Prof'l Firefighters Ass'n of Omaha v. City of Omaha

860 N.W.2d 137

Professional Firefighters Association of Omaha, Local 385, AFL–CIO CLC, et al., appellants

v.City of Omaha, Nebraska, a municipal corporation, appellee.

Nos. S–14–230

S–14–375

S–14–627

Supreme Court of Nebraska.

Filed March 6, 2015

John E. Corrigan, of Dowd, Howard & Corrigan, L.L.C., Omaha, for appellants.

Bernard J. in den Bosch, Deputy Omaha City Attorney, for appellee.

Heavican, C.J., Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

Syllabus by the Court

1. Summary Judgment: Appeal and Error.An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.

2. Statutes: Judgments: Appeal and Error.The meaning and interpretation of a statute are questions of law. An appellate court independently reviews questions of law decided by a lower court.

3. Commission of Industrial Relations: Final Orders: Contracts.When Nebraska's Commission of Industrial Relations enters a final order setting wages, hours, and terms and conditions of employment which are binding on the employer, the order is, in every sense, a contract between the parties.

4. Municipal Corporations: Public Officers and Employees: Ordinances.City ordinances related to how city employees should be paid are agreements by the city to follow the ordinances and pay employees at the relevant rates.

5. Actions: Employer and Employee: Wages: Attorney Fees: Case Disapproved: Appeal and Error.To the extent Brockley v. Lozier Corp.,241 Neb. 449, 488 N.W.2d 556 (1992), authorizes two attorney fee awards under the Nebraska Wage Payment and Collection Act to an employee who is unsuccessful at the trial court level but successful on appeal, it is disapproved.

6. Employer and Employee: Employment Contracts: Wages: Words and Phrases.Wages under the Nebraska Wage Payment and Collection Act include the compensation and benefits that an employer actually pays for labor or services, including amounts which are not paid directly to employees.

Opinion

Stephan, J.

The Nebraska Wage Payment and Collection Act (the Act)¹ defines “[w]ages” as “compensation for labor or services rendered by an employee, including fringe benefits, when previously agreed to and conditions stipulated have been met by the employee.”² In these consolidated cases, firefighters employed by the City of Omaha (the City) and represented by a union filed suit under the Act for wages they claimed were due under an order entered by Nebraska's Commission of Industrial Relations (CIR). The principal issue in these appeals is whether the claimed wages were “agreed to” as of the date of the CIR order or, rather, as of the later date when the parties' conflicting interpretations of that order were resolved by the district court. We conclude the wages were agreed to on the date of the final CIR order and reverse, and remand with directions.

I. BACKGROUND

Appellants are (1) the Professional Firefighters Association of Omaha, Local 385, AFL–CIO CLC, the recognized exclusive

collective bargaining representative for a unit of Omaha fire department employees; (2) Steve LeClair, the president of the association; and (3) individual employees covered by the bargaining unit represented by Local 385. They will be collectively referred to herein as “the firefighters.”

On or about December 29, 2007, a collective bargaining agreement between the firefighters and the City expired. The parties were unable to reach a new agreement and therefore litigated a wage case before the CIR. The CIR issued its findings and order on December 23, 2008, and then, after the parties sought clarification, issued a final order in the case on February 18, 2009. This order set the minimum and maximum pay rate for the period January 1 through December 31, 2008. Neither party appealed from the CIR orders.

The CIR's final order gave the City 90 days to pay in one lump sum all adjustments and compensation resulting from the order. On May 6, 2009, the firefighters notified the City that they disagreed with how the City was implementing the CIR orders in various respects, including that the City was not complying with Omaha Mun. Code, ch. 23, art. III, div. 3, § 23–148 (2001). That section provides:

When a uniformed member of the fire or police department is paid at a rate which exceeds that at which such member's senior in rank, grade or class is being paid, such senior officer or officers shall be increased to the next higher step within the assigned pay range irrespective of the date of last increase. The effective date of such increase shall become the anniversary date for pay purposes each year thereafter until promoted or demoted. This provision shall not apply when a member has been reduced in pay, grade or class for disciplinary reasons or when he has not been granted a pay increase due to unsatisfactory performance; neither shall it apply when such condition is the result of [the] use of the two-step salary increase provision.

