Filed July 17, 2001, No. A-00-132

Appeal from the Nebraska Commission of Industrial Relations. Affirmed

John P. Fahey, of Law Office of John P. Fahey, P.C., for appellant.

Jeff C. Miller and Duncan A. Young, of Young & White, for appellee.

Irwin, Chief Judge, and Sievers and Inbody, Judges.

Sievers, Judge.

      This appeal involves an industrial dispute between the City of Elkhorn, Nebraska (City), and Elkhorn Professional Firefighters Association Local 3150 ( Union ). The Union contends that the City's action in granting pay increases to other employee but not to firefighters during the time that a vote to unionize was being taken was an illegal adverse action. The Union also contends that the City, through its counsel, campaigned to persuade paid members of the Elkhorn Fire Department to vote against the Union in the upcoming certification election. The Union's petition before the Nebraska Commission of Industrial Relations (CIR) sought an order that the City stop any retaliation and harassment of the Union and that the City provide pay increases to the members of the Union in the same manner as the City provided pay increases to all City employees who were not engaged in an organizational union campaign.

      In a detailed written opinion, the CIR rejected all of the Union 's claims and dismissed the petition. The Union now appeals to this court.


      In the spring of 1997, the Elkhorn firefighters formed the Union , but did not seek official certification with the CIR. On approximately May 1, 1999, the City changed the firefighters' hours from a 42-hour workweek to a 56-hour workweek with no increase in compensation. The Union contends that the change in hours was actually a reduction in pay for a beginning firefighter of $2.35 per hour and for a top wage-step firefighter, a reduction of $3.18 per hour. Shortly thereafter, the Union filed its representation petition with the CIR seeking certified collective bargaining unit status. An election was ordered, and ballots were to be mailed to the eligible employees on August 31, 1999. The ballots were to be returned postmarked no later than September 7 and to be opened and tallied by the CIR on September 14.

      The Elkhorn fire chief instructed all firefighters to attend a meeting on August 30, 1999, where the City's attorney in the representation case, Duncan Young, was introduced.

      The City contends that Young's purpose in addressing the firefighters was to encourage them to make their opinions known in the election, and to explain the process and procedures related to union organization and collective bargaining. The City contends that neither Young nor anyone else campaigned against the organization effort. The Union presented testimony before the CIR that Young announced that he was campaigning on the City's behalf against the Union ; that if a bargaining unit was formed, union members would lose their rights; and that there could be no increase or decrease of wages while they were at the bargaining table, which could take up to 2 years. This witness, Darren Garrean, the president of the Union , also testified that he asked Young about the "step raises" (the process of automatic wage increases in six steps as a City employee remains employed over time). According to Garrean, Young reported that such raises would constitute a pay increase and that he did not think that the firefighters would get those. Thereafter, Garrean wrote to the City administrator, Donald B. Eikmeier, asking whether the firefighters would be getting "their scheduled pay increases pursuant to the City Ordinances." Garrean testified that he never received a response.

      The City is required by its ordinances to conduct a public hearing and approve its annual budget prior to September 20 of each year. In that process, the City council must authorize the payment of salaries and wages to City employees for each fiscal year by approving and passing a pay ordinance which designates wages and salaries for that fiscal year, which is October 1 to September 30. Historically, the City has conducted its budget hearing and approval in the same month as when pay is set for the coming fiscal year.

      Possible pay increases other than step increases are evaluated and recommended to the City council by the City administrator, who considers, according to the parties' stipulation, a number of factors, such as the economic conditions of the City and the availability of labor, rather than following any mathematical formula.

      At the regular meeting of the City council on September 14, 1999, the budget hearing was conducted and a budget was approved by City ordinance No. 407 for the 1999-2000 fiscal year. The City also passed ordinance No. 408 covering wages and salaries for City employees for the same fiscal year. The City did not know the results of the firefighters' certification election when these ordinances were adopted. Ordinance No. 408 continued and maintained the wages of the firefighters without increase or decrease. Eikmeier testified that at the time the salary matters were being formulated and recommended to the City council, the firefighters had requested organization and thus the City "neither wanted to offer a change that would be treated as a positive inducement or a negative action against the [firefighters]." Accordingly, Eikmeier recommended to the City council that the status quo for firefighters' compensation be maintained subject to negotiations if the firefighters voted in favor of certification.

