3 CIR 424 (1978)



ASSOCIATION, An Unincorporated |
Association, |
Petitioner, |
AREA, a Political Subdivision of the |
State of Nebraska, |
Respondent. |

Filed May 12, 1978


For the Petitioner: Theodore L. Kessner.

For the Respondent: Norman Krivosha

Before: Wall, P.J.; Kratz and DeBacker, J.J.


This case brings before us again the dispute between Southeast Community College Faculty Assn. and Southeast Technical Community College Area. The last time it was before us, we directed negotiations. 3 CIR Adv. 186, 3 CIR 173-1 (1976). After nineteen sessions, petitioner declared an impasse and brought the dispute to us for resolution. We find that we have jurisdiction of the parties and of the subject matter.

The basic issue is whether an index salary schedule such as that used in K-12 schools is either prevalent or suitable for vocational-technical colleges. Petitioner argues that it is both suitable and prevalent, and presents an array of:

Metro-TechNo index

Mid-Plains 5 x 5 academic and 1.5 x 5 VQ Indexes

(VQ = vocationally qualified)

Nebr. Western Index

Minnesota CC (18 units) No indexes

Des Moines Area CC5 x 5 index

S. W. Iowa CC 4 x 4 index

Respondent argues largely that an index salary schedule is unsuitable, but also presented evidence, unrebutted, that of the six Nebraska tech colleges, only two use index salary systems.Petitioner has adduced no evidence herein which would lead us to conclude that we must leave the relative homogeneity of Nebraska and go elsewhere for comparables.

An index salary schedule is undoubtedly the acme of the democratic ideal. It presumes that all teachers are equal, that all time spent teaching in a particular system is, up to certain total amounts, equal in experience value (as contrasted with the notion that one teacher may have four years experience, while another may have had one year's experience four times), that all college courses are equal, whether in remedial reading or Shakespeare, and that all colleges are equal, whether they be the University of Nebraska at Lincoln or Slippery Rock. The index salary schedule is thus the ultimate in egalitarianism, and as testified to by petitioner's experts, provides the incumbent teacher with the security of knowing just what he or she will be earning in coming years, provided he or she performs with sufficient competence to avoid discharge and takes sufficient credit hours to move horizontally on the schedule.

Respondent's evidence largely runs to the alleged invidious effect of an index salary schedule as applied to VQ instructors. Respondent basically argues that an index schedule makes it impossible to hire a qualified VQ teacher, because the man with the necessary 10 or 20 years in business experience to know the subject cannot be placed high enough on the index schedule to attract him to the academic life. Phrased otherwise, respondent argues that it must compete with private business and other tech colleges for VQ instructors, while it competes mostly only with other tech colleges for BA qualified instructors. VQ instructors at SE Tech generally make more money than BA instructors. The average salary at Milford (primarily VQ) for '77-'78 is $16,687.48, while the average salary at Fairbury (primarily BA) for '77-'78 is $15,149.73. In '75-'76 Milford and Lincoln instructors got a raise of $l,000.00 while those at Fairbury got $800.00. Some of this difference is partially accounted for by difference in contract length, but the BA short contract gives the BA teacher more of an opportunity to accumulate credit hours to move across the schedule. This situation at Mid-Plains maay be different, where the '76-'77 index schedule equates two years work experience with a year's teaching experience, four years work experience with one year teaching experience, etc. Also at Mid-Plains the VQ teacher moves from column one to column ten at a 1.5 x 4 rate while the BA teacher appears to start at column 9 and move to column 10 at a 1.5 x 4 rate, and then moves to an MA schedule where he moves at a 5 x 5 rate.

Fortunately, we need not decide the policy question. Petitioner has not shown an index salary schedule to be prevalent. On Exhibit 2, petitioner's array, three of 22 colleges are shown as having index salary schedules. In Nebraska, two of six colleges have index salary schedules.

Petitioner's expert testified that the work and skills at the Nebraska Colleges were similar to those at SE Tech and also testified that the work, skill and working conditions at the out-of-state colleges were similar to those at SE Tech. Considering the evidence as a whole, it appears that for purposes of this Opinion, we may take it as established that working conditions at the Nebraska colleges are also similar to those at SE Tech. An element obviously missing, however, is information as to the mix of VQ and BA staff which undermines an en masse comparison of the staff at one college with the staff at another. The statutory provisions for certification, ยง79-1239, et seq., R. R. S. 1943, has provided for the K-12 staff the foundation for the assumption of fungibility of teachers that has, in turn, allowed us to compare staff to staff, rather than teacher to teacher. We recognize that a failure to adopt an index salary schedule may well give us in tech college cases the same problem the court faces in large city civilian employee cases, where up to 99 classifications may have to be compared. Our preference for simplicity, however, must give way to the requirements of the law.

We have imposed index salary schedules on K-12 systems that were not previously using them, Cedar Rapids Ed. Assn. v. School District, 3 CIR Adv. 210, 3 CIR 177-1 (1977), on the basis that such schedules were comparable to the prevalent. The converse must likewise apply. An index salary schedule not being shown to be prevalent, we may not here impose it.

The approach of the parties in the presentation of the evidence effectively deprives us of any rational way of determining whether the petitioner has shown that the salaries paid by respondent for the year '76-'77 differ from the prevalent. Almost all the data is presented as means, which are notorious in statistical circles for distorting or obscuring the reality of the situation more often than they reveal or illuminate it. Petitioner's Exhibit 2 shows the parties to be $328,000.00 apart in total salary payments for the year. Exhibit 2 was computed on the basis of 172 people involved, while respondent shows only 163 persons employed in the bargaining unit. Using petitioner's figures and number of personnel, the average salary without fringes should be $15,041.27. Using respondent's figures as to actual payments to actual people, the average salary paid in '76-'77 without figures was $13,859.50 (PX 11). The difference is $1,181.77 per average instructor. The difference would increase if any of petitioner's comparables were used except for Southwest Iowa Tech and Western Nebraska Tech. As we have pointed out above, however, we find no evidence here to justify our departure from the State of Nebraska for comparables, nor is any reason shown for skipping over Iowa Western which abuts Nebraska in favor of Des Moines Tech, which does not. Nor does the evidence of either party demonstrate how the difference in total should be distributed among the employees concerned. Respondent contends that the average salary paid teaching personnel in 1976-77 was $14,056.00 (DX 11). Plaintiff would have us give a blanket award to everyone. This is impossible on the basis of the evidence before us. We have no guidance, for example, as to any comparable rates for the five VQ instructors placed by plaintiff in Column 1, Line 1 - they may be overpaid, underpaid, or right on the comparability line. The plaintiff declined to provide the Court with evidence upon which the Court could make any informed judgment. In the absence of clear, concrete evidence of salary discrepancies, other than averages,we cannot find that petitioner has carried its burdens either of proof or persuasion that the salaries paid petitioner's members in 1976-77 differed from the prevalent.

Respondent argues that petitioner failed to bargain in good faith after we ordered bargaining earlier. There is no requirement in the statute to bargain in good faith, nor was there such a requirement in our order to the parties. If there were such a requirement, there is no evidence that petitioner failed to so bargain. It is settled law that one may adopt a position in bargaining and stick to it, and be considered to be in good faith.

For the reasons stated, IT IS ORDERED that the petition herein is dismissed.