V.
GRANT
COUNTY SCHOOL DISTRICT NO. 38-0011, ALSO KNOWN AS
269
Filed
June 10, 2005, No. S-04-133
1. Commission of Industrial Relations:
Appeal and Error. The applicable standard of review in an appeal from the
Commission of Industrial Relations in a case involving wages and conditions of
employment is as follows: Any order or decision of the commission may be
modified, reversed, or set aside by the appellate court on one or more of the
following grounds and no other: (1) if the commission acts without or in excess
of its powers, (2) if the order was procured by fraud or is contrary to law, (3)
if the facts found by the commission do not support the order, and (4) if the
order is not supported by a preponderance of the competent evidence on the
record considered as a whole.
2. Commission of Industrial Relations:
Jurisdiction. The statutory jurisdiction of the Commission of Industrial
Relations is to settle pending controversies.
3. Labor and Labor Relations: Teacher
Contracts. A dispute over the presence of a deviation clause in a teacher
contract is the subject of mandatory bargaining.
4. Commission of Industrial Relations:
Teacher Contracts. A deviation clause in a teacher contract falls under the
category of "wages, hours, and other terms of employment, or any question
arising thereunder," as stated in Neb.
Rev. Stat. § 48-816(1) (Reissue 1998), and is a subject of mandatory
bargaining.
5. Commission of Industrial Relations:
Contracts. The Commission of Industrial Relations' orders are not designed
to force a party into a contract, but, rather, are to exercise the commission's
authority to settle disputes.
6. Commission of Industrial Relations:
Evidence: Words and Phrases. A prevalence determination by the Commission of
Industrial Relations is a subjective determination. The standard inherent in the
word "prevalent" will be one of general practice, occurrence, or
acceptance.
7. Commission of Industrial Relations:
Evidence. A valid prevalence analysis by the Commission of Industrial
Relations does not require as a prerequisite a complete identity of provisions
in the array.
8. ____: ____. As a general rule, it may be
said that the factors most often used by the Commission of Industrial Relations
to determine comparability are geographic proximity, population, job
descriptions, job skills, and job conditions.
9. Commission of Industrial Relations:
Evidence: Appeal and Error. Absent a showing that the entities considered by
the Commission of Industrial Relations did not present a suitable array, an
appellate court cannot say that the commission erred in refusing to consider
every other or additional entity, wherever located, which might also be
comparable.
10. Commission of Industrial Relations:
Wages: Evidence. The requirement that the Commission of Industrial Relations
select a suitable array does not obligate the commission to consider every
conceivable comparable array, but only to consider a sufficient representative
array so that the commission can determine whether the wages paid or the
benefits conferred are comparable.
11. Commission of Industrial Relations:
Evidence. Determinations made by the Commission of Industrial Relations in
accepting or rejecting claimed comparables for purposes of establishing an array
are within the field of its expertise and should be given due deference.
Appeal from the
Rex R. Schultze, of Perry, Guthery, Haase
& Gessford, P.C., L.L.O., for appellant.
Mark D. McGuire, of McGuire & Norby, for
appellee.
Hendry, C.J., Wright, Connolly, Gerrard,
Stephan, McCormack, and Miller-Lerman, JJ.
Miller-Lerman, J.
NATURE
OF CASE
This
industrial dispute over wages and conditions of employment for the 2002-03
contract year is between the appellant and cross-appellee, Grant County School
District No. 38-0011 (the District), and the appellee and cross-appellant,
Hyannis Education Association (the Association), the collective bargaining unit
for teachers employed by the District. The District and the Association were
unable to reach a negotiated agreement for the 2002-03 contract year, and the
Association filed a petition with the Nebraska Commission of Industrial
Relations (the CIR) seeking to invoke the CIR's authority to resolve the
parties' industrial dispute over wages, fringe benefits, and other contract
terms.
