16 CIR 283 (2009) Appealed August 4, 2009. Appeal Dismissed Feb. 12, 2010.
NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS
Entered July 9, 2009.
Before: Commissioners McGinn, Blake, Burger Lindahl and Orr (EN BANC).
NATURE OF THE PROCEEDINGS:
This matter comes before the Commission upon an appeal from the Special Master’s ruling dated February 12, 2009. This appeal was filed on March 13, 2009, by the Board of Regents of the University of Nebraska at Omaha (hereinafter, “Petitioner” or “Board”). On April 3, 2009 the University of Nebraska at Omaha Chapter of the American Association of University Professors (hereinafter, “Respondent”, or “Union”), filed an Answer. The Respondent is the bargaining agent for a faculty bargaining unit.
This is an appeal case from the Special Master, which occurred concurrently with the filing of three other State Employees Collective Bargaining Act cases. On April 28, 2009, the Respondent filed a Motion in Limine. The purpose of the Motion in Limine was to limit evidence which was proposed by the Petitioner, and intended for submission, at the Commission’s hearing on appeal. On May 5, 2009, the Respondent filed a response and brief to Petitioner’s Motion in Limine, stating that past case law of the Commission allowed such new evidence not presented by the parties to the Special Master and requested oral argument. On May 20, 2009, in conjunction with a Pretrial, the Commission heard oral argument on the Respondent’s Motion in Limine.
At the conference, the parties discussed whether the Petitioner may offer additional evidence at the hearing in this matter brought pursuant to Neb. Rev. Stat. § 81-1383. The Respondent argued that the hearing was an appeal hearing rather than a new trial. The Petitioner argued that the Commission’s previous decisions recognize that additional evidence is necessary in an appeal case from the Special Master.
Currently on the Commission’s docket, there are three other cases that fall under the State Employees Collective Bargaining Act. Motions in Limine were filed in all of the cases. In all four of the “State Cases” (including the instant case), the Commission sustained the Respondents’ Motions in Limine. See Orders on Motion in Limine in Cases 1207, 1208, 1209 and 1210. The Order on Motion in Limine in the instant case is hereby incorporated into this order and is attached.
The Commission held a hearing on the appeal on Wednesday, May 27, 2009. The Petitioner made an Offer of Proof at the hearing, regarding exhibits and testimony that would have been presented if the Commission had not sustained the Motion in Limine. This Offer of Proof was presented in the form of a written offer (See Exhibit 91), as well as several new exhibits (See Exhibits 59 – 86). The Commission overruled the Offer of Proof but the Exhibit is maintained as part of the record.
The Commission received Petitioner’s Trial Brief on May 27, 2009 and Respondent’s Trial Brief on May 27, 2009. On June 3, 2009, the Petitioner filed a reply to the Respondent’s Trial Brief and the Respondent filed its reply to the Petitioner’s Trial Brief on June 4, 2009. The parties requested the Commission to enter an order on the following issues: whether the Commission must consider and allow new evidence under the State Employees Collective Bargaining Act; whether the decision of the Special Master with respect to wages is significantly disparate from prevalent rates of pay as determined by the Commission pursuant to Neb. Rev. Stat. § 48-818 and supported by sufficient competent evidence; whether the Special Master’s conclusion regarding future salary increases is speculative; and whether the Special Master’s life insurance decision should be affirmed under the standards of Neb. Rev. Stat. § 81-1383(2).
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 and Neb. Rev. Stat. § 48-818.
The Commission finds that it has limited jurisdiction to decide the above issues. 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. Neb. Rev. Stat. § 81-1372. The Act also states, “The State Employees Collective Bargaining Act shall be deemed cumulative to the Industrial Relations Act except when otherwise specifically provided or when inconsistent with the Industrial Relations Act, in which case the State Employees Collective Bargaining Act shall prevail.” Through this legislative mandate, state employees in Nebraska are treated separately and distinctly under the Act from all other public employees in the State of Nebraska. In light of our other legislative mandate under § 81-1383(2) and (3), which requires us to analyze the Special Master’s decision pursuant to Section 48-818, we note in all instances where 48-818 conflicts with the State Employees Collective Bargaining Act, the State Employees Collective Bargaining Act controls. See Neb. Rev. Stat. § 81-1372.
