14 CIR 127 (2003) 

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 APPEARANCES:

Pursuant to Neb. Rev. Stat. § 48-818 (Reissue 1998) Metropolitan Technical Community College Association (hereinafter the "Association" or "Petitioner"), filed a wage petition seeking resolution of an industrial dispute for the 2001-2002 contract year. The Association is a labor organization formed by all employees of Metropolitan Community College (hereinafter "Metro" or the "Respondent") who have received an "Annual Notice of Employment" for the positions of Instructors, Counselor, Vocational Evaluator, Campus Librarian, and all Academic Advisors. Metropolitan Community College is a community college that is organized and exists by virtue of Neb. Rev. Stat. § 85-1501 et. seq. (Reissue 1999).

The parties waived the sixty-day hearing requirement set forth in neb. Rev. Stat. § 48-813(2). The Commission held a trial on December 11 and 12, 2002. The issues at trial were the array composition for purposes of wage comparison, average daily compensation and percentage increase increment for the members of the bargaining unit, and the methodology used by the Commission in determining terms and conditions of employment.

The Commission has jurisdiction over the parties and subject matter of this action pursuant to § 48-818 (Reissue 1998) which provides in part:

…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…

In determining the employment units for purposes of comparison, the Nebraska Supreme Court has outlined the following:

In selecting employment units in reasonably similar labor markets for the purpose of comparison as to wage rates and other benefits, the question is whether, as a matter of fact, the units selected for comparison are sufficiently similar and have enough like characteristics or qualities to make a comparison appropriate.

Lincoln Firefighters Ass’n v. City of Lincoln, 253 Neb. 837, 842, 572 N.W.2d 369, 373 (1998) (citing Lincoln Co. Sheriff’s Emp. Ass’n v. County of Lincoln, 216 Neb. 274, 343 N.W.2d 735 (1984)).

The Supreme Court in Lincoln Firefighters set out the factors that should be considered when determining comparability. "As a general rule, it may be said that the factors most often used to determine comparability are geographic proximity, population, job descriptions, job skills, and job conditions." Lincoln Firefighters, 253 Neb. at 842, 572 N.W.2d at 373.

The parties agreed that two of the Nebraska community colleges are sufficiently similar to Metro, so that they may be used for comparison purposes in determining the prevalent wage rates and conditions of employment for the subject bargaining unit. These common community colleges are Southeast Community College, NE, and Central Community College, NE. Petitioner also proposes that Oakton Community College, located in Illinois; Des Moines Area Community College, located in Iowa; Johnson County Community College, located in Kansas; Pikes Peak Community College, located in Colorado; and Tulsa Community College, located in Oklahoma, should be included in the array for comparison purposes. Respondent proposes an array consisting of all of the Nebraska institutions jointly stipulated to and also Northeast Community College, Mid-Plains Community College, and Western Community College. Both parties stipulated that those employers, who satisfy the standards under Neb. Rev. Stat. § 48-818, have similar work, skills, and working conditions for the bargaining unit employees as compared to Metro. After careful review of the evidence, the Commission’s array for Metro shall consist of the following schools: Southeast Community College, NE; Central Community College, NE; Des Moines Area Community College, IA; Pikes Peak Community College, CO; Johnson County Community College, KS; and Tulsa Community College, OK. The array shall not include Oakton Community College, IL; Northeast Community College, NE; Mid-Plains Community College, NE; and Western Community College, NE.

In selecting an appropriate array of employers for purposes of an action under Neb. Rev. Stat. § 48-818, the Commission considers evidence of the work, skills and working conditions of employees in the bargaining unit with that of workers performing the same or similar work, who exhibit like or similar skills under the same or similar working conditions. "In selecting employment units in reasonably similar labor markets for the purpose of comparison as to wage rates and other benefits, the question is whether, as a matter of fact, the units selected for comparison are sufficiently similar and have enough like characteristics or qualities to make comparison appropriate." Douglas County Health Dep’t Employees Ass’n v. County of Douglas, 229 Neb. 301, 308, 427 N.W.2d 28, 35 (1988) (citation omitted).