Following a
hearing, the CIR determined that the fringe benefit issues raised by the parties
were moot, but that it nonetheless could and did decide the issue regarding the
appropriate salary schedule. The CIR also determined that it was without
authority to resolve an issue raised by the parties concerning the inclusion of
a deviation clause in the parties' agreement, which clause permitted the
District to deviate upward from the agreement's base salary schedule in the
course of hiring teachers. In order to resolve the parties' wage dispute, the
CIR determined the array of comparable school districts against which contract
terms were compared and, based upon this array, established the base salary.
On appeal, the
District challenges, in summary, the CIR's determinations concerning the
mootness of the fringe benefit issues, the CIR's professed inability to resolve
the parties' dispute concerning the deviation clause, and the CIR's selection of
the array of comparable school districts. For its cross-appeal, the Association
essentially challenges the CIR's refusal to consider the deviation clause.
As explained
below, we conclude that the deviation clause is the subject of mandatory
bargaining and that the CIR has the authority to consider the parties' dispute
over the deviation clause. We therefore reverse the CIR's order to the extent it
states that the CIR is without authority to consider the deviation issue in this
case. The cause is remanded for such consideration, and our ruling resolves the
cross-appeal. The parties' remaining assignments of error are without merit.
Accordingly, we affirm in part, and in part reverse the order of the CIR and
remand the cause for further proceedings.
STATEMENT
OF FACTS
The relevant
facts are essentially undisputed. The District is a Class VI school district,
maintaining
The
Association is a labor organization formed by teachers employed by the District
for the purpose of representation in matters of employment relations. See Neb.
Rev. Stat. § 48-801(6) (Reissue 2004). On March 5, 2003, the Association
filed a petition with the CIR, seeking the resolution of an industrial dispute
involving wages and conditions of employment pursuant to the Industrial
Relations Act, Neb. Rev. Stat. §§ 48-801 to 48-838 (Reissue 1998 &
Cum. Supp. 2002). Specifically, the petition alleged that an "industrial
dispute" pursuant to § 48-801(7) existed between the District and the
Association, because the parties had negotiated on items concerning wages and
other conditions of employment for the 2002-03 contract year, and such
negotiations had failed to result in an agreement between the parties. Pending
the successful negotiation and execution of an agreement for the 2002-03
contract year, the District had continued to apply the provisions of the last
negotiated agreement between the parties, which pertained to the 2001-02
contract year.
The
Association's petition came on for hearing before the CIR on June 18, 2003.
Prior to the hearing, the parties entered into a pretrial order in which they
stipulated to certain facts and to the disputed issues to be presented to the
CIR. The parties also stipulated that the last day of school for the 2002-03
contract year was May 23, 2003. The disputed issues identified by the parties
included the salary schedule and certain fringe benefits. Another issue
identified by the parties was the inclusion of a deviation clause in the
agreement. The clause, which had been part of the 2001-02 agreement, provided as
follows: "The Board reserves the right to deviate from the agreement if it
becomes necessary to hire teachers for a particular position." Although the
deviation clause had been a negotiated term in the 2001-02 agreement, the
Association sought to have the clause deleted from the 2002-03 contract.
Regarding the
array of comparable school districts to be used by the CIR in resolving the
parties' industrial dispute, the parties agreed that
The parties
stipulated that the "[w]ork, skills, and working conditions of the
bargaining unit employees at Rock County, Garden County, Rushville, West Holt,
Gordon, Burwell, and Thedford are sufficiently similar to [the Association's]
bargaining unit to satisfy the standards set forth in Neb. Rev. Stat. §
48-818," but that by so stipulating, the District did not agree that
Burwell, Rock County, Thedford, and West Holt should be in the array adopted by
the CIR. In its brief on appeal, the District expressed additional misgivings
regarding including Gordon in the array.
As stated
above, a hearing was held before the CIR on June 18, 2003. Four witnesses
appeared and testified, and 39 exhibits were offered into evidence. On January
6, 2004, the CIR issued its findings and order. In summary, the CIR accepted the
Association's array of comparable districts. Thus, the seven-district array as
determined by the CIR included the four initially agreed-upon districts of
Garden County, Rushville, Gordon, and Thedford, and the three contested array
districts of Rock County, West Holt, and Burwell. Based upon the array, the CIR
concluded there was no clear prevalence to permit the District to change its
salary schedule, and utilizing the District's existing salary schedule, the CIR
established the District's base salary of $23,620 for the 2002-03 contract year.
