Before: Commissioners Orr, Blake, Burger, Lindahl, and McGinn (EN BANC).  Burger concurring. Blake dissenting. 

ORR, C.

 NATURE OF THE PROCEEDINGS: 

This matter comes before the Commission upon an appeal from the Special Master’s ruling dated February 15, 2009. This appeal was filed on March 13, 2009, by the State of Nebraska (hereinafter, “Petitioner” or “State”). On April 3, 2009, the Nebraska Association of Public Employees/AFSCME Local 61 (hereinafter, “Respondent”, or “Union”), filed an Answer. The Respondent is the bargaining agent for the Engineering, Science, and Resources bargaining unit (the “E” 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 Petitioner filed a response to Respondent’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 13, 2009, the Commission granted the Respondent’s Motion. Concurrently on the Commission’s docket, there were three other cases that fell 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 Motions in Limine in Cases 1207, 1208, 1209 and 1210. In all four cases, the Commission held that it could find no basis in any Nebraska statute or any history of legislative intent to deviate from basic appellate procedure by allowing additional evidence to the record made before the Special Master. To allow such additional evidence, the Commission reasoned, would permit the parties to bolster any defects now apparently existing in the evidence.  The Commission held that this case should be conducted as an appeal on the record, as made at the hearing before the Special Master.

The Commission held a hearing on the appeal on Thursday, May 28, 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 4), as well as several new exhibits (See Exhibits 5-10). The Commission overruled the Offer of Proof, but the exhibit is maintained as part of the record.

The Commission received Petitioner’s Post-Trial Brief on June 12, 2009 and Respondent’s Post-Trial Brief on June 15, 2009. The parties requested the Commission to enter an order on the following issues: 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; whether the Special Master’s conclusion setting wages for the second year is supported by evidence; whether the Special Master’s decision as to the non-wage benefits of overtime, holiday leave, vacation leave, sick leave, and injury leave, is significantly disparate from the prevalent pursuant to Neb. Rev. Stat. § 81-1383; and whether “internal consistency” is an accepted factor to resolve the non-economic issues.

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.

JURISDICTION:  

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:

Facts

The State timely filed its appeal with the Commission on March 13, 2009. The case arises from contract negotiations between the State and the Union. The bargaining unit consists of 386 employees in various professional and technical classifications. These classifications include architects, chemists, engineers, environmental specialists, biologists, geologists, forensic scientists, and many other classifications. The unit is called the “E unit”. This unit is one of the nine State bargaining units represented by the Union and covered under a master contract that covers all nine NAPE-represented bargaining units. This master contract includes many terms and conditions that apply to all nine of the bargaining units, including the E unit. The master contract also includes many unit-specific contract sections. At the Special Master’s hearing, the Union vigorously argued that at the parties’ final bargaining session on January 7, 2009 (a mediation conducted by an external mediator) the parties agreed upon all issues except for wages. These agreements on all the non-wage issues were identified as tentative agreements in Appeal Exhibit 2 (Union Exhibit 7). The members of eight of the nine bargaining units ratified the tentative contract, with only the E unit rejecting the State’s offer. The State argues that the “tentative agreement” was just that–tentative–and subject to a ratification vote by the members of the “E unit”. The State notified the Union that it would include additional issues in its final offer.  The parties exchanged timely final offers. In order to determine which of the parties’ final offers was the most reasonable, the Special Master heard both parties’ evidence and arguments on January 29, 2009. The Special Master selected the Union’s final offer for both the issue of wages and the non-economic items.

Union’s Total Offer

The Union proposed during the first contract year beginning on July 1, 2009, each classification wage range will be adjusted upward where indicated by the results from the negotiated State salary survey, though no minimum or maximum rate of pay in any range will exceed more than five percent. Also on July 1, 2009, the Union proposed that all employees who are due an upward range adjustment receive such a market adjustment. During the second bargaining year, on July 1, 2010, the Union then proposed that the employees shall again be adjusted upward by the amount indicated in the survey, though no minimum or maximum rate of pay in any range will be increased by more than five percent. Also the Union proposed that those employees who are due that upward range adjustment, receive such a market adjustment. In addition, during the 2010-2011 contract year, the Union proposed that all employees should receive a 1.5 percent pay increase on their anniversary date, except that no such increase would result in a pay rate greater than the maximum of the employee’s wage range.