SPECIAL MASTER’S RULING:
The Board timely filed its appeal with the Commission on March 13, 2009. The case arises from contract negotiations between the Board and the Union. The bargaining unit consists of approximately 497 permanent and probationary faculty members at the Omaha campus of the University of Nebraska. All of these members are full-time academic-administrative personnel, such as faculty, researchers, counselors, and librarians. The Board and the Union reached an impasse during negotiations for a new collective bargaining agreement for the contract years of July 1, 2009 through June 30, 2011. The parties exchanged final offers with each other and submitted those final offers to the Special Master on January 15, 2009. On February 3, 2009, the Special Master held a hearing and both sides had the opportunity to present all the evidence they deemed appropriate. The parties then filed post-hearing briefs with the Special Master on February 5, 2009. The Special Master’s hearing was not transcribed and neither party requested the Special Master to make a record. Both parties also agreed at the Commission’s hearing on appeal, that they could have arranged for a court reporter to be present. On February 12, 2009 the Special Master issued his ruling. The Board then filed its appeal with the Commission. The parties are currently operating under and governed by a two-year collective bargaining agreement which covers the period of July 1, 2007 through June 30, 2009.
Union’s Total Offer
Using the same array as the University, the Union proposed a 3.8% percent increase in base salary for 2009-2010 and a 3.8% increase in 2010-2011, for a total base salary increase of 7.6% for the two-year contract. The Union also proposed in its final offer a provision to create a higher benefit level for life insurance.
Board’s Total Offer
Using the same array as the Union, the Board’s final offer proposes a 2.9% increase in base salary for 2009-2010 and a 2.5% increase in base salary for fiscal year 2010-2011, for a total base salary increase of 5.4% for the two-year contract. The Board offered to maintain the current life insurance contract language and benefit level for life insurance.
Special Master’s Analysis
In analyzing the parties’ offers, the Special Master first noted the parties’ previous bargaining history. This history listed the previous agreed-to array universities, as well as the parties determination of how far behind in wages the parties were in 2008-2009. The array universities were Northern Illinois University, Cleveland State University, University of Missouri – St. Louis, University of Northern Iowa, University of Arkansas at Little Rock, Wichita State University, University of Colorado – Denver, University of Texas at San Antonio, Portland State University, and the University of North Carolina at Charlotte. Using these ten schools the parties agreed that the result of these calculations in front of the Special Master equaled 5.84%. Both parties agreed to this figure in front of the Special Master for the 2008-2009 contract year.
The Special Master then analyzed the State Employees Collective Bargaining Act to determine what factors he should consider in determining the most reasonable final offer. After this analysis, he determined that comparability criterion was the only criterion specifically set forth in statutory language. Therefore, the Special Master should place the most emphasis upon the statutory comparability criterion. Using this reasoning, the Special Master concluded that on the comparability criterion alone, the final offer of the Union was the “most reasonable.” The Special Master reasoned that because the University’s offer did not even reach comparability for 2008-2009 (let alone the two years of the contract under current negotiation), the University’s offer was on its face not comparable under the Act. The Special Master noted that under both Section 81-1382 and Section 48-818 the Union’s offer was more reasonable. The Special Master concluded that the evidence did not support the University’s final offer which contained neither a full “catch-up” nor any “keep-up” salary percentages in comparison to the Peer Group.
Commission’s Analysis of Special Master’s Ruling
The Petitioner argues that the Commission must allow additional evidence relevant to a determination of prevalent rates of pay under Section 48-818. To support this argument, the Petitioner also made a written Offer of Proof at the Commission’s hearing on appeal. The Petitioner also argued at the Commission’s hearing that under 48-818 the petitioner is “not bound by any stipulation by the parties on the composition of an array. The Commission will find what is an appropriate array on its own and will – again, is not bound by a stipulation of the parties.” The Respondent argues alternatively that the exhibits presented are more than sufficient to support the Special Master’s decision and that the Commission only requires sufficient information to make a comparability determination.
