10 CIR 101 (1989)


Petitioner, |
Respondent. |


For the Petitioner: Mark D. McGuire

Crosby, Guenzel, Davis,

Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska 68508

For The Respondent: L. Bruce Wright

Cline, Williams, Wright,

Johnson & Oldfather

1900 FirsTier Bank Bldg.

Lincoln, Nebraska 68508

Before: Judges Peetz, Cope, and Orr



The Nebraska Western College Education Association filed a petition on July 27, 1988 seeking an order establishing wages and other terms, tenure and conditions of employment for the teaching-faculty members of the Association. The Respondent, Western Technical Community College Area, is one of six statutorily created post-secondary technical community college areas in the State of Nebraska emphasizing occupational education. Neb. Rev. Stat. ยงยง 79-2636 et seq. (Reissue 1987). The parties are in dispute as to the wages, terms, and conditions of employment for the 1988-1989 school year.

The Respondent filed its Answer and Counterclaim on August 22, 1988, whereupon the Petitioner filed various motions and an Answer to Respondent's Counterclaim. A Hearing was held on the motions and the Respondent was ordered to file an amended answer. A pretrial conference was set for November 17, 1988. The pretrial was subsequently rescheduled and a hearing was scheduled for December 19 and 20, 1988. The hearing was held as scheduled. The transcript was filed with the Commission on January l7, l989 and simultaneous briefs were filed by the parties on or about January 3l, l989.

At the pretrial conference the parties stipulated that the work, skill, and working conditions of the faculty employed by Mid Plains Technical Community College Area, Central Technical Community College Area, Northeast Technical Community College Area, Southeast Technical Community College Area, and Metropolitan Technical Community College Area are sufficiently similar and satisfy the standards set forth in Section 48-818 to permit a comparison of terms and conditions of employment if included in the array of compared to employers.

At the outset of the trial the parties entered into five stipulations concerning the issues and the methodology to be used in resolving this dispute. The stipulations are as follows:

1) The sole issue in the case will be array composition and the percentage increase or decrease in compensation for the 1988-89 contract year;

2) For purposes of this case, compensation will be calculated, compared, and adjusted using daily contract salaries and insured health, life, and long-term disability benefits; and excluding specifically social security and retirement benefits;

3) Absent a determination by the Commission to adjust salaries on a discipline by discipline basis, any increases shall be distributed first to fund the increase in health insurance for the 1988-89 contract year; secondly, to provide horizontal movement in accord with the 1987-88 agreement; and finally to provide an across the board percentage salary increase to bargaining unit faculty;

4) Except for any increase in health insurance or horizontal movement which may occur should the Commission order a salary adjustment in this case, the terms and conditions of employment set forth in the 1987-88 collective bargaining agreement between the parties shall remain unchanged for the 1988-89 contract year;

5) In the event the Commission determines an array composed solely of Nebraska employments to be appropriate, the Commission shall not reduce compensation paid to faculty below that currently paid, including any increase approved by the board prior to the date of this hearing.

The Commission was informed at the hearing that the Respondent, on the eve of trial, approved and was implementing a four percent raise for all faculty members, retroactive to the beginning of the school year presently in dispute.


The controlling statute is Neb. Rev. Stat. Section 48-818 (Supp. 1987) which provides in pertinent part:

The findings and order or orders 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 same or similar working conditions. In establishing wage rates the commission shall take into consideration the overall compensation presently received by the employees, having regard not only to wages for time actually worked but also to wages for time not worked, including vacations, holidays, and other excused time, and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees.


The sole issue before the Commission is the composition of the array and the prevalent wage to be set based on the array. The Petitioner proposed seven institutions as comparables, the four Nebraska Technical Community College Areas which at the time of trial had reached agreement for 1988-89 (Mid-Plains, Central, Northeastern and Southeastern), and Laramie County Community College, Eastern Wyoming College, and Northeastern Junior College. The Respondent has presented only the four Nebraska Technical College Areas listed above as comparables.

The parties agreed that the Commissions traditional criteria of size and geographic proximity have no relevance in this case. Petitioner contends that there must be more than four institutions in the chosen array and that the three out-of-state schools offered exhibit similar work, skills and conditions and should thus be included. Respondent contends that only the Nebraska community colleges should be included because they share a community of interest; there is a strong public policy in favor of a Nebraska only array; and, there are fundamental and overwhelming differences between the Nebraska schools and the out-of-state schools.

