STATE
OF NEBRASKA, APPELLANT
V.
STATE
CODE AGENCIES TEACHERS ASSOCIATION,
NSEA-NEA,
ALSO KNOWN AS STATE CODE
AGENCIES
EDUCATION ASSOCIATION, APPELLEE.
280
Neb. 459
Filed
August 13, 2010.
No. S-09-718
1. Commission of Industrial Relations: Appeal
and Error. In reviewing an appeal from the Commission of
Industrial Relations in a case involving wages and conditions of employment,
an 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. Jurisdiction: Appeal and Error.
The question of jurisdiction is a question of law, which an
appellate court resolves independently of the trial court.
3. Statutes: Appeal and Error. Statutory
interpretation is a question of law, which an appellate court resolves
independently of the trial court.
4. Statutes. A
court must attempt to give effect to all parts of a statute, and if it can be
avoided, no word, clause, or sentence will be rejected as superfluous or
meaningless.
5. Commission
of Industrial Relations: Evidence. Determinations made by the
Commission of Industrial Relations in accepting or rejecting claimed comparables
as to wage rates and other conditions of employment for purposes of
establishing an array are within the field of its expertise and should be given
due deference.
6._____:_____ . Generally,
the Commission of Industrial Relations' guideline for assembling an array of
school districts is to select districts from one-half to twice as large as the
subject school. Although the size criterion is a general guideline and not a
rigid rule, it is based on objective criteria, provides predictability, and
should not be lightly disregarded when a sufficient number of comparables which
meet the guideline exist.
Appeal from the Commission of Industrial Relations. Affirmed
A. Stevenson Bogue and Jennifer R. Deitloff, Special
Assistant Attorneys General, of McGrath, North, Mullin & Kratz, 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.
WRIGHT, J.
I. NATURE OF
CASE
The
State of Nebraska (State) appeals the decision of the Commission of Industrial
Relations (CIR), which affirmed the Special Master's ruling implementing the
final offer of the State Code Agencies Teachers Association (SCATA) for salary
increases for the 2009-11 biennium. We affirm the decision
of the CIR.
II. SCOPE OF REVIEW
In
reviewing an appeal from the CIR in a case involving wages and conditions of
employment, an 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: (1) if the CIR 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 CIR
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. See Hyannis
Ed. Assn. v. Grant Cty. Sch. Dist. No. 38-0011, 269
Neb. 956, 698
N.W.2d 45 (2005).
III. FACTS
The
SCATA is a bargaining agent that represents teachers employed by the State in
employment negotiations with the State. Its membership consists of
approximately 72 teachers who teach in 13 state-operated residential
facilities, including centers for people with developmental disabilities, youth
rehabilitation centers, treatment centers, and correctional centers located
throughout Nebraska. The teachers are certified by the State of Nebraska and
teach 877 students in grades kindergarten through 12.
The
SCATA teachers' salaries are computed according to an index schedule made up of
nine columns representing educational attainment and 18 steps representing each
year of experience. An index number is assigned to each position on the
schedule, and salaries for each position are calculated by multiplying the
corresponding index number by the base salary. The first step in the first
column, representing a first-year teacher with a bachelor's degree, has an
index of "1" and is effectively equal to the base salary.
Each step and column beyond the base salary has an index 4
percent greater than the previous step and column, ranging from 1.04 to 1.96.
Teachers who have obtained a master's degree plus 36 hours of education and
have taught for 18 years—the maximum amount of education and experience provided
for on the index schedule—receive 1.96 times the base salary. Increasing the
base salary by a certain percentage has the effect of increasing every other
salary on the schedule by that same percentage. As the base salary is the
foundation for computing all other positions on the salary schedule, the
parties negotiate wage increases in terms of an increase in base salary. Adding
the indexes for all of the teachers in the district generates the staff index.
The parties can determine the entire cost of a proposed salary schedule by
multiplying the staff index by the base salary.