      Ordinance No. 408 did not provide for any across-the-board percentage increase or cost-of-living increase for all City employees. The wage increases ranged from 19 percent to less than 1 percent. By way of illustration, ordinance No. 408 contained a 3-percent increase for the police chief, a 19-percent increase for the fire chief (who was outside the union), a 3.5-percent increase for the building inspector, a 7.33-percent increase for a step one police officer, and a 10.03-percent increase for a step six police officer. A waterworks plant operator at step one received a 1.77-percent increase and a 2.93-percent increase at step six. A step one secretary/receptionist received a 6-percent increase and a 3.21-percent increase at step six.

      On September 15, 1999, the City received the report of election showing that the 11 ballots received were all in favor of the Union . On September 24, a certification order was issued making the Union the exclusive bargaining agent for all paid firefighters/emergency medical technicians and firefighters/paramedics below the rank of assistant volunteer chief. All unpaid volunteer firefighters were excluded. Additionally, on September 28, the City council held a special meeting at which it passed an amended fiscal year pay ordinance No. 411, which provided that wages for paid firefighters were the same and would continue until they were established and approved by the collective bargaining process. At this same meeting, the City appointed its bargaining committee, but at no time prior to the trial of this matter before the CIR on November 9 had the City received a request from the Union to meet, confer, or bargain.

      Under the City's pay ordinances, a system of six steps has existed which progresses from the minimum to the maximum hourly rate for the various positions held by City employees. This step system was in effect for City firefighters in the City's 1998-99 fiscal year pay ordinance, and it was carried over without change into ordinance No. 408 and subsequently into ordinance No. 411. According to Eikmeier, the paid firefighters would receive step increases during the 1999-2000 fiscal year pursuant to the step system until the paid firefighters' wages were otherwise established and approved through the collective bargaining process. Eikmeier further testified that the City's procedures were such that paid firefighters who were eligible for a step increase starting in November 1999 and beyond would receive that increase and that no paid firefighter had been denied a step increase. It was stipulated that Eikmeier, when recommending salaries and wages, considered a number of factors, including, but not limited to, the needs of the City; the funds available to the City; the availability of labor; the performance of duties; the City's market relationship to other public employers; the City's market relationship to other cities; the increase or decrease of City costs; the economic conditions of the City, state, and nation; the general wage conditions of the employment positions; and the City's attempts in recruiting people or positions. Eikmeier admitted that he did not use those criteria in the consideration of whether firefighters would receive wages, because other than step increases, the status quo was maintained as "we did not want to be put into a position of either taking away from or offering something unilaterally that would taint their decision" concerning the certification election.

      CIR Decision.

      Because the written decision of the CIR is lengthy, we will distill it considerably for our purposes. The CIR first considered whether there was adverse action by the City against the organizing firefighters, which is prohibited under Neb. Rev. Stat. § 48-811 (Reissue 1998). That statute requires that there be (1) adverse action which occurs (2) because of a petition filing by the firefighters. The CIR found both elements missing, reasoning that the City did not withhold a "regularly scheduled, sum-certain raise," and therefore the firefighters did not have a reasonable expectation of a raise of a certain amount or percentage and thus no legal entitlement thereto existed. The CIR also found that the City's decision not to increase the firefighters' wages was not because of the petition filing, but because the City wanted to avoid influencing the election.

      The CIR then took up the firefighters' claim that the City had refused to bargain in violation of Neb. Rev. Stat. § 48-824(2)(e) (Reissue 1998). The CIR's initial premise was that in order to be guilty of a refusal to bargain, a duty to bargain must exist. The CIR first found that there was no violation under Neb. Rev. Stat. § 48-816(5) (Reissue 1998), since the firefighters never asked the City to bargain. Nonetheless, the CIR analyzed the question of whether under § 48-824(1) and (2)(e), the parties had a duty to bargain over changes to terms and conditions of employment because such terms and conditions were mandatory topics of bargaining and because an employer could not unilaterally change the status quo. The CIR found no such unilateral change because the City's refusal to give the firefighters a raise during the organizational process had not changed a condition of their employment in violation of § 48-824(2)(e). The CIR reasoned that the firefighters' argument was based upon "the faulty premise that the wage reviews were a condition of the firefighters' employment." The CIR found that in order for wage review to become a condition of employment, it must be fixed as to frequency and criteria. The CIR found that while wage reviews were fixed to occur annually in September, the criteria for making adjustments are not fixed, but, rather, are broad and subjective. The CIR additionally cited the lack of evidence that the firefighters received a wage review every year, or even in the year preceding this litigation.

