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16 CIR 324 (2009) Appealed July 23, 2009. Affirmed, 280 Neb. 459NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS
APPEARANCES:
Entered June 30, 2009. Before: Commissioners Lindahl, Orr, Blake, Burger, and McGinn (EN BANC). Blake dissenting. Burger concurring. LINDAHL, C. NATURE OF THE PROCEEDINGS: This matter comes before the Commission upon an appeal from the Special Master’s ruling dated February 3, 2009. This appeal was filed on March 13, 2009, by the State of Nebraska (hereinafter, “Petitioner” or “State”). On April 3, 2009 the State Code Agencies Teachers Association, NSEA-NEA, a/k/a State Code Agencies Education Association, (hereinafter, “Respondent”, “SCATA” or “Union”), filed an answer. The Respondent is the bargaining agent for 72 teachers who teach in 13 different residential facilities throughout the State. This appeal case from the Special Master occurred concurrently with the filing of three other State Employees Collective Bargaining Act cases. On April 14, 2009, the Respondent filed a Motion in Limine and a brief in support of its Motion. The purpose of the Motion in Limine was to limit evidence proposed by the Petitioner and intended to be submitted at the Commission’s hearing. On April 16, 2009, the Respondent filed a response and brief to Petitioner’s Motion in Limine, stating past case law of the Commission which allowed such new evidence not presented by the parties to the Special Master. On April 20, 2009, in conjunction with a Pretrial, the Commission heard oral argument on the Respondent’s Motion in Limine. At the telephone 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 appeals 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. In all four cases, the Commission held that it could find no basis in any Nebraska statute 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 what defects now apparently exist 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 Monday, May 11, 2009. The Petitioner submitted a written offer of proof (Exhibit 6), regarding evidence and testimony that would have been offered if the Commission had not sustained the Respondent’s Motion in Limine. The Commission overruled the Offer of Proof but the Exhibit is maintained as part of the record. The Petitioner and Respondent jointly stipulated as to the issues to be presented at the hearing on appeal. The parties requested the Commission to enter an order on the following issue(s): 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; what the appropriate array is; whether wages can be set for the second contract year; and whether SCATA provided timely notice of their final offer and rejection of the State’s offer, pursuant to Neb. Rev. Stat. § 81-1382 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. Neb. Rev. Stat. § 81-1372. 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 than 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 Collective Bargaining Act controls. SPECIAL MASTER’S RULING: Facts This case is an appeal from the State of Nebraska upon a ruling from the Special Master dated February 3, 2009. The State timely filed its appeal with the Commission on March 13, 2009. The case arises from contract negotiations between the State and the Nebraska State Code Agencies Education Association (“SCATA”). The parties reached an impasse during negotiations for a new collective bargaining agreement for the contract year of July 1, 2009 through June 30, 2011. Following the Act, upon impasse the parties met with Mediator Dave Landis on January 9, 2009. By the completion of the mediation the parties had reached a tentative agreement, subject to a ratification vote that was held on Monday, January 12, 2009, Tuesday, January 13, 2009, and Wednesday, January 14, 2009. Upon resolution with the Mediator, both parties thought the tentative agreement would be ratified. The ratification votes were tallied on January 14, 2009. The votes indicated that the membership of SCATA rejected the tentative agreement. The Union then notified the State immediately of that rejection. Neither party submitted their final offer to the other party on Monday January 12, 2009; instead both parties submitted their final offers to one another on January 15, 2008. Unable to reach an agreement, the parties selected a Special Master, Dr. Peter Feuille. On January 15, 2009, the State asked the Special Master to find that he had no jurisdiction to proceed with this matter because SCATA had not exchanged its final offer on January 12, 2009, pursuant to statute. The Special Master solicited information pertinent to the State’s motion from both parties. On January 20, 2009, the Special Master denied the State’s request and directed the proceeding to continue on a timely basis. The Special Master held a pre-hearing conference on January 23, 2009, and the parties determined that the unresolved issue was ready for adjudication. A hearing in front of the Special Master was held on January 28, 2009. The hearing was recorded by a court reporter and a transcript was prepared and submitted on February 2, 2009. The parties filed post-hearing comments on January 30, 2009 with the Special Master. Those comments outlined the parties’ positions on the issues presented to the Special Master, and their offers. The labor association at issue, SCATA, represents approximately 72 teachers, employed by the State in 13 different Nebraska residential facilities such as centers for people with developmental disabilities, youth rehabilitation centers, treatment centers, and correctional centers. These teachers educate 877 students throughout the state in K-12 education and are certificated by the State of Nebraska. SCATA’s base salary for 2008-2009 was $28,273. At the Special Master hearing, both parties limited their arrays to selected Nebraska K-12 school districts. The Union submitted an array of eight school districts. These eight districts are located in the same cities where the SCATA bargaining unit members teach. The eight school districts were Beatrice, Fillmore Central, Hastings, Johnson County, Kearney, Lincoln (non-common), Omaha (non-common) and York. The Union explained that its theory of compiling an array included a “host city” school district to establish a common labor market between the state facility and its competitors. The State generally used a similar approach to an array selection in front of the Special Master, using cities in which relevant state facilities are located, or a city nearby to where those state facilities are located. The State used six of the same array school districts as did the Union (Beatrice, Fillmore