ASSOCIATION OF FIREFIGHTERS LOCAL 831,
89; 337 N.W.2d 716
August 5, 1983, No. 82-379
1. Commission of Industrial Relations: Appeal
and Error. In our review of orders and decisions of the Commission 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.
2. Commission of Industrial Relations. The
Commission of Industrial Relations' 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 commission by the
Legislature in providing that proceedings shall conform to the code of civil
procedure applicable to District Courts, Neb. Rev. Stat. § 48-812 (Cum. Supp.
1982), by the decision of this court as to burden of proof and, for that matter,
by the procedures adopted and followed by the commission itself.
3. Trial: Evidence. It is within the sound
discretion of a District Court in a civil case to allow a party to withdraw its
rest and introduce additional evidence.
4. Judgments. It is not the function of an
order nunc pro tunc to change or revise a judgment or order, or to set aside a
judgment actually rendered, or to render an order different from the one
actually rendered, even though such order was not the order intended.
Appeal from the
Commission of Industrial Relations. Affirmed in part, and in part reversed.
William A. Harding of Nelson & Harding,
for appellant.Baskins & Rowlands, for appellee.
KRIVOSHA, C.J., BOSLAUGH, MCCOWN, WHITE,
HASTINGS, CAPORALE, and SHANAHAN, JJ.
City of North Platte
(City), appeals from proceedings had before the Commission of Industrial
Relations (CIR). The plaintiff, International Association of Firefighters Local
831 (Union), is the bargaining agent for employees of the fire department of the
, excluding the chief and battalion commanders who are nonbargaining members.
alleged that an industrial dispute existed between the City and the employees
of the fire department. The City in its answer admitted the truth of the
allegation. After a hearing the CIR entered an opinion and order dated April 27,
1982, establishing wages for firefighters, emergency unit officers, captains,
fire marshal aides, and a fire protection specialist. The CIR also altered the
conditions of employment by ordering the City to implement a system of dues
checkoff and to increase the clothing allowance. The City was also required to
pay interest "from the date such increased wages should have been paid to
the employees to the date of this Order."
argues that the CIR erred in (1) failing to grant the City's motion to dismiss
because the Union failed to present a prima facie case of noncomparability; (2)
reopening the hearing upon its own motion after the Union had rested and
receiving additional evidence offered by the Union, because it constituted a
second trial; (3) allowing the Union to use the City's expert witness to prove
its case in chief; (4) its selection of the Union's array for comparability
purposes; (5) its calculation of overall compensation; (6) rejecting the use of
the City's economic variable deflator evidence; (7) granting the Union's
application for an order nunc pro tunc; (8) ordering a union dues checkoff
procedure; (9) granting the Union's request for temporary relief, since the
postimpasse wage increase to nonunit employees did not constitute an unfair
labor practice; and (10) ordering the payment of interest as part of its order.
We affirm the order of the CIR in part and reverse in part.
In our review
of orders and decisions of the CIR, 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. General Drivers and
Helpers Union v. City of
, 204 Neb. 238, 281 N.W.2d 772 (1979); Metro. Tech. Com. Col. Ed. Assn. v. Metro.
Tech. Com. Col. Area, 203 Neb. 832, 281 N.W.2d 201 (1979).
filed a petition with the CIR on August 24, 1981, which set forth two causes of
action. In its first cause of action the
alleged that an industrial dispute existed between itself and the City in
regard to the negotiations of a new collective bargaining agreement. The Union
also alleged that the scale of wages and conditions of employment lacked
comparability to the prevalent scale maintained for the same or similar work of
workers exhibiting like or similar skills under the same or similar work
In its second
cause of action the Union alleged that on August 4, 1981, the City passed an
ordinance whereby all nonunion city employees, including nonunion employees
within the fire department, were granted a wage increase of 9.28 percent with
longevity pay and that this action of the City constituted an unfair labor
prayed for a temporary order prohibiting the City from implementing the wage
increase and requiring the City to grant all members of the bargaining unit the
9.28 percent wage increase and applicable longevity pay.