      The CIR then addressed the proposition that where a government unit has determined the appropriate wage for its employees, it may not withhold that wage from bargaining unit members who are involved in an industrial dispute. The CIR found that the City had not given nonorganized employees across-the-board, cost-of-living increases and that the increases which were given varied greatly in percentages and were based largely on the City's discretion.

      The CIR concluded that upon the record presented, the firefighters had not proved that the City's act of granting various discretionary pay raises to employees not involved in the representation election while maintaining the pay rates of the firefighters, other than step increases, did not constitute a violation of § 48-811, did not constitute a refusal to bargain, and did not otherwise violate Nebraska's public sector labor law. The CIR concluded:

      Although Respondent [City] apparently stood ready and willing to set the firefighters' pay through good-faith bargaining, Petitioner [firefighters] filed this case rather than seeking bargaining from Respondent. Ruling in Petitioner's favor in this case would diminish the importance and effectiveness of collective bargaining. . . .

      Because Petitioner has never requested bargaining from Respondent, and because no mandatory subject of bargaining has been unilaterally altered in this case, there has been no refusal to bargain.


      In its assignments of error, the Union alleges that the CIR erred in 10 different ways. These alleged errors do not involve the procedure or evidence, but relate in all respects to the reasoning process used by the CIR. Therefore, rather than repeating those 10 specifications, we use the 4 principal lines of attack in the Union's brief upon the decision of the CIR: (1) The CIR's finding of no union animus and the finding that current wages were maintained to avoid influencing the results of the election are not supported by the record; (2) the CIR has imposed a new requirement on employees alleging an adverse action by threat or harassment under § 48-811 by requiring a showing of a reasonable expectation of a raise which would be "regularly scheduled" and "sum-certain"; (3) the CIR erred in finding that there was no duty to bargain; and (4) the Union's fourth argument apparently is that the City did not need to maintain the status quo by not granting a raise so as to avoid impacting the election because it was incumbent upon the City to advise the firefighters of the pending wage review and give them "their choice as to whether they wanted the review or whether they wanted to wait for bargaining." Brief for appellant at 54.


      The standard of review by an appellate court when reviewing a decision of the CIR is whether the CIR's order is supported by substantial evidence, whether the CIR acted within the scope of its statutory authority, and whether its action was arbitrary, capricious, or unreasonable. Hall Cty. Pub. Defenders v. County of Hall , 253 Neb. 763, 571 N.W.2d 789 (1998). When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.

      In an appeal from a CIR decision concerning prohibited labor practices, an appellate court will affirm a factual finding if, considering the whole record, a trier of fact could reasonably conclude that the finding is supported by a preponderance of the competent evidence. Nebraska Pub. Emp. v. Otoe Cty., 257 Neb. 50, 595 N.W.2d 237 (1999). We also consider the fact that the CIR, sitting as the trier of fact, saw and heard the witnesses and observed their demeanor while testifying, and we give weight to the CIR's judgment as to credibility. See id.


      Did City Take "Adverse Action" Against Its Firefighters?

      Section 48-811 provides that no adverse action by threat or harassment shall be taken against any employee because of any petition filing with the CIR and that the employment status of such employee shall not be altered in any way pending disposition of the petition by the CIR. This section is the source of the body of law which has grown up around the concept of adverse action in labor relations.

      When we reduce the claim of adverse action here to its simplest expression, it is that the City gave wage increases to other City employees, but not to the firefighters, who were in the process of conducting an election after the filing of an organizational petition with the CIR. The Union "takes issue with the Commission's finding which held that there was no anti-union animus at work here." Brief for appellant at 24. The Union then recites from the CIR's order with respect to the evidence relied upon for that conclusion and then asserts that "[t]he Commission ignores the mountains of evidence to the contrary . . . ." Brief for appellant at 26. We, of course, are not the fact finder; instead, our task is to determine whether the CIR's order is supported by substantial evidence.