State’s Total Offer

            The State proposed a 2.9 percent increase for the 2009-2010 contract year beginning on July 1, 2009 and a 2.5 percent increase for the 2010-2011 contract year. With respect to the non-economic items, the State proposed that the language of the contract be changed to reflect current prevalent practices. The State requested changes as follows: Sections 12.5 and 12.9 of the Collective Bargaining Agreement to be modified to provide that holidays were not hours worked for overtime purposes; delete Columbus Day as a holiday; modify the vacation leave accrual schedule to reflect prevalent practice; eliminate the sick leave sliding scale, and replace it with language providing for 14 days of sick leave per year; and eliminate injury leave provision as it is not prevalent in the market.

Special Master’s Analysis

            The Special Master first analyzed the allegations of whether the issues of the non-economic items were properly in front of the Special Master in the instant case, predicating his analysis of the circumstances present in 2009. In front of the Special Master, the Respondent claimed the agreements as to the non-economic items were final agreements; whereas, the State argued the non-economic item agreements were simply tentative upon ratification of the “E unit”.  The Special Master found that the State’s interpretation of the issues being properly before the Special Master was correct, noting that when the tentative Collective Bargaining Agreement was rejected by the “E unit” members, there was no “final agreement” between the parties on the issues contained in the tentative Collective Bargaining Agreement. The Special Master reasoned that nothing in Section 81-1382 of the State Employees Collective Bargaining Act prohibited the State from its approach in its final offer. The Special Master determined that the proceeding in front of him was not a prohibited practice proceeding and he found that he had no authority to officially determine if any prohibited practices had occurred. Then the Special Master held that the non-economic items were issues properly before him. Next, the Special Master examined the issues of wages and each of the non-economic items before him, specifically: overtime, holidays, vacation leave, sick leave and injury leave. 

Looking at the issue of wages, first the Special Master determined that both sides used the 2008 Central States Compensation Association for surveys on the issue of pay and benefits. The Special Master found that the parties used the survey results from six adjacent states; namely, Colorado, Iowa, Kansas, Missouri, Oklahoma, and South Dakota to perform the comparability calculations.  Using these six states, the parties agreed on the data of the various job classification calculations and agreed accordingly 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 to 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 placed 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” and did a much better job than the State’s offer of accomplishing comparability.

Finally, the Special Master analyzed the non-economic items. The Special Master noted that there was nothing unreasonable about either of the parties’ offers on any of the issues involved in the Special Master proceeding. However, because the Special Master was charged with selecting one or the other final offer under the State Employees Collective Bargaining Act, he found that the State’s offer treated the E unit members in an invidious manner as compared to all of the other Nebraska State bargaining unit employees. The Special Master reasoned that because the existing contract language intended that all the benefits (including the five disputed provisions) apply uniformly to all the members of all nine bargaining units represented by the Union, the contested benefits should apply equally to all members of the different bargaining units. Therefore, the Special Master held the Union’s offer was more reasonable and would avoid union–management friction as well as friction between the individual bargaining units even thought the State’s offer was the most prevalent comparison.

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 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.  

Non-Economic Items and Internal Comparability

At the outset with regard to the non-economic items, the Union argues that the Special Master improperly determined that the non-economic items were appropriately before the Special Master. The Union argues that it was led to believe by the State that the State’s only remaining issue was wages, and on the non-economic items there was agreement. The Union argues that the State committed a prohibited practice in engaging in regressive and bad faith bargaining by putting the non-economic items in its final offer. The State alternatively argues that the Special Master correctly determined that the issues for consideration included both wage and non-wage issues.

 At his hearing, the Special Master determined that the non-economic items were properly before the Special Master. The Special Master found that when the “tentative” Collective Bargaining Agreement was rejected by the E unit bargaining members, there was no final agreement between the parties on the issues contained in that tentative Collective Bargaining Agreement. Therefore, the Special Master determined that either party was free to submit final offers on whatever unresolved issues that it believed appropriate to present to the Special Master.  The Special Master also determined that the issue of whether or not regressive bargaining occurred, was not properly before the Special Master. The Special Master loosely referenced Neb. Rev. Stat. § 81-1387, whereby prohibited practice proceedings against a party alleging a violation of Section 81-1386 shall be commenced by filing a complaint with the Commission (not the Special Master).