The CIR concluded that the fringe benefit issues raised by the parties were moot
because the contract year was over, and it was impossible or impractical to
retroactively change such benefits. Thus, the CIR did not specifically rule on
the substance of the fringe benefit issues. Finally, the CIR determined that
unless it was presented with a prevalent array of deviation clauses which
happened to be identical in their terms, it was without authority to rule on the
parties' dispute over the inclusion of the deviation clause in the contract. As
a result, the CIR declined to rule on the appropriateness of the deviation
clause.
The District
appeals from the CIR's order. The Association has filed a cross-appeal from the
CIR's order, essentially limited to the CIR's refusal to rule on the deviation
clause.
Additional
facts will be set forth below when pertinent to our analysis of the parties'
arguments on appeal.
ASSIGNMENTS
OF ERROR
In its appeal,
the District assigns seven errors, which we restate as three. The District
claims, restated, that the CIR erred (1) in determining that the fringe benefit
issues were moot, while not determining the entire contract dispute was moot;
(2) in determining that it was unable to resolve the parties' dispute concerning
the deviation clause in the contract; and (3) in selecting the appropriate
array.
In its
cross-appeal, the Association assigns two errors, which we restate as one. The
Association claims, restated, that the CIR erred in refusing to resolve the
parties' dispute concerning the inclusion of the deviation clause in the
contract and in failing to state that a deviation clause would render the
parties' contract regarding salaries illusory and void.
STANDARD
OF REVIEW
The parties
disagree as to the proper standard of review on appeal in this case. We
therefore take this opportunity to state the appropriate standard of review
regarding the appeal of a case involving wages and conditions brought under §
48-818.
This case
involves an industrial dispute and arises under § 48-818, which authorizes the
CIR to enter orders concerning wages and other conditions of employment.
Previously, when considering appeals involving an industrial dispute over wages
and conditions of employment, we derived our standard of review from case law
and recited the standard as follows:
In our review of orders and decisions of the [CIR], we are restricted to
considering whether the order of that agency is supported by substantial
evidence justifying the order made, whether it acted within the scope of its
statutory authority, and whether its action was arbitrary, capricious, or
unreasonable.
Contrary to
the standard of review noted above, the parties refer us to § 48-825, in which
a standard of review was added to the industrial relations statutes. In
particular, § 48-825(4) provides as follows:
Any order or decision of
the [CIR] may be modified, reversed, or set aside by the appellate court on one
or more of the following grounds and no other:
(a) If the [CIR] acts without or in excess of its powers;
(b) If the order was procured by fraud or is contrary to law;
(c) If the facts found by the [CIR] do not support the order; and
(d) If the order is not supported by a preponderance of the competent evidence
on the record considered as a whole.
The question raised in the current appeal is
whether the appropriate standard of review in a case involving wages and
conditions of employment is that previously set forth by Lincoln Firefighters
Assn., supra, or whether the standard of review is that set forth in §
48-825(4). We conclude that § 48-825(4) controls.
Section
48-825(4) was added to the Industrial Relations Act by 1995 Neb. Laws, L.B. 382.
By its terms, the standard of review in § 48-825(4) applies to "[a]ny
order or decision of the [CIR]." (Emphasis supplied.) We believe
the use of the word "any" in § 48-825(4) signifies broad application
of the standard of review enunciated therein. We, therefore, conclude that the
standard of review in § 48-825(4) applies to this appeal involving wages and
conditions of employment. With reference to § 48-825(4), we note that,
subsequent to 1995, we have applied the standard of review set forth in §
48-825(4) to cases involving allegations of prohibited practices under §
48-824. See, International
Accordingly,
in our review of orders and decisions of the CIR involving an industrial dispute
over wages and conditions of employment, our standard of review is as follows:
Any order or decision of the commission may be modified, reversed, or set aside
by the appellate court on one or more of the following grounds and no other: (1)
if the commission acts without or in excess of its powers, (2) if the order was
procured by fraud or is contrary to law, (3) if the facts found by the
commission do not support the order, and (4) if the order is not supported by a
preponderance of the competent evidence on the record considered as a whole. We
apply this standard of review to the instant case.
