*1 192, ka 92 N. W. 167 Neb. Stanosheck, State Bar Assn. v. 2d 194. statute un-
The that the was defendant’s contention constitutionally applied vague, in this facts if allegation case, that the litera- seems overlook the “reproduced ture was private his for his own on instruction any governmental use.” use not for We find no contention that merit defendant’s applied if statute was unconstitutional these facts. complaint allege was not sufficient to reproduced county expense. literature was There any allegation county was no pended. funds had been ex- alleged merely pre- The acts which were were liminary legal in nature had no effect unless and actually presented county until a was claim board. concerning allegations county 1,500 the use of en- velopes to mail the literature did an state offense. The plea of nolo contendere eliminated claim that acting capacity defendant was in his official or that the justified privileged. use judgment of the District Court is affirmed.
Affirmed.
Local Omaha Association
of Firefighters,
City
appellee,
Omaha,
Nebraska,
v.
municipal
appellant.
corporation,
Herbert M. Fitle and Dugan, appellee. for James P. Costello of & Costello J., Heard before Mc- Spencer, White, Boslaugh, C. JJ. and Cown, Newton, Clinton, Brodkey, J. McCown, appealed of has from an of the Omaha order
Court of fixed and determined Industrial Relations which wages employment employ- and certain conditions of for safety public department of of ees the fire division of the City pursuant 48-818, R. Omaha section R. S. brought by This action was 1943. Omaha Association Firefighters, bargaining agent Local No. for employees the firemen and involved.
This action was filed the Court of Industrial Rela- September disagreements 6, 1974, on tions resolve be- parties relative to for tween sion of the contract the fire divi- safety
public department City of Omaha year calendar for the 1975. Under section R. findings 1943, and orders R. S. of the Court of Indus- may wages, or trial Relations establish alter the scale of employment, labor, hours of or conditions of or one parties same. The more for both consist- largely expert testimony of statistical data ed and as to working in Omaha conditions of firemen
in other cities. Firefighters,
The Omaha hereinafter Association of essentially wages, testimony Union, based its called working firefighters in hours and seven conditions namely Dayton, cities, Cincinnati, Akron, and Toledo, Minneapolis Wichita, Ohio; Paul, Minnesota; St. popula- Kansas. These cities were thier selected because pop- 100,000 tion was within about above or below the they ulation Omaha, the Bureau were within region Región, Labor Statistics North Central which starting salary includes Omaha. The of firemen in Omaha percent was 20.9 below the arithmetic mean of the seven cities. concluded, however, The Union witness that max- salary longevity imum in Omaha with no needed to be percent average increased meet total sala- mean being paid testimony, ries then in the other cities. Other general wage however, established that the rates in Ohio significantly higher and Minnesota were than those *3 presence Nebraska because of the unionization and manufacturing, intensive and that to salaries em- ployees public in the sector were therefore also elevated City above those the of Omaha. City’s supported proposed wage
based a differential Lincoln, between Omaha and produce percent Nebraska, which would an 8.2 increase wages. proper There was evidence, however, that the previous years percent differential 8:2 was 9 than rather percent. city addition, In also used Des Moines City comparables. and Kansas levels, Those how- currently city ever, were lowér than those the conceded propier would be on the basis of a with Lincoln. accept party
The court did not the evidence of either analyzed instead but evidence and determined that percent starting-, salary a increase of 10.2 in the represented wage of firemen level prevalent. The court' also determined that it was more appropriate apply percent figure rank to each to the 10.2 attempt grade among to ar- than to firemen rather percentage figures ranks rive different for different grades. that there should The court also determined holiday pay change no in the of work; hours year; should be increased from longevity pay increased 96to 108hours year; per or- maximum from to $180 $360 city provide pay premiums dered to $5,000 coverage; of life insurance annual uniform increased the city per year; allowance and ordered the $20 $140 provide gear expense. turn-out at its own court re- pay, injured-on-duty pay, fused to alter call-out pay, overtime practices payment and current of tuition for fire technology grant classes. The court also refused request permit city property Union union activities on during granting pay time and for union officials dur- ing negotiations. Finally, the time of contract the court percentage allowed the union to deduct dues on a basis City rather than on a flat dollar amount. The of Omaha appealed. has contends in substance that the Court of Indus- comply