 In analyzing this issue, we note that the members of eight of the nine bargaining units with the State ratified the “tentative contract”, with only the E unit rejecting the State’s offer. We also note that the State notified the Union that it would include additional issues in its final offer.  We agree with the State’s assertion that the “tentative agreement” was just that–tentative–and subject to a ratification vote by the members of the “E unit”. We agree with the Special Master that the Act requires that a party must file a prohibited practice complaint with the Commission. We also agree that the Special Master properly determined that he had jurisdiction over the non-economic items as the parties exchanged timely final offers.  

The State next argues that the Special Master’s decision regarding non-wage issues is significantly disparate from prevalent conditions of employment.   The State argues that the Special Master’s reliance on “internal comparability” factors is contrary to the intent of the State Employees Collective Bargaining Act. The Union alternatively argued that the State’s final offer, though considering the merits on non-wage proposals, should be rejected in its entirety due to bad faith bargaining. The Union also argues that the Special Master’s decision is still appropriate and should be affirmed. The Union also argues that the State’s evidence is insufficient to support a finding of non-comparability for the items in question, because the State has not provided any “costs associated” with paying for these benefits.

The Special Master, in his decision, placed emphasis on “internal comparability” in accepting the final offer of the Union. The Special Master noted that the State presented no evidence that the provisions as they currently exist have “caused any problems” in the E unit. The Special Master also found that the State presented no evidence on why the E unit members should be “subject to … disparate and invidious treatment” on the contract provisions compared to the other eight bargaining units.

The Special Master has the authority to consider many different factors before deciding which final offer is the most reasonable. See State Law Enforcement Bargaining Council v. State of Nebraska, 12 CIR 32 (1993) (“Law Enforcement I”). These may include ability to pay, reasonableness, the contracts of other states’ units, comparable rates of pay, and the ability to implement the final offer. Law Enforcement I, 12 CIR at 46.  However, if either party appeals, the standard of review is restricted to comparability. Id. If the Special Master's decision is overruled, the Commission must choose one of the last best offers in total. See Neb. Rev. Stat. § 81-1383 (2) and (3). In light of the Commission’s statutory charge to review each non-economic provision to prevalent comparability, we will go through each non-economic issue to determine whether the Special Master’s decision is significantly disparate and if so, which offer is the most comparable to prevalent rates of pay and conditions of employment.

 

Overtime

With regard to overtime, the Special Master held that while the evidence clearly showed that the inclusion of holidays for the calculation of overtime was not a prevalent practice in the six-state array; nevertheless, he found that because of “internal comparability” (comparing “E unit” employees with other Nebraska State bargaining unit employees) that the overtime provision should remain unchanged. Therefore, the Special Master held that the Union’s offer was the most reasonable final offer on the overtime issue.

The evidence in Exhibit 2 (JX 20) clearly shows that the inclusion of holidays for the calculation of overtime is not a prevalent practice. We do not need additional evidence to determine comparability in the instant case, as Exhibit 2 (JX 20) was offered as evidence in front of the Special Master by the State.  While Exhibit 2 (JX 20) does not offer evidence of “costs associated” to the State (as argued by the Respondent), we do not require that type of evidence contemplated by the Respondent under a normal 48-818 analysis. Is this significantly disparate under the State Employees Collective Bargaining Act? In order to aid the Commission in making this determination, the Legislature enacted a definition which reads that 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 (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.” We find the Special Master’s decision is significantly disparate from comparability as to overtime.  Comparability under Section 48-818 clearly is the State’s final offer and comparability (the State’s offer) does not fall between the final offers of the parties. 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).

 

 Therefore, we find that the State’s offer is the closest to comparability and we overrule the Special Master’s decision with regard to the overtime issue. See Table 2.

Holiday Leave

Next, the Special Master analyzed the issue of whether Columbus Day was a prevalent holiday.  While the Special Master found that it was prevalent to only have 11 holidays in the array and currently E unit members have 12, the Special Master held that internal comparability deserved far more weight than the external evidence. The Special Master concluded the Union’s offer is the most reasonable final offer on the holiday issue.

The evidence in Exhibit 2 (JX 20) clearly shows that having 12 holidays is not a prevalent practice. We do not need additional evidence to determine comparability in the instant case as Exhibit 2 (JX 20) was offered into evidence in front of the Special Master by the State. While Exhibit 2 (JX 20) does not offer evidence of “costs associated” to the State (as argued by the Respondent), we do not require that type of evidence contemplated by the Respondent under a normal 48-818 analysis. Utilizing the above analysis in the overtime issue, we find the Special Master’s decision is significantly disparate from comparability as to holiday leave.  Comparability under Section 48-818 clearly is the State’s final offer and comparability (the State’s offer) does not fall between the final offers of the parties.  Therefore, we find that the State’s offer is the closest to comparability and we overrule the Special Master’s decision with regard to the holiday leave issue. See Table 3.

