10 CIR 110 (1989)


Petitioner, |
Respondent. |


For the Petitioner: Mark D. McGuire

Crosby, Guenzel, Davis,

Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska 68508

For the Respondent: William Jay Riley

Fitzgerald, Schorr, Barmettler

& Brennan

1000 Woodmen Tower

Omaha, Nebraska 68102

Before: Judges Orr, Cope, and Peetz



The Metropolitan Technical Community College Education Association filed a petition on August 11, 1988 seeking a determination pursuant to Neb. Rev. Stat. Section 48-818 resolving the parties dispute concerning wages and various terms and conditions of employment. The Respondent, Metropolitan Technical Community College Area, is a technical community college area organized and existing under and by virtue of the State of Nebraska, Neb. Rev. Stat. 79-2636 et. seq. (Reissue 1987). The parties are in dispute as to the terms and conditions for the 1988-1989 school year.

The Respondent, along with its answer, filed a Motion for Indefinite Continuation and Motion for Order Establishing Array. The Commission overruled Respondent's motions. The Respondent also requested mediation and the Commission ordered the parties to mediation in hopes of resolving the dispute. As the matter was not resolved through mediation, a hearing was held in this matter on December 14, 15, 16, 1988 and January 25, 1989.

The issues to be decided, as listed at pretrial, are:

1) Paid health, life, and disability insurance and the employer contribution thereof.

2) Salary schedule.

3) Salaries.

4) Amount of compensation paid for part-time contracts.

5) Amount of compensation paid for "teaching overloads."

6) Amount of compensation paid for summer school teaching contracts and sub-issue of accrual of sick leave for summer work.

7) Compensation for normal work week.

8) Compensation for normal work day.

9) The establishment of full-time equivalency factors for determining full or part-time work loads as the same relate to lectures, laboratories, clinicals and practicums.

10) Reduction in force procedures.


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.


Following the submission of post trial briefs, Petitioner filed a Motion to Strike and Brief in Support of Petitioner's Motion to Strike. The Petitioner contends that portions of Respondent's post trial brief and the tables attached to the brief are beyond the evidence introduced at trial and are an attempt to supplement the record. The Petitioner argues that acceptance of the additional evidence denies Petitioner's right to cross-examine, object, and offer rebuttal evidence.

Most of the tables attached to Respondent's brief were introduced as potential exhibits at the time of the pretrial. However, for whatever reason, Respondent chose not to offer the exhibits and instead included them as part of its post trial brief. While most of the numbers set out on these tables are otherwise contained in the record, the series of tables actually presents Respondent's methodology for computation of compensation and theory of presenting its case. Although Petitioner had opportunity to cross examine as to the validity of the underlying numbers, the Petitioner was not afforded opportunity to question Respondent's use of or methodology for arriving at conclusions using those numbers.

The Commission must by directive of Section 48-818 set wages at a level comparable to the prevalent wage level of the array. Section 48-818 does not set out any formula for arriving at the prevalent wage and each party to a wage suit generally presents their own formula for deriving the prevalent wage figure from the base data. The methodology thus constitutes an integral part of any wage case brought before the Commission. If a party does present a unique methodology, it must include competent reliable evidence as to how the methodology applies to the base data. This explanation must also be subject to cross-examination and objection.

In the present case, the Commission finds that many of the exhibits attached to Respondents Post-Trial Brief do contain additional evidence beyond that introduced at trial. The Commission will not consider any of the evidence not otherwise contained in the record.


The Petitioner proposed an array consisting of Northeastern Community College Area, Southeastern Community College Area, Midplains Community College Area, North Hennipin Community College, Pikes Peak Community College and Madison Area Technical College. North Hennipin is located in Minnesota; Pikes Peak is located in Colorado; and Madison Area Technical College is located in Wisconsin.

The Respondent proposes two arrays, one consisting of the three Nebraska institutions proposed by Petitioner and Central Nebraska Community College Area and another consisting of the four Nebraska area colleges (Northeastern, Southeastern, Midplains, Central) and Iowa Western Community College. The Respondent contends that an array consisting of the four proposed Nebraska colleges is most appropriate but if the Commission finds that a larger array is necessary then Iowa Western, although not otherwise comparable, shares unique contacts and community of interest with Metropolitan Community College and should be included in the Commission's array.