In negotiating a new collective bargaining agreement
for the contract period of July 1, 2009, to June 30, 2011, the SCATA and the
State reached an impasse. Pursuant to the State Employees Collective Bargaining
Act (Bargaining Act), Neb. Rev. Stat. §§ 81-1369 to 81-1390 (Reissue 2008), the
parties met with a mediator on January 9, 2009, and reached a tentative
agreement subject to the SCATA members' ratification. A ratification vote was
held from January 12 to 14, which resulted in the SCATA members' rejecting the
contract.
On January 15, 2009, the SCATA invoked the Special Master
procedure pursuant to the Bargaining Act and the parties exchanged final
offers. The State submitted a motion to dismiss the Special Master proceeding,
claiming that the SCATA failed to timely submit a final offer on or before
January 10, as required by § 81-1382(1). The Special Master denied the State's
motion, concluding that the parties did exchange final offers as contemplated
by the statute.
IV. SCATA's
Final Offer
The
SCATA's final offer was based on an array of eight comparison districts based
on a "labor market" theory, that is, the array included the
"host city" school districts that establish the local labor market
for teachers in the communities in which state facilities are located. For
example, the Beatrice State Developmental Center is located in Beatrice, so the
SCATA included the Beatrice school district as a comparator. The SCATA's array
included Beatrice, Fillmore Central, Hastings, Johnson County, Kearney,
Lincoln, Omaha, and York school districts. Its theory was that the State had to
compete with the local public schools in the labor market for teachers.
Based
on its analysis of this array, the SCATA concluded that the SCATA teachers'
base salaries lagged significantly behind base salaries in the array districts.
The SCATA's base salary for 2008-09 was $28, 273. The mean, median, and midpoint
of base salaries for 2008-09 calculated from the SCATA's proposed array
produced figures of $30, 330, $29, 425, and $29, 877, respectively. The mean is
the arithmetic average of the salaries in the array. The median is the middle
value in the array. The SCATA relied most heavily on the midpoint figure in its
comparability analyses, which it calculated by taking the average of the mean
and median figures. The SCATA's final offer proposed an actual increase in base
salary of 4.2 percent to $29, 459 in 2009-10.
Although salary information for 2009-10 was available for
only Lincoln and York, and not available for any
district for 2010-11, the SCATA analyzed wage increases from 1998 to 2008 for
five districts: Beatrice, Hastings, Kearney, Lincoln, and York, which resulted
in a midpoint annual increase of 3.95 percent. Based on this calculation, the
SCATA's final offer proposed an increase of 3.9 percent to $30, 609 for
2010-11.
V. State's
Final Offer
The
State proposed an array of nine comparison districts based on district size
guidelines and geographic proximity determined by commuting distance to State
facilities.
The
State's array includes the school districts of Ashland-Greenwood, Beatrice,
Fillmore Central, Hastings, Holdrege, Johnson County, Kearney, Ralston, and
York. It notes that size is an array selection criteria
the CIR has heavily relied upon. Using its selected array districts, the State
calculated mean, median, and midpoint salaries of $28, 698, $28, 850, and $28,
774, respectively. It proposed a final offer with an increase in base salary of
4 percent to $29, 404 for contract year 2009-10. Claiming it could not rely on
speculative data for the 2010-11 salary increases, the State offered an
increase of 1.4 percent to $29, 816 for 2010-11.
VI. Special
Master Hearing
On
January 28, 2009, the parties participated in a hearing before the Special
Master in Lincoln. The only unresolved issue presented for resolution was
wages. Both parties had the opportunity to present all the evidence they deemed
appropriate. On February 3, the Special Master issued his ruling selecting
the SCATA's final offer as most reasonable.
In
reaching his decision, the Special Master included all comparator school
districts presented by both parties, resulting in an 11-member array. He
concluded that although Lincoln and Omaha are large districts, they were
reasonable com-parables considering the SCATA's argument that the State had to
compete in those labor markets to recruit and retain teachers. He also accepted
the State's recommendations of the Ashland-Greenwood, Holdrege, and Ralston
districts, noting that they were within commuting distance of host cities. The
other six districts—Beatrice, Fillmore Central, Hastings, Johnson County,
Kearney, and York—were included in both the SCATA's and the State's arrays. The
parties stipulated that all school districts proposed were sufficiently similar
under Neb. Rev. Stat. § 48-818 (Reissue 2004).