Central, Hastings, Johnson County, Kearney, and York) and also the non-common array school districts of Ashland-Greenwood, Holdrege and Ralston. The State used school districts ranging in size from 549 students (Johnson County), to 5,084 students (Kearney). Whereas the Union’s comparison group ranged from 549 students (Johnson County) to 48,975 students in Omaha, and 34,061 students in Lincoln. Union’s Total Offer At the Special Master hearing, the Union proposed to increase the base salary by $1,186 for the 2009-2010 school year, which produced a base salary of $29,459 in the first contract year. For the 2010-2011 contract year, the Union offered a $1,150 base salary increase, which produced a base salary of $30,609 for the second contract year. These increases equaled a 4.2 percent increase for 2009-2010 and a 3.9 percent increase for 2010-2011. The Union calculated its 2010-2011 wage increase by doing a mid-point analysis of the past 10 years of wage increases, from 1998 through 2008 for the five districts of Beatrice, Hastings, Kearney, Lincoln and York which resulted in a mid-point of 3.95 percent (which was slightly higher than the proposal of the Union at 3.91 percent). State’s Total Offer At the Special Master hearing, the State proposed to increase the current base salary by $1,131 for the 2009-2010 contract year, which resulted in a base salary of $29,404. The State then proposed an increase of $412 for the 2010-2011 contract year, which resulted in a base salary of $29,816. These increases equaled a 4.0 percent increase for 2009-2010 and a 1.4 percent increase for 2010-2011. The State did not base its final offer of 1.4 percent for 2010-2011 on any direct wage evidence submitted to the Special Master. Special Master’s Analysis In his opinion, the Special Master selected the final offer of the Union. In doing so, the Special Master analyzed the Act. The Special Master first distinguished that the Act made explicit mention of comparability, as seen under Neb. Rev. Stat. § 48-818, as the primary factor for the Special Master to consider when choosing a final offer between the parties. The Special Master noted the parties’ stipulation that all of the teachers at the school districts presented by both parties exhibited like or similar skills under the same or similar working conditions. In analyzing the issue of array, the Special Master determined that he was not going to exclude any of the array districts because they are too geographically distant from SCATA facilities. The Special Master then cited the Commission’s size guideline for selecting comparable employers of “one half to twice as large”. See Beatrice Educ. Ass’n v. Beatrice Public School Dist., 15 CIR 46, 48 (2004). The Special Master found that both arrays ignored the twice-as-large guidelines by including districts that exceed that guideline, sometimes by a considerable margin. The Special Master held that there was no persuasive evidence in the record for excluding any of the comparison districts submitted by the parties and therefore he included all 11 districts in his analysis. With regard to the issue of the second year of the contract (2010-2011), the Special Master found that while it is difficult to determine a 2010-2011 base salary in the absence of any salary data for that year, pursuant to Neb. Rev. Stat. § 81-1377(4) (the parties negotiations shall cover a two-year contract period coinciding with the state budget) the parties must negotiate both years and so, accordingly, both years were able to be adjudicated. The Special Master reasoned that the legislative intent of the State Employees Collective Bargaining Act was to coincide with the Legislature’s budgeting process and that process occurs every two years. The Special Master did not accept the State’s reasoning that he could not select either final offer for the second year because he is directed by Neb. Rev. Stat. § 81-1382 to select “the most reasonable final offer”. The Special Master then took into account the current economic climate, the fact that nine of the base salaries were for only the 2008-2009 contract year, and the upcoming State budget forecast. For the 2010-2011 contract year, the Special Master found that the mid-point of comparability was $30,679, of which the Union’s proposed 2010-2011 base salary of $30,609 comes much closer than the State’s proposed base salary of $29,816. The Special Master determined that ability to pay was a factor relevant to collective bargaining; however, the parties did not submit very useful ability-to-pay information into the record, so the factor was not considered. In sum, the Special Master found that both parties submitted reasonable final offers, but the Union’s final offer for 2010-2011 moved the bargaining unit members closer to true comparability than the State’s final offer did, and thus the Union’s offer was found to be more reasonable than the State’s offer. Commission’s Analysis of Special Master’s Ruling Jurisdiction The Petitioner argues the Special Master did not have jurisdiction because the Union failed to provide timely notice of their final offer and rejection of the State’s offer, pursuant to Neb. Rev. Stat. § 81-1382 which directed the parties to exchange final offers on Monday, January 12, 2009, (since January 10, 2009 fell on a Saturday). Upon the failure to ratify the tentative agreement on January 14, 2009, both parties exchanged final offers on January 15, 2009. The Respondent argues that Petitioner’s Motion to Dismiss was properly denied. The Respondent cites the fact that on January 9, 2009, when the parties reached a tentative agreement to be ratified by the Union’s membership, neither party harbored the notion that the ratification might fail and the consequences of such a failure. In his ruling on the Motion to Dismiss, the Special Master found the final offers were exchanged on a timely basis consistent with the requirements of Neb. Rev. Stat. § 81-1382. In encouraging settlement through mediation, the Special Master found that the intent of the Act was to reach an agreement on a new contract. The Special Master reasoned that the parties should not be punished for their efforts, especially in light of the fact that both sides moved forward promptly by exchanging their final offers as soon as they learned their settlement efforts were not successful in producing a ratified contract. The Petitioner also cites State Code Agencies Educ. Ass’n v. State of Nebraska, 231 Neb. 23, 434 N.W.2d 684 (1989) in support of its argument. In State Code Agencies Educ. Ass’n, the Nebraska Supreme Court reversed the Commission’s order. In this case, negotiations were not begun before