A hearing was
held on the
's request for temporary relief on September 3, 1981. The CIR's temporary order
did not enjoin the City from implementing the increases in wages and longevity
pay to nonunion city employees, but did grant interest at 12 percent in the
event its final order contained a wage increase or longevity pay for union
The City filed
an amended answer which incorporated the defenses from its first answer that the
petition failed to state a claim upon which relief could be granted and that the
CIR was without jurisdiction. In addition, the City alleged in its counterclaim
that wages and fringe benefits paid to bargaining unit personnel were above the
prevalent scale and should be decreased.
The trial of
this matter was commenced on October 23, 1981, during which counsel for the
Union presented a three-city array consisting of
, to enable the CIR to determine if
was below the prevalent wage scale. The Union originally intended to include
, in its array, but the two cities had not reached an agreement with their
respective fire departments at the time of trial. At the conclusion of the
Union's case the City moved to dismiss on the ground that the
's three-city array was insufficient to establish a prima facie case of wage
noncomparability. The CIR overruled the City's motion, and the City presented
evidence of economic variables with respect to the array presented by the
. After the presentation of its evidence the City renewed its motion to dismiss.
The CIR reserved ruling on the City's motion and recessed the hearing, to be
reopened only upon motion of the CIR.
On January 20,
moved to reopen the hearing to allow further testimony. The
alleged that both of the cities of Scottsbluff and Hastings had reached
agreement with their fire departments. The City filed a motion in opposition to
reopening the hearings. Both motions were overruled, but the CIR ordered, upon
its own motion, that the hearing be reopened, and allowed the introduction of
additional evidence. Both the City and
were granted leave to present additional evidence.
pretrial conference was held, at which time the
stated that it intended to call the City's expert witness at the hearing. The
City then filed a motion in opposition to the
calling the City's expert witness, which was overruled by the CIR on March 9,
was reopened on March 10, 1982. The Union added the cities of Scottsbluff and
to the array proposed before the hearing was recessed. The City proposed three
arrays. The first array was identical to the Union's and consisted of wage
comparisons between fire departments in
. The second array was a 200-mile radius around
which consisted of Scottsbluff,
, and Hays,
. The third array had a 225-mile radius consisting of Beatrice, Scottsbluff,
, Hays and
conclusion of the hearing the CIR, based upon the Union's five-city array,
ordered the wages for the union members increased, a dues checkoff system, an
increase in clothing allowance for shift personnel, and interest to be paid from
the date of the temporary order.
conclusion of the hearing the Union applied to the CIR for an order nunc pro
tunc to correct the order of the CIR which failed to consider a uniform
allowance for the fire marshal aide and fire protection specialist, who were not
shift personnel but who were hourly personnel. On May 18, 1982, the CIR granted
's request of an order nunc pro tunc.
We find it
unnecessary to address the City's first assignment of error in light of our
rulings regarding its other assignments of error. We therefore will consider
first whether the CIR erred in reopening the hearing upon its own motion after
both parties had rested, and allowing the introduction of additional evidence.
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.
In reversing the order and judgment of the CIR, we stated at 242, 281 N.W.2d at
775-76: "[T]he 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."
It is within
the sound discretion of a District Court in a civil case to allow a party to
withdraw its rest and introduce additional evidence. Meyer v. City of
, 184 Neb. 657, 171 N.W.2d 242 (1969). The instant case is easily distinguished
upon its facts from General Drivers and Helpers Union v. City of
, supra. The trial in General Drivers was completed when the CIR initiated and
conducted its own investigation into the facts in contravention of the
adversarial process. The CIR itself attempted to meet the association's burden
of proof in General Drivers, and thereby failed to conform to the code of civil
procedure. In the instant case the trial was merely recessed and was reopened
pursuant to the CIR's reservation of the right to do so on the record. Here, the
parties themselves gathered and introduced further evidence and the reopening of
the hearing was proper under the rules of procedure applicable in civil cases.