The Commission has previously found that larger arrays are more statistically sound than smaller arrays. Adams Co. Dist. No. 0060 Educ. Ass’n v. Adams Co. School Dist. No. 0060, 10 CIR 242 (1990). The Commission has also expressed that it would prefer arrays containing more than four (4) or five (5) members whenever possible. Grand Island Educ. Ass’n v. Hall Co. School Dist. No. 0020, 11 CIR 237 (1992); Douglas Co. Health Dep’t Employees Ass’n v. County of Douglas, 9 CIR 219 (1987). The Commission has held that arrays consisting of six (6) to eight (8) members are appropriate. Coleridge Educ. Ass’n v. Cedar Co. School Dist. No. 14-0541 a/k/a Coleridge Community Schools, 13 CIR 376 (2001); O’Neill Educ. Ass’n v. School Dist. of Red Cloud, 10 CIR 120 (1989); Logan Co. Educ. Ass’n v. School Dist. of Stapleton, 10 CIR 1 (1988); Trenton Educ. Ass’n v. School Dist. of Trenton, 9 CIR 201 (1987). The Commission has also found in the past that if potential array members share similar work, skills, and working conditions, the Commission will include all of the schools submitted in the array unless there is specific evidence that to do so would be otherwise inappropriate or would make the array unmanageable. Geneva Educ. Ass’n v. Filmore County School Dist. No 0075, 11 CIR 38 (1990); Lynch Educ. Ass’n v. Boyd County School Dist. No. 0036, 11 CIR 25 (1990). However, even in such cases, the Commission does not disregard the size and geographic guidelines. See Id. The Commission need not consider every conceivable comparable, but only "a sufficient number in a representative array so that it can determine whether the wages paid or the benefits conferred are comparable." Nebraska Pub. Employees Local Union 251 v. County of York, 13 CIR 157 (1998). There was no evidence presented at trial that would suggest the Commission should not include Des Moines Area Community College in the array to determine prevalent wage rates for the 2001-2002 contract year at Metro Tech.

Both the Respondent and the Petitioner stipulated to include Southeast Community College and Central Community College in the Commission’s array. Both array community colleges fit the Commission’s traditional size and proximity guidelines and have faculty who perform similar work and have similar skills and working conditions. There was no evidence presented at trial that would suggest the Commission should not include either Southeast Community College or Central Community College in the array to determine prevalent wage rates for the 2001-2002 contract year at Metro. Therefore, the Commission will include both Southeast Community College and Central Community College in its array.

Respondent argues that Northeast Community College, Mid-Plains Community College and Western Community College should be included in the Commission’s array to stay within the State of Nebraska and because all of the Nebraska schools follow the same general statutory framework. Petitioner argues against the inclusion of these three Nebraska community colleges because the colleges do not fall within the general size guidelines of the Commission.

When choosing an array of comparable employers, the Commission applies a well-established size guideline of one-half to twice as large. See, Yutan Educ. Ass’n v. Saunders County School Dist. No. 0009, 12 CIR 68 (1994); Crawford Teachers Ass’n v. Dawes County School Dist. No. 0071, 11 CIR 254 (1991); Red Cloud Educ. Ass’n v. School Dist. of Red Cloud, 10 CIR 120 (1989); FOP, Sarpy Lodge No. 3 v. County of Sarpy, 10 CIR 61 (1988); Culbertson Educ. Ass’n v. School Dist. of Culbertson, 10 CIR 29 (1988); Papillion-LaVista Educ. Ass’n v. School Dist. of Papillion-LaVista, 10 CIR 18 (1988); Logan County Educ. Ass’n v. School Dist. of Stapleton, 10 CIR 1 (1988); Chapman Educ. Ass’n v. School Dist. No. 9, 9 CIR 293 (1988); Wayne Educ. Ass’n v. School Dist. of Wayne, 9 CIR 281 (1988); Grand Island Educ. Ass’n v. School Dist. No. 1, 9 CIR 173, 9 CIR 181 (1987); Rodeo Telephone, Inc. Employees Ass’n v. Rodeo Telephone, Inc., 9 CIR 118, 9 CIR 150, 9 CIR 170 (1987). Employers falling outside this guideline are often excluded from arrays; however, the size criteria used by the Commission is a general guideline and not a rigid rule. Nebraska Pub. Employees Local Union 251 v. Sarpy County, 13 CIR 50 (1998); Nebraska Pub. Employees Local Union 251 v. County of York, 13 CIR 128; 13 CIR 157 (1998); 12 CIR 309; 12 CIR 248 (1997); Lincoln Firefighters Ass’n Local 644 v. City of Lincoln, 12 CIR 211; 12 CIR 221 (1996); Crawford Teachers Ass’n v. Dawes County School Dist. No. 0071, 11 CIR 254 (1991). Nonetheless, since the size guideline is based on objective criteria, it provides predictability and should not be lightly disregarded when a sufficient number of comparables which meet the guidelines exist. See School Dist. of West Point v. West Point Education Ass’n, 8 CIR 315 (1986); Richland Teachers Educ. Ass’n v. Colfax County School Dist. No. 0001, 11 CIR 286 (1992).