The Offer of Proof illustrates what the Petitioner would have presented as evidence in these proceedings; but it does not constitute evidence in these proceedings. The Offer of Proof further shows that the Petitioner was intent on trying a regular wage case in this appeal proceeding. The parties computed and agreed upon the numbers that were necessary for comparability for the two issues in dispute. (See Exhibit 5- where the parties had an understanding that if either party intended to consider other institutions as potential peer institutions, the other party was to be notified no later than October 10, 2008). Those numbers are contained in the exhibits, and those are the numbers upon which comparability was calculated by the Special Master. Therefore, if the Commission uses numbers other than the numbers the parties had agreed upon before the Special Master, the Commission would not be determining whether the Special Master decision was in fact significantly disparate. We agree with the Respondent that the “mutually agreed-upon numbers” are all the Commission needs to determine comparability figures (and then apply them to the Special Master’s decision).
At the Special Master proceedings, we do not consider the lack of a verbatim record to be an issue. The parties agreed to not having a court reporter to create a record. Neither party made an issue of this in front of the Commission. The Special Master decision and the exhibits presented to the Special Master, which the parties agreed to, is the record for the Commission to review on this appeal.
Evidence of Proposed Salary Increases
At the Special Master hearing, the Board argues that the Union failed to present any evidence which would support the Special Master’s “guess.” On appeal the Board argues that it provided the Special Master with substantial concrete evidence that for the 2009-2010 academic year (the evidence the Board argued shows that the increases were flat (0%)). The Board cites Exhibits 18-29 and its Offer of Proof. The Union argues that neither side presented authenticated wage figures, including the exhibits cited by the Board; and that because both sides agreed to the array in front of the Special Master, the Petitioner should not be afforded the opportunity to renege on its stipulation that wages were 5.84% below comparability in 2008-2009.
In his decision, the Special Master acknowledged that without existing evidence as to the market’s future condition, he could only accept the most reasonable second year offer based upon his conclusions. The Special Master also found that during the last significant period of budgetary constraints (at the State level in 2003-2005), the Special Master in the 2003-2005 contract award still granted a salary increase of 3% per year. At the instant hearing, the Special Master found that, contrary to the contention of the University, the Union was not required to present concrete evidence concerning any “keep-up” salary amount that the peer group members would receive during the next biennium. In support of his reasoning in the instant case, the Special Master examined the statutory timetable and legislative intent for the Special Master determinations.
Our review of the legislative intent is congruent with the Special Master’s analysis. The committee hearings and the floor debate regarding LB661 (the bill that created the State Employees Collective Bargaining Act), have prolific references on the importance of timing the state budget cycle with the bargaining process. On Page 25 of the Pashler Report, the study on which the Legislature based the State Collective Bargaining Act, the objectives of the Act were to advance bargaining, resolve disputes without undue delay or litigation, to accommodate the budget, to encourage voluntary settlements, and to develop a speedy and simple process. The Pashler Report recommended that the Act require all contracts to be negotiated on a two-year basis concurrent with the two-year budgets.
In State Law Enforcement Bargaining Council v. State of Nebraska, 12 CIR 23 (1993) (“Law Enforcement I”), the Commission determined that under the State Employees Collective Bargaining Act, the Commission will more than likely be determining comparability, for the first year only, from data which will probably not be current. The Commission noted that the reason for the lack of data was apparent in a plain reading of the Act:
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.
In the Commission’s finding in Law Enforcement I, the Commission found that it could only look at the last offers and compare them to the comparability data given for the first year. After reviewing the comparability data, if the Commission then found the Special Master's decision to be significantly disparate, the Commission only had the jurisdiction to pick the last offer that is closest to comparability. Ultimately in Law Enforcement I, the Commission held that based on the evidence presented there was little evidence to consider concerning the second year and the Commission ordered the parties to enter the final offer in its entirety, even though the offer’s second-year data regarding actual comparability was not available.
At the Special Master hearing in the instant case, the parties agreed that the bargaining unit was 5.84% below market in the area of employee salaries. The Union admits that the numbers represent current 2008-2009 market conditions, not the conditions for the actual years in question (as is the case in a normal Section 48-818 determination where the parties are not constrained by the statutory timelines of the State Employees Collective Bargaining Act, the parties have current market conditions data to present as evidence.) Exhibits 18-29, presented to the Special Master at his hearing, were exhibits regarding the upcoming budget crisis facing universities in 2009 - 2010. None of these exhibits provided the Special Master or the Commission with actual salary figures in 2009-2010. While the Petitioner presented evidence that array members were faced with difficult budgetary conditions and the Commission is mindful of those constraints, such constrictions do not translate into a certainty of wage freezes under Section 48-818.