the second Wednesday of September 1987 (September 9), as the Association had not been certified the exclusive bargaining agent before September 9. The Association in this case had also not filed its Petition for Certification until September 30. The Association then requested negotiations with the State after their certification. The State refused and the Association filed an action with the Commission requesting the Commission to direct the State to negotiate. The Commission ordered the parties to negotiate. The State appealed to the Supreme Court and the Supreme Court held that the Association had not followed the timetable set forth in the Act. The Supreme Court reasoned that because the Association chose not to establish itself as the “exclusive bargaining agent” before September 9, 1987, the Association was not permitted to commence negotiations with the State after September 9. The Commission’s decision was reversed and remanded for dismissal. The Commission is not persuaded that State Code Agencies Educ. Ass’n applies to the instant case because the facts here are quite different. In this case, the Union is a certified collective bargaining representative that has engaged in negotiations, which commenced on the second Wednesday in November. At that time, the parties were engaged in the collective bargaining process with full knowledge of both offers, and both parties were attempting to settle their dispute through a mediator, awaiting only a final vote by the Union membership to ratify the temporary agreement. The Commission finds the Special Master’s reasoning in Exhibit 27 is persuasive. The Commission agrees that the parties exchanged their final offers on a timely basis consistent with the requirement of Section 81-1382; the parties were attempting to reach a settlement without using the Special Master; and the parties moved forward with their final offer exchanges as soon as they learned that their collective bargaining efforts were not successful in producing a ratified contract. We also find the fact that State also did not exchange its final offer on January 12, 2009 as evidence of their intent to avoid litigation in front of the Special Master. The Special Master’s decision that he had jurisdiction is not significantly disparate from the intent of the Act to timely settle wage disputes. Therefore, we find the Special Master had jurisdiction to hear the dispute. Size of School Districts The State argues that the Special Master improperly included Lincoln and Omaha in the array, against the Commission’s well-established guideline of only including array employers of one-half to twice the size of the subject school. The Respondent alternatively suggested that the Commission’s previous case law using local comparators is a more appropriate guideline under the unique facts of this case. At the Special Master hearing, both parties jointly presented several school districts within the one-half to twice the size guideline. These districts were Ashland-Greenwood (offered only by the State); Fillmore Central, Holdrege, Johnson County, and York. At the Special Master’s hearing, the Union’s array included five districts above the guideline (Beatrice, Hastings, Kearney, Lincoln, and Omaha). Alternatively, the State’s array included four districts above that guideline as well (Beatrice, Hastings, Kearney, and Ralston). The Special Master found that both arrays ignored the twice-as-large guideline and included districts that exceeded that guideline, sometimes by a considerable margin. The Special Master reasoned that the Commission used the size criteria as a guideline that is not a rigid rule. The Special Master held that there was no persuasive reason for tossing out more than half of the comparison districts in the record to adhere to the twice-as-large guideline. The Special Master included all 11 districts to determine comparability. In performing a Neb. Rev. Stat. § 48-818 analysis of the array, the Commission has in the past selected combined arrays from all array districts provided by the parties (if the facts so allow). See Hitchcock County Educ. Ass’n v. Hitchcock Unified Sch. Dist., 13 CIR 335 (2000); South Sioux City Educ. Ass’n v. Sioux City Community Schools, 15 CIR 27 (2004) and Dodge Educ. Ass’n v. Dodge County School Dist., 15 CIR 372 (2007). The Commission does not lightly disregard the size guideline. See School District of West Point v. West Point Education Ass’n, 8 CIR 315 (1986); Richland Teachers Education Ass’n v. Colfax County School District No. 0001, 11 CIR 286 (1992). The size guideline is based on objective criteria; it provides predictability and should not be lightly disregarded when a sufficient number of comparables, which meet the guidelines, exist. Hyannis Educ. Ass’n v. Grant County School Dist, a/k/a Hyannis High School, 14 CIR 203 (2004), aff’d in part and rev’d in part, 269 Neb.256, 698 N.W.2d 45. However, the Commission has, since Local No. 2088 AFSCME v. County of Douglas , 208 Neb. 511 (1981) been mindful of including local employers where appropriate. In Omaha Ass’n of Firefighters v. City of Omaha, 194 Neb. 436, 231 N.W.2d 710 (1975), the Nebraska Supreme Court noted that under Section 48-818, R.R.S. 1943, in selecting cities in reasonably similar labor markets for the purpose of comparison in arriving at comparable and prevalent wage rates, the question is whether, as a matter of fact, the cities selected for comparison are sufficiently similar and have enough like characteristics or qualities to make comparison appropriate. In sum, the Court found when determining whether or not to use local comparators, the most important factor is whether the local comparator is sufficiently similar. The parties also stipulated in front of the Special Master that all of the school districts were sufficiently similar under Section 48-818. The State suggests in its brief that including Lincoln and Omaha along with Ashland-Greenwood and Ralston weights the Lincoln and Omaha area to 36 percent of the array. However, five of the 13 facilities (38 percent) are in Lincoln or Omaha. These facilities include in Lincoln, the Nebraska State Penitentiary; the Lincoln Regional Center; and the Lincoln Correctional Center; and, in Omaha, the Nebraska Correctional Youth Facility and the Omaha Correctional Center. The Special Master noted in his opinion that the State must compete with the Lincoln and Omaha public school districts, as well as suburban districts in both metropolitan areas, when recruiting and retaining teachers in the five facilities located in these two host cities. We do not disagree with the Petitioner that under a regular Section 48-818 