      But, we first note that there is no claim that the CIR acted outside the scope of its statutory authority and that we need not discuss that aspect of the standard of review. The Union contends that the CIR's findings are arbitrary, capricious, and unreasonable, but it seems self-evident that if there is substantial evidence to support its findings, its actions are not arbitrary, capricious, or unreasonable, assuming proper application of the law.

      The Union contends that antiunion animus is shown by the City's refusal to recognize the Union . However, prior to the petition for recognition, the Union was simply an informal group and the City was not obligated under any law to recognize such a group. The Union next contends that the increase in hours worked without a corresponding increase in hourly rate constitutes a pay reduction effective May 1, 1999. While there is precious little evidence in the record to explain the reason behind this change, it is obviously a decrease in wages. After all, when one is asked to work more hours without an increase in pay, one is being paid less for the work he or she performs. However, the record shows that this wage decrease was undertaken May 1, whereas the formal request for organization was not filed until June 1, so the necessary temporal connection is missing for a finding of adverse action. Moreover, we are left to speculate about the City's motivation for changing the firefighters' hours, as the record is silent on this point unless one were to infer that antiunion animus is the only possible reason for the change in hours worked. But, that obviously is not a logical or required inference. Therefore, we conclude that the Union failed to prove that the change in hours was because of antiunion animus.

      The second claim of antiunion animus deals with the meeting of the firefighters with the City's attorney, Young, on August 30, 1999. This meeting occurred pursuant to the directions of the mayor and City administrator. As recounted in our factual statement, there is a dispute over what Young said and whether he was simply passing along information and encouraging firefighters to participate in the process or whether he was campaigning against the Union .

      The Union 's evidence on this matter came from Garrean's testimony. The CIR's decision finds that on cross-examination, Garrean admitted that Young stated that his purpose at the meeting was to encourage everyone to vote, that there would be no retaliation, and that he was present to answer any questions. Our reading of Garrean's cross-examination fails to reveal this blanket retraction of all Garrean's direct testimony about Young's allegedly antiunion statements. We find that Garrean did admit that Young said that he "was there [to] make sure that you all voted and exercised your rights as individuals because this is your election." He also admitted that Young said that retaliation was forbidden by law and that they did not need to worry about that. And, finally, Garrean admitted that Young said that he was there to answer questions, but Garrean strongly maintained in his cross-examination that Young had said he was there to campaign against the Union . The City administrator, Eikmeier, testified that Young's instructions were to answer questions, encourage people to vote, and not campaign against the Union . Young tried the case before the CIR and obviously did not testify, nor did anyone else who was present at the August 30, 1999, meeting. While we are not willing to say that Garrean's version of what Young said at the meeting has been discredited or should be rejected, even accepting Garrean's testimony, we do not find any "threat" or "harassment" from Young such as is prohibited by § 48-811 after the filing of a petition with the CIR.

      The Union contends that the threat of not getting the step increases allegedly made by Young at the August 30, 1999, meeting, as testified to by Garrean, proves adverse action. While we will address that contention in more detail later, we can state now that we reject this contention because the undisputed evidence is that step increases would be given, and in fact, were given. We now turn to the question of whether there was adverse action because the firefighters were excluded from any pay raises, other than step increases, in the 1999-2000 budget.

      Failure to Grant Pay Raises as Adverse Action.

      The firefighters contend that the CIR's decision departs "from a long line of Supreme Court and C.I.R. decisions which held that government, having determined the appropriate wage for its employees, may not withhold that wage from bargaining unit members who are involved in industrial disputes." Brief for appellant at 30. We have already detailed that the City "froze" the firefighters' wages other than step increases, while other City employees received increases.

