CIR

Current CIR

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Many states formulated their own policies on public bargaining in the 1960’s.  Nebraska used a constitutional provision passed in 1919 to structure its employee bargaining policies.

The act also created “The Nebraska Commission of Industrial Relations”, hereinafter referred to as the CIR. The CIR is a unique State Agency designed to resolve public sector labor controversies with jurisdiction over state and local government employees including public utilities. The Nebraska Supreme Court has stated that the Commission is an administrative agency with quasi-judicial powers.  Proceedings before the Commission must conform to the Code of Civil Procedure applicable to the District Courts unless modified either by Commission Rules or Statutes.  In 1969, Legislative Bill 15 amended the Act to provide for representation and collective bargaining for all public employees.

Nebraska Public Sector Employees currently do not have the right to strike or have work slowdown or lockouts. Some experts take the position that collective bargaining is meaningless without the right to strike and that statutes which prohibit public sector strikes have not been successful in decreasing the number of strikes. But the right of public employees to strike must be balanced against potential harm to the public.  As a rule, strikes are not allowed in essential services and in the United States are not permitted in the public service in general.

Under Section 48-818, the CIR

may establish or alter the scale of wages, hours of labor or conditions of employment, or any one or more of the same. In making such findings and order or orders, the Commission of Industrial Relations shall establish rates of pay and conditions of employment which are comparable to the prevalent wage rates paid and conditions of employment maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions

There have been no major disruptions because of labor disputes in the operations of the Nebraska State Government or its political subdivisions. Such disruptions have occurred in other states including those states which have created public employee relations boards.  The existence of the 48-818 adjudication process has given Nebraska a successful means to resolve impasses in collective bargaining.  The CIR’s primary objective is to continue to serve as an efficient forum for the peaceful settlement of labor disputes between public employees and their employers.

Comparability & LB 397

Statue 48-818

  • Public Employees performing same or similar work, using same or similar skills, under same or similar working by law must be paid total compensation comparable to prevalent, with or without a union.
  • Effects of LB 397-No change to mission of Statute.

New Definitions

Section 1. Section 48-801

  • (8) Metropolitan statistical area means a metropolitan statistical area as defined by the United States Office of Management and Budget;
  • (9) Municipality means any city or village in Nebraska;
  • (11) Public employee includes any person employed by a public employer;
  • (12) Public employer means the State of Nebraska or any political or governmental subdivision of the State of Nebraska except the Nebraska National Guard or state militia;
  • (13) Public utility includes any person or governmental entity, including any public corporation, public power district, or public power and irrigation district, which carries on an intrastate business in this state regulation and control, that furnishes transportation for hire, telephone service, telegraph service, electric light, heat, or power service, gas for heating or illuminating, whether natural or artificial, or water services, or any one or more thereof; and

Three Judges Now Sit in on Trials

Section 4. Section 48-804

  • Three commissioners shall preside over and decide all industrial disputes where the matter at issue is the comparability of wages, benefits, and terms and conditions of employment.

Despite Status Quo Orders Conditions of Employment Can Be Changed

Sec. 6. Section 48-811

  • (2) If a change in the employment status or in wages or terms and conditions of employment is necessary, a motion by either party or by the parties jointly may be presented to the commission at that time and if the commission finds, based on a showing of evidence at a hearing thereon, that the requested change is both reasonable and necessary to serve an important public interest and that the employer has not considered a change in the employment status, wages, or terms and conditions of employment as a policy alternative on an equal basis with other policy alternatives to achieve budgetary savings, the commission may order that the requested change be allowed pending final resolution of the pending industrial dispute.

Final Offers are Public

Statute 48-813

(2) The petitioner shall include its final offer, as voted by the petitioner, the governing body, or the bargaining unit or as considered pursuant to a ratification process, with its petition. The respondent shall include its final offer, as voted by the respondent, the governing body, or the bargaining unit or as considered pursuant to a ratification process, with its answer. Within fourteen days after filing of the answer, the parties shall vote to accept or reject or consider pursuant to a ratification process the other’s final offer and file a subsequent pleading indicating the result. The vote concerning the governing body’s final offer shall be published on its agenda and held where the public may attend. The commission shall not enter a final order on wages or conditions of employment unless both parties have rejected the others’ final offer. This subsection does not apply to public employers subject to the State Employees Collective Bargaining Act.