case, the Commission would not create an area with employers far outside our size criteria. (Given the size criteria under Section 48-818, why did the parties not look to comparable states rather than staying within Nebraska?) However, under the State Employees Collective Bargaining Act, the Commission has no choice but to deal with employers outside that guideline under Section 81-1372. While we are somewhat concerned that Lincoln and Omaha are significantly larger than the other school districts in the array, it is clear that neither the Union nor the State adhered to this rule. The fact that these facilities are located within other school districts is unique. We are persuaded both by the stipulation of the parties that all school districts are sufficiently similar, and the reasoning of the Special Master that the State would have to compete with local comparators to retain and attract teachers. Furthermore, we can find nothing in the Special Master’s opinion that would suggest that he did not fully analyze Section 48-818 and past Commission case law in arriving at the 11-member array to determine comparability. We find that his decision to use all 11 array school districts to determine comparability is not significantly disparate from Section 48-818. Second Year Wages: 2010-2011 At the Special Master’s hearing and on appeal, the State raises the issue whether wages can be set for the second contract year (2010-2011). The State suggests that no offer can be made for 2010-2011 because no array data exists. As part of its final offer however, the State alternatively suggested an offer of 1.4 percent for the second contract year but did not submit any statistical analysis to the Special Master to support its decision in arriving at the figure of 1.4 percent. The Union argues that a calculation must be made for the second year under Neb. Rev. Stat. § 81-1377. Alternative to the State’s approach, the record reflects that the Union averaged the last ten years of raises (3.25 percent) to compare to its figure of 3.9 percent. In his opinion, the Special Master noted that neither the first year nor the second year had true comparability data as seen in Commission case law. The Special Master distinguished the data from Lincoln and York for 2009-2010, because those were the only two school districts which had arrived at an agreement. The Special Master in his opinion found the State’s reasoning most unpersuasive. The Special Master held that he is directed under Section 81-1382(3) to choose the “most reasonable final offer” and so he is bound by the Act to select one or the other final offer for the second year of the contract. Section 81-1377 of the State Employees Collective bargaining Act states: All contracts involving state employees and negotiated pursuant to the Industrial Relations Act or the State Employees Collective Bargaining Act shall cover a two-year period coinciding with the biennial state budget, except at that the first contract entered into by a bargaining unit may cover only the second fiscal year of the biennium.
Moreover, the committee hearings and the floor debate regarding LB661 (the bill that created the State Employees Collective Bargaining Act) has prolific references to the importance of timing the state budget cycle with the bargaining process. On Page 25 of the Pashler Report, 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 Pashler Report, on the same page, recommends 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, (Law Enforcement I) 12 CIR 23 (1993), 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, we found that we 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 present 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 because none of the array school districts have reached agreement for the 2010-2011 contract year. Both sides had smaller final offer base salaries than that generated by the Special Master’s comparability analysis. The 2010-2011 comparability analysis by the Special Master shows that the Union is $70.00 less than comparability and the State is $863.00 off from what the Special Master determined to be prevalent. We agree with the Special Master that the Act requires the parties to negotiate a two-year contract even though no accurate data for Section 48-818 exists. 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. The Special Master’s decision is not disparate from Section 48-818 and while awkward, we find that the Act requires the Special Master to set second-year salary figures based upon the final offers of the parties. Overall Comparability 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 Union offered exhibits to the Special Master like it would in a Section 48-818 wage case in front of the Commission. The evidence used by the Special Master contains all of the wage summaries at the various proposed array school districts and applicable contracts for all of its array districts. The appeal record in front of the Special Master is sufficient for the Commission to do an appeal analysis under Section 48-818. In the Special Master’s Opinion, the Special Master sets forth Table 1, performing a Section 48-818 comparability study by arriving at a midpoint of total compensation. Table 1 only reflects what the midpoint would be based on the 2008-2009 data at the 11-member array, which was the Special Master’s array as opposed to the parties’ proposed arrays. Although 2008-2009 was not in front of the Special Master, Table 1 illustrates that the SCATA employees are already $1,021 below comparability of a base salary of $29,294 for 2008-2009, which is 3.61 percent below SCATA’s 2008-2009 actual base salary of $28, 273. The Special Master reasoned that confining the SCATA teachers only to comparisons with 2008-2009 salaries resulted in placing the SCATA teachers significantly below actual comparability, which the Special Master reasoned would result in a constant game of catch-up for SCATA to the other peer districts. The Special Master suggested that using 2008-2009 figures results in “lagged” comparability results and the base salary for 2010-2011 would be “double-lagged”. To arrive at a method to determine the base salaries for 2009-2010 and 2010-2011, the Special Master then took notice of the annual average increase of SCATA teachers, which was 3.25 percent during the previous ten-year period, noting the recession of 2001-2003 and the current economy, including the Legislature’s budget forecast. The Special Master, based upon these reasons, forecasted that the salaries for 2009-2010 would conservatively increase by 2.5 percent and the 2010-2011 salaries would increase by 2.0 percent. The Special