ANALYSIS
CIR Did Not Err When It Determined That
Fringe Benefit Issues Were Moot but That Parties' Salary Dispute Was Capable of
Resolution.
The District
challenges the CIR's determination that the fringe benefit issues presented to
the CIR were moot, but that the salary dispute was nevertheless capable of being
decided. As we read the District's assignment of error regarding salary and
mootness, the claimed error is limited to the propriety of the CIR's undertaking
to make a decision regarding the salary schedule rather than the particular
amount of base salary that was determined. We conclude that there is no merit to
this assignment of error.
As noted
above, in its order, the CIR determined that all benefits issues in the case,
"such as health insurance, sick leave, sick leave bank, maternity/paternity
leave, academic study leave, and travel leave" were moot because the
contract year had ended and that as a result, it would be impossible or
impractical to retroactively change such a benefit. The CIR ruled that any
determination with regard to these fringe benefits would be merely advisory and
that it was not authorized to render advisory opinions. The CIR also concluded,
however, that the salary structure question was not moot, because relief could
be afforded retroactively if necessary.
We have
previously recognized "the impossibility or impracticality of retroactively
changing fringe benefits for an expired contract year." Lincoln
Firefighters Assn. v. City of Lincoln, 253 Neb. 837, 845, 572 N.W.2d 369,
375 (1998) (affirming CIR's determination that issues involving fringe benefits
such as funeral leave were moot). Moreover, we have stated that "[t]he
statutory jurisdiction of the CIR is to settle pending controversies." NAPE
v. Game & Parks Comm., 220 Neb. 883, 885, 374 N.W.2d 46, 48 (1985)
(citing § 48-810).
When the CIR
heard this case, the 2002-03 contract year was completed. The impracticality of
changing fringe benefits already exercised for the expired year was evident.
Therefore, we conclude that the CIR's decision that the fringe benefit issues
were moot was within its powers, not contrary to law, and supported by a
preponderance of competent evidence.
In this case,
the CIR refused to allow the District to alter its existing salary schedule that
was part of the 2001-02 contract. In this connection, we further conclude that
there is no merit to the District's claim that if the fringe benefit issues are
deemed moot, the salary issue must necessarily be deemed moot. Unlike fringe
benefits, issues involving salaries are capable of being given retroactive
effect by the CIR. See Douglas Cty. Health Dept. Emp. Assn. v. Douglas Cty.,
229 Neb. 301, 427 N.W.2d 28 (1988) (stating that retroactive wage increase was
within authority of CIR). We conclude that the CIR's decision that the salary
schedule dispute could be resolved was within its powers, not contrary to law,
and supported by a preponderance of competent evidence. We conclude this
assignment of error is without merit.
CIR Erred
When It Determined That It Was Without Authority to Rule on Inclusion of
Deviation Clause in Parties' Contract.
On appeal, the
District challenges the CIR's determination that it was without authority to
resolve the parties' dispute concerning the deviation clause in the contract and
its consequent refusal to do so. The deviation clause at issue provides as
follows: "The Board reserves the right to deviate from the agreement if it
becomes necessary to hire teachers for a particular position." Referring to
the record and reading the 2001-02 contract as a whole, the deviation clause
permits the District to pay a salary in excess of the base salary schedule. We
agree with the District that the CIR's decision that it did not have authority
to consider the parties' dispute over the deviation clause was contrary to law
and that the CIR further erred when it failed to rule on the deviation issue.
Accordingly, we reverse the portion of the CIR's order declining to consider the
deviation issue and remand the cause with directions to the CIR to consider the
deviation issue based on prevalence.