Vacation Accrual

Then, the Special Master analyzed the issue of whether the current vacation accrual schedule was prevalent.  While the Special Master found that it was prevalent to provide less vacation time to its employees at almost all of the experience levels, the Special Master held that internal comparability deserved far more weight than the external evidence. The Special Master concluded the Union’s offer is the most reasonable final offer on the vacation accrual issue.

The evidence in Exhibit 2 (JX 20) clearly shows the State’s current vacation accrual method is not a prevalent practice. We do not need additional evidence to determine comparability in the instant case as Exhibit 2 (JX 20) was offered into evidence in front of the Special Master by the State. While Exhibit 2 (JX 20) does not offer evidence of “costs associated” to the State (as argued by the Respondent), we do not require that type of evidence contemplated by the Respondent under a normal 48-818 analysis. Utilizing the above analysis in the overtime issue, we find the Special Master’s decision is significantly disparate from comparability as to vacation accrual.  Comparability under Section 48-818 clearly is the State’s final offer and comparability (the State’s offer) does not fall between the final offers of the parties.  Therefore, we find that the State’s offer is the closest to comparability and we overrule the Special Master’s decision with regard to the vacation leave accrual issue. See Table 4.

Sick Leave Accrual

Next, the Special Master analyzed the issue of whether the sick leave accrual schedule was prevalent.  While the Special Master found that it was prevalent to only earn 13.4 sick leave days and currently E unit members have a sliding scale, the Special Master held that internal comparability deserved far more weight than the external evidence. The Special Master concluded the Union’s offer is the most reasonable final offer on the sick leave issue.

The evidence in Exhibit 2 (JX 20) clearly shows the State’s current sick leave accrual method is not a prevalent practice. We do not need additional evidence to determine comparability in the instant case as Exhibit 2 (JX 20) was offered into evidence in front of the Special Master by the State. While Exhibit 2 (JX 20) does not offer evidence of “costs associated” to the State (as argued by the Respondent), we do not require that type of evidence contemplated by the Respondent under a normal 48-818 analysis. The comparability table referenced in Exhibit 2 (JX 20) would place “comparability” between the offers of the parties. However under a normal 48-818 analysis we would remove Iowa from the array, because Iowa provided a range of sick days not a flat day amount. Removing Iowa and rounding up, under a true Section 48-818 analysis would place the State’s offer at comparability.  Comparability under Section 48-818 would be the State’s final offer and it would then not fall between the final offers of the parties, making the Special Master’s decision significantly disparate as to sick leave accrual. Therefore, we find that the State’s offer is the closest to comparability and we overrule the Special Master’s decision with regard to the sick leave accrual issue. See Table 5. 

Injury Leave

Next, the Special Master analyzed the issue of whether injury leave was prevalent.  While the Special Master found that injury leave was not prevalent in the array, the Special Master held that internal comparability deserved far more weight than the external evidence. The Special Master concluded the Union’s offer is the most reasonable final offer on the injury leave issue.

The evidence in Exhibit 2 (JX 20) clearly shows the State’s current injury leave is not a prevalent practice. We do not need additional evidence to determine comparability in the instant case as Exhibit 2 (JX 20) was offered into evidence in front of the Special Master by the State.  While Exhibit 2 (JX 20) does not offer evidence of “costs associated” to the State (as argued by the Respondent), we do not require that type of evidence contemplated by the Respondent under a normal 48-818 analysis. Utilizing the above analysis in the injury leave issue, we find the Special Master’s decision is significantly disparate from comparability as to injury leave.  Comparability under Section 48-818 clearly is the State’s final offer and comparability (the State’s offer) does not fall between the final offers of the parties.  Therefore, we find that the State’s offer is the closest to comparability and we overrule the Special Master’s decision with regard to the injury leave issue. See Table 4.

Second Year Wages: 

            The State raises the issue that the Special Master’s decision should be reversed on the issue of setting wages for the second contract year because the summaries and compilations are unsupported by the evidence. The State cites Lincoln Fire Fighters Ass’n v. City of Lincoln, 198 Neb. 174 (1977), stating the Nebraska Supreme Court will not decide wages depending entirely upon speculation, surmise or conjecture.  The Union argues that the State Employees Collective Bargaining Act is structured to work for biennial contracts and anticipates second-year pay increases under Neb. Rev. Stat. § 81-1377.

