12 CIR 32 (1993). Appeal dismissed March 23, 1995.


Petitioner, |
Respondent. |


For the Petitioner: J. Murry Shaeffer

941 "O" Street

605 Terminal Building

Lincoln, NE 68508


Jane E. Burke

1327 H Street, Ste. 200

Lincoln, NE 68508

For the Respondent: Patrick J. Barrett

McGrath, North, Mullin & Kratz, P.C.

One Central Park Plaza, Ste. 1400

222 S. 15th St.

Omaha, NE 68102


Lisa Martin-Price

Asst. Attorney General

2115 State Capitol Bldg.

Lincoln, NE 68509

Before: Judges Orr, F. Moore, V. Moore and Flowers (EN BANC). Kratz recussed.


This matter comes before the Commission upon an appeal from the Special Master's ruling dated February 10, 1993. This appeal was filed on March 15, 1993, by State Law Enforcement Bargaining Council (hereafter referred to as "Council"). The Council is the bargaining agent for state employees in the Law Enforcement Bargaining Unit. For the purpose of this opinion, the Respondent shall hereinafter be referred to as "State." This case is one of first impression under the State Employees Collective Bargaining Act (hereafter referred to as "Bargaining Act") signed into effect on April 9, 1987. This special appeal procedure is outlined in §81-1383. A prior appeal of a Special Master ruling was brought to the Commission under this Act, but in that case, only one side presented data to the Special Master which meant that the Commission's determination was an automatic confirmation of the Special Master's ruling. See StateCode Agencies Education Association v. State of Nebraska , 9 CIR 307 (1987), 9 CIR 310, 9 CIR 315 (1988), Rev'd and Rem'd , 231 Neb. 23, 434 N.W.2d 684 (1989). The case at bar requires the Commission to interpret the statutes set forth in the Bargaining Act to determine how to decide a contested appeal from a special master ruling.

The petitioner's prayer consists of basically four issues. It asks that the CIR:

1) make a §48-818 determination concerning the issues of comparable wages, pay plan, longevity pay and shift pay differential and find the Council's offer to be most comparable and that the State of Nebraska's offer was not the most reasonable and, therefore, implement the final offer of the Council;

2) preserve for appeal the question of what constitutes an "issue" pursuant to the Bargaining Act;

3) find that the Bargaining Act does not require a final offer be in "contract language" or preserve this question for appeal in the alternative; and

4) find that the special master ruling and orders of the Commission on appeal are not part of a labor agreement, but are rather orders adjusting a term or condition of employment on an issue or issues which were the subject of impasse resolution under the Bargaining Act, or preserve this question for appeal in the alternative.

The respondent filed an answer and basically prayed that the ruling of the Special Master be affirmed and that the Commission find that "...Respondent's final offer was the most reasonable offer on each unresolved issue and said Decision is entitled to significant deference by the Commission as set forth in Neb. Rev. Stat. §§ 81-1382,1383."

A preliminary proceeding was held on April 22, 1993. A Motion to Amend Petition on Appeal was filed on May 5, 1993, the day of the Pretrial, which motion prayed that petitioner be allowed to amend its petition. This motion was overruled at the pretrial and it was offered again at the trial, and again, the motion was denied. Trial was held on May 17, 1993.


The Commission finds that it has jurisdiction to decide the above issues as they pertain to wages and conditions of employment, but lacks jurisdiction to decide the matters that we have outlined above as petitioner's #2-4.

The Special Master's powers are set forth in §81-1382(2) and (3) as follows:

(2) No later than January 15, the parties in labor contract negotiations shall submit all unresolved issues that resulted in impasse to the Special Master. The Special Master shall conduct a prehearing conference. He or she shall have the authority to:

(a) Determine whether the issues are ready for adjudication;

(b) Accept stipulations;

(c) Schedule hearings;

(d) Prescribe rules of conduct for the hearings;

(e) Order additional mediation if necessary; and

(f) Take any other actions which may aid in the disposal of the action.

The Special Master may consult with the parties ex parte only

with the concurrence of both parties.

(3) The Special Master shall choose the most reasonable final offer on each issue in dispute. In making such choice, he or she shall consider factors relevant to collective bargaining between public employers and public employees, including comparable rates of pay and conditions of employment as described in section 48-818. The Special Master shall not apply strict rules of evidence. Persons who are not attorneys may present cases to the Special Master. The Special Master shall issue his or her ruling on or before February 15.

