7 CIR 1 (1983)


Plaintiff, |
University of Nebraska at |
Omaha Chapter, an |
Unincorporated Association, |
Defendant. |


For the Plaintiff: Mr. L. Bruce Wright

Cline, Williams, Wright,

Johnson & Oldfather

1900 First National Bank

Lincoln, Nebraska

For the Defendant: Mr. M. H. Weinberg

Weinberg & Weinberg

8901 Indian Hills Drive

Omaha, Nebraska

Before: Judges Orr, Kratz, and Davis.


Hearing was held in this matter upon Plaintiff's (Board of Regents of the University of Nebraska) Petition, seeking a Section 48-818, R.R.S. 1943, determination as to wages and other conditions of employment for Plaintiff's employees represented by Defendant (American Association of University Professors, University of Nebraska at Omaha Chapter, upon Defendant's Answer and Amended Cross Petition, and Plaintiff's Answer to Defendant's Amended Cross Petition.

The record in this case is voluminous and complex. The parties offered numerous exhibits and pursuant to pretrial stipulations most were received into evidence. It is quite evident that both parties had spent many long hours preparing for trial. The case was professionally presented in a true advocacy spirit.

The Commission finds that Plaintiff is an "employer" as defined in Section 48-801(4), R.R.S. 1943, and that the Defendant is a "labor organization" as defined in Section 48-801(6), R.R.S. 1943. The Commission further finds that an "industrial dispute" exists between the parties as defined in Section 48-801(7), R.R.S. 1943, and that the Commission has acquired jurisdiction as defined in Section 48-810, R.R.S. 1943, to settle the dispute in an expedient manner.

The Nebraska Supreme Court in American Ass'n of University Professors v. Board of Regents , 203 Neb. 628, 279 N.W.2d 621 (1979), found that the Commission has jurisdiction over industrial disputes between these same parties citing its earlier decision in University Police Officers Union v. University of Nebraska , 203 Neb. 4, 277 N.W.2d 529 (1979). The Court in that controlling decision stated:

"We therefore hold that UNL has primary authority for establishing its own schedules of wages, terms and conditions of employment, and hours of labor; but when an industrial dispute, as defined by section 48-801 (7), R.R.S. 1943, arises, the CIR acquires jurisdiction for the limited purpose of resolving such dispute. Likewise, the CIR acquires jurisdiction for resolving an industrial dispute concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment or refusal to discuss terms or conditions of employment. As there was an industrial dispute in existence, the CIR was correct in holding it had jurisdiction over UNL in this case."

203 Neb. at 11.

The Board of Regents in its Petition admits that it has not negotiated a number of topics proposed by the AAUP because it considers them illegal, representing statutory or constitutional duties of the Board, or involving issues which are predominantly matters of management prerogative and/or educational policy. The Board of Regents and the AAUP request the Commission to establish the wages and other mandatorily negotiable terms and conditions of employment for the members of AAUP for the 1982-83 contract year.



One of the issues presented by the pleadings is whether certain topics sought to be negotiated by the Defendant are mandatorily bargainable within the meaning of the Nebraska Commission of Industrial Relations statutes.

The duty to bargain in good faith arises as set forth in Section 48-816(5), which states:

"Upon receipt by an employer of a request from a labor organization to bargain on behalf of employees, the duty to engage in good faith bargaining shall arise if the labor organization has been certified by the Commission or recognized by the employer as the exclusive bargaining representative for the employees in that bargaining unit."

The meaning of good faith bargaining between a public employer and the public employees' representative is set forth in Section 48-816(1), as amended in Section 5 of LB 444 in 1979, which is patterned upon Section 8(d) of the National Labor Relations Act. This portion of Section 48-816(1) provides:

"To bargain in good faith shall mean the performance of the mutual obligation of the employer and the labor organization to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession."

With respect to collective bargaining obligations, there are three categories of subjects: (1) those which are "mandatory" subjects as required within the statutory language "wages, hours, and other terms and conditions of employment, or any question arising thereunder" upon which the parties are legally obligated to bargain in good faith; (2) those subjects which are "permissive" in nature in that the parties are lawfully authorized to bargain in good faith should they both determine to do so; and (3) those which are "prohibited" subjects in that they are not authorized by the law or are forbidden by the law. The issue submitted by the parties pertains solely to mandatory subjects upon which the parties are statutorily obligated to bargain in good faith.

Section 48-818 contains the Commission's authority to "establish or alter the scale of wages, hours or labor, or conditions of employment, lll" Thus, there is a similar issue of statutory interpretation insofar as a Section 48-818 determination and an obligation to bargain under Section 48-816(1) are concerned whether or not a particular item is a "condition of employment." The present case contains potential issues both under Section 48-816(1) and 48-818.