The issue of second-year wages was also argued in several of the “state cases” in front of the Commission. See Cases 1209 and 1210. Noting this fact in his opinion, the Special Master quoted his previously decided decision in Case No. 1209, stating that the same conclusion applied in the instant case. The Special Master noted that the Union relied upon 2008 wage data in its comparability analyses to support its proposed wage increases, which resulted in the Union using data which “is known” and “now available” to support its wage offer. The Special Master reasoned he must rely upon realistic and reasonable forecasts to accomplish the task under Section 81-1382, which he found instructs the parties to determine wages for “a two-year period” coinciding with the State’s biennial budget.

            Moreover, 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 Employees 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.

Law Enforcement I, 12 CIR at 42. 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, no actual comparability figures were presented by either party. We are persuaded by the Special Master’s reasoning and our previous holdings in Cases 1209 and 1210. A total meltdown of the State Employees Collective Bargaining Act would occur if the Commission did not analyze the second year of the contract. 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 the State Employees Collective Bargaining 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 pursuant to a Section 48-818 analysis.

Overall Comparability–Wages

            The State 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 impossible for either party to set wages for either 2009-2010 or 2010-2011 because both sides’ final offers are based entirely upon speculations, surmise, or conjecture. 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 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). The Special Master’s ruling fits well within the intent and spirit of Neb. Rev. Stat. § 81-1383. The Special Master’s decision is not significantly disparate (as to wages); we shall affirm his ruling with regard to wages. See Table 1.

CONCLUSION:

Therefore, the Commission ORDERS that:

1)                          The Special Master’s ruling is affirmed in part and reversed in part and the Petitioner shall implement the Commission’s ruling in its entirety.

2)                          The Petitioner shall implement the final offer of the Respondent with regard to the issue of wages.

3)                          The Petitioner shall implement their own final offer with regard to the non-economic items as follows:

a.        The Petitioner shall no longer include holidays to calculate overtime pay.

b.      The Petitioner shall change holiday leave provisions from 12 days to 11 days (removing Columbus Day as stated in the State’s final offer).

c.       The Petitioner shall increase vacation accrual rates for 1-4 years from 96 hours to 106.7 hours; increasing and decreasing vacation accrual rates for 5-9 years from 96-144 to 122.; decreasing vacation accrual rates for 10-14 years from 152-184 to 144.7; decreasing vacation accrual rates for 15-19 years from 192-200 to 164; decreasing vacation accrual rates for 20-24 years from 200 to 170.7; and decreasing vacation accrual rates for 25 plus years from 200 to 172.7.

d.      The Petitioner shall increase and decrease sick leave provisions to 14 days as per the State’s final offer.

e.       The Petitioner shall remove its practice of injury leave.

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:

         For the reasons discussed in my dissenting opinions in Cases 1207, 1209 and 1210, I must again dissent in this case.  I also point out that in this case, the bargaining unit was one of the eight units involved before the Commission in Case No. 1142, decided two years ago.  See State of Nebraska v. Neb. Ass’n of public Employees Local 61, 15 CIR 366 (2007).  The Special Master, the attorneys for the parties, the State’s chief negotiator, and the parties’ expert witnesses in this case are all the same as in 2007.  In that prior case, we heard the witnesses and received additional exhibits. 

            Looking at the Offer of Proof in this case, I simply cannot tell whether it would, if received and relied upon, prove the Special Master was incorrect in his decision.  Such could only be determined after receiving the evidence and any evidence in response.  The Offer of Proof does refer to “changed financial circumstances in the surrounding state comparators.”  It represents that the circumstances have changed markedly from the statistics and information presented to the Special Master.  The Offer of Proof includes detailed charts regarding wages and benefits in those comparators and submits that such data provides “updated and corrected information”.  The offer of proof includes over 40 pages of charts and statistics, most of which relate to the non-economic issues.  I agree with the Commission majority that the evidence before the Special Master favors the Petitioner with respect to the non-economic items, but we do not know whether that would have held true if the Commission had opened its proceedings to additional evidence by the parties.  In my opinion, we should allow the additional evidence before deciding this case.

To obain a copy of the Tables, please contact the Commission at (402) 471-2934 or by e-mail at industrial.relations@nebraska.gov