15 CIR 136 (2006) Reversed and Remanded with directions. 274 Neb.103 (2007) 736 N.W.2d 726

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Filed March 9, 2006

 APPEARANCES:

After the trial of this matter, the Commission entered an Opinion and Order on Remand on January 25, 2006. On February 1, 2006, Respondent timely filed a Request for Post-Trial Conference as provided for in Neb. Rev. Stat. § 48-816(7)(d), which allows the Commission to hear from the parties on those portions of the recommended findings and order which are not based upon or which mischaracterize evidence in the record. Both parties agreed to waive the requirements in Neb. Rev. Stat. §48-816(7) to hold a hearing within 10 days of filing the Request for Post-Trial Conference.

A Post-Trial Conference was held February 13, 2006. The Petitioner was represented by its attorney, Mark D. McGuire. The Respondent was represented by its attorney, Rex R. Schultze. The parties waived the time requirement for issuing a Final Order.

            The Respondent’s Request for Post-Trial Conference raised two areas of objection to the Commission’s Order of January 25, 2006.  Those areas are dealt with as follows:

1.  Evidence of Bargaining of Contract Provisions

The Respondent argues that the Commission erroneously found that “the parties did not provide the Commission with evidence in the instant case of whether the other array contract provisions were bargained into their contract.” The Respondent further argues that the Commission cannot find that one contract clause in each contract was not bargained for, but then rely upon all other bargained-for provisions in determining salaries and benefits.

The Petitioner argues that it is not the array schools where bargained language is critical, but rather only to the parties in question. The Petitioner further argues that neither party offered evidence of a detailed bargaining history of deviation in the array schools, either in the appeal on remand, or in the first trial. The Petitioner finally argues that even if the comment by the Commission was incorrect, such a comment does not change the critical analysis of the decision.

The sentence in question on page six of the Opinion and Order on Remand reads, “The parties did not provide the Commission with evidence in the instant case of whether the other array contract provisions were bargained into their contracts.” While the sentence as it currently reads does not impact the analysis and result of the current decision, the sentence does not accurately reflect the intent of the Commission. The sentence should be corrected, removing the word “whether” and replacing that word with the word “how.” The sentence on page six should now read, “The parties did not provide the Commission with evidence in the instant case of how the other array contract provisions were bargained into their contracts.”

2.  Prevalency of Deviation

The Respondent argues that the Commission erroneously finds that “deviation is clearly not prevalent” because the Commission is legislating the definition of deviation.  The Respondent further argues that if the Commission can use negotiated agreements to set salary and benefits for Hyannis , then those same agreements are not “meaningless” to compare prevalent deviation clauses. The Petitioner argues that the Respondent’s argument lacks substance and is not an issue properly before the Commission in a § 48-817(d) post-trial conference.

In its opinion, the Supreme Court remanded this case, directing the Commission to consider the deviation issue under a prevalence analysis. The Supreme Court did not direct the Commission to find a deviation clause prevalent because all deviation clauses are the same. The Opinion and Order on Remand issued by this Commission accomplished that goal by balancing the evidence presented at trial, years of case law regarding prevalency, and finally the historical significance of the teacher salary schedule. In its decision, the Commission was following years of case law, which developed the methodologies of making comparisons in a wage case. Deviation clauses consist of words, and words cannot be added and divided like numbers to make fruitful comparisons. Instead, in order to analyze a deviation clause, the Commission must develop a fair methodology to make such comparisons between sufficiently similar clauses. In developing such a methodology, the Commission is not legislating a result. If the Respondent desires a legislative result, the Commission is not the appropriate body of government to resolve this matter.

In reaching our Opinion and Order on Remand that deviation is not prevalent, after careful review of the Order, the Commission can find no mischaracterization of evidence.

IT IS THEREFORE ORDERED that Respondent’s request to amend the order of January 25, 2006 is sustained in part and overruled in part and such Order shall be as stated herein. It is the final order of the Commission that:

1. The sentence on page six of the Commission’s January 25, 2006 Opinion and Order on Remand should now read, “The parties did not provide the Commission with evidence in the instant case of how the other array contract provisions were bargained into their contracts.”

2. All other portions of the Commission’s January 25, 2006 Opinion and Order on Remand shall remain as previously stated.