In reviewing the evidence presented at trial, it is clear that there are three proposed array points which the Commission is unable to consider for inclusion in its array; Madison Technical Community College, North Hennipin College, and Iowa Western Community College. The evidence presented as to Madison and Iowa Western is not in such a form that the Commission is able to adapt the data to the methodology we choose to implement. Specifically, the Commission is unable to accurately determine what progress each faculty member is employed in and whether that program is similar to one offered by Metro. The data introduced by Petitioner on North Hennipin is unauthenticated and unverified and can't be used.

The Commission had difficulty in adapting much of the evidence to a workable form, particularly with Respondent's exhibits. The Commission was not supplied with any of the calculations or equations Respondent used in the construction of its case. The peril involved is that if there is a question as to the validity of a number such as the average daily contract rate, the Commission is unable to look to the base data of the array point and apply the correct equation to check the accuracy of the calculations. The Commission must then either ignore the questions raised as to the conclusion or, as the Commission has done in the past when the evidence is unclear or inadequate, refuse to include that array point in determining the prevalent. See Southeast Comm. College Faculty Ass'n v. Southeast Comm. College, 6 CIR 380 (1983). In the present case the raw data is fortunately accessible and available not from Respondent but from an exhibit introduced by Petitioner. The Commission is thus able to consider most of the array points offered by the parties with the exception of Madison, North Hennipin and Iowa Western, as set out above.

At the Pretrial Conference the parties were informed that they had until November 28, 1988 to file with the Commission a statement regarding comparability of work, work skills and working conditions. If such filing was not received regarding this matter, the Commission would assume that all proposed array points were comparable. The Petitioner did not file anything challenging comparability but the Respondent objected to the inclusion in the Association's array of all non-Nebraska institutions. Thus the parties agree that all of the Nebraska Community Colleges offered exhibit sufficient similarity of work, skill and working conditions to permit a comparison under Section 48-818. The record also contains evidence that Northeastern Community College Area, Southeastern Community College Area, Midplains Community College Area and Central Community College Area are comparable to Metropolitan Community College in role and mission, program offered, governance structure and various other suggested comparibility criteria. These Nebraska institutions will thus be included in the Commission's array.

The Commission must now determine if Pikes Peak, the remaining out-of-state school, is sufficiently similar for comparison under Section 48-818. The Petitioner's expert testified that in his opinion a community college instructor is a community college instructor (150:10-18). Petitioner's expert further testified that the program offered impacts work and working conditions and similarity of program indicates similarity of working conditions (153:21 to 154:10). Petitioner's expert concluded that there was sufficient similarity of the institutions offered by Petitioner that comparison would be appropriate with all of them (154:24 to 155:1) Petitioner offered evidence on the role and mission of Pikes Peak (Exhibit 9-C) and the similarity of program offered, (Exhibits 11-A and 21).

Respondent argues that Pikes Peak has a dissimilar role and mission, and has a different governance system due to a different statutory framework, thereby, making it inappropriate for inclusion in the Commission's array. However, a comparison of the mission statements of Metro and Pikes Peak as set out in their catalogs indicates that they have very similar missions. Furthermore, although the Nebraska community colleges are governed by local boards and Pikes Peak is governed by a state board, the Commission is unable to find evidence supporting the theory that these institutions are thus non-comparable for purposes of 48-818. The Commission thus finds that Pikes Peak is sufficiently similar for inclusion in the Commission's array.


Respondent's case in chief was centered upon presentation of a statistical regression analysis which examined the correlation between certain variables and the rate of pay. Respondent's expert testified that she analyzed the effect upon pay of tenure, prior teaching experience, prior occupational experience and education. Respondent's expert further testified that only tenure had a consistently strong correlative relationship with pay. However, the expert acknowledged that "pay has numerous things that it's a function of" (623:20-25) and that tenure is not the sole influence on pay (624:1-2).

