10 CIR 10 (1988)


NO. 1536, AFL-CIO, |
Petitioner, |
Respondents. |


For the Petitioner: David D. Weinberg

8901 Indian Hills Dr., Suite 1

Omaha, Nebraska 68114

For the Respondents: Jerry L. Pigsley

500 The Atrium

1200 "N" St.

P.O. Box 82028

Lincoln, Nebraska 68501

Douglas G. Rosener

City Attorney

City of Fairbury

422 "E" Street

Fairbury, Nebraska 68352

Before: Judges Orr, Mullin, and Kratz



In this action the Petitioner IBEW, Local No. 536, AFL-CIO, seeks a determination of wages and other conditions of employment under Neb. Rev. Stat. 48-818. The petition was filed on December 22, 1987 seeking a wage determination for both fiscal/calendar year 1986 and fiscal/calendar year 1987. Upon Respondent's Motion, the portions of the petition relating to fiscal year 1986 were dismissed.

On February 3, 1988 the Respondent, City of Fairbury, filed a petition with the Commission seeking a bargaining order. The cases were consolidated for Trial, but the issue of compelling bargaining was treated as a motion and denied in an Order entered March 8, 1988. A trial was held March 29 and 30, 1988.


In its Amended Answer to Petition, the Respondent states that the Petitioner in this action is seeking a wage determination for the job classes of Office Manager, Maintenance Foreman and Line Foreman, which Respondent argues are supervisory, and Secretary/Stenographer, which Respondent argues is confidential, and that these positions should be excluded from any wage determination and, in its post-trial brief, requests that they also be excluded from the bargaining unit.

Respondent relies on the Commission's ruling in General Drivers & Helpers Union, Local No. 554 v. Saunders County , Nebraska , 6 CIR l34 (l982) wherein the Commission determined within a Section 48-8l8 case that certain foreman positions within the certified unit were supervisory. We then found that these positions should be excluded from the unit and that the determination of wages and conditions should not apply to them. Since Saunders Co. , the Commission has changed its approach to representation issues within a wage determination. We have ruled that it is inappropriate to consider a change in a unit within a wage determination and that such matters be handled under the procedure provided by the Commission's Rule l2, Educational Service Unit No. l Education Ass'n v. Educational Service Unit No. l , 8 CIR 340 (l986). In a wage case filed by supervisory employees, the employer, Rodeo Telephone Inc., questioned whether the position of General Manager, previously stipulated and included within the certified bargaining unit of supervisors, was properly included within that unit and thus a proper subject for a wage and fringe benefit determination, Rodeo Telephone, Inc. Supervisory Employees Ass'n v. Rodeo Telephone, Inc. , 9 CIR ll8 (l987). Prior to the issuance of this wage determination, the Commission determined in a representation proceeding filed that the General Manager position should be excluded from the Supervisory unit, Rodeo Telephone Inc. v. Rodeo Telephone, Inc. Supervisory Employees Ass'n , 9 CIR lll (l987). However, the Commission stated in the subsequent wage determination that even though the General Manager position would

be excluded from the bargaining unit following the representation

case, we would include the position in our wage determination

because the position was in the unit for the entire contract year

in question and the position was in the bargaining unit at the

time the wage petition was filed.

In the case at bar, the Commission heard testimony on the

supervisory/confidential nature of these positions. The issue

identified at pretrial was whether wages should be set for these

bargaining unit positions, not that they should be excluded from

the bargaining unit as now requested in the Respondent's

post-trial brief. As in Educational Service Unit No. l Educ.

Ass'n, we again rule that the proper procedure for excluding

bargaining unit positions is to file a petition under Rule l2.

These positions were in the unit during the year and at the time

the petition was filed and in following with Rodeo, 9

CIR 118 (1987), they are included in any Section 48-818 wage



In determining an appropriate wage in any given case,

the Commission ". . . shall establish rates of pay and conditions

of employment which are comparable to the prevalent wage rate

paid and the conditions of employment maintained for the same or

similar work of workers exhibiting like skills under the same or

similar working conditions. . ." Section 48-818 R.R.S. (Supp.

1987). In order to follow the mandate of Section 48-818, the

Commission must be presented with competent evidence describing

the rates of pay, conditions of employment, nature of the job and

skills required to perform the named job and other data required

by statute. We must have this information for each of the job

classifications at each of the array sites. Without this

evidence, it is impossible for the Commission to set wages or

determine conditions of employment in accordance with Section 48-


In this case, our ability to determine wages rests solely on

the admissibility of the expert testimony and the exhibits

presented by the Petitioner.

