Board of Trustees v. State College Ed. Assn.

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 A ssoCiATioN, 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
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

association (SCea) for salary increases for the 2009-11 bien-
nium. 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 board operates nebraska’s three state colleges: Chadron
State College, Peru State College, and Wayne State College.
the SCea is a bargaining agent for a faculty bargaining
unit established under neb. Rev. Stat. §§ 81-1373(3) and
81-1379(2) (Reissue 2008) of the State employees Collective
bargaining act (bargaining act), neb. Rev. Stat. §§ 81-1369 to
81-1390 (Reissue 2008). the SCea represents approximately
265.01 full-time-equivalent faculty members who work at the
three state colleges in the ranks of professor, associate profes-
sor, assistant professor, and instructor. the SCea is the exclu-
sive bargaining representative of the employees, and the parties
have bargained on a system-wide basis for many years.
the SCea and the board reached an impasse during nego-
tiations for a new collective bargaining agreement for the
July 1, 2009, to June 30, 2011, contract year. Pursuant to the
bargaining act, the parties exchanged final offers on January
12, 2009, and submitted those final offers to the Special Master
by January 15.
sCeA’s fiNAl offer
the SCea based its final offer on an array selected in 1997
by the nebraska Coordinating Commission on Postsecondary
education, which included institutions located all across the
478 	280 nebRaSka RePORtS

united States. It compiled a separate array for each of the
three state colleges. for Chadron State College, the SCea pro-
posed an array consisting of eastern new Mexico university,
fort Hays State university (kansas), Lander university (South
Carolina), north georgia College and State university, northern
State 	university 	(South 	dakota), 	northwestern 	Oklahoma
State 	university, 	Southern 	arkansas 	university, 	Southern
Oregon university, Southwest Minnesota State university, and
university of north Carolina at Pembroke.
the array for Peru State College consisted of black Hills
State university (South dakota), Concord university (West
Virginia), dakota State university (South dakota), dickinson
State 	university 	(north 	dakota), 	Indiana 	university-east,
northwestern Oklahoma State university, Southwest Minnesota
State 	university, 	university 	of 	arkansas 	at 	Monticello,
university of South Carolina at aiken, and Western State
College of Colorado.
Wayne State College’s array consisted of bemidji State
university (Minnesota), eastern new Mexico university, fort
Hays State university (kansas), georgia Southwestern State
university, Minot State university (north dakota), northern
State university (South dakota), Southeastern Oklahoma State
university, Southern arkansas university, and Southern Oregon
university. the SCea defends its geographically broad arrays
on the ground that college and university faculty are part
of a national labor pool. It also notes that the peer schools
selected are classified as similar by the nebraska Coordinating
Commission on Postsecondary education, are all public institu-
tions of comparable size, and are located outside of metropoli-
tan areas.
In arriving at its final offer, the SCea relied on data indicat-
ing that state college faculty salaries as a whole were below
market by 4.17 percent for the 2007-08 academic year. the
SCea calculated annual average increases for the past decade
and predicted 4.22-percent increases for each of the next 2
years. It proposed a 7-percent across-the-board increase for
2009-10 and a 4-percent across-the-board increase for 2010-11
to maintain comparability. the offer provided for a 6-percent
increase in the minimum promotion base salary and minimum
bOaRd Of tRuSteeS v. State COLLege ed. aSSn. 	479
Cite as 280 neb. 477

new-hire base salary of each academic rank for 2009-10 and a
3-percent increase in minimum base salary for each rank for
2010-11. It also proposed a $3,000 increase to faculty members
who are promoted to a new rank.
the SCea justifies its offer for an 11-percent increase
over 2 years on the grounds that faculty members were 5.02
percent below market for 2007-08 and that the average annual
faculty increase for 1996-97 through 2006-07 as calculated
by 	the american association 	of 	university 	Professors 	is
4.22 percent.
the SCea argues for across-the-board increases, because
prior CIR wage comparability cases involving institutions of
higher education measured the amount by which all bargain-
ing unit members were below comparability and then ordered
across-the-board increases for the unit. See, Metropolitan
Tech. Comm. College Educ. Ass’n v. Metropolitan Comm.
College Area, 14 C.I.R. 127 (2003); Board of Regents of the
University of Nebraska v. American Association of University
Professors, 7 C.I.R. 1 (1983). It claims that any attempt to dif-
ferentiate salary raises by faculty rank is not consistent with
CIR precedent.
BoArd’s fiNAl offer
In calculating its final offer, the board used an array of nine
colleges and universities located within 500 air miles of the
nearest nebraska state college. the array consisted of black
Hills State university (South dakota), dakota State university
(South dakota), fort Hays State university (kansas), Minot
State university (north dakota), northern State university
(South 	dakota), 	northwestern 	Oklahoma 	State 	university,
Southeastern Oklahoma State university, Southwest Minnesota
State university, and Western State College of Colorado. the
proposed array members were located in rural, nonmetropolitan
areas and had student enrollment similar to the nebraska state
colleges. all of these institutions were also included in the
SCea’s array.
from this array, the board proposed salary increases based
on academic rank. It performed comparability analyses on a
system-wide basis using data from the “Integrated Postsecondary
480 	280 nebRaSka RePORtS