Considering
salary data from all 11 array districts, the Special Master calculated that the
SCATA base salary was $1, 021 below the midpoint of comparison base salaries
and $1, 161 below the base salary that would produce the midpoint schedule
cost. He concluded that the SCATA teachers' salaries lagged significantly
behind peer salaries for the 2008-09 year.
Noting
that the parties were bargaining for future comparability for 2009-10 and
2010-11, the Special Master forecast base salaries for 2009-10 and 2010-11. He
based the prediction on historical average increases of 3.25 percent during
the 1998-99 to 2008-09 period and considered that for
2009-10, the base salary in Lincoln increased 3.14 percent and the base salary
in York increased 2.76 percent. Characterizing his estimate as "extremely
conservative, " the Special Master predicted that
base salaries for 2009-10 in the remaining districts would increase by 2.5
percent and that they would increase by 2 percent for 2010-11. He determined
that the SCATA's final offer moved the bargaining unit members closer to true
comparability for the upcoming biennium and selected the SCATA's offer as
being the most reasonable.
The
State timely appealed the Special Master's decision to the CIR. Before the
hearing, the SCATA filed a motion in limine to
prevent the State from offering new evidence or new witness testimony for the
CIR to consider. The State opposed the motion and indicated it wished to submit
"updated and previously unavailable" evidence of terms and conditions
of employment of the comparator employers. See brief for appellant at
8. The CIR granted the SCATA's motion, reasoning that because it was charged to
act as an "appellate body, " the matter
should proceed as an appeal on the record made at the Special Master hearing.
The
State submitted an offer of proof for the record. The first exhibit of the
offer of proof was a table of base salaries for 2008-09 for the nine districts
proposed by the State. The information in the table was identical to the
information relied on by the Special Master except that it did not include
Lincoln or Omaha. The second exhibit of the offer of proof consisted of tables
showing salary information for the State's final offer, the SCATA final offer,
and comparability figures calculated by the State from its proposed array. It
assumed no salary increases in array districts for the second year.
On
May 11, 2009, the CIR held a hearing to resolve the following issues as
presented by the State: (1) whether the Special Master had jurisdiction to
issue a ruling in the case; (2) whether the decision of the Special Master with
respect to wages was significantly disparate from prevalent rates of pay and
conditions of employment as determined by the CIR, pursuant to § 48-818; (3)
whether the Special Master's array selection was improper; and (4) whether the
Special Master's prediction of wage increases in 2009-10 and 2010-11 should be
given deference. The CIR affirmed the Special Master's order. The State appeals.
VII. ASSIGNMENTS
OF ERROR
The
State alleges the CIR erred in (1) determining the Special Master had
jurisdiction, (2) granting the SCATA's motion in limine
and refusing to allow the parties to submit additional evidence, (3)
determining that the Special Master's decision to include Lincoln and Omaha in
the array was not significantly disparate, (4) determining that the Special
Master's prediction of wage increases for 2010-11 was to be given deference,
and (5) determining that the Special Master's decision that the Bargaining Act
requires the setting of wages for the second year of the contract without
comparability data was not significantly disparate under § 48-818.
VIII. ANALYSIS
Special Master Jurisdiction
The first issue is whether the Special Master had jurisdiction
to resolve the parties' dispute. The question of jurisdiction is a question of
law, which an appellate court resolves independently of the trial court. Livengood v. Nebraska State Patrol Ret. Sys., 273 Neb. 247, 729 N.W.2d 55 (2007). In this case,
jurisdiction is determined by the Bargaining Act.
The
purpose of the Bargaining Act is to "promote harmonious, peaceful, and
cooperative relationships between state government and its employees and to
protect the public by assuring effective and orderly operations of
government." § 81-1370. In furtherance of this purpose, the Legislature
sets forth a specific schedule for contract negotiations. Bargaining must
begin on or before the second Wednesday in September of the year preceding the
beginning of the contract period. § 81-1379. No later than January 10, the
parties "shall reduce to writing and sign all agreed-upon issues and
exchange final offers on each unresolved issue. Final offers may not be amended
or modified without the concurrence of the other party." § 81-1382(1).
