v.
Grant County School District No. 38-0011, also
known as
a political
subdivision of the State of
274
Filed August 10, 2007, No. S-06-300
1. Commission
of Industrial Relations: Appeal and Error. Any order or decision of the
Commission of Industrial Relations 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. Schools
and
Appeal from the Commission of Industrial
Relations. Reversed and remanded with directions.
Rex R. Schultze,
of Perry, Guthery, Haase
& Gessford, P.C., L.L.O., for appellant.
Mark D. McGuire, of
McGuire & Norby, for appellee.
Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman,
JJ.
Heavican, C.J.
INTRODUCTION
This industrial dispute
between the Hyannis
Education
Association (Association) and Grant County
BACKGROUND
This Court’s Decision in
The Association and the
District were unable to reach a negotiated agreement for the 2002-03 contract year. As a result, the Association filed a petition with the
CIR. This court set forth all the relevant facts in its decision in
In its order in Hyannis I,
the CIR accepted the Association's array of comparable districts and determined
that the salary schedule from the parties' 2001-02 contract should be utilized
in setting the District's base salary and salary schedule for the 2002-03
contract year. The CIR also concluded that issues relating to fringe benefits
were moot and, further, that it could not consider whether it was proper to
include a deviation clause in the agreement unless it was presented with an
array of deviation clauses identical in their terms. Both the Association and
the District appealed.
While this court
affirmed the order of the CIR in most respects, (fn2) we reversed the order with
respect to the CIR's authority regarding the
inclusion of a deviation clause. We concluded that
[a]
valid prevalence analysis does not require as a pre-requisite 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.(fn3)
CIR Proceedings Following Remand
Upon remand, the issue
presented to the CIR was whether the deviation clause in question was
prevalent. The language of that clause reads as follows: "The Board
reserves the right to deviate from the agreement if it becomes necessary to
hire teachers for a particular position." This same language had been
included as a negotiated term in the parties' 2001-02 agreement.
The District contended
that because four of the seven schools in its array allowed deviation from the
salary schedule, albeit under varying circumstances, deviation was prevalent. In essence, the District suggested that
deviation be defined broadly. The Association, however, argued that deviation
should be defined more narrowly to reflect the distinction between the
open-ended deviation proposed by the District and
defined deviation. Because open-ended deviation clauses were not prevalent in
the array selected by the CIR, the Association asserted that the District's
proposed clause should not be included in the parties' contract.
The CIR found for the Association.
In so finding, the CIR defined deviation to include only those clauses that
"permitted] a departure from the bargained for and agreed upon contract,
upon defined criteria and/or specific standards, that have been bargained for
and agreed upon by the parties." In conducting its prevalency
analysis, the CIR was presented with the following deviation language as quoted
from the other schools' contracts in the District's array.
Burwell:
In the event that a new
teacher cannot be hired on the basis of the adopted schedule and it is
necessary to raise the base, all the teachers in the system shall be placed on
the new schedule and salaries adjusted accordingly. If a position has not been
filled by August 1, however, the Board reserves the right to exceed the
schedule for the new teacher only if it is necessary to do so to fill the
position.
The salary schedule shall
not be construed as being contractual and no teacher employed by the district
shall have claims, demands, or course of action of [sic] reason of the
provisions. Furthermore, the Board reserves the right to make necessary
adjustments in order to meet emergencies which may arise.
Gordon:
No deviation language in
contract.
New Graduates may be placed
on Step Two if the number of applicants is one.
Rushville:
No deviation language in
contract.
Thedford:
Although the Board of Education will
endeavor to abide by the Salary Schedule in every instance in employing and
reemploying teachers, it does reserve the right to depart from the schedule
when it deems the best interest of the school may be served by doing so.
West Holt:
The district retains the
authority to provide extra compensation for special assigned work and requested
services.
The CIR found that only
The CIR also noted that
the District's proposed deviation clause was not "sufficiently
similar" to the deviation clauses included in the negotiated agreements of
the other schools in the array. As such, the CIR ordered the deviation clause
eliminated from the 2002-03 contract.
The District now
appeals the CIR's determination.
ASSIGNMENT OF ERROR
The District assigned
seven assignments of error, which can be restated as one: The CIR erred in
finding that the deviation clause in question was not prevalent and eliminating
it from the parties' 2002-03 agreement.