      The firefighters rely upon AFSCME Local 2088 v. County of Douglas, 208 Neb. 511, 304 N.W.2d 368 (1981), where the court considered an appeal from the CIR of its order fixing compensation to be paid to certain employees working for Douglas County Social Service Administration. Acknowledging that the issue was not raised by either party, the Supreme Court stated that a further matter required comment. The court's premise was expressed as follows: "[T]he record discloses that Douglas County may have granted to county employees not members of AFSCME a raise but withheld the same to members of AFSCME because of the existence of a labor dispute. We believe such practice is both improper and illegal." Id. at 525, 304 N.W.2d at 376. The court then engaged in a philosophical discussion about the matter of labor relations between public employees and public employers, stating the fundamental premise that public service is too vital to allow interruptions of service while the employer and employee test the merits of their claim "by trial by battle." Id. Thus, public employment labor disputes are routed to the CIR with the result that judicial mandate replaces economic power as the determinant of wages. Consequently, the court in AFSCME Local 2088 said that employees may not refuse to work without risk of discharge and that employers may not refuse to pay employees the wage established by the governmental employer for such work. Moreover, the court held that public employees may not be discriminated against or punished because they have sought collective bargaining and have reached an impasse with the public employer, and that to withhold from employees the salary, which the governmental employer has determined as the minimal appropriate wage, for no other obvious purpose but to punish the public employee is not permitted.

      While the court's holdings in AFSCME Local 2088, supra, are obviously an expression of the policy of this state, the case does not readily transfer over to the instant case to generate a finding of adverse action. In part, that is because the opinion in AFSCME Local 2088 does not contain sufficient facts from which we can draw the necessary parallels to the facts presented in the instant case. But, here the record clearly reveals what was granted to whom and what was withheld. For a more helpful case, we turn to IAFF Local 831 v. City of No. Platte, 215 Neb. 89, 100, 337 N.W.2d 716, 723 (1983), a case where the city of North Platte and its firefighters were at the bargaining table, but the facts revealed what the Supreme Court said was "one of the more flagrant examples of bad faith bargaining by a city with its employees."

      The court in IAFF Local 831 concluded that the city was dilatory throughout negotiations while the union made a good faith effort to bargain, plus while negotiations were in progress, the city enacted a 9.28-percent across-the-board wage increase for nonunion employees, a raise precisely of the type condemned in AFSCME Local 2088, supra. The pay raise in IAFF Local 831 was given to nonunion employees of the fire department, both above and below the ranks of the union members, and the court cited evidence that the city was well aware through discussions with its attorney that the 9.28-percent across-the-board increase for nonunion employees with no increase to the fire department left the city "'wide open for an unfair labor practice lawsuit,'" which turned out to be prophetic advice. 215 Neb. at 102, 337 N.W.2d at 724. That what happened in IAFF Local 831 was illegal adverse action seems rather self-evident.

      The facts of the instant case are far removed from the flagrant unfair labor practice demonstrated in IAFF Local 831, supra. In recognition of the factual differences, the CIR in the instant case ruled that unilateral withholding of a regularly scheduled, sum certain raise may be an adverse action because it is a change in the status quo. The CIR found, however, that the Elkhorn firefighters did not have a reasonable expectation of a raise of a certain amount or percentage and that therefore no legal entitlement to a raise existed, citing "Laidlaw Waste Sys., 307 NLRB 52, 140 LRRM 1328 (1992)." In judging the soundness of the CIR's ruling, we remember that the basic concept from the cases is that raises given to nonunion members may not be withheld from union members simply because they are union members. See, IAFF Local 831, supra; AFSCME Local 2088 v. County of Douglas , 208 Neb. 511, 304 N.W.2d 368 (1981). We return to the particular facts of the instant case.

      There is no evidence that all City employees are or were entitled, at a given point in time, to a predetermined amount or percentage pay raise and that such raise was withheld from the firefighters. (Step increases are not part of our discussion because these were given to the firefighters). The system for City employees to receive pay increases beyond step increases is that the City administrator, using a variety of factors previously cited herein, recommends pay increases which range from substantial to inconsequential for various employees, which the City council then acts upon. In the case of the firefighters, Eikmeier recommended that because of the pendency of the certification election that the firefighters' wages not be changed, up or down. The question is whether this was an adverse action, and we agree with the CIR that it is not.

