15 CIR 383 (2007) 

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 APPEARANCES:

Entered August 14, 2007.

Before: Judges Orr, Blake, Burger, (not participating), Lindahl and Cullan (En Banc) 

NATURE OF THE PROCEEDINGS:

This matter comes before the Commission upon an appeal from the Special Master’s ruling dated February 14, 2007. This appeal was filed on March 15, 2007, by the State of Nebraska (hereinafter, “Petitioner” or “State”). On April 9, 2007 the Nebraska Association of Public Employees, AFSCME Local No. 61, (hereinafter, “Respondent” or “Union”), filed an answer. The Respondent is the bargaining agent for the eight separate state employee bargaining units under this action. The Union also filed an appeal on behalf of the Protective Services Bargaining Unit, but such appeal to the Commission was withdrawn prior to the beginning of the trial.

The Petitioner and Respondent jointly stipulated as to the sole issue presented at trial. The parties requested the Commission to enter an order on the following issue: Whether the decision of the Special Master with respect to wages in each bargaining unit, except Protective Services, is significantly disparate from prevalent rates of pay as determined by the Commission pursuant to Neb. Rev. Stat. §48-818.

In the current case, the Commission must determine whether to sustain or overrule the Special Master’s ruling. In doing so, the Commission must review the State Employees Collective Bargaining Act.

JURISDICTION:

The Commission finds that it has limited jurisdiction to decide the above issue. This jurisdiction is distinguishable from the Commission’s general jurisdiction under Neb. Rev. Stat. §48-818. Under the State Employees Collective Bargaining Act, the Special Master’s powers are made clear 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 Special Master is directed to choose the “most reasonable” final offer and not the “most comparable.” On the other hand, the Commission’s authority to review is very narrow. The Commission’s only authority is set forth 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. (Emphasis added).

(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. 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. (Emphasis added).

Simply put, the State Employees Collective Bargaining Act extremely limits the action the Commission can take after determining comparability. This statute incorporates both a reasonableness standard and a comparability standard. The Bargaining Act states that the Commission shall show significant deference to the Special Master’s ruling unless the Commission determines that the ruling is significantly disparate.

STANDARD OF REVIEW:

        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 spectrum of authority and gave the Commission limited review authority.

SPECIAL MASTER’S RULING:

Facts

        This action involves eight bargaining units: the Administrative Support Unit; the Administrative Professional Unit; Maintenance, Trades and Technical Unit; Health and Human Care Non-Professional Unit; Health and Human Care Professional Unit; Social Services and Counseling Unit; Engineering, Science and Resources Unit; and Examining, Inspection and Licensing Unit. In front of the Special Master, the parties agreed to rely upon the same group of six comparable employers for their final offers. These six comparable state government employers consist of the states of Colorado, Iowa, Kansas, Missouri, Oklahoma and South Dakota. The parties did not have any disagreement about the job matches. The bargaining period in question is from July 1, 2007 through June 30, 2009. The parties were unable to reach agreement on the sole issue of wages and pay plan administration, but were able to agree to all language and benefit issues. On February 3, 2007 a hearing was held by the Special Master, Mr. Peter Feuille. The Special Master issued his ruling on February 14, 2007. The ruling adopted the final offer of the Union for the eight bargaining units involved in this appeal, and adopted the State’s final offer for the Protective Services Bargaining Unit. The State appealed the Special Master’s ruling on March 15, 2007.