Northeast Community College, Mid-Plains Community College and Western Community College are significantly less than half of the annualized enrollment of Metro Community College. Northeast Community College’s annualized student enrollment is 7,237 for the 2001-2002 school year. Mid-Plains Community College’s annualized student enrollment is 5,237 for the 2001-2002 school year. Western Community College’s annualized student enrollment is 3,121 for the 2001-2002 school year. All three schools are less than one-half the number of students enrolled at Metro Community College, which was 25,856 annualized for the 2001-2002 school year. The Commission finds that Northeast Community College, Mid-Plains Community College and Western Community College should be excluded from the array based on size criteria. (See Table 1 for size information.)

Furthermore, in reviewing the evidence presented at trial, it is clear that the three above proposed array points are also unusable because of lack of placement evidence. The evidence presented as to Northeast Community College, Mid-Plains Community College, and Western Community College is not in such a form that the Commission is able to adapt the data to the methodology we choose to implement. However, because the three Nebraska Community Colleges fall significantly below the size criteria, we do not find it necessary to address the issue.

The Respondent also argues that because the Commission has in the past included the three above Nebraska institutions in an array for Metro, it must do so again in the instant case. The Commission has in the past included the proposed Nebraska community colleges in an array for Metro. See Metropolitan Technical Community College Education Ass’n v. Metropolitan Technical Community College, 10 CIR 110 (1989). However, the evidence presented in the instant case clearly shows that Northeast Community College, Mid-Plains Community College and Western Community College do not fall within the Commission’s general size criteria. The Commission declines to use the three smaller Nebraska Community Colleges in its array. While there are strong policies in favor of using an array of comparable Nebraska array members, rather than using array members from outside of the State of Nebraska, we cannot only consider the employers located inside the State of Nebraska because of the above stated reasons. Therefore, we must review the proposed out-of-state employers, since two employers (Southeast Community College and Central Community College) do not constitute a large enough array to provide adequate data for determining a prevalent wage rate. General Drivers & Helpers Union, Local 554 v. Saunders County, 6 CIR 134 (1982).

The Petitioner argues that the Commission should include Oakton in its array because it fits the enrollment size criteria, it is a mega-connector school, it has earned North Central accreditation, it is within a 600-mile radius, and the school has similar work, skills and working conditions to Metro. Respondent argues that it should not be included in the Commission’s array because it does not follow Nebraska’s statutory framework for governance and it allows faculty ranking.

The Commission has held that where the parties have stipulated or proved similarity of work, skills, and working conditions we will include all of the schools submitted in the array unless there is specific evidence that this comparable is otherwise inappropriate or unless the array becomes unmanageable. Geneva Educ. Ass’n v. Fillmore County School Dist. No. 75, 11 CIR 38, 11 CIR 46 (1990). Furthermore, the Commission has discretion in arriving at comparables. Milligan Educ. Ass’n v Johnson County School Dist. No. 33, 11 CIR 108 (1991).

While Oakton Community College meets the Commission’s general size and proximity of proposed array members to Metro, the evidence presented at trial does not indicate that Oakton has sufficiently similar work, skill and working conditions to make an appropriate comparison. Specifically, ranking directly impacts Oakton Community College faculty members.

The evidence presented at trial shows that Oakton does not have a pure ranking system like a university, but it also does not have a pure placement system like Metro. As stated in Oakton’s negotiated agreement, rank affects the F lane placement. A faculty member must have the rank of Professor to be considered for the F lane. Once a faculty member at Oakton receives the rank of Professor, he or she is not automatically placed in the F lane; instead such discretion is given to the faculty member’s superiors.

Furthermore, unlike Metro, the different placement lanes can take into account up to one-third (1/3) of alternative credit. Alternative credit includes publishing a book, drafting an article, authoring a book, editing a book, or teaching a workshop, seminar or audit course. This alternative credit functions as an additional method of achieving a change in salary lanes. Therefore, the Commission will not include Oakton in our array because the rank and alternative credit directly impact the salaries of the faculty at Oakton.