In its order
refusing to decide the deviation issue, the CIR indicated that the District did
not have a "right" to deviate from the salary schedule because
deviation is a mandatory subject of bargaining. The CIR observed that the CIR's
orders are not designed to force a party to enter into a contract, but, rather,
are a way for the CIR to exercise its power to settle individual disputes. The
CIR also stated that it could not resolve the deviation issue because, for
mathematical certainty, the only relevant comparisons "would need to be
identical." In this regard, the CIR stated that "unless the [CIR] is
presented with a prevalent array of identical contract provisions, the [CIR]
will not determine the issue of deviation as one of prevalency."
We agree with
the CIR's observation that the parties' dispute over the presence of a deviation
clause in the contract is the subject of mandatory bargaining. See Coleridge
Educ. Assoc. v. Coleridge Comm. Schools, 13 C.I.R. 376 (2001). Pursuant to
the Industrial Relations Act, mandatory collective bargaining subjects are those
that relate to "wages, hours, and other terms and conditions of employment
or any question arising thereunder." § 48-816(1). The Industrial Relations
Act requires parties to bargain over mandatory bargaining subjects. Id.
Teacher salary schedules have historically been the basic framework for teacher
contracts and the method by which teacher wages are determined. Coleridge
Educ. Assoc., supra. Deviation from the salary schedule pursuant to a
deviation clause affects those wages. Accordingly, a deviation clause falls
under the category of "wages, hours, and other terms of employment or any
question arising thereunder," § 48-816(1), and, as the CIR correctly
observed, is a subject of mandatory bargaining.
We also agree
with the CIR's general observation that its orders are not designed to force a
party into a contract, but, rather, are to exercise the CIR's authority to
settle disputes. However, because the parties had bargained for the deviation
clause in the 2001-02 contract, we disagree with the CIR's implication that
ruling on the deviation clause in this case would create a contract where none
existed.
In its order,
the CIR cited extensively from Coleridge Educ. Assoc., supra, in
resolving the question of its authority to rule on the deviation issue in this
case. After concluding that a deviation clause was a subject of mandatory
bargaining, the CIR in Coleridge Educ. Assoc. examined the record therein
and noted that despite the presence of a deviation provision in the agreement
for at least 10 years, "there [was] no evidence" that the deviation
provision was bargained for.
Despite
acknowledging the subjective nature of a prevalence analysis, the CIR also
stated in its order that "unless the [CIR] is presented with a prevalent
array of identical contract provisions, the [CIR] will not determine the issue
of deviation as one of prevalency." The CIR's conclusion that a prevalence
standard can be used when considering deviation clauses only if the provisions
in the array contain identical contract provisions is contrary to law.
Accordingly, we reverse this portion of the CIR's order and remand the cause
with directions to perform a prevalence analysis.
It is clear
that the CIR is authorized in industrial disputes involving wage issues to
"establish rates of pay and conditions of employment which are comparable
to the prevalent wage rates paid and conditions of employment maintained for the
same or similar work of workers exhibiting like or similar skills under the same
or similar working conditions." § 48-818. See
Contrary to
the reluctance exhibited by the CIR in the instant case, it has in the past
considered a deviation clause composed of language similar to the clause at
issue, utilizing a prevalence analysis in such consideration. In Yutan Educ.
Ass'n v. Saunders Co. School Dist., 12 C.I.R. 68 (1994), the CIR was asked
to determine whether a deviation clause that permitted the school district to
"`deviate from the schedule as conditions warrant'" was prevalent.
In sum, the
dispute concerning the inclusion of the deviation clause in the parties'
contract for the 2002-03 contract year is a subject of mandatory bargaining.
Pursuant to § 48-818, the CIR is authorized to make findings and orders which
"establish rates of pay and conditions of employment," and when the
CIR acts under its statutory authority pursuant to § 48-818, it ordinarily does
so utilizing a prevalence standard. A valid prevalence analysis does not require
as a prerequisite a complete identity of provisions in the array. Rather,
prevalence involves a general practice, occurrence, or acceptance, as determined
by the CIR. We conclude that the portion of the CIR's order stating that it
could not consider the parties' dispute over the inclusion of the deviation
clause is contrary to law. Accordingly, given the facts, we reverse that portion
of the CIR's order declining to consider the deviation issue and remand the
cause to the CIR for consideration of the deviation issue under a prevalence
analysis.
