8 CIR 184 (1986)


LODGE NO. 17, |
Petitioner, |
v. | ORDER
Respondents. |


This matter came on for argument by telephone conference on July 1, 1986 on Respondents' Motion For New Trial. Petitioner was represented by its counsel of record, Bruce G. Mason and Respondents' were represented by their counsel of record, William A. Harding. The Motion asserts that our finding that to allow an offset of any overpayment in 1984-85 against 1985-86 salaries would be "retroactive" and in contravention of Section 48-817 was an error of law.

Section 48-817 provides as follows:

After the hearing and any investigation, the commission shall make all findings, findings of fact, recommended decisions and orders, and decisions and orders in writing, which findings, findings of fact, recommended decisions and orders, and decisions and orders shall be entered of record. The final decision and order or orders shall be in effect from and after the date therein fixed by the commission, but no such order or orders shall be retroactive. In the making of any findings or orders in connection with any such industrial dispute, the commission shall give no consideration to any evidence or information which it may obtain through an investigation or otherwise receive, except matters of which the district court might take judicial notice, unless such evidence or information is presented and made a part of the record in a hearing and opportunity is given, after reasonable notice to all parties to the controversy of the initiation of any investigation and the specific contents of the evidence or information obtained or received, to rebut such evidence or information either by cross-examination or testimony.

This section was interpreted in Crete Education Association v. School District of Crete , 193 Neb. 245, 226 N.W.2d 752 (1975) where the court said

...We believe that the only reasonable interpretation of section 48-817, R.R.S. 1943, is that the prohibition against a retroactive order means that the orders of the Court of Industrial Relations cannot apply to a period prior to that embraced within the dispute submitted to it.

In the present case the parties began negotiations November 1, 1983, reached impasse August 22, 1985 and the petition was filed September 27, 1985. The petition alleges "an industrial dispute exists between the parties for 1984 and 1985." The Answer and Counterclaim admits the industrial dispute exists and requests a decrease in wages for 1984-85 or, in the alternative, to grant an offset against 1985-86.

The parties fiscal year runs from July 1 to June 30 of each year. The petition was, therefore, filed after fiscal year 1984-85 and during fiscal year 1985-86.

Respondents' position is that since the question of overpayment for 1984-85 was clearly a part of the industrial dispute during negotiations it remained a part of the dispute before the Commission. To extend that argument, if the parties negotiated for three, four or even five years before filing a petition, we could go back and set the wages for each year.

A similar issue was before us in Building Service Employees v. Papillion School District No. 27 , 3 CIR 57 (1975) where we said:

Under the positions of the parties, then, the Union is taking the position that we are dealing with a locked in year, the academic year 1974-1975 now ended and 1975-1976. The District is taking the position that we are dealing with the academic year 1975-1976. The Union is clearly correct in its position that there was no resolution of the controversy during the academic year 1974-1975. Its petition was filed in time to bring about a resolution of the controversy for that year. On the other hand, since the parties are at impasse over the academic year 1975-1976, that brings that academic year as well within the case. See Crete Education Association v. School District of Crete , 193 Neb. 245 (1976).

Either party could have presented the issue of wages for fiscal year 1984-85 by filing a petition prior to the end of that fiscal year. Having failed to do so, we have no authority to make a determination regarding 1984-85.

The Motion is overruled.

Entered July 11, 1986.