NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 MCGINN, C.         

 This matter comes before the Commission for consideration on Respondent's Motion in Limine seeking an Order from the Commission on whether the Petitioner may offer additional evidence at the hearing in this matter brought pursuant to Neb. Rev. Stat. §. 81-1383. The Respondent argues that the hearing in this matter is in the nature of an appeal rather than a trial. The Petitioner submitted a brief to Respondent’s Motion in Limine and requested oral argument.

In this case, the Petitioner timely appealed from the Opinion and Ruling of the Special Master dated February 12, 2009 to the Commission of Industrial Relations, on March 13, 2009. In its appeal, the Petitioner specifically prayed that the Commission accept and allow evidence and determine the prevalent rate of pay. The Respondent requests through its Motion in Limine to bar the introduction of such evidence in front of the Commission. The Commission heard oral arguments on the Motion at 2:00 on Wednesday, May 20, 2009. The Petitioner was represented by its attorney John C. Hewitt. The Respondent was represented by its attorney Dalton Tietjen.

Under Neb. Rev. Stat. §. 81-1383(1) the parties, “may appeal an adverse ruling on an issue to the Commission on or before March 15 and no party shall present an issue to the Commission that was not subject to negotiations and ruled upon by the Special Master.” In light of the arguments presented by the parties, a review and an analysis of the statutory language and legislative history crafted by the Legislature is appropriate. Under Neb. Rev. Stat. § 81-1372, “the State Employees Collective Bargaining Act shall be deemed cumulative to the Industrial Relations Act except when… inconsistent with the Industrial Relations Act, in which case the State Employees Collective Bargaining Act shall prevail.”

The Nebraska Legislature also set forth numerous dates under Neb. Rev. Stat. § 81-1379, setting forth a clear and condensed timeline to follow the budgeting process of the State. Neb. Rev. Stat. § 81-1379 sets forth that, on or prior to the second Wednesday in September of the year preceding the beginning of the contract period, the parties shall commence negotiations. Neb. Rev. Stat. § 81-1379 also states that all negotiations shall be completed on or before March 15 of the following year.  If the parties do not reach a voluntary agreement by January 1, the parties shall employ a mediator under Neb. Rev. Stat. § 81-1381. The parties shall exchange all final offers no later than January 10 under Neb. Rev. Stat. §. 81-1382(1) and no later than January 15 shall submit all unresolved issues resulting in impasse to the Special Master under Neb. Rev. Stat. § 81-1382(2). Also under Neb. Rev. Stat. § 81-1382(2), the Special Master establishes a process to address litigation matters such as “adjudication,” “rules of conduct for the hearing,” “acceptance of stipulations,” and “order mediation if necessary.” Under Neb. Rev. Stat. § 81-1382(3), the Special Master shall issue his or her ruling on or before February 15. Finally, under Neb. Rev. Stat. § 81-1382(3), the parties must file an appeal on or before March 15 and the Commission 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 Commission pursuant to Section 48-818.

The plain reading of the statute is replete with time deadlines. The statutory language clearly is intended to expedite the bargaining process to coincide with the Legislature’s budgeting cycles.  Even though under Neb. Rev. Stat. § 81-1383, the Legislature requires the Commission to analyze the Special Master decision as compared to the requirements set forth in Neb. Rev. Stat. § 48-818, such analysis does not mean the Commission should conduct a new trial. The statute only requires a comparison to Neb. Rev. Stat. § 48-818. While the statute is clear that proceedings in front of the Commission are considered “an appeal”, the statute is vague as to how the appeal is to be conducted. Therefore, the legislative history can be used as a guideline in determining the Legislature’s intent.

