3 CIR 629 (1979). Dist. Court Order appealed denying enforcement of CIR order. Affirmed. 209 Neb. 335, 307 N.W.2d 795 (1981). (See also Case #316, 4 CIR 101 (1979)).


Petitioner, |
Respondent. |

Filed February 28, 1979.

Before: Judges Wall, P.; Kratz & Orr.


This matter comes on for disposition of cross motions for new trial and for severance of a portion of the Opinion and Order. For the reasons hereinafter set forth, the original Opinion and Order are modified in certain respects, and the motions are overruled.

Petitioner complains that while some sort of 24- hour clause may be prevalent, there is no prevalence of any specific wording of such a clause, and definitely no prevalence of the particular clause adopted herein. At argument, petitioner could not verbalize any specific complaints about the clause adopted herein other than a general uneasiness about its full application. We recognize that our adoption of the contract language is not as passing as if it were written in sand, but it is not as lasting as if it were engraved in granite, either. It only applies to new employees and will only come into effect over the years. Up to this point in its existence, the employer has shown an enlightened self-interest attitude toward the collective bargaining process. We see no reason to indulge a presumption that it will turn away from such an attitude in the future. The presumption that each party will act in accord with its longterm best interests leads us to believe that if problems arise, they can be negotiated out between the parties, just as they negotiated the interpolation of most of the wage rates in Appendix "B". If not, they can always bring the dispute here for resolution.

Respondent complains of our treating the evidence of the street light maintenance line of progression wages as a statistical anomaly. A further review of the evidence convinces us that we were in error, and that the evidence shows that the duties of street light maintenance personnel have changed over the years and that, instead of there being an anomaly, there is a reason in the nature of the duties for that line of progression for them to receive no increase. Respondent urges in brief and argument that no cut he made, but that as a matter of management prerogative, its policy is that no line of progression should receive a cut in pay. Probably respondent intended to modify that policy by the unverbalized addition of the clause "in a time of an expanding or inflationary economy." Rather than debate or decide whether that is truly an area of management prerogative, we prefer to handle the matter under our usual rules of procedure. Petitioner has failed to carry its burden of proof that the wages paid the street light maintenance group is other than comparable to the prevalent, respondent has made no counter-claim for reduction and, therefore, we have no occasion to order a change in wages for the street light maintenance group. This determination permits us to adopt Exhibit 62 and its included agreements and stipulations in its entirety as a substituted Appendix "B," fixing the wages for all members of the unit.

In this latter connection, petitioner has proffered Exhibit 63, purporting to show that OPPD street light maintenance men do different, if not more hazardous, work than their peers in the compared-to utilities. Petitioner admits that while this is "new" evidence, it is not "newly discovered." It also contradicts the testimony proffered at trial by petitioner and offers us no real guide to compare the "new" duties with the duties shown at trial. The offer of Exhibit 63 is refused.

Respondent complains that under the unique conditions and terms of its contract, setting the effective date of the settlement order of the court to begin before the petition was filed herein is illegal "retroactivity." We have examined the practice of the Court since Crete [1] was decided and find that, in accord with Crete , we have universally held (albeit sub silentio ) that suits brought within the next contract year (or years, where the parties were negotiating a multi-year contract) or within the then current or subsequent budget year of the employer, do not involve retroactivity when the order merely settles the dispute for the year or years since the expiration of the last contract or within the then current or a subsequent budget year. Any other holding would severely impair the collective bargaining process and require the union to sue immediately on the date of expiration. We have no desire to thus increase our case load since, as we have seen in many instances, a few more days negotiation might result in agreement. The contention of the respondent in this regard is without merit. Also, as thus delimited, we see no constitutional issue.

Respondent complains of the requirement to establish a testing and apprenticeship program in the Rural Department. Respondent concedes that negotiations are proceeding, and at trial counsel conceded that another sixty days would probably see a final agreement. Under the circumstances, we are unable to perceive the necessity for respondent's Motion to sever. To be absolutely fair, however, we extend the period for agreement to six months from the date of the entry of this Order. Naturally, such extension or authorization to return here does not deprive this Order of its nature as a final Order.

ORDERED, that the Opinion and Order of the Court of November 27, 1978, is modified as provided herein, and that the several motions of the parties for new trial or other relief are overruled.

I Crete Ed. Assn. v. School Dist. , 193 Neb. 245, 226 N.W. 2d 752 (1975)