's witnesses gave comprehensive descriptions of all the jobs within the fire
department, stated wage information with reference to job descriptions, skills,
and requirements, and provided evidence of fringe benefits paid by unions within
the three-city array prior to the recess.
contends that the reopening of the hearing allowed the
to correct the deficiencies in its case and that such action was inherently
prejudicial. While we do not find it necessary to decide whether, in fact, the
Union's proof was deficient or whether a three-city array was suitable because
of our finding that the hearing was properly reopened, we note that the City was
at all times prior to and at the time of trial aware of the fact that the Union
intended to utilize a five-city array that had been used in prior CIR cases. The
only reason the
was not able to do so was a problem with Scottsbluff and Hastings not reaching
a collective bargaining agreement before trial. The City refused to reveal the
content of any of its arrays to the
during contract negotiations. During trial the City rested shortly after the
and did not introduce any of its arrays into evidence. The CIR reopened the
hearing when Hastings and Scottsbluff had reached bargaining agreements. The
City was not helpful in providing any information, and therefore the CIR did not
abuse its discretion when it determined that under the circumstances reopening
the case demonstrated itself to be indispensable to the merits and justice of
the cause. See Lewelling v. McElroy, 148 Neb. 309, 27 N.W.2d 268 (1947).
The City also
complains that the CIR erred in allowing the
to call the City's expert witness to testify. We do not agree. After the CIR
entered its order of February 5, 1982, which reopened the hearing, the Union
took the deposition of James Jensen, the City's expert witness in
. Testimony from that deposition indicated that Mr. Jensen possessed relevant
information regarding prevalent wages and fringe benefit rates. Accordingly, the
announced at the pretrial conference held on March 2, 1982, that it wished to
call the City's expert witness as a witness in its case in chief. After
objection by the City the CIR entered an order allowing the
to call the City's expert as its own witness. Neb. Rev. Stat. § 27-402
(Reissue 1979) states that "all relevant evidence is admissible"
except as excluded by federal or this state's statutes or Constitution.
Similarly, Neb. Rev. Stat. § 27-501 (Reissue 1979) states that no person has
the privilege to "(1) Refuse to be a witness; or (2) Refuse to disclose any
matter; or (3) Refuse to produce any object or writing; or (4) Prevent another
from being a witness or disclosing any matter or producing any object or
This court is
unaware of any
cases involving the compelling of an expert witness to testify, nor has either
party cited us to any such case. We therefore look to other jurisdictions and
note that there is a conflict of authority as to when and under what
circumstances an expert witness retained by one party may be compelled or will
be allowed to testify to a matter of opinion upon request of the opposing party.
See the annotation on the topic of compelling experts to testify in 77 A.L.R.2d
In a case very
similar to the facts in this case, the Supreme Court of South Dakota in State
Highway Commission v. Earl, 82 S.D. 139, 143 N.W.2d 88 (1966), reversed the
trial court ruling which had precluded the state from eliciting the opinion
testimony of the landowners' appraiser. In so holding, the
court stated at 142, 143 N.W.2d at 89: "It is generally held to be the
duty of every citizen to respond to a subpoena. No distinction, in this respect,
exists between an ordinary and an expert witness. Nor can the expert demand
compensation beyond ordinary witness fees as a condition precedent to his
attendance. 8 Wigmore, Evidence, § 2203, p. 140. Also, ordinary and expert
witnesses may be compelled to testify, unless privileged, to any relevant
factual matter within their knowledge, but it is beyond the duty of a witness to
make preliminary preparations, perform professional services, make scientific
tests, or listen to testimony in order to qualify or testify as an expert."
court conducted an overview of all the conflicting cases on the subject and, in
concluding that no privilege was available to prevent the testimony, stated:
"The purpose behind our attorney-client privilege is to encourage a client
to freely communicate with his attorney without fear of disclosure. Obviously
its protective mantle does not extend to an appraiser of real property. He is
not an attorney and the appraisal process of inspecting property, examining
public records, comparing sales, and applying knowledge, training and experience
in forming an opinion of value does not involve a confidential 'communication
made by the client'. The mere fact the expert may have communicated his opinion
of value to either the attorney or client does not make it a privileged
present action the expert appraisal witness employed by defendant was willing to
testify for the State which offered to pay his expert witness fees and expenses.