STANDARD OF REVIEW
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.(fn4)
ANALYSIS
In Hyannis I, we remanded this cause
to the CIR "for consideration of the deviation issue under a prevalence
analysis."(fn5) In doing so, we held that contract terms relating to
deviation need not be identical in order to be prevalent, and noted that in the
context of a prevalent wage rate, "when the members of the array to which
comparison is made 'are sufficiently similar and have enough like
characteristics or qualities[, then] comparison [is] appropriate.'"(fn6)
We conclude that under
the circumstances presented, the CIR erred in concluding that deviation was not
prevalent. The record presented to this court contains the deviation clauses in
the negotiated agreements of the other schools in the District's array.
Although these clauses vary in their construction, each has a common thread:
Each district with such a clause has the ability to depart, or deviate from,
the salary schedule included in the negotiated agreement.
This commonality is
consistent with the generally understood definition of "deviation."
Webster's dictionary defines deviation as the "departure from an
established body of principles, a system of beliefs, an ideology, or a party
line, "(fn7) while Black's dictionary defines deviation as "a change
from a customary or agreed-on course of action."(fn8) We conclude that
"deviation" in a school wage case is the ability to depart from the
salary schedule included in the parties' contract.
This definition is also
consistent with our statement in Hyannis I that contract terms need not be identical to be
considered in a prevalency analysis, but instead need
only be " 'sufficiently similar and have enough like characteristics or
qualities.' "(fn9) In comparing the deviation
language of the other schools to the language proposed by the District, the CIR
found that none of the clauses presented were sufficiently similar. In doing
so, the CIR rejected the basic similarity of all of the clauses, that each
allowed a departure from the salary schedule.
Given our conclusion
that the CIR did not apply the correct definition of deviation to the record in
this case, it would ordinarily be necessary for the CIR to make further factual
findings regarding the prevalency of deviation
clauses in the array. However, such action is not necessary here. As outlined
below, certain factual findings in the CIR's order
allow this court to apply the correct definition of deviation to the record in
order to make a determination regarding prevalency.
In table
1 of its order, the CIR noted a distinction between "'Deviation' clauses
with defined terms" and those "without defined terms."
Implicitly, then, the CIR acknowledged that both clauses dealt with deviation
in its general sense. We conclude that the schools categorized by the CIR as
having either type of deviation clause should be considered in a prevalency analysis. On the record before us, four of the
schools in the District's array - Burwell,
In Hyannis I, we reaffirmed that
"[t]he standard inherent in the word 'prevalent'
is one of general practice, occurrence, or acceptance . . . ."(fn10) Where
at least four of the seven schools in the District's array have negotiated
agreements which contain deviation clauses, such a practice is prevalent.
Because such practice is prevalent, the deviation clause should be included in
the parties' contract for 2002-03. The CIR's order to
eliminate the clause was contrary to law and was not supported by a
preponderance of the competent evidence on the record considered as a whole. We
therefore reverse the CIR's order eliminating the
clause, and remand this cause to the CIR with instructions to include the
clause in the parties' 2002-03 contract.
The District makes
several additional arguments, all relating to the assertion that the CIR erred
in concluding that deviation was not prevalent. Because we agree with the
District that the CIR erred in eliminating the provision, we need not consider
the District's remaining arguments.
MOOTNESS
We note that the
Association contends this appeal is moot as a result of the enactment of 2005
Neb. Laws, L.B. 126. The Association argues that due to L.B. 126, both the
District and the Association ceased to exist as legal entities. Although the
Association acknowledges that legal entities bearing the same names exist, it
contends that those entities are not the same legal entities which were the
original parties to this industrial dispute.
We disagree with the
Association. We have reviewed the record, including those public records of
which the parties stipulated we could take judicial notice, and conclude that
this appeal is not moot.
CONCLUSION
We conclude the CIR
erred in finding that deviation was not prevalent among the schools in the
District's array. As such, the
CIR erred in eliminating the proposed
deviation clause from the parties' 2002-03 contract.
REVERSED AND REMANDED
WITH DIRECTIONS.
_____________________
Footnotes:
1.
2.
3.
5.
6.
7. Webster's Third New
International Dictionary, Unabridged 618 (1993).
8. Black's Law
Dictionary 482 (8th ed. 2004).
9.
10.