Master noted as evidence for his figure that in 2009-2010 the two schools with ratified contracts will receive more than the Special Master’s proposed 2.5 percent in 2009-2010 (i.e. Lincoln’s base is 3.14% higher in 2009-2010 and York is 2.76 percent higher in 2009-2010.) The Special Master then constructed Table 2 with his proposed raises of 2.5 percent in 2009-2010 (using the actual figures in Lincoln and York) and increased the second year base salary by 2.0 percent in 2010-2011. Using these forecasted midpoints, the Special Master determined that the Union’s final offer did a much better job of achieving true comparability for the SCATA teachers, especially for the 2010-2011 contract year. Finally, the Special Master considered ability to pay, but found that neither party submitted useful information with regard to ability to pay. The Commission notes that under legislative intent, this is a fact that can be considered by the Special Master; however, under Section 48-818 the Commission cannot consider ability to pay. See Nebraska City Educ. Ass'n v. School Dist. of Neb. City, 201 Neb. 303, 267 N.W.2d 530 (1978). This is yet another example of how the Legislature deals with State employees differently than other public employees. In sum, the Special Master found that both parties submitted reasonable final offers and both proposed reasonable increases for 2009-2010. The Special master held that the Union’s final offer for 2010-2011 did a much better job of moving the bargaining unit members toward true comparability than did the State’s offer, thus making the Union’s offer more reasonable than the State’s offer. The State argues that the Commission refuses to follow approaches that are speculative, citing Stanton Educ. Ass’n v. Stanton County School Dist., 11 CIR 9 (1990) (refusing to include fringe benefit cost in arriving at base salary because to do so would be to use speculative health benefit costs). The State also argues that the Commission and the Nebraska Supreme Court follow a well-established principle about not setting wage rates without sufficient data available, citing Lincoln Fire Fighters Ass’n v. City of Lincoln, 198 Neb. 174 (1977). The Nebraska Supreme Court, under a regular Section 48-818 wage case, stated in Lincoln Fire Fighters Ass’n, that : “It is evident this figure was arrived at by speculation, surmise, or conjecture. An issue depending entirely upon speculation, surmise, or conjecture is never sufficient to sustain a judgment, and one so based must be set aside”. Mitchell v. Eyre, 190 Neb. 182, 206 N.W.2d 839 (1973). The Commission, in a standard Section 48-818 case, does not make decisions on benefits or wages based upon speculation. However 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 both 2009-2010 and 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 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.” Neb. Rev. Stat. § 81-1383(2). The Special Master’s ruling fits well within the intent and spirit of Neb. Rev. Stat. § 48-818. His decision is clearly is based on comparability. Since 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. CONCLUSION: 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 Lindahl, Orr, and McGinn join in the entry of this Opinion and Order on Appeal. Commissioner Burger concurs. Commissioner Blake dissents.
G. Peter Burger, Concurring: I concur in the Opinion and Order on Appeal. The Commission has a long-standing practice that the assigned hearing commissioner rules on evidentiary issues without the involvement of the panel. I respect that practice, and do not wish to change it, but I do not agree with the decision to decline to receive evidence in this Appeal. The State Employees collective Bargaining Act imposes a duty on the Commission to review the findings of the Special Master on Appeal. Yet, it provides the parties no guidance on the proper procedure to resolve an appeal, simply a standard of review that almost compels affirmance. I believe the procedure followed in State Law Enforcement Bargaining Council v. State of Nebraska, 13 CIR 104 (1998), and State of Nebraska v. Nebraska Association of Public Employees/AFSCME Local 61, 15 CIR 366 (2007) should have been followed. William G. Blake, Dissenting: I do not concur with the majority of the Commission in this case. I do not find adequate evidence in the record to do so, and I do not agree with the limitations placed upon the parties in developing a record. In my view the Commission should not rule in this case without allowing the parties the opportunity to present additional evidence. The evidence in a proceeding under the State Employees Collective Bargaining Act (SECBA) is presented to a Special Master at a truncated hearing following a truncated preparation time. This alone is not enough to say that our procedure should be to allow additional evidence to be offered to the Commission on appeal. The question is whether the statutory framework of SECBA provides for an appeal to the Commission strictly on the record, or is there to be an opportunity, however limited in scope, to present additional evidence before the Commission? There are many appeal statutes in Nebraska, most of them dealing with appeals to the District Court. There simply is no such thing as a “basic appellate procedure” from which to deviate. Some appeals are heard in District Court de novo, some are de novo on the record, and some allow the District Court to hear additional evidence if the judge determines it to be necessary. With few exceptions, the statutes each specify how an appeal is to be heard. The Commission, hearing appeals under SECBA, is not so fortunate. SECBA is silent on the matter. Petitions in Error are heard in District Court on the record below, under Neb. Rev. Stat. § 25-1901, et seq. While the statutes do not set forth the scope review, the Nebraska Supreme Court has consistently ruled that error proceedings are limited to the record created before the lower tribunal. See Crown Products Co. v. City of Ralston, 253 Neb. 1, 567 N.W.2d 294 (1997). Anyone who has ever been faced with the almost impossible task of creating a record that will support an appeal by Petition in Error knows all too well that it is sometimes close to impossible to develop an adequate record for appeal. Records developed in front of public bodies that do not wish to be appealed will typically leave the appellate court with little choice but to sustain the ruling of the lower tribunal. Other statutes providing for appeals from virtually identical situations specifically state that the District Court either may or shall take additional evidence. See Neb. Rev. Stat. § 