At the Special Master hearing, no actual comparability figures were presented by either party. We are persuaded by the Respondent’s reasoning. The State Employees Collective Bargaining Act requires the parties to present final offers that cover a two-year period. By legislative mandate, the Commission is required to consider the second year, even though under a regular Section 48-818 wage case such evidence would be speculative for the first and second contract years. The Legislature clearly distinguishes State employees from other public employees through the creation of this Act. We agree with the Special Master that the Act requires the parties to negotiate a two-year contract even though accurate data for Section 48-818 does not exist. The Special Master’s decision is not disparate from Section 48-818.
The Union argued at the Special Master hearing that the University should provide each bargaining unit member with life insurance in the amount equivalent to the unit member’s base salary. The Union proposed the following new language under the new subsection 4.4.3 Life Insurance: “Each Unit Member shall be provided life insurance coverage to the equivalent to his or her base salary at no cost to the maximum benefit of $120,000”. In support of its proposal, the Union argues that within its peer group bargaining unit, UNO faculty rank tenth among the eleven cited universities in life insurance coverage. Also in support of its proposal, the Union cites the fact that seven out of ten of the peer group members provide life insurance at least at the level set forth in the Union’s final offer. The Union also claims that the total annual cost for such a benefit would be $112, 367.
Alternatively, the Board argued at the Special Master hearing, that no change to either the language or the benefit level for life insurance should occur. In support of this final offer with regard to life insurance, the Board contended that only six peer group members provide as much or more life insurance than the amount contained in the Union’s final offer. Within these six peer group members, the Board argues that the entire amount of life insurance coverage is paid for by the employee at the University of North Carolina-Charlotte, and that two of the other peer group universities provide the higher level of that benefit through existing retirement systems. In sum, the University argued that the Union did not prove to the Special Master that such a final offer with regard to life insurance was a prevalent practice within the peer group.
The Special Master found that the evidence in the comparability data showed, that at a minimum, the life insurance benefit provided by the Board was the third least favorable amount of the peer group. The Special Master found that even using the Board’s data, six of the ten members in the peer group provide a benefit at the level contained in the Union’s offer. In making this analysis, the Special Master stated that whether the enhanced benefit was provided through the State’s General Fund or as a separate benefit, was immaterial to the Special Master’s inquiry into whether the peer group provided such a benefit. While the Special Master was concerned with the costs relating to adding such a benefit, the Special Master reasoned that the statutory criterion of comparability was clearly the most important criterion in the Special Master’s determinations under the statutory scheme. The Special Master found that the Respondent had the ability to pay for this benefit, such a benefit was relatively of low increased cost to provide to the bargaining unit members and there was no evidence of relevant statutory criteria that would require the Special Master to come to a different finding. The Special Master found the Union’s final offer the most reasonable.
Section 81-1371(9) defined “mandatory topics of bargaining” as follows -“those subjects of negotiations on which employers must negotiate pursuant to the Industrial Relations Act, including terms and conditions of employment which may otherwise be provided by law for state employees, except when specifically prohibited by law from being a subject of bargaining.” The State Employees Collective Bargaining Act also expressly includes insurance as stated in Section 81-1371(8)
Issue shall mean broad subjects of negotiation which are presented to the Special master pursuant to section 81-1382. All aspects of wages shall be a single issue, all aspects of insurance shall be a single issue, and all other subjects of negotiations classified in broad categories shall be single issues.
Under Section 48-818, the Commission conducts a prevalancy analysis on economic items, including life insurance. See City of Omaha v. Omaha Police Union Local 101, 5 CIR 171 (1981); Fraternal Order of Police Lodge 24 v. City of Grand Island, 14 CIR 59 (2002); or International Brotherhood of Electrical Worker Local 1597 v. City of Gering, 15 CIR 140 (2005). Exhibits 7 and 42 list the ten peer group institutions, which show that it is a prevalent practice in 6 out of the 10 array members to provide life insurance coverage based upon a percentage of the employee’s salary. The results as to the amount of maximum benefit vary with no clear mode. The Union’s final offer with regard to life insurance closely mirrors the Commission’s prevalency analysis conducted under Section 48-818. The Special Master’s decision of choosing the Union’s final offer with regard to life insurance is not significantly disparate from Section 48-818. In the instant case, we affirm the Special Master’s ruling on life insurance.