"No later than January 15, the parties . . . shall submit all unresolved
issues that resulted in impasse to the Special Master." § 81-1382(2).
The
State argues that adherence to the January 10 deadline is mandatory. It points
to State Code Agencies Ed. Assn. v. State, 231 Neb. 23, 434 N.W.2d 684
(1989), in support of its claim that the deadline is absolute and, thus, that
the Special Master lacked jurisdiction. In State Code Agencies Ed. Assn., the
State Code Agencies Education Association was certified as the bargaining
agent for teachers employed by the State on October 28, 1987, and attempted to
initiate contract negotiations on November 2. The State refused on the ground
that bargaining did not begin before the second Wednesday in September, as
required by § 81-1379. Although the CIR directed the State to begin negotiations,
we reversed, noting that the association had full knowledge of the timing
requirements and had chosen not to timely initiate the actions necessary to
become certified and start the negotiations.
Likewise, in the case at bar, the State claims that the January
10 deadline is jurisdictional. We disagree. January 10 simply
marks the end of the negotiations between the parties. The Bargaining Act
permits parties to agree to modify final offers after January 10; therefore,
January 10 is not the litmus test for CIR jurisdiction. See §
81-1382(1).
As the CIR notes in State Law Enforcement Barg.
Council v. State of NE, 13 C.I.R. 104, 109 (1998), the primary purpose of
the Bargaining Act is to "encourage voluntary resolution of disputes in
the collective bargaining process, and, to the extent the parties failed in
achieving voluntary agreement on all issues, to provide an efficient, speedy,
simple, cost effective means for resolving all remaining unresolved
issues."
The parties' actions were in furtherance of this purpose, as
the negotiators reached a voluntary tentative final agreement in mediation on
January 9, 2009. No unresolved issues existed from January 9 until January 14,
when ratification failed. The parties then exchanged new final offers and
submitted the unresolved issues to the Special Master in accordance with the
timeline set forth in § 81-1382(2). We conclude that the parties' actions
complied with § 81-1382 and that the Special Master had jurisdiction.
Motion in Limine
and Denial of Additional Evidence
The next issue is whether parties can present additional
evidence to the CIR after the Special Master hearing. After the State appealed
the Special Master's ruling to the CIR, the SCATA filed a motion in limine to prevent the offering of additional evidence. The
CIR sustained the motion, reasoning that allowing additional evidence at this
stage of the proceedings would permit parties to "bolster what defects now
apparently exist in the evidence."
An appeal of a Special Master's ruling to the CIR is governed
by the Bargaining Act. Therefore, we must interpret the Bargaining Act to
determine whether the CIR correctly sustained the motion. Statutory
interpretation is a question of law, which an appellate court resolves
independently of the trial court. Underhill v. Hobelman,
279 Neb. 30, 776
N.W.2d 786 (2009).
Section 81-1383(1) of the Bargaining Act provides that parties
"may appeal an adverse ruling on an issue to the commission on or before
March 15. . . . No party shall present an issue to the [CIR] that was not
subject to negotiations and ruled upon by the Special Master." Section
81-1383(2) instructs:
(2)
The [CIR] 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 [CIR] pursuant to section 48-818. The [CIR] 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 [CIR] pursuant to section
48-818, fall between the final offers of the parties.
Section
48-818 of the Industrial Relations Act provides that the CIR shall establish
rates of pay which are comparable to the prevalent wage rates paid for the same
or similar work. In contrast to the Bargaining Act, the Industrial Relations
Act provides in part that if a special master is appointed under that act,
[s]hould
either party to a special master proceeding be dissatisfied with the special
master's decision, such party shall have the right to file an action with the
[CIR] seeking a determination of terms and conditions of employment pursuant
to section 48-818. Such proceeding shall not constitute an appeal of the
special master's decision, but rather shall be heard by the [CIR] as an action
brought pursuant to section 48-818.
Neb. Rev. Stat. § 48-811.02(5)
(Reissue 2004) (emphasis supplied). The Industrial
Relations Act provides the parties with the right to file an action with the
CIR and is explicit that such proceeding filed with the CIR after the Special
Master's decision is not an appeal. § 48-811.02(5).