CIR's
Selection of Array for Comparability Purposes Was Supported by Preponderance of
Competent Evidence and Was Not in Excess of CIR's Powers or Contrary to Law.
The District
maintains that the CIR erred in its selection of the array for comparability
purposes. As noted above, the CIR selected seven school districts, of which four
had been agreed to as comparable prior to the hearing. The District claims that
the CIR failed to select an array that met various factors, including, inter
alia, geographic proximity and population size, that could be considered when
selecting an array of comparable employers. The District claims that the CIR
should have utilized the school districts the District proposed when selecting
an array, all of which were within 72 air miles of
Under §
48-818, the CIR is empowered to establish rates of pay and conditions of
employment which are comparable to the prevalent wage rates paid and conditions
of employment maintained for the same or similar work or workers exhibiting like
or similar skills under the same or similar working conditions. Section 48-818
requires that the employers selected for a comparative array must be
demonstrated to be similar, and we have stated that "[a]s a general rule,
it may be said that the factors most often used to determine comparability are
geographic proximity, population, job descriptions, job skills, and job
conditions."
In the instant
case, the CIR determined that when a considerable number of comparables existed
in an array of school districts from the same class as the subject district, it
did not need to consider other school districts outside of that class for
comparison. The CIR then proceeded to review the parties' proposed arrays and
found that prior to the hearing, the parties had four Class VI school districts
in common. In addition, the CIR noted that prior to the hearing, the District
and Association had stipulated, inter alia, that the "[w]ork, skills, and
working conditions of the bargaining unit employees at Rock County, Garden
County, Rushville, West Holt, Gordon, Burwell, and Thedford are sufficiently
similar to [the Association's] bargaining unit to satisfy the standards set
forth in Neb. Rev. Stat. §
48-818."
The CIR
reviewed the Association's proposed array members, all of which were Class VI
schools. The CIR noted that the Association's proposed array members, together
with the four Class VI common array members, met "the [CIR's] proximity and
geographical guidelines." The CIR also reviewed the District's proposed
additional array members, noting that none were Class VI schools. Following its
review of the parties' proposed arrays, the CIR determined that the
Association's proposed array constituted an appropriate array. The CIR therefore
concluded that the array for purposes of this case consisted "of the four
common array members of
We have recognized that [o]f
necessity, determining comparables requires the granting of some discretion to
the [CIR], and unless there is no substantial evidence upon which the [CIR]
could have concluded that the factors it used resulted in an appropriate array,
we may not as a matter of law disallow the [CIR's] determination.
District's
Remaining Assignments of Error Are Without Merit.
We have
considered the District's remaining assignments of error, and we conclude they
are without merit.
Association's
Cross-Appeal Is Resolved by Our Ruling on District's Appeal.
For its
cross-appeal, the Association claims, inter alia, that the CIR erred in
determining that it was unable to resolve the parties' dispute concerning the
deviation clause in the contract, which clause permits the District to deviate
upward from the base salary. We have addressed this argument above, and we agree
with the Association that the CIR erred when it concluded it did not have
authority to consider the deviation issue. To the extent the Association raises
other issues in its cross-appeal, given the posture of this case and our
decision to remand the cause to the CIR for further consideration of the
parties' claims with regard to the deviation clause based on a prevalence
analysis, we need not and do not further comment on the Association's remaining
arguments.
CONCLUSION
We conclude
that the CIR did not err in determining that the fringe benefit issues were moot
but that the salary dispute was capable of being resolved. We also conclude that
the CIR did not err in determining the comparable array for purposes of
resolving the issues presented in this industrial dispute. We further conclude,
however, that the deviation clause is the subject of mandatory bargaining and
that the CIR has the authority to consider the parties' dispute over the
deviation clause by performing a prevalence analysis. Accordingly, we reverse
that portion of the CIR's order in which the CIR declined to consider the
deviation issue and remand the cause for further proceedings. In all other
respects, the order of the CIR is affirmed.
AFFIRMED IN
PART, AND IN PART REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.