After the CIR orders, the City paid certain firefighters who were more senior in rank, grade, or class less money than lower ranking firefighters. The City did so based on its understanding that because the CIR orders allowed for overlap

between the ranks in terms of pay, the orders preempted § 23–148. In addition, the City interpreted the CIR orders as not requiring either “hazmat” certification pay for certain firefighters or specialty shift pay premiums for paramedics.

On June 3, 2009, the firefighters filed two declaratory judgment actions in the district court for Douglas County, seeking declarations that the City was misinterpreting the terms of the CIR orders. The actions included an allegation that the City was not properly paying wages due. On June 23, while the declaratory judgments were pending, the firefighters also filed a wage claim with the City's comptroller.³ This claim alleged the City owed additional wages to certain firefighters based on the 2008 and 2009 CIR orders and § 23–148. It asserted that if the claim was disallowed, the firefighters would file suit against the City under the Act.

On January 13, 2012, the district court resolved the declaratory judgment actions and determined the City owed additional wages because it had failed to comply with the CIR orders and § 23–148. On March 13, the City denied the wage claim the firefighters had previously filed. On April 10, the firefighters brought this suit in district court under the Act. They allege the total wages in dispute amount to $1,515,718.20.

The parties agreed there were no genuine issues of material fact and filed cross-motions for summary judgment. The district court granted summary judgment in favor of the City. It reasoned that until it made its decisions in the declaratory judgment actions, “there was uncertainty as to what the rights and responsibilities of the parties were” with respect to wages due and that thus, until that time, no wages were “previously agreed to” under the Act, so the firefighter's 2009 claim was not ripe. In a subsequent order in response to a motion for reconsideration filed by the firefighters, the district court transcribed the judgments it had entered in the declaratory judgment actions, but again held that the firefighters had no valid claim under the Act. The firefighters filed three separately docketed notices of appeal, which were consolidated. We granted the firefighters' petition to bypass the Nebraska Court of Appeals.

II. ASSIGNMENTS OF ERROR

The firefighters assign that the district court erred when it (1) found their claim was not covered by the Act and (2) denied them attorney fees authorized by § 48–1231.

III. STANDARD OF REVIEW

An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.⁴

The meaning and interpretation of a statute are questions of law. An appellate court independently reviews questions of law decided by a lower court.⁵

IV. ANALYSIS

In these appeals, the only issues before us are whether the firefighters had a valid claim under the Act and, if so, whether they should receive attorney fees under the Act. We are aware that the Act has been amended since the expiration of the collective bargaining agreement and the issuance of the CIR and district court orders. However, there are no substantive revisions and, thus, we will refer to the current version.

1. Agreement on Wages

The firefighters sought recovery from the City under a provision of the Act which states:

An employee having a claim for wages which are not paid within thirty days of the regular payday designated or agreed upon may institute suit for such unpaid wages in the proper court. If an employee establishes a claim and secures judgment on the claim, such employee shall be entitled to recover (a) the full amount of the judgment and all costs of such suit and (b) if such employee has employed an attorney in the case, an amount for attorney's fees assessed by the court, which fees shall not be less than twenty-five percent of the unpaid wages. If the cause is taken to an appellate court and the plaintiff recovers a judgment, the appellate court shall tax as costs in the action, to be paid to the plaintiff, an additional amount for attorney's fees in such appellate court, which fees shall not be less than twenty-five percent of the unpaid wages.⁶

The term “wages” is defined by the Act as “compensation for labor or services rendered by an employee, including fringe benefits, when previously agreed to and conditions stipulated have been met by the employee, whether the amount is determined on a time, task, fee, commission, or other basis.”⁷

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