Where
§ 48-811.02(5) of the Industrial Relations Act proclaims that the CIR's review
is not an appeal, § 81-1383(1) of the Bargaining Act specifically states
that the CIR's review is an appeal of an adverse ruling. A court must attempt
to give effect to all parts of a statute, and if it can be avoided, no word,
clause, or sentence will be rejected as superfluous or meaningless. Herrington
v. P.R. Ventures, 279 Neb. 754, 781 N.W.2d 196
(2010). As we are required to give meaning to each word in the language of the
statute, the Legislature's description of the action as an appeal in the
Bargaining Act is controlling. The Legislature has clearly established a method
of review for cases arising under the Bargaining Act that is more circumscribed
than those arising under the Industrial Relations Act.
The
Bargaining Act is cumulative to the Industrial Relations Act, except where the
provisions are inconsistent, in which case the Bargaining Act prevails. §
81-1372. Although the CIR acts as a specialized body of first impression in the
Industrial Relations Act, the Legislature clearly changes the CIR's role in the
Bargaining Act to that of an appellate body. This interpretation is in line
with the other provisions of the Bargaining Act designed to streamline the
negotiation process.
Furthermore,
the CIR is required to give significant deference to the Special Master's
ruling. § 81-1383(2). The Special Master is required to determine the most
reasonable final offer on each disputed issue, and then the CIR's review is
limited. It is only to set the ruling aside if it finds the ruling is significantly
disparate. § 81-1383. The CIR could not give deference to the Special Master if
it allowed new evidence, because such evidence would not have been taken into
consideration in the initial ruling. Allowing additional evidence would
significantly dilute that required deference and would cause the Special Master
hearing to be a mere formality. Accordingly, permitting supplementary evidence
would render the language of § 81-1383(2) meaningless. There is nothing in the
statute that allows parties to present additional evidence before the CIR, and
the procedure following the Special Master ruling is
for the Legislature to determine.
We
note that the CIR has previously permitted additional evidence following the
Special Master hearing. See State Law Enforcement Barg.
Council v. State of NE, 13
C.I.R. 104 (1998). That case was not
appealed to this court, and therefore, the issue was not previously presented
to us and we do not find that case instructive or in any way binding.
Even
if the CIR was permitted to receive and consider additional evidence, the offer
of proof does not show that the receipt of such evidence would have made a
difference in this case. The State's offer of proof purported to be a corrected
version of exhibit 25, which was received by the Special Master. The only
correction was changing the number of contract days for Hastings from 187 to
185, which had the effect of raising Hastings' base salary from $29, 100 to
$29, 420. This caused the 2008-09 mean base salary of
the State's proposed array to increase from $28, 662 to $28, 698, median base
salary to be unchanged, and midpoint base salary to increase from $28, 756 to
$28, 774. These are the same figures cited and used by
the Special Master in his ruling.
The
other offer of proof submitted by the State was a table of salary figures that
the State claimed utilized "previously presented information and data to
provide the Commission with data and a method for comparing the final offers of
both parties with comparability." The State explains that in assembling
this data, it assumed no increase in base salaries for the second year of the
contract on the ground that it believed speculative data were prohibited. As we
reach the opposite conclusion in later analysis in this opinion, this offer of
proof would not have made a difference in this case. All of the evidence
proffered by the State in its offer of proof is either not helpful to its case,
redundant of evidence already in the record before the Special Master, or based
on incorrect assumptions. The CIR's decision would not have been different had
it taken this information into consideration.
We
conclude that the parties are not permitted to offer additional evidence before
the CIR and that the CIR did not err in granting the motion in limine and in denying the State's requests. Section
81-1383(1) clearly characterizes the CIR's review of the Special Master's
ruling as an appeal, and it does not provide for the admission of additional
evidence.
IX. Inclusion
of Lincoln and Omaha in Array
The
State also argues that the CIR should not have affirmed the Special Master's
inclusion of Lincoln and Omaha school districts in the array. The State claims
that Lincoln and Omaha are too large to be array members.