trial statutory require- Relations did not with the establishing ments in pay rates of and conditions of employment. The basic contention is that the method of comparisons selection od of the cities used for and the meth- establishing hypothetical labor market were improper. erroneous provides part:
Section R. R. S. “The findings may and order or orders establish or alter the wages, scale hours of employ- labor, or conditions of ment, or more making one of the same. In such findings and order or orders, the Court of Industrial pay Relations shall establish rates of conditions *4 employment comparable which are wage paid employment and conditions of maintained for or similar work of exhibiting the same . workers like or similar skills under the working same or similar- condi- establishing wage In tions. rates the court shall take presently compensation into consideration overall only by employees, having regard not recieved actually wages time for for time also to worked but holidays, including ex- other worked, vacations, received, cused all insurance time, and benefits employ- stability pensions, continuity and the enjoyed by employees.” portion of the ment That by Legislature statute remains after an amendment language comparisons in 1969 deleted which restricted adjoin- known, in and, “the same labor market area if ing market in addition areas within the and which state generally comparable relationship a bear by employment and conditions of maintained employers other in the same labor market area.” See by p. § Legislature, 1969, 407, 6, Laws virtue c. 1410. The amendment, removed all restrictions on the labor completely considered, market provisions restricting comparisons areas removed
to areas within Legislature recognized of Nebraska. that vir- State tually every city public employer and dif- is distinct every employer ferent from other material some respects. parties tacitly here is concede there directly comparable no other Nebraska to Omaha. necessity Prevalent rates must of be established by comparisons public employer nonlocal whenever the only employer specified type is the for work local labor market. Prevalant rates to be determined employ the Court of Industrial for firemen necessity of Omaha, Nebraska, ees must of be determined by wages paid with services reasonably prevalant wage similar labor markets. A rate to be determined the Court invariably must almost be determined after consideration of a combination of factors. In Crete Education Assn. Crete, v. Dist. of 752, School 193 Neb. 226 N. 2dW. accepted dictionary this court definition of the word “comparable” “having enough like characteristics or qualities appropriate.” to make also de- We *5 wage prevalent of rates now termined that the standard practice, acceptance. general occurrence, or It is of one in Indus- also that this the Court of must be noted case prevalent trial Relations did not determine the by any computation application or for firemen direct average or cities nor from ten mean rates from seven adjusted compared, weighed, Instead, it all cities. cities, in in the factors involved each which resulted comparable prevalent wages paid determination for reasonably in services tion similar labor markets. Under sec- reasonably selecting 48-818, 1943, R. R. cities in S. purpose comparison similar labor markets for the arriving comparable prevalent wage rates the question whether, fact, a matter is as the cities selected sufficiently enough are similar and have qualities comparison ap- like characteristics to make propriate. Those determinations here were within the expertise field of of the Court of Relations, Industrial were after a consideration and made of all compari- evidence, and the methods of selection and requirements son accord with the were of section 48- 818, R. R. S. 1943. also contends that the Court of Industrial
Relations did take into consideration the overall com- by pensation presently employees received in determin- ing prevalent wage by required section presented by In R. R. this connection S. 1943. the evidence only the rected directed rates and was not di- fringe plaintiff’s benefits. The inference that properly on these issues did not reflect overall compensation by unsupported is the record. The Court of specifically Industrial noted that it did not cost compensation package out the total because it was not necessary. it allowed and each of the other eco- fringe conformity nomic benefit issues were resolved in practice, any showing the absence of fringe economic benefits are out of line with prevalent, compensation package the total was a including composite practices which, and all of each prevalent. In estab- total, are lishing 48-818, R. R. S. rates under section required to take into is of Industrial Relations Court compensation the the the overall received consideration employees, In this benefits. case did into consideration take Court presently compensation em- received overall the ployees, *6 fringe required benefits, as R. R. S. 48-818, section 1943. is that Court of final contention the
