6 CIR 380 (1983)


unincorporated association, |
Petitioner, |
COLLEGE, a political |
subdivision of the State of |
Nebraska, |
Respondent. |


For Petitioner: Mr. David J. Thurber

For Respondent: Mr. Charles D. Humble

Before: Judges Kratz, Davis and Berkheimer


Hearing was held in this matter upon Petitioner's Petition, seeking a determination of wages pursuant to Section 48-818, R.R.S. 1943, upon Respondent's Answer, and Petitioner's Reply.

The employees represented by Petitioner in this matter are all full-time faculty members of the employer serving on one of the four campuses at Lincoln, Milford, Fairbury or Beatrice, excluding all part-time faculty, clerical, supervisory or administrative personnel.

The Commission finds that the Respondent is an employer as defined in Section 48-801(4), R.R.S. 1943, and that an industrial dispute as defined in Section 48-801(7), R.R.S. 1943, exists between the parties and that the Commission has jurisdiction to settle the dispute.

Terms and conditions of employment in issue are: (1) wages (2) health insurance; single and dependent coverage (3) overtime (4) personal leave (5) grievance procedures (6) sick leave (7) emergency leave (8) bereavement leave (9) personnel file information (10) tuition within institution (11) retirement (12) disability insurance (13) dues check off.

Petitioner's expert witness determined the job content for several positions and maximum and minimum wages from Respondent's job descriptions through consultations with Respondent's Assistant to the President and Petitioner's President. Petitioner's expert witness then proceeded to survey and match jobs at Northeast Technical Community College, Mid-Plains Technical Community College, Central Technical Community College, Metropolitan Technical Community College, Western Community College and Iowa Western Community College and to obtain "minimum" and "maximum" wages for those jobs through interviews with administrative personnel at these institutions except that at Mid-Plains Community College the information was obtained from officers of the employee organization representing employees at that institution.

The difficulty in using Petitioner's wage data for employers surveyed by Petitioner's expert witness lies in the lack of data regarding the factors used to place employees at the maximum wage level or at some point between minimum and maximum. It is therefore not possible to determine what an employee of Respondent would be paid if employed at the other institutions.

Most of institutions surveyed by Respondent do not have a structured pay plan by which an employee moves from minimum to maximum, and where an employer appears to have a structured pay plan, evidence with respect to Respondent's employees is insufficient to fit them within such a pay plan.

For example, at Metropolitan Technical Community College there are four wage levels "based upon education and experience"; however, there is no evidence as to the educational attainment or length of experience which would operate to place an employee at any of these levels. At Northeast Technical Community College an employee at the time of hire is assigned an "indices number" which for vocational instructors is based upon experience in the industry and for liberal arts based upon educational attainment and experience. An employee's indices number determines that employee's share of total salaries paid to faculty members. That number stays with that person throughout his or her term at the college until such time as he or she qualifies through upgrading to increase the indices number. Here again the educational and experience levels required for an entry level indices number or a number achieved through upgrading is not in evidence. If the Commission had the benefit of such evidence, the educational attainment and experience of Respondent's faculty members are not in the record. Therefore, the Commission has no evidence on which it could determine whether an instructor at Southeast Community College would qualify for maximum wage levels at other institutions.

Many of these same problems confronted the Commission in Case No. 236 between these same parties. [Southeast Community College Faculty Association v. Southeast Technical Community College, 3 CIR 424 (1978)] That case was dismissed because Petitioner failed to carry its burden that Respondent's salaries differed from the prevalent. Here, there is evidence of the minimum salaries being paid at the institutions proposed by Petitioner for comparison. For some job classifications Respondent is paying somewhat lower wages that the minimum wages prevalent at these other schools. Thus, Petitioner's evidence standing alone would support a modest increase in minimum wages for some positions, and Petitioner has met its burden of proof in that respect. That finding brings us to Respondent's evidence which may be considered pursuant to the Supreme Court's holding in Lincoln Firefighters Association v. City of Lincoln , 198 Neb. 174, 178, 252 N.W.2d 607, 610 (1977). Respondent's evidence compares its average salary paid to faculty members with the average faculty salaries paid at institutions it proposes for comparison. Respondent's evidence shows that Respondent's average current wages are lower than six of seven employers proposed for comparison and its evidence suggests an order establishing wages to be paid by Respondent at the median of average wages paid by the employers it proposes for comparison.

In Case No. 236, supra , the Commission found index salary schedules such as used in primary and secondary schools not prevalent among institutions similar to Respondent. The Commission rejected an average salary per faculty member approach and suggested a comparison of individual job classifications. This approach was attempted by Petitioner in this case who used a competent expert to conduct an extensive and no doubt expensive survey. However, as discussed above the approach failed because although job classes are relatively few there are extremely wide variations in salaries within each class which appear to defy analysis through use of objective and comparable criteria.