A brief review of the trial proceedings and the testimony

will be helpful in understanding what is actually before the


At the hearing, Petitioner called its expert witness

attempting to lay the requisite foundation for the exhibit the

expert had compiled. The exhibit established the Petitioner's

proposed array of wages, fringe benefits and comparability. The

Respondent objected numerous times to the expert's testimony

claiming that both the underlying exhibit and the expert

testimony were inadmissible.

In attempting to introduce the expert testimony and the

relevant exhibit, the following dialogue occurred between

Petitioner's counsel and the expert:

COUNSEL: All right. Now, in sending out questionnaires

and in making personal contact with employers and

in investigating collective bargaining agreements from certain

employers, is that the normal practice of an expert in this field to determine an array of wage rates comparability and --

EXPERT: Yes, I believe it is . . .

COUNSEL: In the cases where you have been involved as an

expert either before the Commission or not before the Commission have you normally relied upon the method of determining an array of wages and fringe benefits and other conditions?

EXPERT: Yes, I have.

Transcript (T) (64:10)

Petitioner's expert later testified, during voir dire by

opposing counsel, that he did not visit the array sites to gather

data. Instead, the data was often collected through telephone

conversations with selected individuals. (T 65:13). In addition,

while under direct examination, the expert made the following

statement concerning which persons he would contact at each of

his selected array sites:

EXPERT: . . . there were two types of individual [sic]

I would get this from. It would be a director of

the utility or someone within the operation of the city,

primarily the city clerk or treasurer

(T)(58:5)(emphasis added).

Lastly, the expert testified that he recognized when appearing

before the Commission it is common practice to obtain and offer

some form of authentication establishing the accuracy of the

underlying information. (T 91:3-7). However, at no point during

the hearing were the underlying survey documents upon which the

expert based his array determinations, authenticated or

unauthenticated, introduced into evidence.

Admissability of the expert's testimony and exhibits is

governed by the Nebraska Rules of Evidence and the pronouncements

of the Supreme Court.

Initially, we must examine 27-703 R.R.S. (Reissue 1985)

which provides:

The facts or data in the particular case upon which

an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

The appropriate starting place for review of 27-703 is a

brief examination of the differing approaches courts have taken.

The Nebraska Supreme Court has primarily analyzed 27-703 in the

context of the hearsay testimony of medical doctors testifying as

experts. See Gibson v. City of Lincoln, 221 Neb. 304, 376 N.W.2d 785 (1985), Lux v. Mental Health Board of Dakota City, 202 Neb. 106, 274 N.W.2d 141 (1979), Kraemer v. Mental Health Board, 199 Neb. 784, 261 N.W.2d 626 (1978). Although these cases reflect an appropriate analysis of 27-703, the complexity of the issue presented by the case at bar warrants a more expansive examination of the Rule.

Nebraska implemented 27-703 in 1975 as part of the state's

adoption of the Federal Rules of Evidence. As a result, the

Nebraska rule and the federal rule are identical. We believe this

commonality makes an examination of the federal courts'

interpretations particularly informative.

The federal courts have approached Rule 703 both

restrictively and liberally. Courts employing the latter

interpretation simply use their judicial discretion to determine

whether the data utilized by the expert is of a type reasonably

relied upon by other experts in the field. See Weinstein and Berger, Weinstein's Evidence, 703-17 (1987), see also Can-Am Engineering Co. v. Henderson Glass, Inc., 814 F.2d 253, 255 n.3 (6th Cir. 1987), Johnson v. Consolidated Rail Corp., 797 F.2d 1440, 1446 (7th Cir.1986), United States v. Affleck, 776 F.2d1451, 1456-1458 (10th Cir. 1985).

Counsel often establishes the reasonable reliability of data

by asking two simple questions. First, does the expert regularly

rely on this type of information in formulating her opinion?

Second, is it the practice of other experts in the field to rely

on this type of data? R. Carlson, Successful Techniques for

Civil Trials Section 4:20, at 219 (1983). An affirmative answer to both questions will normally establish a sufficient foundation for expert testimony, even if the testimony would otherwise be inadmissible (i.e. testimony based upon out-of-court hearsay).