The Board contends that the Special Master’s decision is not comparable and is significantly disparate from the prevalent rates of pay pursuant to Section 48-818. The Union argues that the Special Master correctly determined overall comparability.
The Commission does not disagree with the Petitioner’s contention that, in a standard Section 48-818 case, the Commission and the Nebraska Supreme Court decline to make decisions based upon speculation. However, this case is decided under the State Employees Collective Bargaining Act, and the Legislature clearly chose to treat state employees differently from any other public employee in Nebraska. Here, if we were to apply the logic in standard Section 48-818 cases to the State Employees Collective Bargaining Act, it would be difficult if not impossible for either party to set wages for either 2009-2010 or 2010-2011. Surely, the Legislature did not intend such a result. Such a result would create a scenario in which the Commission would never be able to conduct a Section 48-818 analysis, as the figures would rarely (if ever) be based upon actual comparability data. The time requirements of the Act do not allow the parties sufficient time to collect actual wage evidence. Nevertheless, the statute clearly directs the parties to bargain for both years of the two-year budget cycle.
The Commission’s legislative charge states that 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.” See State Law Enforcement Bargaining Council v. State of Nebraska, 12 CIR 32 (1993) (“Law Enforcement I”). The Special Master’s ruling fits well within the intent and spirit of Neb. Rev. Stat. § 48-818. The Special Master’s decision was not significantly disparate; we shall affirm his ruling. See Table 1, which lists the Special Master’s comparability results.
The Petitioner’s contention that this Commission should not depart from its past precedent of allowing evidence to be introduced at the appeal hearing without first giving notice to interested parties (and Commissioner Blake’s position on that subject in his dissent) are arguable. However, the legislative intent of the State Employees Bargaining Act is clear. See the Order in Limine attached.
It is not very clear regarding how or why the parties, in the State Employees Collective Bargain Act cases cited by the Petitioner, were allowed to present evidence before the Commission which had not been presented to the Special Master. Perhaps the parties agreed that each would present additional evidence. The danger of allowing such a violation of legislative intent is startlingly, demonstrated by 13 CIR 104, (“Law Enforcement II”) cited by the Petitioner. That appeal from a Special Master Ruling was not decided for an entire year after the filing of the appeal with the Commission. This is because the appeal turned into a regular wage case with expert witnesses and discovery proceedings. In the instant case, it should be noted that the Respondent had filed notice of discovery requests, interrogatories, and a request of production of documents prior to the Order in Limine being entered.
Granted, it would have been preferable for the Commission to have adopted expedited procedures and to have given notice of the same. Our failure to have done so does not mean we should allow further disregard of the legislative intent of the State Employees Collective Bargaining Act.
In any event, the Petitioner’s contention that it should be allowed to disregard stipulated facts that were presented to the Special Master and thus change the facts upon which the decision of the Special Master was based is untenable.
Therefore, the Commission ORDERS that:
1) The Special Master’s ruling is affirmed and the Petitioner shall implement the Special Master’s ruling in its entirety.
Commissioners McGinn, Orr, and Lindahl join in the entry of this Opinion and Order on Appeal. Commissioner Burger concurs. Commissioner Blake dissents.
G. Peter Burger, Concurring:
I disagree with the conclusion that the State Employees Collective Bargaining Act does not permit any supplemental evidence. In that respect, I believe the comments in the dissent accurately reflect the proper position on this issue.
Nevertheless, the long standing practice of one assigned hearing commissioner ruling on evidentiary issues, leaves us with a situation where the evidence actually received supports the findings and order in this case. Although I agree with Commissioner Blake, I concur in the ultimate order for this reason.
William G. Blake, Dissenting:
I must once again dissent, for the reasons stated in Case No. 1209 and Case No. 1210. This case presents quite well the problems faced by the Commission in Special Master appeals under SECBA. We are necessarily faced with educated guesses (otherwise known as speculation) by the Special Master; a poorly created record upon which to review the Special Master's determinations; an offer of proof which includes offered evidence which may show that the Special Master's guess as to a percentage salary increase in the array is unsupported; a party which appears to now want to change the agreed upon array; and the possibility of turning the Commission's appeal proceeding into essentially a new comparability proceeding.
No matter how we interpret SECBA, the Commission has never approved allowing anything more than a limited amount of evidence before the Commission which is relevant to the issues to be decided. Evidence to support adding new array members would not be relevant, and information intended to support changing the array by removing previously agreed upon members would also not be relevant.