The per- improperly imposed the 10.2 Relations Industrial the board each rank cent increase here across separate grade making instead of a determination or of percentage specific increase to be to the allowed party questioned rank or class of fireman. Neither each existing among the differentials ranks of firemen or grades. existing among ranks differentials within the circumstances the Court of Industrial Under such Rela- appropriate that it tions determined would be more percent figure apply grade the 10.2 to each rank of present that fireman in order the contract differentials by agreement past practice established would than be maintained rather distorted. evidence at previous parties, trial, as well as offers both dealt only an across-the-board increase and neither the with anyone challenged approach nor else ever such an until the case reached this court. action of the Court simply maintains the relation- ship grades that into between ranks and have been built arrangements. previous supported An issue not the labor presented and not Court of In- in the evidence the ordinarily Relations considered dustrial will be appeal. on this court judgment of Court of Industrial Relations and is affirmed. correct
Affirmed. Spencer, J., dissenting. provides of
Section R. R. S. the Court altering wages, Relations, in Industrial scale hours employment, labor, or conditions of shall establish pay employment rates of and conditions of which are comparable prevailing con- employment ditions maintained for same or sim- exhibiting ilar of workers or similar work like skills working similar under same or conditions. interpret permit I this statute,
As does not hypothetical of Industrial Court Relations establish prevalent wage market in order determine labor prevalent benefits. Even if the Court permitted Industrial were to to construct hypothetical market labor to reach its determination, hypothetical labor market must be based competent assumptions, spec- evidence and not on mere conjectures. ulations, or purposes arriving
I concede rates, the Court of may Industrial Relations select for cities that sufficiently enough are similar and have like character- qualities comparison appropriate. *7 make istics or While expertise these determinations are within the field of suggested by Court of Industrial the Relations, majority opinion, the I maintain that we have an here arbitrary and unreasonable abuse of that so-called ex- agree pertise. Nor do I that the court was able proper adjustment similarity. make a to achieve testimony union pur- based its poses Cincinnati, on seven cities: Toledo, Akron, and Dayton, Minneapolis Ohio; Paul, and St. Minnesota; and great Wichita, Kansas. All cities these have a deal maufacturing greater firms, more industrialization, and higher wage unionization, and therefore rates. The city’s expert, hand, on the other utilized for purposes City, Des and Kansas Lincoln, Moines, which were to Omaha because their similar economies were they They geographically draw close, and are
similar. supply. upon the same labor population is not di- city’s expert that testified density population is, rectly wages; be- that related to type found density of construction related to is cause employed the union of the cities in a and five density dis- population greater than Omaha. had proposed cities union’s Omaha and the tance between interchange unlikely an there would be it made density, population upon population, of laborers. Based geographic manufacturing, location, and unionization, City, supply, Moines, Lincoln, Des Kansas labor common and Omaha are similar compared properly be and can one another. if Court of Industrial obvious It should be accept union for is to selected Relations essentially permitting comparison purposes, it is wage in Nebraska. union to dictate the scale In- this case because Court of I would reverse permitted not to construct dustrial should prev- hypothetical market in order to labor determine fringe rates and benefits. How- alent ever, right, have this if it conceded to then even were hypothetical I the case because labor would reverse upon competent herein not based market assumptions, speculation, based but was mere conjecture. the case I do not believe
I also because would reverse establishing the Court fringe took into consideration overall rates and benefits compensation. requires consideration of not To do so actually only wages time for time worked but also for including holidays, vacations, worked, other ex- received, and all benefits insurance cused time pensions. Further, benefits and together. array must be considered The same of em- prevalent wage ployers should be determine used
445 in not done benefits. This this instance. J.,C.
White, this dissent. joins concurring. J., Boslaugh, join opinion I in the of the court believe
While order of Court of Industrial Relations was Spencer’s Judge discretion, its I share within concern regard concerning evidence in Cincin- Dayton, nati, Toledo, Akron, and Ohio. It seems to had me such little or no relevance issues this case. Nebraska, appellee,
State v. Shelby, Samuel Jr.,
appellant.
232 N. 2dW. August 7,
Filed 1975. No. 39812. Caporale, appellant.
Seb Attorney Douglas, General, and Melvin Paul L. K. appellee. Kammerlohr, for J., Spencer, Boslaugh, Mc-
Heard C. before White, JJ. Newton, Clinton, Brodkey, Cown, J.C. White, assignment of error in this case relates to the years period
sentencing of the defendant to period Complex, a and Correctional Nebraska Penal