The Commission's powers of review are very narrow. The Commission's only review powers are set out in §81-1383(2) and (3) as follows:

(2) The commission shall show significant deference to the Special Master's ruling and shall only set the ruling aside upon a finding that the ruling is significantly disparate from prevalent rates of pay or conditions of employment as determined by the commission pursuant to section 48-818. The commission shall not find the Special Master's ruling to be significantly disparate from prevalent rates of pay or conditions of employment in any instance when the prevalent rates of pay or conditions of employment, as determined by the

commission pursuant to section 48-818, fall between the final offers of the parties.

3) If the commission does not defer to the Special Master's ruling, it shall enter an order implementing the final offer on each issue appealed which would result in rates of pay and conditions of employment most comparable with the prevalent rates of pay and conditions of employment determined by it pursuant to section 48-818. Under no circumstances shall the commission enter an order on an issue which does not implement one of the final offers of the parties. (emphasis supplied). Nothing in this section shall prohibit the commission from deferring to the Special Master's ruling if it finds that the ruling would not result in significant disparity with the prevalent rates of pay and conditions of employment as it has determined pursuant to section 48-818.

The Bargaining Act does not allow the Commission to determine what constitutes an "issue" (See §81-1371(7) for the definition of "issue"). Nor do we have any authority to find the Bargaining Act does or does not require a final offer be in "contract language." Likewise, we are without statutory authority to find that the special master rulings and orders of the Commission on appeal are not part of a labor agreement, but are rather orders adjusting a term or condition of employment on an issue or issues which were the subject of impasse resolution under the Bargaining Act.

The sole issue for us to decide is whether or not the Special Master's ruling is "significantly disparate from prevalent rates of pay or conditions of employment as determined in accordance with section 48-818", (See §81-1383(2)), and thus set the ruling aside, or whether the Commission should show significant deference to the Special Master's ruling and affirm.


In order to decide the Commission's responsibility under the Bargaining Act, we must first interpret the Act. Prior to the passage of the Bargaining Act, all industrial disputes for public employees within the state of Nebraska were resolved by the Commission of Industrial Relations as empowered by 48-800 et seq . With the passage of the Bargaining Act, the right of state employees to petition for a wage resolution under 48-800 et seq ., ended. The Commission of Industrial Relations' role in resolving industrial disputes for state employees became that of a limited, intermediate review body. The Legislature, in passing the Bargaining Act, did attempt to retain some of the well-established standards used by the CIR.

The Commission has reviewed the legislative history of this act, consisting of committee hearings, floor debate, the report upon which this legislation was based, and committee resolution hearings, as well as the statutes themselves. The following is a history of this Act. In 1985, the Supreme Court affirmed the Commission's setting of wages and conditions of employment for state employees. See State Code Agencies Educ. Ass'n v. Dept. of Public Institutions, State of Nebraska, et al , 219 Neb. 555, 364 N.W.2d 44 (1985). This decision prompted the Business and Labor Committee and the Appropriations Committee to hold a joint interim study to look at how the CIR resolved wage disputes after impasse. A consultant was hired, Mr. Peter Pashler. Ultimately, the Pashler report was issued and legislation (LB 661) was written substantially from the recommendations in this report. The Bargaining Act "....does embody the Pashler Report on collective bargaining and it was completed during the 1986 interim." (See floor debate of March 24, 1987, Senator Barrett, p. 2000). The Bargaining Act legislation did several things:

1) established horizontal bargaining units;

2) created the position of chief negotiator;

3) defined the State of Nebraska as the employer;

4) defined prohibited practices; and

5) created impasse resolution procedures.

It is item #5 with which we are concerned.

Under the impasse procedures, the parties must 1) start negotiations by the second Wednesday in September (and must conclude negotiations by March 15th of the next year); 2) choose a Special Master (factfinder) by December 15th; 3) go to mediation by January 1st if need be; 4) reduce to writing and sign all agreed-upon issues and exchange final offers on unresolved issues by January 10th, and 5) submit unresolved issues that resulted in impasse to the Special Master by January 15th. The Special Master is to issue a ruling on or before February 15th. This ruling is binding except that either party can appeal it to the Commission on or before March 15th. The Commission is to issue its orders by July 1 or as soon thereafter as possible. Said orders can then be appealed in the usual manner to the appropriate body, either the Nebraska Supreme Court or the Nebraska Court of Appeals.