The more restrictive Rule 703 analysis proceeds beyond a

determination of whether the information is normally reasonably

relied upon by experts and makes an independent evaluation of the

trustworthiness of the underlying data. See In re Agent Orange Product Liability Litigation, 611 F. Supp. 1223 (E.D.N.Y. 1985), [T13]aff'd[T11], 818 F.2d 187 (2d Cir. 1987), Soden v. Freightliner Corp., 714 F.2d 498, 503-506 (5th Cir. 1983), Toys "R" Us, Inc. v. Canarsie Kiddie Shop, Inc., 559 F.Supp. 1189, 1205 (E.D.N.Y. 1983). If it is detemined that the underlying data lacks reliability,

the court will exclude the expert's testimony. The justification

for exclusion is predicated upon the belief that no expert should

be permitted to rely upon underlying data which the court has

determined inherently unreliable. Weinstein and Berger,

Weinstein's Evidence, 703-17 (1987).

While the Nebraska Supreme Court has not specifically

adopted either the liberal or the restrictive interpretation of

Rule 703, the Court has provided the Commission with guidance on

the admissibility of expert testimony in connection with wage

determinations under Section 48-818.

In Plattsmouth Pol. Dept. Coll. Barg. Comm. v. City of

Plattsmouth, 205 Neb. 567, 288 N.W.2d 729 (1980), an expert

attempted to testify as to what array he determined to be

comparable. He based his opinion upon information he had obtained

from surveys that had not been authenticated. While the

Commission allowed the expert to testify, the Supreme Court

reversed and in doing so stated:

In the taking of evidence, the Commission was required

to follow the rules of evidence prevailing in the trial of civil cases. Section 48-809 R.R.S. 1943. Because of the lack of foundation evidence to establish the source and reliability of the information contained on the questionnaires which was the basis of the compilations offered by the plaintiff, the defendant's objections to these exhibits should have been sustained. Since the exhibits were the basis for the opinion testimony given by the plaintiff's expert witness, the defendant's objections to his testimony should have been sustained. An expert witness should not be allowed to express an opinion where the evidence shows there is no adequate basis for the opinion. Clearwater Corp. v. City of Lincoln, 202 Neb. 796, 277 N.W.2d 236. The result is that there is no substantial evidence in the record to sustain the findings and order of the Commission.

Plattsmouth, 205 Neb. at 570-571.

Subsequent to Plattsmouth, in IBEW Local 1536 v. City of Fremont, 216 Neb. 357, 345 N.W.2d 291 (1984), the Court indicated some specific factors which we may consider when determining whether a party has established a sufficient foundation for an expert's opinion. Those factors include actual on-site visitations and the verification of job descriptions by supervisors, department heads, or individual employees. Fremont, at 369-370.

The opinions of the Nebraska Supreme Court in Plattsmouth and Fremont do not reflect a rigid list of foundational criteria. However, the cases do represent a threshold which testimony and related exhibits must meet to be authenticated and reliable by the Commission. We do not believe the expert's testimony in the present case meets that threshold.

During the hearing, over objection by the Respondent, we

allowed the two questions posed by Petitioner's counsel to

establish that experts who compile and analyze data for array

determinations reasonably rely upon the type of information

Petitioner's expert utilized in formulating his opinion. We

allowed the expert to offer opinion testimony and allowed

exhibits prepared by him to be admitted into evidence. We now

conclude that this was wrong.

When serious questions are raised concerning the types of

information experts reasonably rely upon, it is the province of

the judge to determine whether the conditions of Rule 703 have

been met. Weinstein and Berger, Weinstein's Evidence, 703-16 (1987). And of equal import, the Commission as the trier

of fact is not bound by expert opinion. See Joyner v.

Steenson, 227 Neb. 766, 420 N.W.2d 278 (1988), Mulder v.

Minnesota Mining & Mfg. Co., 219 Neb. 241, 361 N.W.2d 572

(1985), Cathcart v. Blacketer, 217 Neb. 755, 351 N.W.2d

70 (1984).

In this case, there was testimony that some of the expert's

compilations were based upon data acquired through telephone

conversations with city clerks or treasurers. Also, the expert

testified that he did not visit any of the sites to either gather

or verify data. This method of accumulation and verification is

not in keeping with the Supreme Court's decisions in

Fremont and Plattsmouth or even the most liberal interpretation of Rule 703. Absent additional evidence, city clerks and treasurers do not constitute supervisors, department heads, or individual employees. Furthermore, telephone conversations are far removed from actual on-site visitations.

Petitioner's case rests upon evidence which is unverified

and lacks sufficient foundation. The process followed by the

expert and the information gleaned through that process is

unreliable and provides us with no reasonable basis upon which to

formulate a decision. Therefore, the opinion testimony of

Petitioner's expert should not have been admitted, nor should the

exhibits have been received, and absent that testimony and

exhibits, there is insufficient evidence in the record to set

wages under Section 48-818.

For the foregoing reasons, this case is ordered dismissed.

Entered June 17, 1988.