Information intended to show that the Special Master's best guesses are in error would, in my view, be relevant. The Petitioner's Offer of Proof in this case is quite broad in scope, offering much evidence which we would not find relevant to the limited issues before us. It does purport to include evidence that could show the entire basis for the salary increases determined by the Special Master to not only be speculative, but also in error. Of course, we may decide, after hearing such evidence, that we agree with the Special Master or that we should defer to the Special Master's determination. We should at least hear such evidence; and I would withhold ruling in this case until we have done so.
The prior decisions of the Commission clearly allow such limited new evidence. In Law Enforcement II, l3 CIR 104, the Commission did not violate legislative intent. The issue of additional evidence was contested by the parties and the Commission specifically ruled on the issue after discussing legislative intent and examining legislative history. The Commission understood the difficulty in opening the appeal hearing to unlimited new evidence, the time constraints of SECBA, and the conflict between the mandate to act quickly and the restraints against speculations. The Commission balanced these and attempted to follow legislative intent as closely as possible. Nothing has changed, including SECBA. I believe we have created a situation which begs for clear direction through judicial review and/or legislative revision. In doing so, the Commissioners and the parties have all attempted to do their best to interpret and follow an amorphous statutory directive.
NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS
Entered May 21, 2009.
This matter comes before the Commission for consideration on Respondent's Motion in Limine seeking an Order from the Commission on whether the Petitioner may offer additional evidence at the hearing in this matter brought pursuant to Neb. Rev. Stat. §. 81-1383. The Respondent argues that the hearing in this matter is in the nature of an appeal rather than a trial. The Petitioner submitted a brief to Respondent’s Motion in Limine and requested oral argument.
In this case, the Petitioner timely appealed from the Opinion and Ruling of the Special Master dated February 12, 2009 to the Commission of Industrial Relations, on March 13, 2009. In its appeal, the Petitioner specifically prayed that the Commission accept and allow evidence and determine the prevalent rate of pay. The Respondent requests through its Motion in Limine to bar the introduction of such evidence in front of the Commission. The Commission heard oral arguments on the Motion at 2:00 on Wednesday, May 20, 2009. The Petitioner was represented by its attorney John C. Hewitt. The Respondent was represented by its attorney Dalton Tietjen.
Under Neb. Rev. Stat. §. 81-1383(1) the parties, “may appeal an adverse ruling on an issue to the Commission on or before March 15 and no party shall present an issue to the Commission that was not subject to negotiations and ruled upon by the Special Master.” In light of the arguments presented by the parties, a review and an analysis of the statutory language and legislative history crafted by the Legislature is appropriate. Under Neb. Rev. Stat. § 81-1372, “the State Employees Collective Bargaining Act shall be deemed cumulative to the Industrial Relations Act except when… inconsistent with the Industrial Relations Act, in which case the State Employees Collective Bargaining Act shall prevail.”
The Nebraska Legislature also set forth numerous dates under Neb. Rev. Stat. § 81-1379, setting forth a clear and condensed timeline to follow the budgeting process of the State. Neb. Rev. Stat. § 81-1379 sets forth that, on or prior to the second Wednesday in September of the year preceding the beginning of the contract period, the parties shall commence negotiations. Neb. Rev. Stat. § 81-1379 also states that all negotiations shall be completed on or before March 15 of the following year. If the parties do not reach a voluntary agreement by January 1, the parties shall employ a mediator under Neb. Rev. Stat. § 81-1381. The parties shall exchange all final offers no later than January 10 under Neb. Rev. Stat. §. 81-1382(1) and no later than January 15 shall submit all unresolved issues resulting in impasse to the Special Master under Neb. Rev. Stat. § 81-1382(2). Also under Neb. Rev. Stat. § 81-1382(2), the Special Master establishes a process to address litigation matters such as “adjudication,” “rules of conduct for the hearing,” “acceptance of stipulations,” and “order mediation if necessary.” Under Neb. Rev. Stat. § 81-1382(3), the Special Master shall issue his or her ruling on or before February 15. Finally, under Neb. Rev. Stat. § 81-1382(3), the parties must file an appeal on or before March 15 and 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 plain reading of the statute is replete with time deadlines. The statutory language clearly is intended to expedite the bargaining process to coincide with the Legislature’s budgeting cycles. Even though under Neb. Rev. Stat. § 81-1383, the Legislature requires the Commission to analyze the Special Master decision as compared to the requirements set forth in Neb. Rev. Stat. § 48-818, such analysis does not mean the Commission should conduct a new trial. The statute only requires a comparison to Neb. Rev. Stat. § 48-818. While the statute is clear that proceedings in front of the Commission are considered “an appeal”, the statute is vague as to how the appeal is to be conducted. Therefore, the legislative history can be used as a guideline in determining the Legislature’s intent.
