*1 part. such, on its did not constitute conversion dismissing judgment the ac- of the district court tion was correct and is affirmed.
Affirmed.
Employees
Association,
Lincoln
Sheriff’s
Brotherhood
Police
Local
International
appellee,
Officers,
Lincoln,
appellant.
Nebraska,
William A. of Nelson & for pellant. Rosenberg Rosenberg,
Ronald Taute, Gibson & appellee. C.J., Krivosha, Boslaugh, White, Hastings, and JJ. Caporale, Shanahan, Grant, Per Curiam. appellant, County Lincoln, The Nebraska (County), appeals from an order entered the Ne- (CIR) braska Commission Industrial Relations setting adjusting wages and for certain members of County Employees the Lincoln Association, Sheriff’s 546, Local International Brotherhood of Police Offi- (Union), employed by County cers in its sheriff’s County assigned eight office. The has errors al- legedly committed the CIR. Our review of the assignments they leads us to the conclusion that are without merit and that the order of the CIR should respects. be affirmed in all May petition 4, 1982,
On the Union filed a with the alleging dispute that an industrial existed be- County regarding wages tween the Union and the period July and benefits for the to and in- cluding petition alleged June 1982. The further County the Union and the had reached an im- passe negotiations jurisdiction and that the of the County CIR should be invoked. The filed an answer May County and counterclaim on 1982. The de- petition fended the basis that the failed to state a granted. claim Further, which relief could be ju- maintained that the CIR was without petition allege risdiction because failed to wages, employment hours, paid and conditions comparable to work- were not to the Union members exhibiting the same or similar skills under ers working required by conditions as same similar (Reissue 1978). Stat. 48-818 Neb. Rev. third defense tition pe- alleged portions of the Union’s seeking adjudicate rights of the governed by implement its final best offer were portions of the CIR and that such an earlier decision petition thus rendered moot. The were alleging fringe counterclaimed, and County employees paid above to the were benefits the petition, prevailing therefore, rate and that should be dismissed. July hearing
A was held before the CIR on 15 and 16, 1982, county time the Union a seven- at which array consisting of both Nebraska and out-of- Throughout presentation state counties. County objected case, the to both the Union’s expert testimony, on the Union’s the basis of hearsay proper no and sufficient foundation. At *3 County of the case the the conclusion to dismiss the Union’s moved petition. When motion was over- County proceeded present ruled, to the its own evi- including arrays prepared by County. dence, two the array solely One consisted Nebraska counties. A array second consisted counties within a 200-mile included both radius and Nebraska and out-of-state hearing At the counties. conclusion and after taking submission, the matter under the CIR filed its opinion and order on October 1982. The CIR re- jected array adopted the Union’s and instead a Ne- array proposed by County. the It braska further de- termined and justed upward that salaries should be ad- ordered period July 1, 1982,
for the effective patrol deputy, sergeant, corporal, investigator, for (maximum dispatcher, jailer, jail supervisor and only). unchanged It left minimum-maximum monthly wages deputy, monthly for office minimum jail supervisor, for and ordered that all other unchanged. employment conditions of should remain
[277] assigns County as its first series of errors the objections failure of the CIR to sustain its to the survey grant County’s the to Union’s and failure the County’s theory apparently to motion dismiss. The array is that the Union’s should not been have ad evidence, evidence, mitted into and absent such the thereby prima failed make Union titling to a facie en may dispose the “to win.’’ We assignments for those two reasons. In the first in specifically stance the CIR determined that was accepting Union’s and was not consid ering using decision, but, instead, it in its was a Ne array proposed by suggest County. braska To way therefore the order some contains evi which should not been dence considered ignore a entitles to reversal happened. in fact what The evidence not con sidered the CIR and could not be the basis objec County’s Furthermore, reversal. tions once the the introduction of evidence overruled were overruled, its motion to dismiss proceed elected offer evidence than to rather objections. By doing any on stand its so it waived objection may or error which have been committed. A who moves for defendant a directed verdict at the plaintiff’s and, evidence close over ruling proceeds motion, of such with trial and intro ruling error in duces motion for a directed waives Holy
verdict. Church of Spirit Inc., Bevco, 215 Neb. N.W.2d (1983); Ridge Co., Blue Baker v. Ins. (1983); Brothers, 337 N.W.2d v. Strauss Schaffer 164 sons For rea those unnecessary
it is
therefore
for us to
con
further
assignments
sider
first
error.
four
*4
assignment
In its fifth
of
main-
error the
array
tains that
for
in
the
the CIR erred
its selection of
purposes.
comparability
However,
the record is
composite
arrays
clear that the CIR selected a
by
County.
dispose
again
submitted
of
the
We can
first
in-
reasons.
In the
for two
this
may
and then
not
introduce evidence
one
stance
for the
to consider
it was error
court
maintain that
party.
by that
See Fore-
evidence introduced
City Omaha, 203
Nebraska,
Inc. v.
&man
Clark
of
of
impor-
But, more
746,
eight-county array presented by was sufficient and the out-of-state counties ex- necessary. cluded were not are We believe that there using strong policies com- favor parable using employers Nebraska rather than em-
[279] ployers Nebraska, from State outside the of when an array appropriate purpose for that within the state Certainly, comparables if exists. cannot be within the state per-
found, 1969 amendment to 48-818 given elsewhere; but, mits the CIR to look when a comparables choice between sufficient within the comparables state, state and without the we believe appropriate it more for the CIR to confine itself to comparables simply within the state. We cannot say arbitrarily rejected CIR acted when it array out-of-state in counties the second submitted by adopted and, instead, con- sisting only presented of Nebraska counties County.