      What occurred here is vastly and obviously different from IAFF Local 831, supra, where every city employee, except unionized firefighters, got a 9.28-percent increase--there, even nonunion firefighters got the pay increase. Thus, there was a sum certain raise, 9.28 percent, to all North Platte city employees--a fixed entitlement--unless the employee was a unionized firefighter. This was found to be a "flagrant" violation of the law.

      The CIR in the instant case cited the nature of the criteria for wage evaluations, which were inherently subjective and uncertain. The CIR's conclusion was that such a system necessarily prevents City employees from having a reasonable expectation of receiving an annual raise. Additionally, there was an absence of evidence in the record of the amounts or percentages of past wage increases. Moreover, the City's personnel policy manual specifically provides that the City does not recognize cost-of-living adjustments; plus, the manual disclaims any implication that the City provides semiannual or annual pay increases. Consequently, the evidence fails to show an expectation of a raise which was withheld, and we hold that IAFF Local 831 v. City of No. Platte, 215 Neb. 89, 337 N.W.2d 716 (1983), puts into the law this element of "expectancy denied," which is unproved here.

      The analytical touchstone with respect to the Union 's claim that its member did not get a pay raise is maintenance of the status quo. While this concept runs throughout labor relations cases in virtually all jurisdictions, it is codified in Nebraska in § 48-811 with the language, "and the employment status of such employee shall not be altered in any way pending disposition of the petition by the commission." See Nebraska Pub. Emp. v. Otoe Cty., 257 Neb. 50, 71, 595 N.W.2d 237, 255 (1999) (citing § 48-811, court held that employer county "was statutorily barred from altering the status quo regarding employee status"). See, also,Transport Workers v. Transit Auth. of Omaha, 216 Neb. 455, 344 N.W.2d 459 (1984).

      While the tale of the firefighters in IAFF Local 831, supra, could be called a "wage freeze" case in the sense that everyone but the unionized firefighters got a raise which was found to be an illegal adverse action, there is authority from another jurisdiction which is perhaps more closely linked factually with the instant case. In Vienna Sch. Dist. v. Ill. Ed. Labor Rel. Bd., 162 Ill. App. 3d 503, 515 N.E.2d 476, 113 Ill. Dec. 667 (1987), the issue was the meaning of status quo with respect to salary after the expiration of the teachers' association's employment contract. That agreement provided for a salary schedule, including incremental increases in salary vertically to reflect a teacher's additional years of experience as well as horizontally to reflect additional education acquired. This method had been used for more than 10 years, and the court described it as "automatically implemented prior to the opening of the new school term." Id. at 505, 515 N.E.2d at 477, 113 Ill. Dec. at 668. In Vienna Sch. Dist., negotiations for the 1985-86 contract were still in progress at the start of the school term, and the teachers had made their first salary demand just 8 days before the beginning of school. The district refused to implement the annual step increments and compensated teachers on the basis of the previous year's salaries. Upon completion of the negotiations, the agreement provided for step increments to be paid retroactively to the beginning of the school year. Although the parties had resolved the issue, the association charged the district with violating the Illinois Educational Labor Relations Act, and the labor relations board found violations. The Illinois court recited what is essentially "black letter law" that an employer's unilateral alteration of prevailing terms and conditions of employment under negotiation during the course of bargaining is an unlawful refusal and that such changes are prohibited so that the status quo can be maintained until new terms and conditions are arrived at through bilateral negotiation and mutual agreement. In a holding directly applicable to this case as to whether wages are part of the status quo, the court said:

      A term or condition of employment must be an established practice to constitute the status quo. The test for determining whether a specific practice is sufficiently established is objective. (See Plasticrafts, Inc. v. NLRB (10th Cir. 1978), 586 F.2d 185.) With respect to wage increases, the focus is whether the status quo would have been clearly apparent to an objectively reasonable employer at the time in question. Platicrafts, Inc. v. NLRB (10th Cir. 1978), 586 F.2d 185.

      Status quo requires the further consideration of the amount of discretion vested in an employer with respect to an established practice. (See Gossen Co. v. NLRB (7th Cir. 1983), 719 F.2d 1354.) Where an employer engages in merit reviews at regular intervals with a view to granting preestablished salary increases, this is sufficient to constitute a status quo. When, however, the timing of reviews and amounts of increase is within the sole discretion of the employer with no established practice, such evaluations could not constitute a status quo.