The legislative history of these changes between the Industrial Relations Act and the State Collective Bargaining Act ensured a synthesis between the two Acts and revealed the intent of the Nebraska Legislature to design a system of resolving labor disputes efficiently and quickly. While these proposed amendments to the Acts were offered in committee, Senator Ashford commented:

The bill, like the other bills are… that I’ve introduced this session are designed to expedite the legal process to save costs. To bring matter before… or to determination as quickly as possible…LB 718 is my intent to put…put specific time limits on the negotiating process and the process of the CIR hearing cases… it’s going to expedite the process and by expediting the process, you’re not going to have elongated proceedings going a year, sometimes eighteen months or two years after the time when a decision should be rendered. It’s … it’s just a tremendous benefit to have Legislation with time limits in these areas passed… we simply must have a process that’s more expeditious than the one we have now.

Committee Records, Committee on Business and Labor, March 2, 1987, LB 661, 718, p. 43-44.

Both LB661, which created an entirely new act (see the State Employees Collective Bargaining Act) and LB 718, which just amended the current Industrial Relations Act to set forth separate provisions for state employees and state employers were introduced to the Business and Labor Committee concurrently. LB 718 did not make it past the Committee, apparently because the Business and Labor Committee preferred a new, separate and distinct Act. Nevertheless, the committee hearings and the floor debate regarding LB661 have prolific references on the importance of timing the state budget cycle with the bargaining process.

On Page 25 of the Pashler Report, which is the study the Legislature based the State Collective Bargaining Act from, the objectives of the Act were to advance bargaining, resolve dispute without undue delay or litigation, to accommodate the budget, to encourage voluntary settlements, and to develop a speedy and simple process.

            The Legislature was careful to amend the Industrial Relations Act to give effect to the Special Master as the fact-finder.  The Legislature under the Industrial Relations Act, in contrast to the State Employees Collective Bargaining Act, created a different appellate process for Special Master provisions applicable to school districts, ESU’s and community colleges. Section 48-811.02(5) of the Industrial Relations Act reads:

Should either party through the Special Master proceedings be dissatisfied with the Special Master’s decision, such party shall have the right to file an action with the Commission seeking a determination of terms and conditions of employment pursuant to section 48-818. Such proceedings shall not constitute an appeal of the Special Master’s decision, but rather shall be heard by the Commission as an action brought pursuant to Section 48-818.

This section demonstrates that where the legislators wanted the Commission to serve, not as an appellate body, but rather as a specialized body for 48-818 dispute resolution, it clearly did so. The above language does not exist for appeals under the State Employees Collective Bargaining act.

There is no basis in any Nebraska statute of legislative intent to deviate from basic appellate procedure and allow additional evidence to the record made before the Special Master. To allow such additional evidence, would permit the parties to bolster what defects now apparently exists in the evidence.  The Commission in State Law Enforcement Bargaining Council v. State of Nebraska, 12 CIR 32 (1993) (“Law Enforcement I”) and in the most recent state case, State of Nebraska v. Nebraska Ass’n of Public Employees, AFSCME, Local 61, 15 CIR 366 (2007) the Commission reviewed the legislative history of the State Employees Collective Bargaining Act, noting that with the addition of this new Act, the role of the Commission changed from the sole forum of resolution for all industrial disputes, to “that of  a limited, intermediate review body.”

            The Petitioner argues that the Commission’s previous decisions recognize that additional evidence is necessary in appeals from the Special Master. Specifically, the Petitioner cites State Law Enforcement Bargaining Council v. State of Nebraska, 13 CIR 104 (1998) (“Law Enforcement II”), where the Commission addressed the nature of the hearing to be conducted in front of the Commission in an appeal from the Special Master, where the Commission did not limit the introduction of additional evidence before the Commission.  The hearing before the Commission in Law Enforcement II, appears to be in conflict with the intent of the Legislature in providing a speedy and inexpensive resolution to an appeal filed in front of the Commission. To allow the parties, to essentially have a “second bite of the apple,” ignores the basic legislative intent.

            The Petitioner argues that the Respondent waived its right to appeal under Rule 18 of the Commission by not including its Motion in Limine in its Answer. The Respondent argues that it did not waive its argument by not including it in its Answer. The Respondent argues that its request for relief is a procedural request, that it could have made similar objection to exclude evidence at trial and that such a motion cannot be waived.