Turning, County’s assignments then, to the together, 7, error Nos. 6 and we which consider we again, they believe, are without merit. The rejecting maintains that the CIR erred the use of economic variable deflator evidence failing contained the record and in to reduce unit fringe wages and benefits because the evidence in clearly the record indicates prevalent wages
above the and benefits. If error, we understand which is always easy language to do reason of parties negotiations using, which to labor insist on we believe that the CIR was not in error.
specifically addressed this issue in its order. It is requirement obvious that the CIR was mindful of the Spe- variables, to consider if economic relevant. cifically, determining the CIR order noted: “In prevalent wage comparable rates for services reasonably markets, similar labor the Commission required weigh, of Industrial Relations com- pare any adjust economic dissimilarities bearing prevalent shown to exist which a on Fighters City wage rates. Lincoln Fire Ass’n v. Lincoln, 198 252 Neb. N.W.2d alleged “Where it is that economic dissimilarities bearing prevalent rates, on exist which have allegation making party on the burden is bearing dis such economic establish prevalent wage rates. The burden similarities proof facts, proof actual is satisfied necessary, regardless party proof of which which introduces Ass’n Fighters Lincoln Fire the evidence. Lincoln, 174, 178, 252 N.W.2d (1977).” ‘‘From the then said: The CIR in this we find *6 [County] the economic dis has not established bearing preva on shown to exist have similarities job wage dispute the classes in this lent and, rates for adjustments therefore, no have been made wage figures In dissimilarities.” the for economic failing based to consider the economic variables County, presented the the CIR County’s expert gave specifically ex found that high capita per amples counties were on in where wages paid person of their come but some sheriff compared to nel were lower as other counties with per figures. capita even lower income Further County’s expert more, admitted that exhibits employment not distribution did working government people into take account the figures presented did not show di relationship wages public earned in the rect between wages private earned in the sector. We sector say of as a matter law that the action of the cannot refusing adjust of CIR economic variables was because
arbitrary
capricious.
agency
Because the
the
is an administrative
within
purview
Act,
the Administrative Procedures
Dept.
Employees
see Nebraska
Roads
Assn.
Department
Roads,
189 Neb.
(1973),
and because our review of an order
an ad
generally
agency,
including
ministrative
considering
restricted to
whether
the commission’s
supported by
evidence,
whether
order
substantial
scope
within the
of its statu
the commission acted
arbitrary,
tory authority, and whether its action was
(AFSCME
capricious, or unreasonable
Local 2888 v.
Douglas,
208 Neb.
CIR erred in be- cause refused to take into account figures adjusted had been to reflect a 40-hour work- ’ believe, however, week. We the CIR’s order explains that matter and that the action of the CIR failing adjustment to make the In correct. specifically County] “[The its order the CIR found: adjusted wage figures reported all to a 40-hour work week since not all of the members worked the same work week. The Commission finds the evi- dence is unclear as to whether the work re- weeks surveys flected in the take into account all the hours compensated. ambiguity . . . Because of this adjust reported wage Commission will rates to a 40-hour work week.” We have likewise re- *7 record, viewed the as did the and we must conclusion, wit, reach the same is necessary that the evidence ambiguous County as to whether made the
adjustment or whether is likewise overruled. the CIR should have. The County argued
The has further one last matter in its brief. It maintains the CIR established wage upon array presented by rates based County year, for the last 6 when, months of the fiscal period dispute fact, in in was an entire fiscal year. may disregard again, error, We this for two reasons. In the first instance the did not as- sign merely sought argue that as an error but it in general long some in detail its brief. It has been the rule of this court that we will consider errors not properly assigned. require The rules of this court upon must be for reversal relied each error language. See, Ct. Neb. separately in concise stated 1982); 9D(1)d (Rev. Parkhurst, 184 Parkhurst R. Neb. (1969). Additionally, how 171 N.W.2d the evidence
ever, both reviewed we have by argument counsel by made and and, did regard claim, the Union while to this with respect only half to the second present with year, in the record no evidence there of the fiscal sig be months would the first 6 evidence for that the nificantly period, 6-month than the second different period any considering 6-month the first or that change significant The burden be made. would County, the CIR did this was establish finding arbitrarily had not that the in not act regard. proof in that its burden established that the order we believe For these reasons respects be af- correct and should in all CIR was firmed. Affirmed. concurring. C.J., Krivosha, completely with the result reached I concur While opinion, majority I believe that this in this holding points up of our Gen- to us the error case eral Drivers Helpers Union v. West (1979), I Point, which majority. joined In Drivers we General with moving party is on the held that the burden first wages comparable existing are not demonstrate prevailing on to rate. We then went to hold that of Industrial Relations the Commission motion on its own unless not obtain evidence could prima moving party made a facie case had first establishing proof satisfying non- the burden of prevailing comparability conditions, with prima moving party facie failed to make and if the re- be dismissed. On further the action should imposed a rule I now think that we flection contrary of the indus- to the entire scheme which purpose relations law Nebraska. trial *8 uninterrupted, continuous, law is to insure governmental proper functioning operation 48-802(1) (Reissue- Rev. Stat. services. 1978). See Neb. attempting Legislature In to do has so public employ hand, struck a balance. On the one ees are delivery prohibited interrupting the from public services strike or other means. On the protect hand, other to the economic interests of such public employees, developed there has been a statu tory whereby agency scheme an administrative is public employer- to authorized resolve sector employee disputes. suggest To therefore if employees government prima fail to make a facie
employer
in some manner
is 'then ab
statutory obligation
pay comparable
of its
solved
ignore
is to
the entire scheme. The Commis
court;
sion of Industrial Relations is not a
anis
ad
agency.
Dept.
ministrative
Employees
See Nebraska
Roads
Department
Roads,
Assn. v.
such,
Grant,