State v. State Code Agencies Teachers Assn.

that Deviney presented sufficient evidence of a genuine issue
of material fact as to the foreseeability of contracting WNV.
We therefore affirm the decision of the Court of Appeals.
A ffirmed.
StAte of NebrASkA, AppellANt, v. StAte C ode
AgeNCieS teACherS ASSoCiAtioN, NSeA-NeA,
AlSo kNowN AS StAte C ode AgeNCieS
eduCAtioN ASSoCiAtioN, Appellee .
788 N.W.2d 238
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 con-
ditions 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 pow-
ers, (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 sup-
ported 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 compa-
rables 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.
STATe v. STATe CoDe AGeNCIeS TeACheRS ASSN. 	459
Cite as 280 Neb. 459
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

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, 	C oNNolly, 	gerrArd, 	StephAN,
mCC ormACk , and miller-lermAN, JJ.
wright, J.
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.
SCoPe oF ReVIeW
[1] 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 appel-
late 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).
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 reha-
bilitation centers, treatment centers, and correctional centers
located throughout Nebraska. The teachers are certified by the
State of Nebraska and teach 877 students in grades kindergar-
ten through 12.
460 	280 NeBRASKA RePoRTS

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 sal-
ary. 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 pro-
vided 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 gener-
ates 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 tenta-
tive 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 dis-
miss 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 v. STATe CoDe AGeNCIeS TeACheRS ASSN. 	461
Cite as 280 Neb. 459

State’s motion, concluding that the parties did exchange final
offers as contemplated by the statute.
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 mid-
point 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 pro-
posed an increase of 3.9 percent to $30,609 for 2010-11.
StAte’S fiNAl offer
The 	State 	proposed 	an 	array 	of 	nine 	comparison 	dis-
tricts based on district size guidelines and geographic prox-
imity determined by commuting distance to State facilities.
462 	280 NeBRASKA RePoRTS

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.
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 appropri-
ate. on February 3, the Special Master issued his ruling select-
ing 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, not-
ing 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.
STATe v. STATe CoDe AGeNCIeS TeACheRS ASSN. 	463
Cite as 280 Neb. 459

Noting that the parties were bargaining for future compa-
rability for 2009-10 and 2010-11, the Special Master forecast
base salaries for 2009-10 and 2010-11. he based the predic-
tion 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 esti-
mate 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 per-
cent for 2010-11. he determined that the SCATA’s final offer
moved the bargaining unit members closer to true comparabil-
ity 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 appel-
lant 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
464 	280 NeBRASKA RePoRTS

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.
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.
ANALYSIS
SpeCiAl mASter JuriSdiCtioN
[2] The first issue is whether the Special Master had juris-
diction to resolve the parties’ dispute. The question of jurisdic-
tion 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 harmoni-
ous, peaceful, and cooperative relationships between state gov-
ernment 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 spe-
cific 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
STATe v. STATe CoDe AGeNCIeS TeACheRS ASSN. 	465
Cite as 280 Neb. 459

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 unre-
solved 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 bar-
gaining 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 dis-
putes 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
466 	280 NeBRASKA RePoRTS

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 A dditioNAl 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 addi-
tional 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.”
[3] 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 par-
ties “may appeal an adverse ruling on an issue to the commis-
sion 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 con-
ditions 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
STATe v. STATe CoDe AGeNCIeS TeACheRS ASSN. 	467
Cite as 280 Neb. 459

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] seek-
ing a determination of terms and conditions of employ-
ment 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 sup-
plied). 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 deci-
sion is not an appeal. § 48-811.02(5).
[4] 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 interpreta-
tion is in line with the other provisions of the Bargaining Act
designed to streamline the negotiation process.
468 	280 NeBRASKA RePoRTS

Furthermore, the CIR is required to give significant defer-
ence 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 signifi-
cantly 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, permit-
ting 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 ver-
sion 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 pre-
sented information and data to provide the Commission with
data and a method for comparing the final offers of both parties
STATe v. STATe CoDe AGeNCIeS TeACheRS ASSN. 	469
Cite as 280 Neb. 459

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.
iNCluSioN of liNColN ANd omAhA iN A rrAy
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.
[5,6] 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
470 	280 NeBRASKA RePoRTS

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 fac-
tors 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 preva-
lent 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 sub-
stantial 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
STATe v. STATe CoDe AGeNCIeS TeACheRS ASSN. 	471
Cite as 280 Neb. 459

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 heav-
ily. 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 dis-
trict but determined that a large percentage of the SCATA’s
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.
472 	280 NeBRASKA RePoRTS

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 geo-
graphic proximity, job descriptions, job skills, and job condi-
tions. 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 consid-
ered as a whole. The CIR did not err in affirming the Special
Master’s decision to include Lincoln and omaha in the array.
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.
STATe v. STATe CoDe AGeNCIeS TeACheRS ASSN. 	473
Cite as 280 Neb. 459

As noted above, we are limited in our review. See Hyannis
Ed. Assn., supra. There is no evidence that the CIR acted with-
out 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 evi-
dence 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 regard-
less 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
474 	280 NeBRASKA RePoRTS

a finding that the ruling is significantly disparate from preva-
lent 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 comparabil-
ity 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 comparabil-
ity and in a constant catchup status.
To avoid lagging salaries and because actual comparabil-
ity 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 per-
cent 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.
STATe v. STATe CoDe AGeNCIeS TeACheRS ASSN. 	475
Cite as 280 Neb. 459

For 2010-11, the SCATA’s final offer was an increase of 3.9
percent, based on its calculation that the SCATA raises aver-
aged 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 compa-
rability. 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 find-
ing 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.
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
476 	280 NeBRASKA RePoRTS

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.
A ffirmed.
BoARD oF TRUSTeeS v. STATe CoLLeGe eD. ASSN. 	477
Cite as 280 Neb. 477
the boArd of truSteeS of the NebrASkA StAte
C ollegeS, AppellANt, v. StAte C ollege
eduCAtioN ASSoCiAtioN, Appellee .
787 N.W.2d 246
Filed August 13, 2010. 	No. S-09-738.
1. Commission of Industrial Relations: Appeal and Error. In reviewing an appeal
from the Commission of Industrial Relations in a case involving wages and con-
ditions 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 pow-
ers, (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 sup-
ported by a preponderance of the competent evidence on the record considered as
a whole.
Appeal 	from 	the 	Commission 	of 	Industrial 	Relations.
Affirmed.
Patrick 	J. 	Barrett, 	of 	Fraser 	Stryker, 	P.C., 	L.L.o., 	for
appellant.
Mark D. McGuire, of McGuire & Norby, for appellee.
heAviCAN, 	C.J., 	wright, 	C oNNolly, 	gerrArd, 	StephAN,
mCC ormACk , and miller-lermAN, JJ.
wright, J.
NATURe oF CASe
The Board of Trustees of the Nebraska State Colleges
(Board) appeals the decision of the Commission of Industrial
Relations (CIR), which affirmed the Special Master’s ruling
implementing the final offer of the State College education