The fact he was previously employed by defendant to appraise the subject
property did not create a contractual or proprietary right in either defendant
or the expert to suppress or withhold from evidence this expert's formed
opinion. He should have been allowed to testify under the circumstances. To deny
it constituted reversible error."
at 147-48, 143 N.W.2d at 92-93.
In the instant
case Mr. Jensen was not subpoenaed to testify at trial but appeared voluntarily.
However, even if he had been subpoenaed, he was not called upon to make any
additional investigation and was merely asked to express opinions he had already
formed prior to the trial.
performs a truth-seeking function in settling controversies between the parties.
It runs contrary to that function to suggest that unfavorable evidence in the
form of an expert's opinion may be kept from either party in the interest of
justice and to prevent prejudice.
The City next
argues that the CIR erred in selecting the
's array for comparability purposes. From the evidence the CIR determined that a
fivecity array consisting of
, and Scottsbluff "is an appropriate array for the determination of this
matter." The record contains substantial evidence that the units selected
were sufficiently similar and had enough like characteristics or qualities to
make comparison appropriate. See Fraternal Order of Police v.
, 205 Neb. 682, 289 N.W.2d 535 (1980). The contested five-city array was one of
three selected for presentation to the CIR by the City. It is difficult for this
court to determine how error can be assigned by the City when one of its
proffered arrays was selected by the CIR for the determination of prevalent
conditions. All of the experts at trial testified that the five-city array was
sufficient for purposes of comparison, and we find no abuse of discretion.
The City also
maintains that the CIR erred in its calculation of overall compensation because
the evidence demonstrated that the City was above the prevalent scale in the
payment of fringe benefits. We do not find this to be a correct reflection of
the evidence with regard to the five-city array. Mr. Jensen computed a cash-cost
benefit analysis of fringe benefits for the five-city array for the firefighter
position. His figures showed that it would take an increase in fringe benefits
at the midpoint of $225.70 per year to reach comparability.
considered each fringe benefit separately from the evidence introduced by the
parties at trial. While the CIR found that some fringe benefits offered by
, such as life insurance premiums and floating holidays, were superior to those
of other cities, it found some fringe benefits, such as the uniform allowance,
were inferior. Therefore, the CIR ordered the City to increase the uniform
allowance by $120 which was below the prevalent scale. We find the action of the
CIR in this regard to be supported by substantial evidence and not arbitrary or
claims that the CIR erred in rejecting the use of economic variable deflator
evidence offered by the City. In its decision the CIR stated that it was
rejecting the evidence because the City did not establish any connection between
median family income or per capita income and firefighter wages.
Sherman, a professor of finance at
, testified that all economic variables, such as wage levels, were tied up to
either median family income or per capita income. Yet, on the City's exhibit 39,
the city of
had the lowest median family income and the highest per capita income of the
five-city array. We therefore agree with the CIR that no direct correlation was
shown between per capita or median family income and firefighter wages.
The City next
contends that the CIR erred in granting the
's application for an order nunc pro tunc. We agree.
hearing had been concluded the
applied for an order nunc pro tunc to correct the order of the CIR because it
did not increase the uniform allowance for hourly personnel.