The use of averages has all of the defects described in the Commission's Case No. 236; nevertheless, employees of technical community colleges should not be precluded from a wage determination under Section 48-818 because precise comparisons of wages, work and skills are not practicable. The prevalent use of amorphous and subjective wage determination methods by employers should not immunize the employers from the impact of Section 48-818. The use of averages as suggested by the employer in this case would appear to reach a result more favorable to employees generally than the quite modest increases in minimum wages for a few classifications which is all that Petitioner's evidence would support. The Commission finds that the use of averages as suggested by the employer in this case will result in wage rates which are sufficiently comparable to prevalent rates to satisfy the standards of Section 48-818. This is not to say that the Commission is prescribing this method for future technical community college wage determinations. In a future case involving technical community colleges, underlying data and other methods disclosed by the evidence will be considered.

The average wage method in this case presents a problem other than the imprecision of approximations of prevalent wage rates, and that is the selection of an array. Petitioner proposed an array consisting of the five other Nebraska technical community colleges and Iowa Western Community College in Council Bluffs. Evidence was received respecting the community of interest of all Nebraska technical community colleges and the Commission's attention was called to the statutory framework under which all of the colleges operate (Section 79-2636 et seq ) and to our decision in Case No. 236 in which the Nebraska colleges were included and out of state colleges were excluded. Respondent proposed an array consisting of Central Technical Community College, Metropolitan Technical Community College and Northeast Technical Community College, being Nebraska colleges, together with Iowa Western Community College, Western Iowa Community College, Kansas City, Kansas Community College and Johnson County (Kansas) Community College.

The evidence of contacts as well as the underlying statutory framework governing all Nebraska technical community colleges points strongly to an array consisting of the five Nebraska institutions. Absent other considerations the Commission here would reach the same conclusion as it did in Case No. 236 with respect to including Nebraska colleges and excluding out-of-state colleges. However, the only evidence with respect to average wages was offered by Respondent and only for the array proposed by the Respondent. If the out-of-state technical colleges are excluded there would be only three employers remaining from Respondent's array which is too small a number for comparison at least where there are other comparable employments. The Commission finds that the four out-of-state technical colleges proposed by Respondent (Iowa Western being proposed by both parties) are sufficiently comparable to be included in the array.

Two of these, Kansas City, Kansas Community College and Johnson County Community College, appear to be in the Kansas City area, and ordinarily both would not be counted because of excessive weighting of that area. However, there are no differences between them sufficiently significant to prefer one over the other, and since both are proposed by Respondent, both are included. The Commission therefore finds that an appropriate array consists of:

Central Technical Community College (Nebraska)

Metropolitan Technical Community College (Nebraska)

Northeast Technical Community College (Nebraska)

Iowa Western Community College (Iowa)

Western Iowa Community College (Iowa)

Kansas City, Kansas Community College (Kansas)

Johnson County Community College (Kansas)

Data regarding these institutions appears in Table 1 attached. Average annual salary, average contract days and required hours per day are shown in Table 2. Since contract days and time worked per day vary among all institutions, comparing average hourly salary is appropriate. Average hourly salary is likewise shown on Table 2.


Comparing average hourly salaries the Commission finds the prevalent average salary to be $14.00 per hour. Respondent requires seven hours work per day, thus the daily average salary for all contract days worked by Respondent's full-time faculty members represented by Petitioners should be $98.00. As noted above, the evidence does not reveal any prevalent method of allocating salary levels among individual faculty members and none will be prescribed. The evidence does show that the scope of the industrial dispute between the parties in this case did not include a reduction in salaries. Therefore, no faculty member's salary should be reduced as a result of this order. See I.B.E.W. Local Unions 1521 v. Metropolitan Utilities District , 6 CIR 246 (1982).


Other items in issue are shown on Tables 3 through 8 for the institutions in the array as well as Respondent. The Commission finds that Respondent's benefits which bear on the question of overall compensation to be prevalent to those in the array except for payment of dependent's health insurance coverage. Payment of at least a portion of dependent's coverage insurance is prevalent, and Respondent does not pay for such coverage. However, under §48-818 the Commission must deal with overall compensation. A comparison of Table 2 hourly rates with dependent coverage payments in Table 6 shows some correlation, e.g. Johnson County Community College pays the second highest average wage, but does not pay any amount for dependent's coverage and Metropolitan Technical Community College which pays the lowest hourly salary of those in the array pays 100% of dependent's coverage and a single employee there may receive the difference in cash. The Commission has noted above the lack of precision in using averages to compare compensation. Since the Commission in this case is using averages and since the use of averages shows a prevalent hourly salary higher than paid by some institutions which pay all or a part of dependent coverage, the Commission does not consider it appropriate to add payment of dependent coverage to the increase necessary to achieve average hourly salary prevalency.