The Respondent argues that because there is a strong correlative relationship between pay and tenure the compensation figures for the array institutions have to be adjusted to reflect the lower average tenure at Metro. When Petitioner attempted to cross-examine Respondent's expert as to how to apply her findings or how the adjustments were to be made, Respondent's expert testified that the information was beyond the scope of her testimony (641:9-25). Respondent never presented any further testimony as to the validity of adjusting the compensation rate based on the linear regression results.

The Commission has consistently found that in order to apply any economic deflator or adjustment factor there must be similarity of the data universe from which the statistics were taken, Omaha Ass'n of Firefighters v. City of Omaha, 3 CIR 410, 413 (1978). In the present case Respondent's expert had no input into assimilation of the data and the person responsible for collecting the data could not say how their proposed array institutions counted tenure (354:1-4). For these reasons the Commission finds that there is insufficient evidence to adjust the wage figures for tenure as the Respondent suggests.


The parties to this dispute suggested different methods of calculating the prevalent compensation rate. Petitioner suggested that the Commission determine the prevalent using the institutions daily average contract rate plus the daily average fringe benefit multiplied by the average number of contract days and the number of Metro faculty. In deriving the daily contract rate for each proposed institution, the Petitioner uses only matched faculty and determines which faculty should be included by using a narrow matching analysis.

The Respondent also uses matched faculty in determining a prevalent compensation rate but the Respondent groups the faculties according to a broad subject area analysis (i.e. all social science instructors are grouped together). In Board of Regents v. Am. Ass'n of Univ. Professors, 7 CIR 1 (1983) (hereinafter referred to as UNO) , the Commission held that the most accurate method of matching faculties was to match faculty teaching similar subjects regardless of the department name. The Commission indicated that it was not necessary to precisely match departments by name because different institutions often organized or titled departments differently. Similarly, in the case of community colleges, it is apparent that there are certain similar subject areas at all community colleges that should be compared regardless of whether the titles given certain classes within the subject area match. Respondents' method of matching faculty more closely resembles the method used in UNO and the Commission will thus determine matched faculty using Respondent's method. In applying Respondent's method, all of the faculty members of the array points are included except for the agriculture and general education teachers as Metro has no faculty in these disciplines.

In Southeast Community College Faculty Ass'n v. Southeast Community College, 6 CIR 380 (1983), the Commission used institutional averages to determine the prevalent wage rate. The Commission found that community colleges should not be precluded from a wage determination under Section 48-818 because precise comparison of wages, work and skills are not practicable, Southeast 6 CIR at 382. In UNO, supra, the Commission determined an average for each discipline but aggregated at the institutional level to minimize the effects of differences in methodology and so as to preserve the differentials between departments.

In the present case the Commission finds that an institutional average may accurately be used to determine the prevalent compensation rate. It is not necessary to determine discipline weighted averages due to the overall homogeneity of the community colleges included in the Commission's array. Thus, the Commission will use the daily institutional average of matched faculty to determine the prevalent compensation rate.

In applying this methodology to the array chosen by the Commission, it is clear that the Metro faculty is 6.19% below the prevalent compensation rate, See Table 1. We therefore find that compensation for Metro bargaining unit employees should be increased by 6.19%.

The Petitioner in its Post Trial Brief suggests that the only remaining issues for resolution are health insurance contribution and wages. A review of the record indicates that there was little if any evidence introduced as to the other issues identified at the pretrial so the Commission will make no changes in the current practices as to these issues.

It is clear from Table 2 that the prevalent practice is to pay 100% of the 1988-89 premium for family health insurance. Metro is currently contributing to health insurance at the 1987-1988 rate. Metro, in keeping with the prevalent, shall first allocate the increased compensation to increasing the health insurance contribution rate. The remaining increased compensation shall be allocated to increasing wages on an equal percentage basis.


1. That overall compensation for bargaining unit employees be increased by 6.19% with the increase allocated first to payment of the 1988-1989 health insurance contribution rates and the remainder to increasing wages on an equal percentage basis.

2. All other terms and conditions of employment are not effected by this Order.

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

Entered May 12, 1989.