The Special Master "shall choose the most reasonable final offer on each issue in dispute. In making such choice, he or she shall consider factors relevant to collective bargaining between public employers and public employees, including comparable rates of pay and conditions of employment as described in section 48-818." (See §81-1382(3)). The legislative history clearly indicates that "most reasonable" would include looking at many factors, including ability to pay. Co-introducer Senator Warner testified before the Business and Labor Committee that "...the Special Master would look at those two final offers...Would have the ability actually to look at which...was the most reasonable and they could look at most anything...that was being proposed, including the ability to pay." (See Committee Hearing testimony of March 2, 1987, p. 77).

We believe that the Commission's responsibility under the review provisions of the Bargaining Act is much the same as it is under the Industrial Relations Act, although we are extremely limited in the action we can take after determining comparability . This belief is confirmed by the first sentence of §81-1383(2), referring to the finding by the Commission that the Special Master's ruling "is significantly disparate from prevalent rates of pay or conditions of employment as determined by the commission pursuant to section 48-818 " (emphasis supplied) and the legislative history:

"The bill still preserves, however, the concept that is perhaps unique to Nebraska but, nevertheless, one which we are historically familiar with in which the CIR does still result as a court of last resort even though in the process they are limited to accepting, in a sense, the final...final determination by the Special Master if that is not a significant difference from their conclusions and if it is within the final offers that both sides had offered. In addition, it also would permit, of course, to stay with the Special Master even if their findings was outside,....".

(Senator Warner, upon advancing this bill to select file, March 24, 1987 floor debate, p. 2007-2008).

Comparability remains the standard for the Commission's review under the Bargaining Act. (Section 48-818 refers to "comparable to the prevalent" and we use the terms comparable and prevalent interchangeably in this discussion). Under the Industrial Relations Act, §48-818 states that the Commission:

"...may establish or alter the scale of wages, hours of labor, or conditions of employment, or any one or more of the same. In making such findings and order or orders, the Commission of Industrial Relations shall establish rates of pay and conditions of employment which are comparable to the prevalent wage rates paid and conditions of employment...In establishing wage rates the commission shall take into consideration the overall compensation..."

Such language gives the Commission great flexibility to set wages and fringes comparable to the prevalent; we can either change each individual wage and fringe benefit to the prevalent or we can offset one fringe or wage against another, either up or down, as long as the package becomes comparable overall. Our authority on review under the Bargaining Act does not allow this flexibility.

The Bargaining Act states that we shall show significant deference to the Special Master's ruling unless we determine that the ruling is significantly disparate from prevalent rates of pay or conditions of employment determined pursuant to §48-818. During enactment of this legislation, it was felt there was a need to add a definition of "significantly disparate". A definition was enacted which reads that we "shall not find the Special Master's ruling to be significantly disparate from prevalent rates of pay or conditions of employment in any instance (emphasis supplied) when the prevalent rates of pay or conditions of employment, as determined by the commission pursuant to section 48-818, fall between the final offers of the parties."

What, if any, significance should we give to the words "in any instance?" In determining the meaning of these words, we shall consider the following Nebraska Supreme Court decisions:

'Where the language used in a statute is ambiguous, recourse should be had to legislative purposes ... Where, because a statute is ambiguous, it is necessary to construe it, the principle objective is to determine legislative intent ... Legislative intent is the cardinal rule in the construction of statutes ... The reasons for the enactment of a statute and the purposes and objects of an act may be guides in an attempt to give effect to the main intent of lawmakers.'

State ex rel. Bouc v. School Dist. of Lincoln , 211 Neb. 731, 740, 320 N.W.2d 472, 477 (1982) (citation omitted).

One of the fundamental principles of statutory construction is to attempt to ascertain the legislative intent and to give effect to that intent ... To ascertain the intent of the Legislature, a court may examine the legislative history of the act in question.'

Pump & Pantry, Inc. v. City of Grand Island , 233 Neb. 191, 195, 444 N.W.2d 312, 316 (1989) (citation omitted).

[I]n construing a statute, it is presumed that the Legislature intended a sensible rather than an absurd result. 'In the exposition of statutes, the reason and intention of the lawgiver will control the strict letter of the law when the latter would lead to palpable injustice or absurdity.'

Coleman v. Chadron State College , 237 Neb. 491, 500-501, 466 N.W.2d 526, 533 (1991) (citation omitted).