Determinations
made by the CIR in accepting or rejecting claimed comparables as to wage rates
and other conditions of employment for purposes of establishing an array are
within the field of its expertise and should be given due deference. See
Hyannis Ed. Assn. v. Grant Cty. Sch. Dist. No.
38-0011, 269 Neb. 956,
698 N.W.2d 45 (2005). Generally, the CIR's guideline for
assembling an array of school districts is to select districts from one-half to
twice as large as the subject school. Allen Ed. Assoc, v. Allen Consolidated
Schools, 14 C.I.R. 101 (2002); Scotts Bluff Co. Sch. Dist. No. 79-0064
v. Lake Minatare Education Assoc, 13 C.I.R. 256 (1999) (citing numerous
cases). Although the size criterion is a general guideline and not a rigid
rule, it is based on objective criteria, provides predictability, and should
not be lightly disregarded when a sufficient number of comparables which meet
the guideline exist. Lake Minatare Education Assoc, supra.
However,
size of the district is only one factor the CIR considers when reviewing an
array of comparables. Other factors used to determine comparability are
geographic proximity, population, job descriptions, job skills, and job
conditions. See Hyannis Ed. Assn., supra. In selecting cities in
reasonably similar labor markets for the purpose of comparison of 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. Omaha Assn. of Firefighters v.
City of Omaha, 194 Neb. 436, 231 N.W.2d 710
(1975). The State argues that Lincoln and Omaha should be excluded because of
the size of the districts.
The
SCATA represents approximately 72 teachers who teach approximately 877 students
in 13 facilities located across Nebraska. Unlike most school district
negotiation cases, where the school district may be the only employer of
teachers in the city or town, the "district" represented by the SCATA
has employees in facilities located within other school districts. We have
stated that
"[w]henever
there is another employer in the same market hiring employees to perform same
or similar skills, the salaries paid to those employees must be considered by
the CIR unless evidence establishes that there are substantial
differences which cause the work or conditions of employment to be
dissimilar."
Douglas
Cty. Health Dept. Emp. Assn. v. Douglas Cty., 229 Neb. 301, 311, 427 N.W.2d 28, 37
(1988) (quoting AFSCME Local 2088 v. County of Douglas, 208 Neb. 511,
304 N.W.2d 368 (1981), disapproved on other grounds, Hyannis Ed. Assn.,
supra). Furthermore, in this case, the parties stipulated that aside from
size, all of the school districts were sufficiently similar under § 48-818.
The
SCATA's members teach in facilities located in Beatrice, Geneva (Fillmore
Central), Hastings, Tecumseh (Johnson County), Kearney, Lincoln, McCook, Omaha,
and York. The final 11-district array used by the Special Master was as
follows:
2008-09 |
|||
District |
Enrollment |
Base Salary |
Proposed By |
Ashland-Greenwood |
848 |
$28, 500 |
State |
Beatrice |
2, 143 |
$30, 100 |
Both |
Fillmore Central |
630 |
$28, 650 |
Both |
Hastings |
3, 375 |
$29, 420 |
Both |
Holdrege |
1, 150 |
$27, 800 |
State |
Johnson County |
549 |
$28, 850 |
Both |
Kearney |
5, 084 |
$29, 429 |
Both |
Lincoln |
34, 061 |
$34, 908 |
SCATA |
Omaha |
48, 075 |
$32, 285 |
SCATA |
Ralston |
3, 095 |
$26, 533 |
State |
York |
1, 232 |
$29, 000 |
Both |
Beatrice,
Hastings, Kearney, Lincoln, Omaha, and Ralston all exceed the twice-as-large
guideline, yet both parties proposed Beatrice, Hastings, and Kearney.
The
State claims that failure to adhere to the twice-as-large guideline was error.
It calculates that by including Ashland-Greenwood, Lincoln, Omaha, and Ralston
as array districts, the Lincoln and Omaha areas were weighted as 36 percent of
the array and argues that those markets were weighted too heavily. However, as
noted by the CIR, 5 of the 13 facilities, or 38 percent, are located in Lincoln
or Omaha.