The Petitioner introduced evidence of "overload pay" at institutions it proposed. Respondent introduced no evidence on this issue, and since the Commission is using Respondent's array it cannot determine overload pay prevalence among that array and the Commission enters no finding with respect to overload pay, nor is there sufficient evidence with respect to "personnel file information" to determine whether it would be a condition of employment and if so, the prevalent practice.

The Commission has in the past considered union dues checkoff to be a condition of employment determinable in a §48-818 case. See I.B.E.W. Local 537 v. Board of Public Works , 3 CIR 164, 171 (1976) and Local 831, IAFF v. City of North Platte , 5 CIR 1, 37 (1982). In this case the Commission finds permitting union dues checkoff to be a prevalent condition of employment which should continue to be permitted pursuant to the voluntary written request of a faculty member revocable by the member at any time as to future periodic salary payments. Written grievance procedure is prevalent and should likewise be continued.


The Respondent introduced evidence and expert opinion regarding per capita income of counties in which Respondent's campuses are located and per capita income in counties where other campuses are located.

Respondent has campuses in Lancaster (Lincoln), Jefferson (Fairbury), Gage (Beatrice), and Seward (Milford) Counties. Central Nebraska Community College has campuses in three counties. Respondent's expert computed weighted averages of per capita income for multiple campus colleges by weighting the per capita income for each county according to the number of employees employed at the campus in that county. The expert then using the weighted per capita income for Central Nebraska Technical Community College and the county per capita income for other institutions in the array, found the mean, median and midpoint per capita income for the seven institutions in the array which were respectively 118.95%, 110.91% and 114.93% of the weighted average per capital income of the four counties in which Respondent's campuses are located. Using the midpoint average of 114.93% Respondent's expert testified that compensation found to be prevalent among the schools in the array should be reduced by an economic deflator factor of 14.93%.

In Lincoln Firefighters Association Local 644 v. City of Lincoln , 189 Neb. 174, 252 N.W.2d 607 (1977), the court said that in § 48-818 cases the Commission must make appropriate adjustments for economic dissimilarities which have a bearing on prevalent wages.

The Commission has since the Lincoln Firefighters case, on numerous occasions not adjusted compensation for differences in per capita income because of lack of credible evidence that per capita income standing alone was a factor in those cases bearing on prevalent wages. See North Platte Police Officers Union v. City of North Platte, 3 CIR 647, 665-670 (1979), Lincoln Police Union International Brotherhood of Police Officers Local No. 554 v. City of Lincoln , 5 CIR 134, 155-157 (1981), and Local No. 831, International Association of Firefighters v. City of North Platte , 6 CIR 1, 35 (1982). That evidence is again lacking here, but here also the weighted average approach is of highly questionable validity. The per capita income of Lancaster County is $9,812.00 according to Respondent's evidence. The mean, median and midpoint per capita income of the other counties in the array used for comparison are $10,219.00, $9,528.00, and $9,874.00 suggesting an infinitesimal, if any, downward adjustment for Respondent's Lincoln campus employees under Respondent's economic deflator theory. Per capita income of Seward County, location of Respondent's Milford campus, is only $6,940.00 according to Respondent's evidence. The effect of the weighted average approach asserted by Respondent is that Lincoln faculty members' salaries would be reduced from prevalent compensation because their employer happens to have a campus in Milford which is only approximately 17 highway miles from Lincoln. This effect negates the validity of the statistical approach of Respondent's expert. The Commission finds that Respondent's evidence does not establish the adjustment of prevalent wage rates by reason of differences in per capita income should be made.


1. That for the 1982-83 contract year the daily average salary paid by Respondent to its full-time faculty members on the Lincoln, Milford, Fairbury, and Beatrice campuses combined shall be $98.00 per contract day rounded to the nearest dollar.

2. That all other terms and conditions of employment in issue in this case will remain unchanged.

This Order shall be effective for wages and conditions of employment with respect to the 1982-83 contract years of faculty members. The adjustments resulting from this Order shall be made ratably over the months of each such contract year. The amount due for the portion of such a contract year already elapsed shall be paid as soon as feasible following the entry of this Order.

All Judges assigned to the panel in this case join in the entry of this opinion and order.

Filed February 11, 1983