'It is the duty of the court, so far as practicable, to give effect to the language of a statute and to reconcile the different provisions of it so they are consistent, harmonious, and sensible.'

State v. Black , 195 Neb. 366, 367-68, 238 N.W.2d 231, 233 (1976) (citation omitted).

While the use of "in any instance" might be interpreted to mean that when any single point of comparability, be it the minimum or maximum of a single job classification, or longevity, or shift differential, falls between the two final offers, the Special Master's ruling must be affirmed by the Commission, this surely could not have been the intent of the Legislature. This interpretation would make any appeal to the CIR a complete waste of time. It would be impossible to imagine a final offer by either party which did not contain at least one single point of comparability falling between the final offers. In providing the definition, it is our belief that the Legislature meant "in any instance" to be synonymous with "in any one case."

Therefore, now having determined that one instance of comparability shall not be sufficient to hold that the Special Master's ruling is not significantly disparate, we must now determine what procedure we must follow to make that determination.


It is quite clear from the plain reading of the Bargaining Act and the Legislative history that the decision of the special master is to be given significant weight by the Commission. The Legislature purposely chose to establish a completely new method of resolving industrial disputes for State employees. The Bargaining Act gave the special master a broad specter of authority and gave the the Commission limited review authority.

We must now determine if the decision of the special master is or is not significantly disparate. However, we must first ascertain comparability.

As we stated above, the Special Master was given authority to take into consideration many different elements to arrive at his or her decision. The Bargaining Act does not give the CIR the same discretion. Our standard of review is limited to comparability, while comparability is only one of the elements for the Special Master to consider. The intent of the Bargaining Act is clear:

1. Encourage both of the parties to submit reasonable final offers;

2. Give the Special Master broad authority in choosing which offer to accept;

3. Have the CIR give substantial weight to the decision of the Special Master.

The Legislature could have made it easy for us to carry out its intention by simply requiring that we affirm the Special Master unless there was a clear showing that the Special Master had abused his/her discretion. This is a standard of review in Nebraska that is well established.

Although the Legislature made its intention clear, it prescribed a standard of review substantially different from the legislative charge to the Special Master. Because of this substantial difference in what can be considered, it may be very difficult to carry out the intent of the Legislature.


Neither party gave the Commission comparability data for the second year of the contract, nor addressed the issue about the lack of this data. The petitioner does add on 3% to its offer for FY '94 to come up with figures for FY '95 in Exhibit 3, which it calls "market change." It is not market comparability data for FY '95 because one can tell by looking at Exhibit 128, Answer No. 8, that the latest market data that was surveyed by the parties only went through July 31, 1993. Although, we have not been told what this 3% represents, we believe that it probably was the CPI index in effect at the time of exhibit preparation by the petitioner.

It is apparent under this legislation, that the Commission will more than likely be determining comparability for the first year only, from data which will probably not be current.

It is easy to see why this is so. Since the parties must start bargaining by the second Wednesday in September and have all final offers exchanged by Jan. 10th, it is highly probable that anyone they survey will not be finished bargaining either. Therefore, as in this case, the data they are using to base FY '94 wages and fringe benefits on is really wages and benefits for FY '93 so it is already out-of-date by a year. Furthermore, many of the survey sites have only one-year contracts, and not two-year contracts. Market data for the second year is most likely not going to be known.

Therefore, we can only look at the last offers and compare them to the comparability data given for the first year. If we find the Special Master's decision to be significantly disparate, we must pick the last offer that is closest to comparability. There is little for us to consider concerning the second year.


The parties agreed before the Special Master and the Commission that the array should consist of the surrounding states of Colorado, Kansas, Missouri, Iowa, South Dakota and Wyoming. The parties also agreed that the wages we are to examine are for the positions of Trooper I/II, Sergeant, Investigator, Conservation Officer I/II, Carrier Enforcement Officer, Fire Marshall Deputy, and Liquor Inspector. The parties did not have any disagreement about the job matches or the determination of midpoint comparisons with the Special Master or with the Commission, and further stipulated that the data in the exhibits was correct.

In order to determine total overall comparability, we must first make findings on the comparability of a pay plan, longevity, and shift differential. We are going to determine comparability on these issues just as we would do in a §48-818 case.