The
Special Master noted that all districts proposed by both parties were within
reasonable driving distances of state facilities; therefore, he did not exclude
any district based on geographic proximity. Regarding the inclusion of Lincoln
and Omaha in the array, the Special Master found that five districts exceeded
the size guideline and that there was "no persuasive reason for tossing
out" all of them. He acknowledged that Lincoln and Omaha were "vastly
larger" than the SCATA district but determined that a large percentage of
the SCATAs labor market came from those areas. He included all proposed
districts in the array.
On
appeal, the CIR concluded that the Special Master's use of all 11 of the
proposed array school districts to determine comparability was not
significantly disparate from § 48-818. It also reiterated the facts that the facilities are located within other school districts
is unique, that both parties failed to adhere to the size guidelines,
and that the parties stipulated that all school districts were sufficiently
similar.
We may modify, reverse, or set aside an order of the CIR on
one or more of the following grounds and no other: (1) if the CIR 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 CIR 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. See Hyannis Ed. Assn.
v. Grant Cty. Sch. Dist. No. 38-0011, 269 Neb.
956, 698 N.W.2d
45 (2005).
There is no evidence that the CIR acted without or in excess
of its powers in affirming the decision of the Special Master, nor is there
evidence that the order was procured by fraud or is contrary to law. Comparing
the Lincoln and Omaha school districts to the facilities represented by the
SCATA, the districts meet comparability criteria in the areas of geographic
proximity, job descriptions, job skills, and job conditions. The Special
Master and CIR thoughtfully considered the impact of including comparators
exceeding the size guidelines and found there was a persuasive argument for
including such comparators.
We conclude that the facts support the CIR's order by a
preponderance of the competent evidence on the record considered as a whole.
The CIR did not err in affirming the Special Master's decision to include
Lincoln and Omaha in the array.
X. Wage
Increases for 2010-11
The
State's remaining assignments of error relate to the Special Master's setting
of wages for 2010-11. It claims that the CIR erred in affirming the Special
Master's conclusion that the Bargaining Act requires the setting of wages for
the second year of the contract even if there is insufficient comparability
data. The State also claims that the Special Master's salary increase figures
for 2010-11 were speculative and that, therefore, the CIR should not have shown
deference to the figures.
As
noted above, we are limited in our review. See Hyannis Ed. Assn.,
supra. There is no evidence that the CIR acted without or in excess of its
powers in giving deference to the Special Master's decision or that the CIR's
order was procured by fraud or is contrary to law. Accordingly, we consider
whether the facts found by the CIR support its order and whether the order is
supported by a preponderance of the competent evidence on the record
considered as a whole.
Section
81-1377(4) of the Bargaining Act states that "[a]ll
contracts involving state employees and negotiated pursuant to the Industrial
Relations Act or the ... Bargaining Act shall cover a two-year period
coinciding with the biennial state budget . . . ." Other sections of the
Bargaining Act make it clear that the Legislature crafted the Bargaining Act in
order to have a known amount to include in the biennial budget. See §§
81-1377(1), 81-1383(4) and (5), 81-1384(1), and 81-1385(2). By requiring state
employees to negotiate a 2-year contract coinciding with the biennial state
budget, the Legislature has placed emphasis on knowing the cost it will incur
for state employee contracts for the biennial budget.
Negotiations
pursuant to the Industrial Relations Act require comparable figures to set
salaries for the following year. See § 48-818. See, also,
Lincoln Fire Fighters Assn. v. City of Lincoln, 198 Neb. 174, 252 N.W.2d
607 (1977); Bellevue Police Officers Association v. The
City of Bellevue, Nebraska, 8 C.I.R. 186
(1986). Because the Bargaining Act requires 2-year contracts
negotiated on a rigid timeline, which may occur before full comparability data
are available, the requirements of the two acts are inconsistent. When the
Industrial Relations Act and the Bargaining Act are inconsistent, the
Bargaining Act prevails. Therefore, the comparability requirement of the
Industrial Relations Act is superseded by the 2-year contract requirement of
the Bargaining Act. § 81-1372. We find that the State and the SCATA must
negotiate a 2-year contract regardless of the availability of comparable data.