education data System” for the most recent academic year
available, 2007-08, for each rank. the board concluded that for
2007-08, professors were above market by .73 percent, associ-
ate professors were below market by 6.78 percent, assistant
professors were below market by 11.73 percent, and instruc-
tors were below market by 4.36 percent. Relying on Douglas
County Health Department Employees Association v. County
of Douglas, 8 C.I.R. 208 (1986), affirmed 229 neb. 301, 427
n.W.2d 28 (1988), the board claimed that salaries of job clas-
sifications above comparability need not be increased.
accordingly, 	the 	board 	proposed 	raises 	as 	follows:
Professors receive no increase in their base salary in either
year, associate professors receive a 3.39-percent increase in
each year, assistant professors receive a 5.87-percent increase
for 2009-10 and a 5.86-percent increase for 2010-11, and
instructors receive a 2.18-percent increase for both years.
the board also proposed eliminating sections appearing in
the 2007-09 contract that provided for increases in minimum
promotion base salaries and minimum new-hire base salaries
of each academic rank.
speCiAl mAsTer heAriNg
the Special Master held a hearing on January 20, 2009, at
which time both parties presented evidence. the SCea and the
board also filed posthearing briefs. the Special Master issued
his ruling on february 27. the Special Master made clear that
he was required to choose between two “decidedly unattrac-
tive” final offers. He observed that each party submitted an
“in your face” salary offer that was “highly unpalatable” to the
other party but that he was nonetheless required to select one
of the final offers as presented.
Reviewing the proposed arrays, the Special Master found
that both arrays were reasonable. He compiled an array con-
sisting of 12 Midwestern schools located in states adjacent to
nebraska or in a state adjacent to those adjacent states. the
resulting array consisted of the nine schools proposed by the
board plus bemidji State university in Minnesota, dickinson
State university in north dakota, and eastern new Mexico
State university.
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the Special Master used this array and calculated com-
parability figures similar to those reached by both the board
and the SCea. He found that for 2007-08, professor salaries
were approximately even with the market, associate professor
salaries were almost 5 percent below market, assistant profes-
sor salaries were almost 13 percent below market, instructor
salaries were about 2 percent below market, and the entire
bargaining unit as a whole was 4.5 percent below market. the
Special Master also determined that based on these parties’ past
practices and negotiating history, faculty ranks did not consti-
tute separate job classifications.
noting the inherent timelag in calculating comparability
with data from 2007-08, the Special Master projected salary
increases for 2008-09, 2009-10, and 2010-11. He used the
board’s 2008-09 salary increase data from eight of the schools
in the board’s proposed array. these eight schools reported
mean, median, and midpoint salary increases of 3.75 percent,
4 percent, and 3.88 percent, respectively. the mean is the
arithmetic average of the salaries in the array. the median is
the middle value in the array. the midpoint is calculated by
taking the average of the mean and median figures. as these
figures were actual salary increases, the Special Master found
the data superior to the projections proposed by the SCea. as
nebraska state college faculty received a 4-percent increase
in 2008-09, the Special Master found that the comparability
results from 2007-08 did not change in any meaningful way
in 2008-09.
Looking forward to the 2009-11 contract term, the Special
Master took judicial notice of the worsening national economy
and concluded that there was no basis for the SCea’s assump-
tion that wages in peer institutions would increase by 4.22
percent in 2008-09, 2009-10, and again in 2010-11. Instead,
the Special Master forecast average salary increases of 2.5
to 3 percent. He based this prediction on the fact that eight
state government bargaining units represented by the nebraska
association of Public employees/afSCMe Local 61 agreed to
increases of 2.9 percent and 2.5 percent for the next 2 years—
equivalent to a 5.47-percent compounded increase. therefore,
482 	280 nebRaSka RePORtS