Appointment of Resolution Officers

Sec. 8. Section 48-816

  • Upon the request of either party, a resolution officer may be appointed if the parties are within the provisions of section 11 of this act.

Staffing Mandatory Subject of Bargaining When Safety Involved

Sec. 8. Section 48-816

  • In negotiations between a municipality, municipally owned utility, or county and a labor organization, staffing related to issues of safety shall be mandatory subjects of bargaining and staffing relating to scheduling work, such as daily staffing, staffing by rank, and overall staffing requirements, shall be permissive subjects of bargaining.

Job Match Refers to Matching Job Positions With No More than 30{278f4b348ff4184201f7109ca0f24793e372ab0c71e6a203facb84b8c8ef37bb} Degree of Difference

Sec. 10. Section 48-818

  • 48-818 (2) For purposes of industrial disputes involving public employers other than school districts, educational service units, and community colleges with their certificated and instructional employees and public employers subject to the State Employees Collective Bargaining Act:
  • (a) Job matches shall be sufficient for comparison if (i) evidence supports at least a seventy percent match based on a composite of the duties and time spent performing those duties and (ii) at least three job matches per classification are available for comparison. If three job matches are not available, the commission shall base its order on the historic relationship of wages paid to such position over the last three fiscal years, for which data is available, as compared to wages paid to a position for which a minimum of three job matches are available;

LB397 Establishes Array Criteria

Section 48-818

  • (b) The commission shall adhere to the following criteria when establishing an array:
  • (i) Geographically proximate public employers and Nebraska public employers are preferable for comparison;
  •  (b) The commission shall adhere to the following; criteria when establishing an array:
  • (ii) The preferred size of an array is seven to nine members. As few as five members may be chosen if all array members are Nebraska employers. The commission shall include members mutually agreed to by the parties in the array;
  • (iii) If more than nine employers with job matches are available, the commission shall limit the array to nine members, based upon selecting array members with the highest number of job matches at the highest job match percentage;
  • (iv) Nothing in this subdivision (2)(b) of this section shall prevent parties from stipulating to an array member that does not otherwise meet the criteria in such subdivision, and nothing in such subdivision shall prevent parties from stipulating to less than seven or more than nine array members

Array Balance & Double Dipping Codified

Section 48-818

  • (v) The commission shall not require a balanced number of larger or smaller employers or a balanced number of Nebraska or out-of-state employers;
  • (vi) If the array includes a public employer in a metropolitan statistical area other than the metropolitan statistical area in which the employer before the commission is located, only one public employer from such metropolitan statistical area may be included in the array

Public Utility Concentric Circle Requirement

  • (viii) In constructing an array for a public utility, the commission shall use fifty-mile concentric circles until it reaches the optimum array pursuant to subdivision (2)(b)(ii) of this section; and
  • (ix) For a statewide public utility that provides service to a majority of the counties in Nebraska, any Nebraska public or private job match may be used without regard to the population or full-time equivalent employment requirements of this section, and any out-of-state job match may be used if the full-time equivalent employment of the out-of-state employer is no more than double and no less than one-half of the full time equivalent employment of the bargaining unit of the statewide public utility in question;

Presumption of Similarity of Working Conditions

  • (c) In determining same or similar working conditions, the commission shall adhere to the following:
  • (i) Public employers in Nebraska shall be presumed to provide same or similar working conditions unless evidence establishes that there are substantial differences which cause the work or conditions of employment to be dissimilar;
  • (ii) Public employers shall be presumed to provide the same or similar working conditions if (A) for public employers that are counties or municipalities, the population of such public employer is not more than double or less than one-half of the population of the public employer before the commission, unless evidence establishes that there are substantial differences which cause the work or conditions of employment to be dissimilar,
  • (B) for public employers that are public utilities, the number of such public employer’s employees is not more than double or less than one-half of the number of employees of the public employer before the commission, unless evidence establishes that there are substantial differences which cause the work or conditions of employment to be dissimilar,