In the recent
case of Continental Oil Co. v. Harris, 214 Neb. 422, 424, 333 N.W.2d 921, 923 (1983), we stated that "the office
of an order nunc pro tunc is to correct a record which has been made so that it
will truly record the action had, which through inadvertence or mistake was not
truly recorded. It is not the function of an order nunc pro tunc to change or
revise a judgment or order, or to set aside a judgment actually rendered, or to
render an order different from the one actually rendered, even though such order
was not the order intended. An order nunc pro tunc cannot be used to enlarge the
judgment as originally rendered or to change the rights fixed by it." The
order nunc pro tunc enlarged the rights fixed by the CIR's order of April 27,
1982, by granting a uniform allowance to hourly employees of the fire department
where none had previously been provided for. This portion of the order is
The City next
contends that the CIR erred in ordering a mandatory dues checkoff. In State ex
rel. Council #32 v. City of Hastings, 214 neb. 20, 332 N.W.2d 661 (1983), we stated that there is no question that
automatic dues checkoffs are the proper subject of collective bargaining. Here,
the parties reached an impasse in negotiations. The CIR properly assumed
jurisdiction of the industrial dispute, and its order of dues checkoff was
within its statutory authority.
The City also
argues that the CIR erred in granting the
's request for temporary relief, since the postimpasse wage increase to nonunit
employees did not constitute an unfair labor practice.
constitutes one of the more flagrant examples of bad faith bargaining by a city
with its employees.
Stat. § 48-819.01 (Cum. Supp. 1982) provides that when a party to an industrial
dispute does an act which interferes with, restrains, or coerces employees in
the exercise of their rights under Neb. Rev. Stat. § 48-837 (Reissue 1978), the
CIR has authority to enter "such temporary or permanent orders as the
commission may find necessary to provide adequate remedies to the injured party
or parties, to effectuate the public policy enunciated in section 48-802, and to
resolve the dispute."
48-819.01 was enacted as a result of our decision in University Police Officers
Union v. University of Nebraska, 203 Neb. 4, 17-18, 277 N.W.2d 529, 537 (1979), where we held that the CIR had no
authority "to make findings with regard to unfair labor practices or direct
a public employer to take any more action than is necessary to preserve and
protect the status of the parties' property and public interest involved pending
final determination of the issues."
reveals that the City was dilatory throughout negotiations, while the
made a good faith effort to bargain. The City refused to show the Union any of
its comparability pay figures, and while negotiations were in progress the City
enacted a 9.28-percent across-the-board wage increase to nonunion employees of
the type disfavored by this court in AFSCME Local 2088 v. County of Douglas,
208 Neb. 511, 304 N.W.2d 368 (1981), supp. op. 209 Neb. 597, 309 N.W.2d 65 (1981). The pay raise was given to nonunion
employees of the fire department both above and below the ranks of the union
members but narrowly avoided raising the salary in the same classification.
The City was
well aware of the impact of its actions, as evidenced by the answer of Richard
city administrator, to questions propounded to him at trial. "Q. Now, were
there discussions during that meeting especially from Councilman McGuire who was
on the City negotiating team for this year attempting to arrive at an agreement
with the fire union regarding the possibility that the City could be subject to
an unfair labor practice lawsuit if the City gave nonunion employees an
across-the-board 9.28 percent increase? A. Yes, I believe there was. Q. And is
it fair to say that Councilman McGuire brought it to the whole Council's
attention that he had been advised by the City's attorney that they were leaving
themselves wide open for an unfair labor practice lawsuit if the
across-the-board increase was given to nonunion City employees, in the general
terms as what you said? A. Yes. Q. And notwithstanding that discussion and the
apprehension by Councilman McGuire, the City Council did go ahead and grant the
9.28 across-the-board increase for nonunion employees plus longevity pay and
gave the Fire Department union no increase? A. Yes."
The City was
aware of the fact that members of the
were at least entitled to an 8-percent increase in salary based on an informal
telephone survey of comparability pay. The actions of the City constitute an
attempt to force the
to accept less than they were entitled to because they were members of a
bargaining unit. The award of interest was therefore highly appropriate in this
instance and within the statutory authority of the CIR under § 48-819.01.
We find the
's assignments on cross-appeal to be without merit.
The order of
the CIR is affirmed in part and reversed in part.
AFFIRMED IN PART, AND IN PART REVERSED.