The Petitioner argues that the Commission should include Des Moines Area Community College in its array because it fits the enrollment size criteria, it is a mega-connector school, it has earned North Central accreditation, it is within a 600-mile radius, and the school has similar work, skills and working conditions to Metro. Respondent argues that it should not be included in the Commission’s array because it does not follow Nebraska’s statutory framework for governance.

Des Moines Area Community College fits the Commission’s traditional size and proximity guidelines and has faculty who perform similar work and have similar skills and working conditions. There was no evidence presented at trial that would suggest the Commission should not include Des Moines Area Community College in the array to determine prevalent wage rates for the 2001-2002 contract year at Metro Tech. The evidence presented at trial clearly points out that Des Moines does not have any form of ranking at the community college. Therefore, the Commission will include Des Moines Community College in its array.

The Petitioner argues that the Commission should include Johnson County Community College in its array because it fits the enrollment size criteria, it is a mega-connector school, it has earned North Central accreditation, it is within a 600-mile radius, and the school has similar work, skills and working conditions to Metro. Respondent argues that it should not be included in the Commission’s array because it does not follow Nebraska’s statutory framework for governance and it allows faculty ranking.

Johnson County Community College fits the Commission’s traditional size and proximity guidelines and has faculty who perform similar work and have similar skills and working conditions. The only evidence presented at trial on the issue of ranking was Johnson County’s negotiated agreement. The negotiated agreement lists those faculty members with less than two years of experience as Assistant Professor; those with three to ten (3-10) years of experience as Associate Professor; and those with ten (10) or more years of experience as Professor. However, none of the titles affect the salaries of those individuals, as the only weight given in determining wages is to degrees earned and years worked. The negotiated agreement is silent as to rank other than defining the titles in the "definitions section," and it does not affect the work, skills, and working conditions of the employees at Johnson County. Considering the evidence presented at trial, Johnson County does not have any form of ranking other than honorific titles at their community college. The Respondent offered no evidence that ranking directly affects salaries of the faculty at Johnson County. Therefore, the Commission will include Johnson County in its array.

The Petitioner argues that the Commission should include Pikes Peak Community College in its array because it fits the enrollment size criteria, it is a mega-connector school, it has earned North Central accreditation, it is within a 600-mile radius, and the school has similar work, skills and working conditions to Metro. Respondent argues that it should not be included in the Commission’s array because it does not follow Nebraska’s statutory framework for governance and it allows faculty ranking.

Pikes Peak Community College fits the Commission’s traditional size and proximity guidelines and has faculty who perform similar work and have similar skills and working conditions. The only evidence presented at trial on the issue of ranking was Pikes Peak catalog. In the catalog, 23/395 (5.82%) faculty members are listed as Assistant Professor, Associate Professor or Professor. While this evidence suggests that some of the faculty members are given these traditional ranking titles, there is no direct evidence on the effect of the ranking titles. The negotiated agreement is not entered into evidence, so the Commission has no evidence to consider as to whether ranking impacts the community college’s work, skills, or working conditions. Considering the evidence presented at trial, Pikes Peak does not have any form of ranking other than honorific titles at their community college. The Respondent offered no evidence that ranking directly affects salaries of the faculty at Pikes Peak. Therefore, the Commission will include Pikes Peak in its array.

The Petitioner argues that the Commission should include Tulsa Community College in its array because it fits the enrollment size criteria, it is a mega-connector school, it has earned North Central accreditation, it is within a 600-mile radius, and the school has similar work, skills and working conditions to Metro. Respondent argues that it should not be included in the Commission’s array because it does not follow Nebraska’s statutory framework for governance and it allows faculty ranking.

Tulsa Community College fits the Commission’s traditional size and proximity guidelines and has faculty who perform similar work and have similar skills and working conditions. The only evidence presented at trial on the issue of ranking was Tulsa’s catalog. In the Tulsa catalog, all faculty members are listed either as Assistant Professor or Instructor. While this evidence suggests that some of the faculty members are given these traditional ranking titles, there is no direct evidence on the effect of the ranking titles. The negotiated agreement is not entered into evidence, so the Commission has no evidence to consider as to whether ranking impacts the community college’s work, skills, or working conditions. Considering the evidence presented at trial, Tulsa does not have any form of ranking other than honorific titles at their community college. The Respondent offered no evidence that ranking directly affects salaries of the faculty at Tulsa. Therefore, the Commission will include Tulsa in its array.