MSA Presumption of Similar Working Conditions

  • (iii)(A) Public employers located within a metropolitan statistical area who meet the population requirements of subdivision (2)(c)(ii)(A) of this section, if the public employer is a county or municipality, or the student enrollment requirements of subdivision (2)(c)(ii)(C) of this section, if the public employer is a school district or an educational service unit, shall be presumed to provide the same or similar working conditions if the metropolitan statistical area population in which they are located is not more than double or less than one-half the metropolitan statistical area population of the public employer before the commission, unless evidence establishes that there are substantial differences which cause the work or conditions of employment to be dissimilar.
  • (B) The presumption created by subdivision (2)(c)(iii)(A) of this section may be overcome in situations where evidence establishes that there are substantial similarities which cause the work or conditions of employment to be similar, allowing the commission to consider public employers located within a metropolitan statistical area even if the metropolitan statistical area population in which that employer or employers are located is more than double or less than one-half the metropolitan statistical area population of the public employer before the commission. The burden of establishing sufficient similarity is on the party seeking to include a public employer pursuant to this subdivision (2)(c)(iii)(B) of this section; and
  • (iv) Public employers other than public utilities which are not located within a metropolitan statistical area shall not be compared to public employers located in a metropolitan statistical area. For purposes of this subdivision, metropolitan statistical area includes municipalities with populations of fifty thousand inhabitants or more;

Current CIR Prevalent Practice Calculation Codified

  • (d) Prevalent shall be determined as follows: (i) For numeric values, prevalent shall be the midpoint between the arithmetic mean and the arithmetic median. For fringe benefits, prevalent shall be the midpoint between the arithmetic mean and the arithmetic median as long as a majority of the array members provide the benefit; and (ii) for nonnumeric comparisons, prevalent shall be the mode that the majority of the array members provide if the compared-to benefit is similar in nature. If there is no clear mode, the benefit or working condition shall remain unaltered by the commission;

Economic Variable Testing

  • (e) For any out-of-state employer, the parties may present economic variable evidence and the commission shall determine what, if any, adjustment is to be made if such evidence is presented. The commission shall not require that any such economic variable evidence be shown to directly impact the wages or benefits paid to employees by such out-of-state employer;

All Benefits Will Be Counted for Offset

  • (f) In determining total or overall compensation, the commission shall value every economic item even if the year in question has expired. The commission shall require that all wage and benefit levels be leveled over the twelve-month period in dispute to account for increases or decreases which occur in the wage or benefit levels provided by any array member during such twelve-month period;

Rules of Evidence Relaxed

  • (g) In cases filed pursuant to this subsection (2) of this section, the commission shall not be bound by the usual common law or statutory rules of evidence or by any technical or formal rules of procedure, other than those adopted by rule pursuant to section 48-809. The commission shall receive evidence relating to array selection, job match, and wages and benefits which have been assembled by telephone, electronic transmission, or mail delivery, and any such evidence shall be accompanied by an affidavit from the employer or any other person with personal knowledge which affidavit shall demonstrate the affiant’s personal knowledge and competency to testify on the matters The commission, with the consent of the parties to the dispute, and in the presence of the parties to the dispute, may contact an individual employed by an employer under consideration as an array member by telephone to inquire as to the nature or value of a working condition, wage, or benefit provided by that particular employer as long as the individual in question has personal knowledge about the information being sought. The commission may rely upon information gained in such inquiry for its decision. Opinion testimony shall be received by the commission based upon evidence provided in accordance with this subdivision. Testimony concerning job match shall be received if job match inquiries were conducted by telephone, electronic transmission, or mail delivery if the witness providing such testimony verifies the method of such job match inquiry and analysis;

