*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, 343 N.W.2d 735 January Filed 1984. No. 82-829. *2 Harding Harding, ap-

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, 280 N.W.2d 892 array tantly, considered one examines when of discretion unable to find abuse the on eight one is part showing a the CIR. Absent the CIR did counties considered Nebraska say present array, we cannot a suitable arbitrary refusing every in consider CIR was county, located, which or wherever other also additional comparable. requirement might be every regard con- in is not consider CIR ceivable this only comparable a suffi- but consider representative array so the commission cient can determine whether the paid or the bene- comparable. In its or- fits conferred are 48-818. specifically found: “Based der array presented, determine that an con- evidence sisting we Adams, Buffalo, of the Nebraska counties Dodge, Dawson, Hall, Madison, Platte, and Scotts appropriate array Bluff an the determination complied fully array of this standards v. This with the matter.” stated us Fraternal Order Police Adams, 682, 685, (1980), selecting 535, 537 em- wherein we said: “In ployment reasonably similar labor units markets purpose comparison as to for other of rates and question benefits, whether, as matter comparison fact, the units selected for are suf- ficiently enough similar and have like character- qualities comparison appropriate.” istics make We that the that the CIR correct in its conclusion believe

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. 304 N.W.2d 368 (1981); Helpers City General Drivers and Union v. (1979); Point, West 281 N.W.2d 772 Platte, IAFF Local 831 v. No. (1983)), N.W.2d 716 we are unable to find error in the regard. Assign- action taken the CIR in this ments 6 and 7 must likewise be overruled. final of error is that the failing properly adjust wages

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, 205 N.W.2d 110 As it should be au permitted operate thorized and as adminis agency, trative authorized to consider all of the evi brought by employer brought dence, whether employee. purpose of the act to at tempt adjust disputes public labor in the sector as quickly possible engage meaningless as and not to legal example Here, technicalities. we have an employees attempting adjust wages in 1984 still part earned 1981because of a belief on the employer employee “prima that the failed to make purpose facie I case.” cannot believe that the public public law, matter, sector or the for that procedure; benefited such and if the act does not does, make that as clear Ias believe it it should be portion made clear. I would have overruled that Helpers General Drivers and Union v. West may petition Point which holds that a be dismissed employees’ they at the close of the if case prima failed to make a facie case. joins J., in this concurrence.

Grant,