15-1201 for appeal of a decision from the City of Lincoln, wherein the district court is to “hear the appeal as in equity” and “determine anew all issues raised before the city”. On the other hand, for certain county zoning matters appealed to the district court, the court may take additional evidence “if it shall appear to the court that testimony is necessary for the proper disposition of the matter….” See Neb. Rev. Stat. § 23-168.04. Administrative decisions by most state administrative agencies are appealed to the district court by filing a Petition for Review. Such petitions are heard “de novo on the record.” See Neb. Rev. Stat. § 84-917. Condemnations, appealed from county court to the district court are “tried de novo in the district court.” See NEB. REV. STAT. SEC, 76-717. This is but a small sampling of the differences of appellate procedures for substantially similar decisions made by different governmental bodies in this state. The point to this discussion is that there is no such thing in Nebraska as an accepted, standardized appellate procedure until we get to the Court of Appeals level. Nor do I find any guidance from the Legislative History or in the nature and ideology of SECBA itself. SECBA is obviously intended to streamline the collective bargaining procedure for state employees and their agencies. However, it remains silent regarding the question of whether the Commission should allow additional evidence on appeals to the Commission. Of course, it is possible that the Unicameral intended exactly this type of rough justice procedure, and that is in essence the meaning of the decision by the majority in this case to not allow additional evidence. I find no guidance in SECBA. It can be argued effectively that the Legislature intended the Commission to be able to act quickly and that we can only do so if we act upon the record from the Special Master proceeding. It can be argued just as well (more persuasively in my opinion) that the Special Master is to act very quickly and that the parties are then afforded the opportunity to develop their position before the Commission with evidence that sheds light on the decision of the Special Master, either supporting or contradicting that decision. This does not mean the parties are free to start over and change their theories, their proposed arrays, or their evidence. But they should be allowed, as we previously have clearly ruled, to participate in a fundamentally fair proceeding wherein they can show that speculation and conclusions by the Special Master are unsupported by sound evidence. In reviewing the Legislative History for SECBA I find nothing to support the conclusion one way or the other regarding additional evidence. In some instances when searching for the intent of the Legislature, we would do almost as well searching for the far end of the universe. This is one of those instances. In my opinion, the question of legislative intent can be argued effectively either way. The rule of construction to which I believe the Commission should be looking, and which I believe is clearly determinative of the issue in this case is that: [W]here the general intent of the Legislature may be readily ascertained, yet the language used in the statute gives room for doubt or uncertainty as to its application, courts and administrative tribunals such as the Commission of Industrial Relations may resort to historical facts or general information to aid them in interpreting its provisions. (Citations Omitted) . . . . Long continued practical construction of a statute by the officers charged by law with its enforcement is entitled to considerable weight in interpreting that law.
(Citations Omitted).
Ainsworth Irrigation District v. Bejot, 170 Neb. 257, at 274, 102 N.W.2d 416 (1960). The Legislature adopted SECBA in 1987. In State Law Enforcement Bargaining Council v. State of Nebraska, 12 CIR 32 (1993)(Law Enforcement I), a SECBA appeal, the Commission discussed its appeal jurisdiction and the problems faced in hearing appeals under SECBA. While it is not clear whether additional evidence was heard by the Commission, an inference can be made from the language of the decision that such was the case. The Commission’s decision in State Law Enforcement Bargaining Council v. State of Nebraska, 13 CIR 104 (1998) (Law Enforcement II), was a SECBA appeal involving the same parties. The Commission’s decision in that case could not be more directly on point, clearly constituting a practical construction of the statute by the officers charged by law with its enforcement. The petitioner on appeal prayed for an additional evidential or supplemental hearing before the Commission, but later objected when the respondent sought to present evidence to the Commission. The Commission’s opinion noted a number of the problems with SECBA, even suggesting how SECBA could be amended by the Legislature to prevent potential “nonsensical results”. 13 CIR at 110. The opinion specifically addressed the question of whether additional evidence could be presented to the Commission, noting that: “Whether the evidence to be considered on appeal should be limited to evidence in the record made before the Special Master, whether the parties should be allowed to supplement or expand the Special Master’s record or whether an entirely new record should be made before the Commission is not addressed in the Bargaining Act.” This is the same issue before us today. The Commission addressed the issue as follows: The parties’ actions in the appeal proceeding suggested that they anticipated the Commission would consider the appeal of the Special Master’s ruling “at least in part de novo on the record. Obviously, if both parties wish to limit the evidence offered to the Commission to evidence presented to the Special Master, they may do so. The Commission finds, however that they need not do so.” 13 CIR, at 111.
The opinion then discussed the specific task assigned to the Commission on Appeal: Evidence offered before the Special Master relating to issues not before the Commission is not relevant to the Commission. … Because the decision to be made by the Commission on an appeal of a Special Master’s ruling is limited by the Bargaining Act as discussed above, the evidence which is relevant to the Commission is likewise limited….
Because the evidence needed by the Commission is not coextensive with the evidence appropriate for the Special Master to weigh and consider, the Commission finds that the parties must be allowed to make a record before the Commission which contains evidence which is otherwise admissible and which is relevant to the task assigned to the Commission.