This case is an appeal and not a typical or regular wage case. The procedure is somewhat analogous to the Supreme Court and Court of Appeals rules, where parties are allowed to define the issues and assert their positions in their briefs. See Neb. Rules  of Appellate  Prac. § 2-109. The Commission is also authorized to adopt expedited procedures pursuant to Neb. Rev. Stat. § 81-1383(7).  Commission Rule 18 is not applicable in this appeal proceeding.

The Petitioner also argues that “if the parties are limited to a record established before the Special Master then available resources will be directed to preparing for a full comparability analysis, including the presentation of expensive surveys, and expert witness testimony at the Special Master proceeding.  The parties will be given short shrift to the negotiations at the bargaining table in favor of preparation for trial.  Resources will be expended, for expert reports and the like, before the parties even declare they are at impasse.”  Petitioner’s Brief p. 9-10.

The Petitioner then goes on to argue that “If a Special Master is expected to take on the Commission’s responsibility to conduct a comparability determination then why have a Special Master proceeding at all?  Why not proceed directly to the Commission as with any other public employee wage dispute.”  Petitioner’s Brief P. 10-11.

            Contrary to the Petitioner’s position, it appears to this Commission that the purpose of the Special Master proceeding is to encourage the parties to present their last best offer to the Special Master no later than January 15.  In September of the proceeding year, the parties are to commence negotiations.  If the parties adhere to the statutory timelines, they will have been preparing their offers in light of comparability and reasonableness based on their investigations and surveys of the market.  The parties have considerable leeway in presentation of evidence in support of their offers before the Special Master since the rules of evidence do not apply.  It is likely that if the parties want to be able to present reasonable offers during the negotiation process they will have been working on contract issues prior to the September’s start date of negotiations.

            The parties do not have to wait for a Special Master proceeding before gathering the evidence in support of their offer.  A Special Master can make a ruling pursuant to Neb. Rev. Stat. § 81-1382(3) when provided with a full presentation of “factors relevant to collective bargaining between public employers and public employees, including comparable rates of pay and conditions of employment as described in section 48-818…”

            The Special Master is not expected to take on the Commission’s responsibility to conduct a comparability determination as suggested by the Petitioner.  Rather the Special Master is to choose the most reasonable final offer by considering factors relevant to collective bargaining between public employers and public employees including comparable rates of pay and conditions of employment as described in Neb. Rev. Stat. § 48-818.  See Neb. Rev. Stat. § 81-1382(3) (the Special Master’s responsibility pursuant to statute).  The Commission’s responsibility is set forth in Neb. Rev. Stat. § 81-1383:  “The Commission 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 Commission pursuant to section 48-818…”.  As stated elsewhere in this order, the Commission does not have to conduct a full-blown wage case in order to conduct a review of the Special Master’s ruling.  It would seem that the parties would present the Special Master with all of the evidence they had gathered during the months before and after September. It would be unlikely that there would suddenly be some new evidence that could not have been presented to the Special Master.

We find that the Commission must show significant deference to the Special Master’s ruling and must 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 Commission pursuant to a Neb. Rev. Stat. §. 48-818 type of analysis. We find that this case should be conducted as an appeal on the record as made at the hearing before the Special Master. Therefore, this case is an appeal and we will adopt expedited procedures pursuant to Neb. Rev. Stat. § 81-1383(7).

IT IS THEREFORE ORDERED THAT:

1.                  The Respondent’s Motion in Limine is hereby granted.

2.                  No evidence additional to the evidence presented to the Special Master, additional exhibits not presented previously to the Special Master, and no witness testimony will be allowed by either party.

3.                  The Commission shall hear oral arguments at the appeal hearing previously scheduled for Wednesday, May 27, 2009 at 9:00 a.m. Trial briefs are due Wednesday, May 27, 2009 prior to the hearing. Responsive briefs to the previously submitted trial briefs shall be due Wednesday, June 3, 2009 at 5:00 p.m.

Entered May 21, 2009.