The legislative history of these changes between the Industrial Relations Act and the State Collective Bargaining Act ensured a synthesis between the two Acts and revealed the intent of the Nebraska Legislature to design a system of resolving labor disputes efficiently and quickly. While these proposed amendments to the Acts were offered in committee, Senator Ashford commented:
The bill, like the other bills are… that I’ve introduced this session are designed to expedite the legal process to save costs. To bring matter before… or to determination as quickly as possible…LB 718 is my intent to put…put specific time limits on the negotiating process and the process of the CIR hearing cases… it’s going to expedite the process and by expediting the process, you’re not going to have elongated proceedings going a year, sometimes eighteen months or two years after the time when a decision should be rendered. It’s … it’s just a tremendous benefit to have Legislation with time limits in these areas passed… we simply must have a process that’s more expeditious than the one we have now.
Committee Records, Committee on Business and Labor, March 2, 1987, LB 661, 718, p. 43-44.
Both LB661, which created an entirely new act (see the State Employees Collective Bargaining Act) and LB 718, which just amended the current Industrial Relations Act to set forth separate provisions for state employees and state employers were introduced to the Business and Labor Committee concurrently. LB 718 did not make it past the Committee, apparently because the Business and Labor Committee preferred a new, separate and distinct Act. Nevertheless, the committee hearings and the floor debate regarding LB661 have prolific references on the importance of timing the state budget cycle with the bargaining process.
On Page 25 of the Pashler Report, which is the study the Legislature based the State Collective Bargaining Act from, the objectives of the Act were to advance bargaining, resolve dispute without undue delay or litigation, to accommodate the budget, to encourage voluntary settlements, and to develop a speedy and simple process.
The Legislature was careful to amend the Industrial Relations Act to give effect to the Special Master as the fact-finder. The Legislature under the Industrial Relations Act, in contrast to the State Employees Collective Bargaining Act, created a different appellate process for Special Master provisions applicable to school districts, ESU’s and community colleges. Section 48-811.02(5) of the Industrial Relations Act reads:
Should either party through the Special Master proceedings be dissatisfied with the Special Master’s decision, such party shall have the right to file an action with the Commission seeking a determination of terms and conditions of employment pursuant to section 48-818. Such proceedings shall not constitute an appeal of the Special Master’s decision, but rather shall be heard by the Commission as an action brought pursuant to Section 48-818.
This section demonstrates that where the legislators wanted the Commission to serve, not as an appellate body, but rather as a specialized body for 48-818 dispute resolution, it clearly did so. The above language does not exist for appeals under the State Employees Collective Bargaining act.
There is no basis in any Nebraska statute of legislative intent to deviate from basic appellate procedure and allow additional evidence to the record made before the Special Master. To allow such additional evidence, would permit the parties to bolster what defects now apparently exists in the evidence. The Commission in State Law Enforcement Bargaining Council v. State of Nebraska, 12 CIR 32 (1993) (“Law Enforcement I”) and in the most recent state case, State of Nebraska v. Nebraska Ass’n of Public Employees, AFSCME, Local 61, 15 CIR 366 (2007) the Commission reviewed the legislative history of the State Employees Collective Bargaining Act, noting that with the addition of this new Act, the role of the Commission changed from the sole forum of resolution for all industrial disputes, to “that of a limited, intermediate review body.”
The Petitioner argues that the Commission’s previous decisions recognize that additional evidence is necessary in appeals from the Special Master. Specifically, the Petitioner cites State Law Enforcement Bargaining Council v. State of Nebraska, 13 CIR 104 (1998) (“Law Enforcement II”), where the Commission addressed the nature of the hearing to be conducted in front of the Commission in an appeal from the Special Master, where the Commission did not limit the introduction of additional evidence before the Commission. The hearing before the Commission in Law Enforcement II, appears to be in conflict with the intent of the Legislature in providing a speedy and inexpensive resolution to an appeal filed in front of the Commission. To allow the parties, to essentially have a “second bite of the apple,” ignores the basic legislative intent.
