Testimony Prepared for the Business and Labor Committee, February 7, 2011
My name is Bill Pratt, and I am a history professor at UNO. I also am the chief negotiator for the UNO American Association of University Professors, who represents approximately 490 faculty members. Today, I appear on behalf of the UNO AAUP to speak in opposition to LB 555.
The sole purpose of LB 555 is to eliminate the Special Master process in Nebraska labor law as it applies to state employees and employees of the state college and university systems. Our position is that the Special Master process has proven its effectiveness over the past twenty-five years since it was enacted in the State Employees Collective Bargaining Act, and its elimination would be a big step backward, leading to increased delays, expenses and disruption for both state employees and their employers.
The Special Master process is quick; it is inexpensive; it is fair; and it is good public policy. As the current law provides, the Special Master must chose between the final offer of both parties; he or she cannot split the difference. For example, if the union asks for 10 percent and the state offers 1 percent, the Special Master must chose between 10 percent and 1 percent. He or she has no other option. This requirement forces each side to be realistic and conservative when it crafts its final offer. The UNO AAUP and the NU Board of Regents have gone to the Special Master level seven times. Since the mid-1990s, the difference between the final offers has been small. In 1997, it was between 3.8 percent and 4.55 percent; in 2003, between 3 percent and 1.75 percent, in 2007, between 3.5 percent and 4.3 percent, and, in 2009, 2.9 percent the first year and 2.5 percent the second year versus 3.8 percent both years. Since the mid- 1990s, the UNO faculty has received higher raises through negotiated settlements than through the Special Master process. As a practical matter, we would always prefer to have negotiated settlements rather than go to the Special Master or CIR.
The current law provides a time-table that is tied to the Unicameral budgeting process. Unresolved issues go to a Special Master by January 15th, and the Special Master must issue his decision by February 15th. While there is provision for an appeal to the CIR, only once out of the seven times that the UNO AAUP and the NU Board of Regents have utilized the Special Master process has either party appealed the decision. (I might add that in that case, the CIR affirmed the Special Master award.) The Special Master process is much quicker than a CIR resolution and makes it much easier for the state employer to seek funding and make budget decisions than waiting upon a CIR decision.
The Special Master process provides for a much less expensive resolution than a CIR case. The statute providing for the Special Master allows non-attorneys to represent the parties at the hearing, and neither the UNO AAUP nor the UNK Education Association have employed attorneys to represent them in such proceedings. The CIR, on the other hand, requires that the parties be represented by attorneys and also requires an expensive data collection process. About twenty-seven years ago, prior to the enactment of the State Employees Collective Bargaining Act, the UNO AAUP had to borrow $20,000 to cover expenses for a CIR hearing when the NU Board of Regents declared impasse, forcing such a proceeding. In most years that the UNO AAUP has gone to special Master, it has spent less than $5000 for its expenses, including its share of the Special Master’s fee and expenses. I think now a union representing state employees may have to spend tens of thousands of dollars for a CIR case. I do not know what the state of Nebraska or the NU Board of Regents spends in such situations. But the employment of external counsel and the utilization of staff time to prepare such cases must be expensive. The current process, on the other hand, is relatively inexpensive in terms of money and time.
The Special Master, who is always an experienced arbitrator whose credentials are on file at the CIR, routinely takes into account a range of issues in addition to comparability of wages and benefits. Specifically, in Special Master hearings in which I have participated since the mid-1990s, the Special Master always has considered the ability to pay, something the CIR does not take into account. Both sides present evidence on this matter and would act at their peril if they did not. In addition to comparability on wages and benefits and the ability to pay, the Special Master can consider the prior history of bargaining between the parties and what else normally is addressed in public sector bargaining. I might mention that in 2007, when both the salary increases for the UNO and UNK faculty were determined in Special Master hearings, the same arbitrator decided in favor of the union in one case and in favor of the NU Board in the other. He stated in the one case that if the union’s final offer had been for a slightly smaller increase he would have found in its favor; in the other case, he stated that if the union’s final offer had been for a slightly higher increase, he would have found in favor of the NU Board. Here was an example where the ability to pay clearly entered into the decision.
The law providing for the Special Master process has proven to be very effective legislation. It is quick; it is inexpensive; it is fair; and it is good public policy. The UNO AAUP recommends that LB 555 be rejected and that the Special Master mechanism be preserved in the State Employee Collective Bargaining Act.
If time permits, I have three recommendations that the Committee might consider:
(1) A copy of all Special Master decisions be filed with the CIR for a public record; (2) a transcript be prepared of all Special Master proceedings unless both parties agree it is unnecessary; and (3) in the event of an appeal of a Special Master decision, the appellant be required to pay the legal expenses of the other party if the Special Master decision is upheld on appeal.
William C. Pratt