13 CIR 246 (1999).

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

This matter came on for consideration before the Commission on Respondent's Motion in Limine seeking an Order from the Commission limiting evidence to be produced by the parties in the matter to those documents, testimony and other evidence which impact solely on wage rates for employees in the bargaining unit. Petitioner filed a Reply in resistance to the Motion in Limine. For the reasons cited herein, the Motion in Limine is denied.

Petitioner filed this action seeking an Order establishing wage rates and other conditions of employment for employees in the bargaining unit for the period November 1, 1998, through October 31, 1999. In the Petition, Petitioner alleged that the parties had entered a labor agreement ("Agreement") dated December 17, 1997, covering the period November 1, 1997, through October 31, 2000. In the Agreement , the parties addressed wages, terms and conditions of employment and specifically provided an Article 27, page 42 Duration of Agreement, for a "wage reopener" in the following language:

"This Agreement shall be effective from November 1, 1997, until October 31, 2000, with a reopener for wages only for contract year 1998-1999 and 1999-2000 and thereafter for a one (1) year period, unless one (1) of the parties hereto on or after April 1 and prior to May 1 of any such year shall notify the other party in writing of its desire to modify the Agreement or any part thereof." (emphasis added).

The Petition alleges that the Respondent and Petitioner are in dispute over the wage reopener and whether all terms and conditions of employment are comparable when considering the current level of wages. Petitioner desires an adjustment in wages so as to make the overall wages and conditions of employment comparable to prevailing wages and conditions of employment for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions. The Petitioner alleges an industrial dispute exists between the parties.

Respondent, in its answer, admits these allegations and that "in establishing wage rates, in the event there exists an industrial dispute, that the Commission may take into effect the overall compensation received by employees in determining comparable wages and that overall compensation may include wages for time not worked, vacations, holidays and other economic benefits such as insurance and pensions." Respondent's Answer at Paragraph 4, Page 2. Respondent denies "that an industrial dispute exists with reference to terms and conditions of employment except in so far as economic benefits as they effect overall compensation as defined and set out in Section 48-818 of the Nebraska Revised Statutes, as amended." Respondent's Answer at Paragraph 5, pages 2-3. Respondent prays for the Commission to determine that the wages paid to members of the bargaining unit are comparable to or exceed wages for employees of comparable employers in similar job positions and that the Petition be dismissed.

Respondent by its Motion in Limine seeks " to limit evidence to be produced by the parties in this matter to those documents, testimony and other evidence which impact solely on wage rates for employees in the bargaining unit." The Motion seeks for the Commission to "determine the general terms and conditions of employment are not at issue in these proceedings..." while acknowledging "it is not seeking to limit evidence of overall compensation in order for the Commission to determine comparable wage rates." (Respondent's Motion in Limine pages 1-2).

Petitioner in its reply to the Respondent's Motion in Limine states that it intends to "use evidence of fringes and benefits to adjust wages under its wage reopener and to prove that overall compensation is not prevailing." (Petitioner's reply at 1).

The Commission's authority to establish wages is set forth in Neb. Rev. Stat. §48-818 (Reissue 1998) which provides:

"In establishing wage rates, the Commission shall take into consideration the overallcompensation presently received by the employees, having regard not only to wages for actual time worked, but also to wages for time not worked, including vacations, holidays, and other excused time, and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees...." (Emphasis added).

Generally, existing statutory law of the state is an inherent part of every contract in the state as if set forth therein. Bobbitt v. Order of United Commercial Travelers, 180 Neb. 285, 289 (1966); 142 N.W.2d 351 (1966); State v. Hurley, 201 Neb. 569, 270 N.W.2d 915 (1978);Haakinson & Beaty Co. v Inland Insurance Company, 216 Neb. 426, 430, 344 N.W.2d 454 (1984); In re Estate of Peterson, 221 Neb. 792,803, 381 N.W.2d 109 (1986). In Haakinson & Beaty Co. v. Inland Insurance Company, 216 Neb. at 430 the Court stated:

"It has long been the law, in both this jurisdiction, and elsewhere, that the law of the state is an inherent part of every contract and that every contract is made with reference to and subject to the existing law, and every law effecting the contract is read into and becomes a part thereof." (citations omitted).

Under many circumstances, statutory provisions may be waived, but if waived, must be done so in clear and unequivocal language. In re Estate of Peterson, 254 Neb. 334, 340; 576 N.W.2d 767, 772 (1998). The interpretation of an existing labor agreement is not within the authority of the Commission, Transport Workers of America, Local 223 v. Transit Authority of the City of Omaha, 205 Neb. 26, 31; 286 N.W.2d 102 (1979), and we will not do so here. InTransport Workers, 205 Neb. at 30, the court said:

"An administrative board has no power or authority other than that specifically conferred by statute or by a construction necessary to accomplish the plain purpose of the act." (citations omitted).

See also Nape v. Game & Parks Commission, 220 Neb. 883, 374 N.W.2d 46 (1985). We do not intend to deviate from those principles here. In our previous case of Local Union Number 647 International Association of Firefighters v. City of Grand Island, 9 CIR 43, 46 (1987), we held, under a similar reopener for wages only in an existing contract, that the value of fringe benefits must be considered in determining the wages based upon the overall compensation requirements contained in Neb. Rev. Stat. §48-818 (Reissue 1998). The reasoning of this case remains sound. Without clear and unequivocal evidence of waiver of the statutory requirement that we consider overall compensation, we will consider evidence of the value of all benefits relating to overall compensation in establishing wage rates to resolve this industrial dispute as required by §48-818. Lincoln Firefighters Association v. City of Lincoln, 253 Neb. 837, 845 (__ N.W.2d ___ ). However, In Lincoln Firefighters, the Nebraska Supreme Court recognized that dollar-for-dollar costing out of each benefit is not required:

"We have previously held that in establishing wage rates under §48-818, the Commission is required to take into consideration the overall compensation received by the employees, including all fringe benefits. Lincoln Firefighters Association v. City of Lincoln, 198 Neb. 134, 252 N.W. 2d 607 (1977). However, this does not require a dollar-for-dollar costing out of each benefit when, as here, the contract here in dispute has already past. §48-818 requires only that the 'overall compensation' be addressed. We recognize the impossibility or impracticality of retroactively changing fringe benefits for an expired contract year, and we question the practicality of assigning a monetary value to a fringe benefit such as the number of employees allowed to participate in negotiations." (Emphasis added)

Lincoln Firefighters, 253 Neb. at 845.

Thus, all evidence relating to overall compensation to aid the Commission in "establishing rates of pay comparable to the prevalent wage rates for the same or similar work" (48-818) including those factors and benefits set out in 48-818 shall be considered. The evidence shall not be admissible to alter the benefits themselves, but to determine the comparability of total compensation and to set the wage rates as required by §48-818. To the extent that the Motion requested limitation of evidence concerning value of fringe benefits, the Motion should be denied.

IT IS THEREFORE ORDERED, that the Respondent's Motion in Limine is hereby denied.

Dated this 11th day of March, 1999.