      162 Ill. App. 3d at 507-08, 515 N.E.2d at 479, 113 Ill. Dec. at 670.

      The Illinois court in Vienna Sch. Dist. also said that it was important to consider the reasonable expectations of the employees in the continuance of existing terms and conditions of employment and that where employees receive regular salary increases based on years of service or additional education, it is reasonable for employees to expect these increments, even though negotiations for a new contract are still pending.

      Relying upon the Indiana Supreme Court's decision in Indiana Educ. Employment v. Mill Creek Teachers, 456 N.E.2d 709 (Ind. 1983), the court in Vienna Sch. Dist. v. Ill. Ed. Labor Rel. Bd., 162 Ill. App. 3d 503, 515 N.W.2d 476, 113 Ill. Dec. 667 (1987), quoted the Indiana court's holding that school corporations are legally required to pay wage increments which are part of an existing contract in order to maintain the status quo pending negotiation of a new contract. The final result in Vienna Sch. Dist. was that the salary increments involved were a term and condition of employment which had been long utilized by the district to the point that they were an established practice and completely objective because they were based on years of experience and education obtained. The court found that the evaluations were completed annually prior to the beginning of the school term with little discretion afforded the district. Consequently, the Illinois court held that it was reasonable for the Vienna teachers to expect salary increases prior to the beginning of the 1985-86 school year based upon education and experience and that maintaining the status quo required such yearly evaluations. By withholding the salary increments, the district had unilaterally altered the status quo. See Indiana Educ. Employment, supra (school corporation unilaterally changed existing condition of employment instead of maintaining status quo as required by law when it denied teachers their experience-based salary increases). Compare, Appeal of Alton School Dist., 666 A.2d 937 (N.H. 1995) (holding that after expiration of collective bargaining agreement step increases need not be paid during bargaining, court recognizing many states hold differently); Appeal of Milton School Dist., 625 A.2d 1056 (N.H. 1993).

      From this authority, it naturally follows that in order to prove a § 48-811 violation concerning the fact that the firefighters did not get wage increases, other than step increases, the firefighters must show a reasonable expectation of entitlement to such increase based on a history of regularly scheduled and sum certain raises. We disagree with the CIR's suggestion that the expectation must be of a precise sum or a precise percentage increase, because such criteria is too restrictive as the facts in a particular case could establish a reasonable expectancy, without a sum certain. Nonetheless, the basic tenet of the CIR's decision that there is no § 48-811 violation absent proof that it is an established practice of the employer to grant raises which have been withheld because of the attempt at unionization is correct. Here, the evidence establishes that what is certain is the step increases and that they were given. However, other wage increases were subject to a variety of factors as evaluated by Eikmeier, the City administrator, a great number of which are purely subjective. From the evidence here, no objectively reasonable employer could conclude that maintenance of the status quo for the Elkhorn firefighters included the term of employment that they would get a raise beyond the step increases. In terms of expectancy, one of the most glaring absences of evidence from the record is any proof of past raises given to the firefighters under the evaluation process. Accordingly, we conclude that the CIR did not err in finding no adverse action under § 48-811 due to the fact that the firefighters' wages were not changed other than the step increases. Because of this finding, we do not need to analyze the second prong of the adverse action claim, which is that the action was taken because of the petition filing by the Union . See Kelly v. Kelly, 246 Neb. 55, 516 N.W.2d 612 (1994) (appellate court is not obligated to engage in analysis which is not necessary to adjudicate case and controversy before it).

      To conclude our discussion of this issue, it seems apparent that if a public employer wanted to discourage unionization, it could unilaterally increase wages as a demonstration that the union is simply unnecessary. By the same token, if it wanted to demonstrate that a union would adversely impact the employees, a decrease in wages for potential union members could be ordered. InTransport Workers v. Transit Auth. of Omaha, 216 Neb. 455, 344 N.W.2d 459 (1984), the court held that the meaning of the words "employment status" in § 48-811 is that no employer may, without cause, terminate an employee, but that under Neb. Rev. Stat. § 48-819.01 (Reissue 1998), the CIR can also act to preserve the employee's status quo with respect to salary. The City's evidence was that it maintained the status quo by not including any firefighters in the wage evaluations performed for other city employees in order to ensure that it did not engage in "adverse action." We note that the CIR could order wages "frozen." See, § 48-816; Transport Workers, supra. The City did what the CIR could do in order to protect the "status" of the employees during bargaining. See § 48-816. Under our standard of review, we need only decide whether there is substantial evidence to support that there was no adverse action and the status quo was maintained. We so find.