As in any wage case under Section 48-818, the primary concern of the Commission is determining which, if any, of the proposed array points have been proven to have the same or similar work of workers, exhibiting like or similar skills, under same or similar working conditions. As always, this is a factual decision based on the evidence presented by the parties at the time of trial.

The parties stipulated that the faculty employed at the Nebraska Technical Community Colleges and the faculty employed at Western are sufficiently similar and satisfy the standards set forth in Section 48-818 so as to permit a comparison of terms and conditions of employment. While the Commission is not bound by such a stipulation, the record is replete with evidence demonstrating similarity between the Nebraska Community Colleges. While neither party contends that all of the Nebraska schools are identical, there is considerable evidence and testimony as to similarity of work, skills and working conditions. The four Nebraska Technical Schools which have reached agreement for 1988-89 will thus be included in the Commission's array.

There are three additional technical colleges offered as comparables; Laramie County Community College (LCCC), Eastern Wyoming College (EWC), and Northeastern Junior College (NJC). LCCC and EWC are located in Wyoming, while NJC is located in Colorado. The Petitioner proposed these three schools as comparables and presented expert testimony concerning the similarity of work, skills and working conditions (92:1-22). The Respondent strongly contests inclusion of these schools in the Commission's array and presented expert testimony as to their noncomparability (403:19 through 405:6).

From a thorough review of the record, the Commission finds the weight of the evidence supports exclusion of these out-of-state schools.

The Petitioner's expert testified that he reviewed various materials sent to him from the respective community colleges including catalogs, contracts and questionnaires (78:3 through 86:2). He also reviewed a publication entitled Petersen's Guide to Two Year Colleges (55:11 through 59:10). Based on his review the Petitioner's expert stated that in his opinion work, skills and working conditions were similar enough that the Commission could include these institutions in its array to determine what is prevalent (92:5-22).

Upon cross examination the Petitioner's expert testified that generally all community college instructors are the same regardless of location (105:4 through 106:1). However, he further testified that work, skills and working conditions would be affected by a variety of things such as role and mission, institutional setting, continuing education requirements, program offered and institutional governance (112:24 through 132:6).

Petitioner's expert relied mainly on Petersen's Guide to compare some of these characteristics of his offered institutions (Petitioner's Exhibit 54). Using Petersen's guide, the Petitioner's expert determined that all of the Nebraska schools offered have over a fifty percent match of majors offered while the out-of-state schools all have under a fifty percent match (Petitioner's Exhibit 55). Although Petersen's Guide lists all of the offered institutions, except LCCC, as having both State and local control, the Petitioner's expert did not consult the statutory directives for the out-of-state schools and compare them to the Nebraska statutes which guide Western (130:2-8).

Respondent's expert testified that in his opinion the faculty at NJC, LCCC, and EWC do not possess similar skill, perform similar work or work under similar working conditions as the faculty at Western (403:19-405:6). In support of his position Respondent's expert presented considerable testimony as to differences in governance structure, (i.e. Wyoming schools are all state controlled), program emphasis as evidenced by faculty assignment, and mission emphasis as evidenced by program match. In effect Respondent's expert presents substantial evidence that EWC, LCCC and NJC are primarily academic and emphasize the academic programs at their institutions, while the Nebraska institutions emphasize vocational education. These fundamental differences are sufficient to warrant that the out-of-state schools not be included in the Commission's array.


The Petitioner used an institutional average of matched faculty in determining the prevalent wage rate, see Table 1. The Respondent used the aggregate of the midpoints of the array's per discipline total compensation figures, see Tables 2 and 3. Both the Petitioner's and the Respondent's methods for computing compensation in this case indicate that Western's compensation is comparable or slightly above the prevalent. The parties did however stipulate that if the array consisted only of Nebraska schools the Western faculty compensation should not be reduced and the Commission thus finds that Western's current compensation, which includes the 4% increase given on the eve of trial, should remain unchanged.


1. That there be no change in the compensation currently received by the Western faculty.

2. That all other terms and conditions of employment set forth in the 1987-88 collective bargaining agreement between the parties shall remain unchanged for the 1988-89 contract year.

All judges assigned to the panel in this case join in the entry of these Findings and Order.

Entered April 18, 1989.