The Petitioner argues that the Respondent waived its right to appeal under Rule 18 of the Commission by not including its Motion in Limine in its Answer. The Respondent argues that it did not waive its argument by not including it in its Answer. The Respondent argues that its request for relief is a procedural request, that it could have made similar objection to exclude evidence at trial and that such a motion cannot be waived.
This case is an appeal and not a typical or regular wage case. The procedure is somewhat analogous to the Supreme Court and Court of Appeals rules, where parties are allowed to define the issues and assert their positions in their briefs. See Neb. Rules of Appellate Prac. § 2-109. The Commission is also authorized to adopt expedited procedures pursuant to Neb. Rev. Stat. § 81-1383(7). Commission Rule 18 is not applicable in this appeal proceeding.
The Petitioner also argues that “if the parties are limited to a record established before the Special Master then available resources will be directed to preparing for a full comparability analysis, including the presentation of expensive surveys, and expert witness testimony at the Special Master proceeding. The parties will be given short shrift to the negotiations at the bargaining table in favor of preparation for trial. Resources will be expended, for expert reports and the like, before the parties even declare they are at impasse.” Petitioner’s Brief p. 9-10.
The Petitioner then goes on to argue that “If a Special Master is expected to take on the Commission’s responsibility to conduct a comparability determination then why have a Special Master proceeding at all? Why not proceed directly to the Commission as with any other public employee wage dispute.” Petitioner’s Brief P. 10-11.
Contrary to the Petitioner’s position, it appears to this Commission that the purpose of the Special Master proceeding is to encourage the parties to present their last best offer to the Special Master no later than January 15. In September of the proceeding year, the parties are to commence negotiations. If the parties adhere to the statutory timelines, they will have been preparing their offers in light of comparability and reasonableness based on their investigations and surveys of the market. The parties have considerable leeway in presentation of evidence in support of their offers before the Special Master since the rules of evidence do not apply. It is likely that if the parties want to be able to present reasonable offers during the negotiation process they will have been working on contract issues prior to the September’s start date of negotiations.
The parties do not have to wait for a Special Master proceeding before gathering the evidence in support of their offer. A Special Master can make a ruling pursuant to Neb. Rev. Stat. § 81-1382(3) when provided with a full presentation of “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 is not expected to take on the Commission’s responsibility to conduct a comparability determination as suggested by the Petitioner. Rather the Special Master is to choose the most reasonable final offer by considering factors relevant to collective bargaining between public employers and public employees including comparable rates of pay and conditions of employment as described in Neb. Rev. Stat. § 48-818. See Neb. Rev. Stat. § 81-1382(3) (the Special Master’s responsibility pursuant to statute). The Commission’s responsibility is set forth in Neb. Rev. Stat. § 81-1383: “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…”. As stated elsewhere in this order, the Commission does not have to conduct a full-blown wage case in order to conduct a review of the Special Master’s ruling. It would seem that the parties would present the Special Master with all of the evidence they had gathered during the months before and after September. It would be unlikely that there would suddenly be some new evidence that could not have been presented to the Special Master.
We find that the Commission must show significant deference to the Special Master’s ruling and must 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 a Neb. Rev. Stat. §. 48-818 type of analysis. We find that this case should be conducted as an appeal on the record as made at the hearing before the Special Master. Therefore, this case is an appeal and we will adopt expedited procedures pursuant to Neb. Rev. Stat. § 81-1383(7).
IT IS THEREFORE ORDERED THAT:
1. The Respondent’s Motion in Limine is hereby granted.
2. No evidence additional to the evidence presented to the Special Master, additional exhibits not presented previously to the Special Master, and no witness testimony will be allowed by either party.
3. The Commission shall hear oral arguments at the appeal hearing previously scheduled for Wednesday, May 27, 2009 at 9:00 a.m. Trial briefs are due Wednesday, May 27, 2009 prior to the hearing. Responsive briefs to the previously submitted trial briefs shall be due Wednesday, June 3, 2009 at 5:00 p.m.
To obtain a copy of Table 1, please contact the Commission of Industrial Relations at (402) 471-2934 or at email@example.com