Union’s Total Offer

            For the 2007-2008 year, the Union’s offer was: (1) Effective July 1, 2007, each classification pay range will be increased as indicated by Appeal Exhibit 2, Exhibit 4[1] except that no increase in the maximum or minimum of a range shall exceed 7.5 percent from the 2006-2007 ranges. (2) Effective July 1, 2007 all employees in classifications where the ranges are increased pursuant to (1) above shall receive an in-range wage increase. See the formula set forth in Nebraska Public Employees Local Union 251 v. County of York, 13 Cir 157, 159, Table 17 fn.(a) (1998). (3) During the 2007-2008 fiscal year, on employee anniversary dates each employee shall receive a 2.5 percent increase in their base salary. (4) For the 2008-2009 year, the Union’s proposal sets forth the same three elements, effective July 1, 2008, with an increase in salary range minimum and maximum, capped at 7.5 percent; an increase in-range for employees in classifications where ranges are increased according to the County of York; and finally a 2.5% increase in each employee’s base salary, except that no such increase shall cause an employee’s salary to exceed the maximum of that Union’s Appeal Exhibit 2, Exhibit 4 salary range. For both contract years, the Union’s offer states that all minimum and maximum wage ranges for each classification shall be established per the classification assignments in Appeal Exhibit 2, Exhibit 4, and all minimum and maximum wage ranges that exceed the levels indicated by the negotiated State Salary Survey will remain at the 2006-2007 levels.  In other words, the Union’s proposal calls for freezing the pay ranges for the classifications that are at or above comparability as measured by the survey. These pay ranges will not be reduced, but neither will those ranges be increased.  

State’s Total Offer

            The State’s offer proposes the following: (1) On July 1, 2007 each employee will receive a 2.5 percent increase in their base salary. See Appeal Exhibit 2, Exhibit 5. (2) On July 1, 2008 each employee will receive a 2.5 percent increase in their base salary. (3) On July 1, 2007 each salary range minimum and maximum will be increased by 2.5 percent. (4) On July 1, 2008 each salary rate in each Appendix B pay plan will be increased by 2.5 percent.  

Special Master’s Analysis

            The Special Master wrote a very well-crafted opinion, basing his decision upon the testimony presented and the exhibits received at trial. The Special Master found that the last best offer of the Union was the most reasonable. However, in addition to finding the Union’s offer as the most reasonable, the Special Master actually found the Union’s offer was the more comparable of the two offers, stating that the Union’s last offer achieved comparability substantially better than the State’s last best offer. In his findings, the Special Master acknowledged that he was charged with choosing the most reasonable offer under the State Employees Collective Bargaining Act, yet ultimately he found that because Nebraska is a comparability state, comparability was the most important selection criterion in choosing between the two final offers. Basing his decision on comparability, the Special Master stated that, “Given the importance that Nebraska policymakers have attached to comparability, the most reasonable final offer in this proceeding will be the one that more closely or fully achieves comparability.” The Special Master concluded that the Union’s method of calculating comparability was far more reasonable than the State’s method.

The Special Master held that the Union’s proposal did a much better job of moving employees toward comparability than did the State’s offer. The Special Master found that the flat 2.5 percent increase from the State did nothing, in effect, to bring the underpaid employees to comparability and that the State provided little evidence to the contrary. While the State’s offer provided equal pay treatment for each employee, it did not provide equitable pay treatment for bargaining unit members in moving those employees toward comparability. In sum, the Special Master concluded that, “Given the importance of comparability in Section 81-1382(3) of the Bargaining Act and in Section 48-818 of the Industrial Relations Act, the State’s offer of equal treatment for each employee is significantly outweighed by the Union’s offer of equitable treatment for employees on the comparability criterion.”

Commission’s Analysis of Special Master’s Ruling

The Commission can only overrule the Special Master’s decision if the decision does not accept the most comparable offer. See State Law Enforcement Bargaining Council v. State of Nebraska, 12 CIR 32 (1993). The Special Master’s ruling fits well within the intent and spirit of Neb. Rev. Stat. §48-818, as his decision is clearly based on comparability. The Special Master concluded that only one of the two final offers attempted to achieve at least some level of comparability for the below-market employees. At the appeal hearing in front of the Commission, the State presented no evidence that the Special Master was incorrect in his decision. Without any additional evidence to prove the Special Master was incorrect in his analysis that the Union’s offer was not the more comparable, the Commission cannot overrule his decision. Since the Special Master clearly decided this case on both a reasonableness standard and a comparability standard, we must affirm his ruling.

CONCLUSION:

Therefore, the Commission ORDERS that:

1) The Respondent shall implement the Special Master’s ruling in its entirety (with the exception of the Protective Services Unit, which is not an appeal in front of the Commission).

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