HRV Valuations Possible After CIR Decision

  • (h) In determining the value of defined benefit and defined contribution retirement plans and health insurance plans or health benefit plans, the commission shall use an hourly rate value calculation as follows:
  • (i) Once the array has been chosen, each array member and the public employer of the subject bargaining unit shall provide a copy of its most recent defined benefit pension actuarial valuation report. Each array member and the public employer of the subject bargaining unit shall provide the most recent copy of its health insurance plans or health benefit plans, covering the preceding twelve-month period, with associated employer and employee costs, to the parties and the commission. Each array member shall also provide information concerning premium equivalent payments and contributions for health savings accounts. Each array member and the public employer of the subject bargaining unit shall indicate which plans are most used. The plans that are most used shall be used for comparison;
  • (ii) Once the actuarial valuation reports are received, the parties shall have thirty calendar days to determine whether to have the pensions actuarially valued at an hourly rate value other than equal. The hourly rate value for defined benefit plans shall be presumed to be equal to that of the array selected unless one or both of the parties presents evidence establishing that the actuarially derived annual normal cost of the pension benefit for each job classification in the subject bargaining unit is above or below the midpoint of the average normal cost. Consistent methods and assumptions are to be applied to determine the annual normal cost of any defined benefit pension plan of the subject bargaining unit and each array member. For this purpose, the entry age normal actuarial cost method is recommended. The actuarial assumptions that are selected for this purpose should reflect expectations for a defined benefit pension plan maintained for the employees of the subject bargaining unit and acknowledge the eligibility and benefit provisions for each respective defined benefit pension plan. In this regard, different eligibility and benefit provisions may suggest different retirement or termination of employment assumptions. The methods and assumptions shall be attested to by an actuary holding a current membership with the American Academy of Actuaries. Any party who requests or presents evidence regarding actuarial valuation of a defined benefit plan shall be responsible for costs associated with such valuation and testimony. The actuarial valuation is presumed valid, unless a party presents competent actuarial evidence that the valuation is invalid;
  • (iii) The hourly rate value for defined contribution plans shall be established upon comparison of employer contributions;

HRV Health and Pension Calculation

  • (iv) The hourly rate value for health insurance plans or health benefit plans shall be established based upon the public employer’s premium payments, premium equivalent payments, and public employer and public employee contributions to health savings accounts;
  • (v) The commission shall not compare defined benefit plans to defined contribution plans or defined contribution plans to defined benefit plans; and
  • (vi) The commission shall order increases or decreases in wage rates by job classification based upon the hourly rate value for health-related benefits, benefits provided for retirement plans, and wages;

HRV Valuation Applied to Range and Recession Analysis

  • (i) The order shall be retroactive with respect to increases and decreases to the beginning of the bargaining year in dispute;
  • (ii) The commission shall determine whether the hourly rate value of the bargaining unit’s members or classification falls within a ninety-eight percent to one hundred two percent range of the array’s midpoint. If the hourly rate value falls within the ninety-eight percent to one hundred two percent range, the commission shall order no change in wage rates. If the hourly rate value is less than ninety-eight percent of the midpoint, the commission shall enter an order increasing wage rates to ninety-eight percent of the midpoint. If the hourly rate value is more than one hundred two percent of the midpoint, the commission shall enter an order decreasing wage rates to one hundred two percent of the midpoint. If the hourly rate value is more than one hundred seven percent of the midpoint, the commission shall enter an order reducing wage rates to one hundred two percent of the midpoint in three equal annual reductions. If the hourly rate value is less than ninety-three percent of the midpoint, the commission shall enter an order increasing wage rates to ninety-eight percent of the midpoint in three equal annual increases. If the commission finds that the year in dispute occurred during a time of recession, the applicable range will be ninety-five percent to one hundred two percent. For purposes of this subdivision (2)(j) of this section, recession occurrence means the two nearest quarters in time, excluding the immediately preceding quarter, to the effective date of the contract term in which the sum of the net state sales and use tax, individual income tax, and corporate income tax receipts are less than the same quarters for the prior year. Each of these receipts shall be rate and base adjusted for state law changes. The Department of Revenue shall report and publish such receipts on a quarterly basis;
  • (iii) The parties shall have twenty-five calendar days to negotiate modifications to wages and benefits. If no agreement is reached, the commission’s order shall be followed as issued; and
  • (iv) The commission shall provide an offset to the public employer when a lump-sum payment is due because benefits were paid in excess of the prevalent as determined under subdivision