment plant operators, and street laborers effective August 1, 1976-77 and August 1, 1977-78. The City of West Point has appealed to this court.
The City's primary complaint as expressed in its assignments of error is that the CIR had no authority to conduct its own investigation as to wage comparability after Union had failed to sustain its burden of proof on that issue, and because of such failure, the case should have been dismissed. We agree.
Union, through two employees of the City and an international representative of another union, offered evidence of wages being paid certain employees of the City together with a description of the various jobs as compared with the cities of Fairbury, Beatrice, Grand Island, Fremont, and Cuming County, covering both years involved, except that Cuming County was not used for the year 1977-78. The populations of the City of West Point and the various political subdivisions in the array listed above were 3,385, 5,265, 11,600, 31,200, 23,900, and 11,817 respectively. The various job descriptions furnished by the witnesses were at best vague and indefinite. The two witnesses, employees of the City, who were the electric line foreman and light plant foreman respectively, were able to give comprehensive descriptions of those two job areas. However, they knew little about the duties of the street laborers or sewer treatment employees other than what might be expected of the average man on the street. The other witness, the union representative, had virtually no independent knowledge of the job skills for the various job descriptions, particularly for linemen and street laborers, and merely stated that street laborers repair the streets and keep them clean. It could be said without much argument that Union simply obtained wage information from the various cities by job title only without reference to job descriptions, skills, or requirements. Nevertheless, where as here the job titles were in and of themselves rather descriptive, we are not that concerned with the absence of a more detailed recitation of the nature of the jobs. However, there was no evidence offered of fringe benefits paid by the units within the array, nor was there anything from which any conclusion could be drawn either as to the labor market, job opportunities, or work opportunities anywhere.
In our review of orders and decisions of the Court of Industrial Relations, 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 its statutory authority, and whether its action was arbitrary, capricious, or unreasonable. Metro. Tech. Com. Col. Ed. Assn. v. Metro. Tech. Com. Col. Area, 203 Neb. 832, 281 N.W.2d 201 (1979).
The opinion and order of the CIR contained the following language: "Petitioner offers two arrays * * * We find these comparables, properly adjusted, to be sufficient to carry the petitioner's burden of showing that West Point wages are not comparable to the prevalent. * * * For our own convenience, however, we prefer to operate in an array where we need not make continual and complex adjustments. Where the parties have not presented evidence deemed sufficient properly to appraise the value of the particular labor before it, the court may sua sponte direct the production of other or different evidence in order that it may properly execute its duty to protect the public interest and reach an accurate conclusion. * * * Executing this duty as empowered by the Legislature under 48-817, R.R.S. 1943, we have had data produced on the various job classifications in cities in the state operating their own generation plants and within a population range of 2,000 to 3,850 to add to petitioner's proffered comparables."
The data referred to by the CIR was incorporated into two orders which were made a part of the transcript and copies of which were sent to both parties with notice that each would have 5 days to challenge, contradict, or rebut such information. The question we are called upon to decide is whether the CIR is empowered to go out in the first instance and conduct an investigation as to whether a particular wage is comparable to the prevalent, or whether it is entitled only to utilize this method to supplement and refine evidence which it finds to be sufficient, but not altogether satisfactory.
As we stated in Lincoln Fire Fighters Assn. v. City of Lincoln, 198 Neb. 174, 252 N.W.2d 607 (1977), "* * * 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, * * *." It is obvious that to do this it was necessary for Union first to establish by the evidence what were "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." 48-818, R.R.S. 1943. In making this comparison it is necessary to take into consideration not only the wages for time actually worked but also wages for time not worked, including vacations, holidays, and other excused time; all other benefits received including insurance and pensions; and the continuity and stability of employment. "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." Lincoln Fire Fighters Assn. v. City of Lincoln, supra. See, also, Crete Education Assn. v. School Dist. of Crete, 193 Neb. 245, 226 N.W.2d 752 (1975).
With the exception of Fairbury, the municipalities tendered in Union's array were from over 3 to nearly 10 times the size of the City of West Point. Fairbury, retained by the CIR to construct its array, was almost twice as large. This is not to say that such cities could not have been used if there was evidence of the labor market generally in those locations establishing comparable conditions. Beyond that, and perhaps of even more significance, is the finding of the CIR itself that "We find these comparables, properly adjusted, to be sufficient to carry the petitioner's burden of showing that West Point wages are not comparable to the prevalent." (Emphasis supplied.) The CIR is saying that the evidence presented, without adjustment, was not sufficient to carry Union's burden. We are in complete agreement with this position. However, there is nothing in the record to indicate what adjustment was made. This was a critical finding to have been made, and to permit it to stand without support in the record would eliminate the requirement of burden of proof. While this position may seem to exalt form over substance, it must be remembered that the CIR's sole function is to settle industrial disputes, and the principal onus in producing evidence is on the parties. The adversary nature of proceedings has been preserved in the CIR by the Legislature in providing that proceedings shall conform to the code of civil procedure applicable to District Courts, section 48-812, R.R.S. 1943; by the decision of this court as to burden of proof, Lincoln Fire Fighters Assn. v. City of Lincoln, supra; and, for that matter, by the procedures adopted and followed by the CIR itself. The result is that the CIR cannot, in a section 48-818, R.R.S. 1943, case, obtain evidence on its own motion unless the moving party has first made a prima facie case by satisfying the burden of proof of establishing noncomparability with prevalent conditions. Therefore, we must disregard the evidence obtained by the CIR on its own motion and are left with findings not supported by substantial evidence, resulting in the entry of an unjustified order which is therefore arbitrary, capricious, and unreasonable.
The City has assigned other errors which, in view of our holding, we find unnecessary to consider.
The order and judgment of the CIR is reversed and the cause ordered dismissed.
REVERSED AND DISMISSED.
BOSLAUGH, J., concurs in the result.