the Special Master assumed a 2-year market increase figure of
5.5 percent for comparability purposes.
the Special Master noted that faculty salaries were 4.5 per-
cent below market in 2007-08 and had remained at the same
rate below market in 2008-09. He then predicted a 5.5-percent
increase among comparable institutions during the next 2 years
and determined that the salary increase needed to maintain
comparability during the 2009-11 contract term was about 10
percent. He noted that although the board’s offer moved some
faculty (assistant professors and associate professors) closer
to comparability than they are now, professors and instructors
would fall below comparability over the next 2 years.
for the 2009-11 contract, the Special Master concluded that
the SCea’s final offer of 11 percent did a better job of moving
all unit members toward comparability and keeping them com-
parable for the duration of the contract than did the board’s
offer of 4.33 percent. He also noted that the board provided
no rationale for removing provisions appearing in the 2007-
09 contract regarding rank base minima. the Special Master
selected the SCea’s offer as being the most reasonable.
Cir heAriNg
the board appealed the Special Master’s decision to the
CIR. before the hearing, the SCea filed a motion in limine
to prevent the board from offering new evidence or new wit-
ness testimony for the CIR to consider. the board opposed
the motion and indicated it wished to submit evidence refuting
the Special Master’s conclusions. the CIR granted the motion
in limine, noting that the further introduction of additional
evidence was “in conflict with the intent of the Legislature in
providing a speedy and inexpensive resolution to an appeal
filed” to the CIR. It also noted that the CIR is required to show
significant deference to the Special Master’s ruling and set the
ruling aside only if it finds the ruling is significantly disparate
from prevalent rates of pay or conditions of employment as
determined by the CIR pursuant to neb. Rev. Stat. § 48-818
(Reissue 2004). the board submitted an offer of proof for
the record.
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after a May 20, 2009, hearing, the CIR issued its “Opinion
and Order on appeal,” affirming the Special Master’s order.
It found that “[e]ffective changes in the salary structure are
not achieved by having the Special Master impose substantial
structural changes requested by one party over the vehement
objections of the other party.” accordingly, it found that the
Special Master’s selection of the SCea’s proposal institut-
ing across-the-board increases over the board’s faculty rank
increases was not disparate pursuant to § 48-818.
the CIR also determined that the bargaining act required
parties to negotiate a 2-year contract despite the fact that
accurate data for § 48-818 did not exist. It concluded that the
Special Master’s consideration of speculative data for the pur-
pose of determining future comparability for the 2-year con-
tract was not disparate pursuant to a § 48-818 analysis.
finally, the CIR reviewed the Special Master’s numbers and
calculations and concluded that the comparability analysis was
correct. accordingly, the comparability figure of 10 percent fell
between the board’s offer of 4.33 percent and the SCea’s offer
of 11 percent. giving the Special Master significant deference,
the CIR concluded that the ruling was not significantly dispar-
ate from prevalent rates of pay or conditions of employment.
the CIR affirmed the Special Master’s ruling implementing the
SCea’s final offer.
the board appealed, and we granted its petition to bypass
the Court of appeals.
aSSIgnMentS Of eRROR
the board alleges, combined and restated, that the CIR
erred in (1) granting the SCea’s motion in limine and refus-
ing 	supplemental 	evidence 	and 	(2) 	affirming 	the 	Special
Master’s order.
anaLYSIS
moTioN iN limiNe ANd deNiAl
of A ddiTioNAl evideNCe
the first issue is whether pursuant to the bargaining act,
parties can present additional evidence to the CIR after the
Special Master hearing. We recently addressed this issue in
484 	280 nebRaSka RePORtS