Pay Plan

The State of Nebraska presently does not have a step pay plan in the true sense of the word. They have a hiring rate, a minimum rate and a maximum rate, but no pay plan with a specific number of steps, number of years to reach maximum and a way of progressing through those steps. The State's offer does not propose any change from this present system. The Council's offer requests that there be a step pay plan with 11 steps. Although some of the Council's exhibits indicate that their offer also included a request specifying the number of years to maximum, the offer is silent on this. The offer is also silent on the original placement of these employees on a pay plan and the mode of progression through the plan.

The Special Master found that the Council's step pay plan offer, since there was no description of how it would be implemented, was not reasonable. She notes that there are several ways that the State could place employees on a pay plan. We have no such problem with the fact that the Council's offer did not include an implementation plan. In §48-818 cases, we are generally never given such information. All we are normally given is the number of steps and the years to maximum. The Council acknowledges in Respondent's Exhibit 128 that the State could choose to progress employees based on performance. They also acknowledge in Respondent's Exhibit 127 that the State can determine the method of initial placement in one of two ways: either, placing them on the step most nearly reflecting the employee's present rate of pay, provided such placement does not give them a wage decrease, or by placement at the step which corresponds to their longevity. These acknowledgements are extremely conservative and favor the State. Table 1 regarding step pay plans shows that step pay plans are prevalent and that the 11 requested steps are comparable. Table 1 also shows the comparable years to maximum. In costing out the union's wage offer (see Table 4, column #7) the State used a 10-year pay plan which, for costing out purposes, seems reasonable in light of the comparable years listed on Table 1.


The State's offer on longevity was $100 added to the base salary of every employee who had worked 10 or more years. The union's offer requested $240 after 5 yrs., $469 after 10 yrs., $699 after 15 yrs., $928 after 20 yrs., and $1,158 after 25 yrs. Table 2 shows that longevity pay is prevalent and that the Council's offer on longevity is comparable.

Shift Differential

The Commission finds that there is no clear prevalent in the array for giving a shift differential to all employees in the bargaining unit. Therefore, we find that shift differential is not comparable.

Total Comparability

Respondent has given us data in Exhibit 107 which consists of certain costs associated with each of the individual 519 employees in the bargaining unit. For each employee, they have given us the number of service years, their hourly wage on 6/30/93, the Council's final offer of hourly wage on 7/l/93 and the Council's longevity pay offer. From this information, we can cost out the package offers of both the State and the Council. Comparability was not costed out so we have made several assumptions. We have spelled out these assumptions with the belief that our assumptions are very reasonable and conservative. Table 4 shows the Commission's calculations. We have labeled the columnar headings with numbers and reference those column numbers below in our discussion.

State's Total Offer

Column 1 represents each of the 519 employees in the unit. To provide confidentiality, we have not listed their names but rather have numbered them in the same order that they were given to us on Exhibit 107.

Column 2 represents the hourly wage of each employee on June 30, 1993, which will also be the wage in effect on July 1, 1993, because for the first year's offer, the State gave no increases on July 1. Their offer to add $300 on January 1, 1994, to the base pay of each employee earning under $45,000 (and they all will receive this as there are no employees making over $45,000), equals a pay increase to those employees of $150 in FY '94. The State's offer to add $100 to the base pay of each employee who has worked 10 or more years on that employee's anniversary service date, effectively works out to an increase of $50 in FY '94 to those who qualify. We do not know the employees' exact anniversary dates so we have to assume that of those employees eligible to receive longevity pay, half will receive the longevity pay of $100 sometime during the first half of the year and the other half will receive it sometime during the latter half of the year, so that the average employee receives it on January 1st and would, therefore, receive $50 during FY '94. Employees who qualify for the longevity raise, will receive a total of $200 in FY '94, and those who do not qualify, will receive $150.00. Those totals are reflected in Column 3. In giving the longevity raise to employees, we are giving it to those employees who had 9 years of service as of June 30th because we are going to assume that they will have worked 10 years on their anniversary date in FY '94, and, therefore, would receive this raise from the State. Column 4 indicates the total wage paid to that employee for FY '94 under the State's offer. This figure represents column 2 x 2,080 hours plus the amount in column 3. All rows in Column 4 were totalled for a total State offer of $14,982,594.00.