The Commission finds that the community colleges Southeast Community College, Central Community College, Des Moines Area Community College, Johnson County Community College, Pikes Peak Community College and Tulsa Community College are sufficiently comparable in number to constitute the array. Therefore, the Commission will use the above stated community colleges in its wage determination for Metro.

Petitioner argues that in higher education cases, the Commission, due to the absence of indexed salary schedules, must discipline match faculty at Metro to the other array schools. Petitioner further reasons that the Commission has followed the above-stated methodology in the previous Metro case. See Metropolitan Technical Community College Educ. Ass’n v. Metropolitan Technical Community College, 10 CIR 110 (1989) (citing Board of Regents of University of Nebraska v. American Ass’n of University Professors, 7 CIR 1 (1983) (hereinafter the "UNO case"). However, the Respondent argues, the Commission should not follow precedent, but instead perform no job matches, using only raw institutional averages to come up with comparable wages. The Respondent also argues that the Commission should make adjustments for differences in weekly hours worked.

Neb. Rev. Stat. § 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 base data. The methodology thus constitutes an integral part of any wage case brought to 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. Metropolitan Technical Community College Educ. Ass’n v. Metropolitan Technical Community College, 10 CIR 110 (1989) (hereinafter, "Metro I").

In UNO, the Commission chose to match the UNO departments with the same subject areas that were being taught only at those peer institutions, which had similar matches. The Commission used a methodology which first computed the total compensation which the matched faculty would have received at each of the peer institutions and the total compensation which those matched faculty were actually paid at UNO for the year in question. The Commission then aggregated those comparative salaries to determine the aggregate total compensation that the matched staff would have made at all of the compared-to institutions and the aggregated total compensation all the matched staff were actually paid by UNO. Finally, the Commission determined the aggregate percentage differential. The Commission used an aggregate percentage calculation because the difference in the work between UNO and the compared to universities did not allow the Commission to do a one-on-one match of faculty but instead allowed the Commission to aggregate only the faculty in common classes of discipline, degree, and rank.

In Metro I, the Commission held that community colleges should be subject to the method of matching faculties where the Commission would match faculty who were teaching similar subjects, regardless of the department name. The Commission used the daily institutional average of matched faculty to determine the prevalent compensation rate.

In the instant case, Petitioner’s method of matching faculty resembles our previous decision in UNO and Metro I and the Commission will thus determine matched faculty using Petitioner’s method including making no adjustments for weekly hours worked.

Finally, the Respondent argues that the Commission should not follow Educational Service Unit No. 13 Education Ass’n v. Educational Service Unit No. 13, 14 CIR 1 (2002) (hereinafter "ESU 13") in deciding fringe benefits because it does not allow for management choice in controlling costs to the district. The Petitioner argues that the Commission should follow the precedent set forth in ESU 13.

In ESU 13, the Commission held that each employee would make an economically rational choice to accept the maximum fringe benefits available to him or her (single or family), and will be so placed on the array. ESU 13, 14 CIR at 7. This method also allowed the Commission to consistently determine "total compensation" as set forth in § 48-818. Furthermore, in the Commission’s Final Order on ESU 13, we stated that it is reasonable to deduce that an employee electing the maximum to which he or she is entitled, would do so at an array institution. Id at 39.

With regard to Respondent’s argument that the Commission should not consider the cost of fringe benefits, the Commission declines to rule against the precedent set forth in ESU 13. We conclude that in this case such an inference on fringe benefits shall be made. Therefore, we will follow the methodology set forth by the Petitioner in determining the total compensation for the Metro faculty placed at the array institutions.

In applying the above methodologies to the array chosen by the Commission, it is clear that the Metro faculty is 8.31% below the prevalent compensation rate. See Table 2. We find that compensation for Metro bargaining unit employees should be increased by 8.31%.

1. The overall compensation for bargaining unit employees shall be increased by 8.31% for the 2001-2002 contract year. (See Table 2).
2. All other terms and conditions of employment for the 2001-2002 contract year are not affected by this Order.
3. Adjustments in compensation resulting from this order shall be paid in a single lump sum payable within thirty (30) days of this final order.

All judges join in the entry of this order.

Entered May 21, 2003