State v. State Code Agencies Teachers Assn., ante p. 459,
788 n.W.2d 238 (2010), and we adopt the reasoning set forth
therein. We conclude that pursuant to the bargaining act, the
CIR’s review of a Special Master’s ruling is an appeal and that
the CIR did not err in granting the motion in limine and deny-
ing the board’s request to offer new evidence.
the bargaining act clearly defines the CIR’s role in state
employee cases to be an appellate body and not a redundant
finder of fact. § 81-1383. the CIR is to show significant def-
erence to the Special Master’s ruling and is to set the ruling
aside only upon a finding pursuant to § 48-818 that the ruling
is significantly disparate. § 81-1383(2). the Special Master’s
decision is not significantly disparate if the prevalent rates of
pay fall between the final offers of the parties. Id.
for these reasons, the CIR did not err in granting the
SCea’s motion in limine and disallowing additional evidence
to be submitted for its consideration.
A ffirmiNg speCiAl mAsTer’s order
the board next claims that the CIR erred in affirming the
Special Master’s order because the order was significantly
disparate. Its contention is based on the CIR’s exclusion of
additional evidence and the Special Master’s classification of
the four faculty ranks as a single job classification. the board
also claims that second-year wages were based on speculative
data. the board argues that the CIR should have found that the
Special Master’s order was significantly disparate and imple-
mented the board’s final offer.
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 or that the order was procured by fraud
or is contrary to law.
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In reviewing the CIR’s order, we note that pursuant to
§ 81-1383(2), the CIR cannot find the Special Master’s ruling
to be significantly disparate from prevalent rates of pay when
the prevalent rates of pay and conditions of employment, as
determined by the CIR pursuant to § 48-818, fall between the
final offers of the parties. therefore, our review is limited to
whether the facts found by the CIR support the CIR’s conclu-
sion that the prevalent rates of pay and conditions of employ-
ment fall between the final offers of the parties and whether
the order is supported by a preponderance of the competent
evidence on the record considered as a whole.
the board’s claim that the prevalent rates of pay were not
between the final offers of the parties is based on the exhib-
its the board submitted as an offer of proof in response to
the SCea’s motion in limine. as discussed above, the CIR
properly declined to consider the supplemental evidence when
determining the prevalent rates of pay. See State v. State Code
Agencies Teachers Assn., ante p. 459, 788 n.W.2d 238 (2010).
In viewing the facts considered by the CIR, the evidence sup-
ports the CIR’s conclusion that the prevalent rates of pay fell
between the final offers of the parties.
the board also argues that the CIR erred in affirming the
Special Master’s order on the ground that it found that the fac-
ulty ranks of professor, associate professor, assistant professor,
and instructor constitute a single job classification. In its analy-
sis, the board overlooks or ignores the reasoning stated by the
Special Master and the CIR for that decision. as noted by the
CIR, the parties’ past practice has been to impose across-the-
board salary increases. the board did not offer any evidence
in support of changing this practice. We agree with the CIR
that substantial changes in salary structure are not achieved by
imposition over the “vehement objections of the other party.”
Indeed, this decision is in line with the CIR’s history of leav-
ing changes in salary structure to collective bargaining. See,
Board of Regents of the University of Nebraska v. American
Association of University Professors, 7 C.I.R. 1 (1983) (cit-
ing West Holt Faculty Ass’n v. School District Number 25 of
Holt County, 5 C.I.R. 301 (1981), and Omaha Association of
486 	280 nebRaSka RePORtS

Firefighters, Local 385 v. City of Omaha, Nebraska, 2 C.I.R.
117 (1975), affirmed 194 neb. 436, 231 n.W.2d 710 (1975)).
We likewise conclude that the facts support the CIR’s determi-
nation that the Special Master’s refusal to unilaterally impose
salary structure changes was not disparate when reviewed
pursuant to § 48-818. the order is supported by a preponder-
ance of the competent evidence on the record considered as
a whole.
finally, the board claims that the CIR erred in giving def-
erence to the Special Master’s order, because it was based
on speculative evidence for future wage increases. We also
addressed this issue in State v. State Code Agencies Teachers
Assn., supra, concluding that the bargaining act requires 2-
year contracts. and, as second-year comparability data are not
always available at the time of negotiations, we observed that
failing to predict salary increases for future years would result
in bargaining unit members’ salaries constantly being sig-
nificantly below actual comparability and in a constant catchup
status. Id. accordingly, the CIR did not err in deferring to the
Special Master on this issue, and this assignment of error is
without merit.
COnCLuSIOn
the bargaining act does not permit additional evidence to
be submitted to the CIR after the order is issued by the Special
Master, and therefore, the CIR properly granted the SCea’s
motion in limine. furthermore, the CIR did not err in finding
that the Special Master’s order was not significantly disparate.
We affirm the decision of the CIR.
A ffirmed.
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