We must then consider whether the CIR erred in giving
deference to the Special Master's decision. Section 81-1383(2) instructs that
the CIR "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 [CIR] pursuant to section 48-818."
Although
the CIR typically does not make decisions on wages or benefits based on
speculation, see Douglas Cty. Health Dept.
Emp. Assn. v. Douglas Cty., 229 Neb. 301, 427
N.W.2d 28 (1988), disapproved on other grounds, Hyannis Ed. Assn. v. Grant Cty. Sch. Dist. No. 38-0011, 269 Neb. 956, 698 N.W.2d
45 (2005), and General Drivers & Helpers Union v. Co. of Douglas, 13
C.I.R. 202 (1999), appropriate comparability data for the second year of the
contract did not exist at the time of negotiations. However, the absence of
such data does not absolve the State of its duty under § 81-1377 to negotiate a
2-year contract. As the Special Master noted, failing to predict salary
increases for future years would result in the SCATA teachers' salaries being
significantly below actual comparability and in a constant catchup
status.
To avoid lagging salaries and because actual comparability
data were not available for most districts for the 2009-10 year and were
unavailable for all districts for 2010-11, the Special Master forecast salaries
based on historical increases. He considered salary data provided by the SCATA
for five of the comparison districts for the period of 1998-99 to 2008-09. The
base salaries in these districts increased an average of 3.95 percent annually
during that time period. During the same time period, the SCATA base salaries
increased an annual average of 3.25 percent. The Special Master noted the
declining private economy, the expected modest decline in state revenues for
2008, and the increases in base salaries for 2009-10 in Lincoln and York of
3.14 percent and 2.76 percent respectively.
Considering this evidence and characterizing his estimate as
"extremely conservative, " the Special
Master forecast that base salaries for the remaining comparison districts would
increase by 2.5 percent for 2009-10 and 2 percent for 2010-11. Relying on this
prediction, the Special Master determined that although both the State's and
the SCATA's final offers brought the SCATA teachers closer to true
comparability, the SCATA's offer did a much better job of doing so.
For 2010-11, the SCATA's final offer was an increase of 3.9
percent, based on its calculation that the SCATA raises averaged 3.25 percent
over the last 10 years. Although the State protested that it could not make an
offer for 2010-11 due to the lack of array data, it ultimately offered an
increase of 1.4 percent. The Special Master concluded that both parties
submitted reasonable final offers and that both parties' final offers propose
reasonable increases in the SCATA base salary for 2009-10. But the Special
Master found that the SCATA's final offer for 2010-11 was more reasonable than
the State's and better moved the SCATA's members toward true comparability.
Recognizing the importance attached to comparability in § 81-1382(3) of the
Bargaining Act and § 48-818 of the Industrial Relations Act, he found that the
SCATA's final offer was more reasonable.
On
appeal, the CIR acknowledged that the Legislature had charged that it
"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 [CIR] pursuant to section 48-818." See § 81-1383(2). The CIR
further determined that the Special Master's ruling fit within the intent and
spirit of § 48-818 and that his ruling was clearly based on comparability.
Accordingly, it concluded that the Special Master's decision was not
significantly disparate and affirmed his ruling.
Considering
the facts found by the Special Master and the CIR, as well as the competent
evidence on the record, we find that the facts support the CIR's order and that
the order is supported by a preponderance of the competent evidence on the
record considered as a whole. See Hyannis Ed. Assn. v. Grant Cty. Sch. Dist. No. 38-0011, 269 Neb. 956, 698 N.W.2d 45 (2005). Therefore, there are no
grounds for this court to modify, reverse, or set aside the decision of the
CIR.
XI. CONCLUSION
The
CIR correctly determined that it had jurisdiction to hear the appeal in this
case. It did not err in disallowing additional evidence to be submitted,
finding that the Special Master's inclusion of Lincoln and Omaha school
districts in the array was not significantly disparate, or finding that the
Special Master was correct in requiring the parties to negotiate a 2-year
contract even though sufficient comparability data were not available. We
affirm the decision of the CIR.
AFFIRMED.