13 CIR, at 111-112. (Emphasis Added). The Commission’s opinion in Law Enforcement II clearly shows that additional evidence was received by the Commission regarding prevalent rates of pay and that it was helpful to the Commission. There are four cases presently pending involving SECBA Special Master appeals. Included among the SECBA appeals we are currently considering is Case No. 1208, the appeal involving the Nebraska Association of Public Employers/AFSCME Local 61. This is the same SECBA bargaining unit which was before the Commission on appeal from a Special Master’s decision in Case No. 1142. Our ruling in that case is found at State of Nebraska v. Neb. Ass’n of Public Employees Local 61 v. State of Nebraska, 15 CIR 366 (2007). It was decided EN BANC. Three of the current Commissioners participated in that case in 2007. In deferring to the Special Master’s decision, we based our 2007 decision on the following: 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. 15 CIR at 388. The chief negotiator for the State in 2007 was William J. Wood. He is still the State’s chief negotiator, and the offer of proof by the Petitioner in this case indicated that the additional evidence, which appears to be crafted to be “relevant to the task assigned”, would be that of Mr. Wood. What this means is that if the Commission in its rulings regarding additional evidence in the four cases now before us (we had similar Motions in Limine in all four cases, and they were all sustained), the result will be that in 2007 the State should have offered additional evidence, but when the State attempts to present such additional evidence, we will not hear it. There are no Nebraska Supreme Court or Court of Appeals decisions to assist us with this SECBA issue. However, there is the failure by the Commission to change our interpretation of the appeal procedure for at least ten years, and there has not been any legislation in reaction to our interpretation. In this time, we have adopted no rules of procedure for Special Master proceedings or for appeals, other than our previous case rulings. I believe we have clearly established a practical construction, and there is nothing to indicate to anyone that the parties should not have relied upon this construction in the bargaining process which commenced under SECBA in 2008. If the Court of Appeals or the Nebraska Supreme Court finds our past application of the appeals statute, Sec. 81-1383, to be incorrect, then it is the Court’s prerogative to provide us with that guidance. In the meantime, without any rules of procedure to indicate a change in our interpretation, we should not now, without warning, depart from our past decisions. The conclusions of the Special Master in this case illustrate why SECBA parties should continue to be allowed some opportunity to present the Commission with additional evidence. The Special Master’s wage determinations for the array school were based upon little evidence for 2009. In all but two of the 11 array schools, the matter had not yet been decided. The Special Master “projected” those 2009 salary numbers for nine of the eleven schools. For the school year beginning in 2010, salaries had not been determined in any of the array schools. If the Special Master was incorrect in his projections for any of those schools, and it can be shown, then the parties should have the right to do so before the Commission. We are required to deal with 2010, but on what are we basing our decision? Even when deciding to defer to the Special Master, upon what are we basing our decision? The Respondent in this case argues that the Special Master’s calculations for the school year beginning in 2010 are not projections based upon evidence, but are mere speculation and guess work. From the record before us, I must agree. The Special Master stated that he found reasonable data in the record with which to generate reasonable forecasts, not only for 2009, but for 2010 as well. He characterized his projections as a “highly conservative” forecast. The Special Master looked first at the last ten-year increases in base salary in five of the array districts proposed by the union, and the average increases in the union’s base salary, and then took notice of the current private and public economic conditions in some undisclosed manner. He looked at the 2009 percentage increases in only two of the array districts, as the other districts had not settled upon a base salary for 2009, and then he projected a 2.5% increase in base salary wages for 2009, and a 2% increase for 2010. Was this extremely conservative? For even 2009 it was based upon scant evidence with virtually no evidence for 2010, and with no opportunity (despite reasonable expectations based upon past practice) to provide the Commission with relevant evidence. While SECBA does promote a rapid file proceeding with deference given to the Special Master’s ruling, it does not in my opinion promote the determination of the important matter of employees’ wages and the expenditure of public funds on free-wheeling guess work, even where that guess work is self-styled as conservative. We are required by SECBA to defer to the Special Master’s findings as to the rates of pay unless we find those rates to be significantly disparate from prevalent rates of pay. If the prevalent rate of pay falls between the two final offers, we cannot find the Special Master’s ruling to be significantly disparate. See Sec. 81-1383(2). Referring back to our discussion in Law Enforcement 1, 12 CIR 32, at page 38, our responsibility under the review provisions of SECBA is to first determine comparability pursuant to Sec. 48-818. We use the terms comparable and prevalent interchangeably, but comparability remains the standard for the Commission’s review. While our appeal jurisdiction is very limited, we are required to conduct a Sec. 48-818 determination before we can decide whether to defer it to the Special Master. We have not done this here. The Commission’s ruling merely accepts the Special Master’s speculation as to prevalent rates with no serious analysis of the Special Master’s calculations and with no evidentiary opportunity afforded to the parties to confront those conclusions upon which the Special Master’s numbers are based. The Special Master, at Table 2 on page 32 of his Opinion and Ruling, started with 11 schools and two school years, meaning there were 22 blank spaces to fill in before running the mid-point comparability calculations. There was reliable evidence for only two of those spaces. The Special Master filled in the remaining 20 spaces with little more than guess work to arrive at a set of numbers from which to calculate comparability. The Commission is charged with determining comparability, not with merely looking at the Special Master’s best guess of comparability. It is after we determine comparability that we are to determine whether the Special Master’s ruling is significantly disparate. We are required by SECBA to set salaries for the bargaining unit for both years. The majority opinion in this case follows the Special Master’s conclusion that the union’s final offer did a much better job