      Failure to Bargain.

      One of the prohibited practices in § 48-824 is for an employer to "[r]efuse to negotiate collectively with representatives of collective-bargaining agents as required by the Industrial Relations Act." Immediately before the hearing in this matter, the Union amended its petition to allege a failure to bargain claim.

      The Union asserts that under §§ 48-824 and 48-816, there is a clear obligation to bargain over wages and the terms and conditions of employment. We agree and find nothing to indicate that the CIR disagreed with this broad proposition in its decision. The Union then asserts that wage adjustments of any nature are mandatorily subject to bargaining. The firefighters assert: "The City has 'historically' and 'consistent with past practice' granted the pay raises based on these considerations." Brief for appellant at 48. The firefighters cite to the stipulation between the parties introduced into evidence; however, the above quote is unfairly taken out of its context in the stipulation, which actually says that the City has "historically and consistent with many years of past practice, approved at that same City Council meeting, the Ordinance which sets forth wages and salaries of employees for the upcoming fiscal year." In that same stipulation, the firefighters agree that the wages and salaries provided in the City's pay Ordinance, and possible increases, if any, are evaluated and recommended by the City Administrator, and in doing such, the City Administrator considers a multitude of various factors including, but not limited to, the needs of the City; the available funds of the City; the availability of labor; the performance of duties; the City's market relationship to other public employers; the City's market relationship to other similar cities; the increase or decrease in City costs; the economic conditions of the City, State and the nation; the general wage conditions of the employment positions; and whether the City is attempting to recruit certain positions or people.

      It seems to us that the Union has stipulated that the firefighters are not entitled to any raise, let alone a raise in a sum certain or percentage certain. They have stipulated that raises are completely discretionary. Thus, the reasoning of the CIR finding the lack of fixed time, amounts, percentages, et cetera, for wages is logically consistent with the evidence as stipulated to by the Union . The Union concludes that the CIR has imposed an "impossible burden for a labor organization to prove a failure to bargain in pay raise situations." Brief for appellant at 50.

      We see the matter rather differently. Prior to September 15, 1999, when the City received the CIR's report that all ballots were in favor of the Union , the firefighters simply had an informal group with whom no legal duty existed to bargain. On September 14, when ordinances Nos. 407 and 408, the budget and the pay ordinances, were passed, the results of the election were not known, and thus the claim that the City had a duty to bargain over its discretionary raises reflected in ordinance No. 408 is an unwarranted perversion of the duty to bargain. The duty to bargain arose after the Union was formed. The stipulation of the parties also reveals that on September 28 at a special meeting of the City council, an amended pay ordinance, No. 411, was passed, specifically providing that the wages for firefighters would stay the same, other than step increases, until established and approved by the collective bargaining process. At the same time, the City appointed its bargaining committee in anticipation of ensuing negotiations with the Union . However, the Union has stipulated that as of November 9, 1999, the date of trial, it has not requested to meet and confer or to bargain with the City. Under these circumstances, we simply do not see how there could be a finding of a failure to engage in collective bargaining, given that precertification wage increases were completely discretionary and that after certification, the Union never asked to bargain.


      We conclude that the CIR acted within its authority and that its decision is supported by substantial evidence. The raises granted by ordinance No. 408 were not an expectancy for any employee under the evidence adduced here. The City offered evidence that it chose to maintain the status quo on firefighters' pay to avoid claims of adverse action or attempting to influence the outcome of the election, and to await the collective bargaining process. And while the City promptly prepared for bargaining upon learning of the election results, the Union has never availed itself of the bargaining table--apparently choosing litigation. In short, we find no error in the CIR's decision that there was not adverse action in response to Union activity. The CIR's rejection of the failure to bargain claim is also correct.