Council's Total Offer

The Council's offer is shown in columns 7-9. Unlike the State, their wage offer went into effect on July 1st. That hourly amount is shown in column 7 and was taken from Respondent's Exhibit 107. This column includes the additional amount the employees would receive as a result of enacting the 11 step pay plan requested by the Council, with the State placing those employees on the step nearest their present pay. This is the most conservative approach the State could take and one which was acknowledged by the petitioner as a method they could use. Column 8 uses the longevity pay offer of the Council which we have said is comparable. Column 9 reflects the cost to the State using the Council's offer on wages, step pay plan and longevity (Column 7 x 2,080 hours + Col. 8). At the bottom of Column 9, we have added the cost of shift differential so as to accurately reflect the cost of Council's final offer. We will not, however, include this amount in our comparability total as we have found that shift differential is not comparable. We do not know how many employees work on the second and third shifts which are requested in the Council's offer to receive shift differential, but we are going to assume that it is 2/3 of the total employees x 519 employees x .30 per hr. = $215,904.00. All rows in Column 9 were totalled and the shift differential was added to it for a total Council offer of $15,642,393.00.


Lastly, we calculate the total comparability cost. We have said that a step pay plan with 11 steps is comparable. We know from looking at Petitioner's Exhibit 1 that some states progress employees either automatically or based on performance. We have no way of knowing how the employees in the case at bar would have progressed on the salary schedules of these other states. The best we can do is assume that the employees, on the average, would have progressed half way on those other schedules. Therefore, the figure we use in determining comparability for each employee is the average of the minimum and maximum comparability figures for each job classification. This number is listed in Column 5.

We realize that this is giving more credit than is due to those employees who have only worked for the State for a minimum number of years, but it is giving less credit than is due to those who have worked many years. The average number of years of service for these employees is 13 and the median is 12 years. The only other way to calculate comparable wages would be to assume that none of the employees ever progressed through any of these salary schedules and then only use the minimum comparable wage of each job classification for each employee. While we wish to be conservative in our figures, we believe this to be totally unrealistic.

Column 6 gives the total comparable wage for each employee. This is arrived at by taking Column 5 x 2,080 hrs. + longevity from Column 8. All rows in this column were added to arrive at a comparable package of $16,133,668.20.


The Bargaining Act, as passed, has many potential problems, some of which are set out below:

1) The Special Master has the authority to consider many different factors before deciding which final offer is the most reasonable. These include abiity to pay, reasonableness, what other state units contracted for, comparable rates of pay and the ability to implement the final offer. However, if either party appeals, the standard of review is restricted to comparability.

2) If the Special Master's decision is overruled, the C.I.R. must choose one of the last best offers in total. This offer may contain conditions of employment that are not comparable. The C.I.R. does not have authority to pick and choose from the final offers so as to put together a total package that is as close to comparable as possible.

3) The Bargaining Act contemplates the parties negotiating a two year agreement. However, the offer that the C.I.R. may be required to choose under the Act may not provide for the second year and the parties are left adrift. In any event, the C.I.R. will most likely never have any comparability information for the second year.

We have, in every instance, given significant deference to the Special Master's ruling. However, the legislature even contemplated situations where we would not affirm the Special Master. We note that Senator Warner, in the committee hearing of March 2, 1987, introducing the bill and talking about the committee amendments (AM0539) that later became the entire bill and speaking specifically about the committee amendment that gave a definition to "significantly disparate," stated:

"...it would restrict the C.I.R. to either accepting the final offer of either management or the bargaining unit if comparability was determined to...be within the range that those two final offers also fell. If on the other hand, comparability as currently utilized by the C.I.R...if comparability was found to be outside of the final offers, that then the final offer closest to comparability would be the one that would take effect for that...that year,..." (p. 81).

Our calculations conclude that the State's final offer is $14,982,594, the Council's offer is $15,642,393 and comparability falls at $16,133,668.20. Comparability does not fall between the final offers, but rather almost $500,000 above the Council's offer. We, like the Special Master, conclude that the Union's final offer is most comparable. Unlike the Special Master, who accepted the State's offer because it was the most reasonable, we must apply our standard of review and conclude that the Special Master's findings are significantly disparate from the prevalent rates of pay and conditions of employment and must be set aside.

Therefore, the Commission ORDERS that:

1) The State implement the Council's final offer in its entirety, including shift differential even though it is not comparable.

2) Since the final offer is silent on placement and progression, the State may initially place these employees on the pay plan and progress the employees in whatever manner it chooses, provided the pay plan has 11 equal steps.

3) In accordance with §81-1385, this order is effective prospectively from the date of this Findings and Order.

All judges assigned to the panel in this case join in the entry of this Findings and Order.

Entered September 1, 1993.