of achieving true comparability than did the State’s offer, especially for 2010. How can we know this based upon the record before us? I find nothing in SECBA or its Legislative History indicating that we are to make our analysis in a vacuum, and our prior decisions certainly did not so require. I further note that in determining comparable wages, we must determine the proper array. This does not require us to defer to a Special Master’s determination of the appropriate array. We are to first make a Sec. 48-818 determination of comparability. After we have done this, then we are to look at the Special Master’s determinations. In this case, the union’s base salary for 2008 was $28,273. The union’s final offer was for an increase of $1,186 for 2009, and the State’s offer was for an increase of $1,131. The Special Master projected a midpoint base salary of $30,077 for 2009, which would be an increase of $1,804. This was the basis for finding that the union’s final offer would move the bargaining unit closer to true comparability than would the State’s final offer, and it was therefore selected as the more reasonable. For 2010, the Special Master’s projections resulted in the midpoint base salary of $30,679. The union’s final offer was for another base salary increase of $1,150 for 2010, to a base of $30,609. The State’s offer was an increase base salary to $29,816. Again, the union’s offer was closer to the Special Master’s determination of comparability and was therefore selected as the most reasonable. While not determinative, it should not go unmentioned that while the Special Master predicted a 2.5% increase in base salary for the array schools in 2009, the ordered increase for the union’s salary was 4.2%. Similarly, the Special Master’s prediction for 2010 was 2% for the array schools, while the ordered increase for the union was another 3.8%. If the percentage projections for 2009 are changed only slightly, and without removing the high end districts of Lincoln and Omaha from the array ($34,908 and $32,285, respectively, in base salary for 2008), the array midpoint can easily be changed. Would a different set of assumptions, based upon evidence, lower the midpoint by almost $650 and thereby result in the State’s final offer looking more reasonable than the union’s? It depends on those assumptions, as well as the selected array. As to 2010 wages, the Special Master’s projected midpoint base salary for the union was $30,679. The union’s final offer of $30,609 looks far more reasonable than does the State’s final offer of $29,816 as the 2010 base salary. However, a reduction of the array midpoint of less than $470 would start to make the State’s offer look more reasonable than the union’s. What would it take to accomplish this? Not much. It does not require remarkably sharp math skills to change the numbers enough to make a significant difference. Merely removing Lincoln and Omaha from the array would more than accomplish this amount of change in the 2010 base salary, even if the Special Master’s assumed increases are used in the calculations. Would the State’s offered additional evidence have been more than regurgitation of the numbers already in the record? Would the new evidence provide us any clearer crystal ball for filling in the blanks? Looking at the Offer of Proof, I cannot honestly tell. The State’s Offer of Proof, at Exhibit 4 indicated calculations that would result in a 2009 base salary for the union of $29,302. This appears from the Offer of Proof to not be new evidence, but merely a new set of calculations based upon the existing evidence. Exhibit 5 included in the Offer of Proof does purport to include new information directly on point, relating to 2010 wage increases, and the offer includes a brief description of the explanatory testimony of William Wood regarding these exhibits. I agree with the Special Master’s selection of the array to include Lincoln and Omaha, as well as Ralston, Ashland-Greenwood, and Holdrege. I also agree with the Special Master that it is likely no accident that the three schools submitted by the State are the three lowest pay schools in the array. Nor was it happenstance that the union argues for inclusion of Omaha and Lincoln, which are significantly above all other array schools in base pay (Omaha is over $2,000 above the base salary in the third highest district and the number for Lincoln is close to $5,000). At least Lincoln and Omaha have SCATA teachers and students within their districts. I concur with the finding that the January 10 deadline (January 12 in this instance) for submitting final offers is not jurisdictional, and I concur with the use of all 11 districts in the array. I do not know what percentage increases, if any, should have been used in filling in some or all of the blanks on the table, and I do not know whether either party could foresee this issue prior to appeal to the Commission. I do wish we had allowed the opportunity to present a limited amount of additional evidence to help us with this. However, once it is decided that Lincoln and Omaha are in the array, virtually any increase above the array’s 2008 midpoint of $29,294 would favor SCATA’s base salary offer of $29,459 for the year 2009. A mere one-half percent increase in 2009 would favor SCATA’s offer. For 2010 though, it is not quite so easy. The State’s final offer proposed an increase of 1.4% above its 2009 base, which would be $412. Adding 1.4% to a 2009 base of $29,459 would yield a 2010 base of $29,871, which would be far closer to the State’s final offer than to SCATA’s. There is no data in the record from which to make anything more than a guess in these economic times that the increase in 2009 is going to be 2%, or even 1.4%. Changes in the array or changes in the assumptions upon which projections are based can have a dramatic effect, which is the point of the above mathematical exercises. While the numbers take on the appearance of reasonableness once we put them in the array grid, in this case they are still guess work. We look at the numbers, but without basing those numbers on evidence, that is all we are doing. The timing of the SECBA process is such that the Special Master, as well as the Commission, will necessarily engage in a significant amount of educated guesswork. To do otherwise would make it virtually impossible for the parties, the Special Master, and the Commission to abide by the Legislature’s mandated timeline. However, following the submission of the case to the Special Master, perhaps negotiations in more array schools reached the point that some of the guesswork could have been removed. We are to render our decision by July 1, or as soon thereafter as practicable. I would reopen the hearing in this case to comply with our past interpretations and practices, and would allow additional evidence on these issues in order to give both sides an opportunity to help us do a better job of determining comparability. Only then can we decide whether to defer to the determination of the Special Master. For a copy of Table 1, please contact the Commission at (402) 471-2934.
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