It is well settled that National Labor Relations board decisions and promulgated policies are helpful and may be looked to for guidance but are not controlling in making determinations under the Nebraska Commission of Industrial Relations statutes. See City of Grand Island v. AFSCME , 186 Neb. 711, 185 N.W.2d 860 (1971), and American Fed. of S., C. & M. Emp. v. State , 200 Neb. 171, 263 N.W.2d 643 (1978). The Nebraska Supreme Court expressed this rule clearly in University Police Officers Union v. University of Nebraska , 203 Neb. 4, 227 N.W.2d 529 (1979) as follows:

"We have heretofore said that decisions under the National Labor Relations Act were helpful but not controlling upon either the CIR or this court. American Fed. of S., C. & M. Emp. v. State, 200 Neb. 171, 263 N.W.2d 643. That declaration must be carefully understood to mean that decisions under the NLRB are helpful where there are similar provisions under the Nebraska statutes. Decisions under the NLRB are of no help or benefit in attempting to determine actions absent similar provisions under the Nebraska statutes. Nor can common practices under other statutes in other jurisdictions enlarge the statutory power granted the CIR by the Legislature."

203 Neb. at 12.

The Nebraska Supreme Court in School District of Seward Education Association v. School District of Seward , 188 Neb. 772, 199 N.W.2d 752 (1972), examined the scope of negotiability for "conditions of employment." The Court stated:

"The next question raised involved an interpretation of the language `conditions of employment.' While the issue may be moot because the parties did reach agreement on all points referred except wages we do feel some observations are pertinent. Generally, teacher organizations have given the term `conditions of employment' an extremely broad meaning, while boards of education have tried to restrict that term to preserve their management prerogatives and policy-making powers. While there are many nebulous areas that may overlap working conditions, boards should not be required to enter negotiations on matters which are predominately matters of educational policy, management prerogatives, or statutory duties of the board of education. Kansas, by statute, has defined conditions of employment to include hours of work, vacation allowances, sick and injury leave, number of holidays, and wearing apparel. K.S.A. 1971 supp., §75-4322(s). Without trying to lay down any specific rule, we would hold that conditions of employment can be interpreted to include only those matters directly affecting the teacher's welfare. Without attempting in any way to be specific, or to limit the foregoing, we would consider the following to be exclusively within the management prerogative: The right to hire; to maintain order and efficiency; to schedule work; to control transfers and assignments; to determine what extracurricular activities may be supported or sponsored; and to determine the curriculum, class size, and types of specialists to be employed. The public policy involved in this legislation is expressed in section 48-802, R.R.S. 1943. With this public policy in mind, school districts and teacher associations should negotiate in good faith within the ambit of their respective responsibilities."

188 Neb. at 784.

Seven years later the Nebraska Supreme Court had the opportunity to determine whether or not "instructor contact hours" at a public higher education institution is a mandatory bargaining subject. In Metropolitan Technical Community College Education Association v. Metropolitan Technical Community College Area , 203 Neb. 832, 281 N.W.2d 201 (1979), the Court announced the following test to determine whether a topic is a proper subject of mandatory bargaining:

"A matter which is of fundamental, basic, or essential concern to an employee's financial and personal concern may be considered as involving working conditions and is mandatorily bargainable even though there may be some minor influence on educational policy or management prerogative. However, those matters which involve foundational value judgments, which strike at the very heart of the educational philosophy of the particular institution, are management prerogatives and are not a proper subject for negotiation even though such decisions may have some impact on working conditions. However, the impact of whatever decision management may make in this or any other case on the economic welfare of employees is a proper subject of mandatory bargaining."

203 Neb. at 842.843.

The Court in applying this test to "instructor contact hours" at Metro Tech said:

"We find the evidence supports the College's position that the number of instructor contact hours involves a foundational value judgement which is essential to its basic educational and learning philosophy and is therefore a prerogative of management and is not bargainable."

203 Neb. at 832.

The Court in Metro Tech in addressing the issue of negotiability of "workload" made reference to the following decisions of other jurisdictions as not necessarily determinative of the issue, but nevertheless helpful:

"All seem to agree generally that a balancing test is needed. In Dunellen Bd. of Ed. v. Dunellen Ed. Assn., 64 N.J. 17, 311 A.2d 737 (1973), the court said: `***it would appear evident that the consolidation of chairmanships represents a matter predominantly of educational policy within management's exclusive prerogatives ***' (emphasis supplied), citing School Dist. of Seward Education Ass'n. v. School Dist. of Seward, supra .

"In Burlington Cty. Col. Fac. Assoc. v. Bd. of Trustees, 64 N.J. 10, 311 A. 2d 733 (1973), the New Jersey court said: `It negotiated on the matters directly and intimately affecting the faculty's working terms and conditions, such as compensation, hours, work loads, ***' (Emphasis supplied.)

"The final case in the New Jersey trilogy, Bd. of Ed. Englewood v. Englewood Teachers, 64 N.J. 1, 311 A.2d 729 (1973), provided that: `*** major educational policies which indirectly affect the working conditions of the teacher remain exclusively with the Board and are not negotiable whereas items which are not predominately educational policies and directly affect the financial and personal welfare of the teachers do not remain exclusively with the Board and are negotiable.'

"The Alaska Supreme Court has indicated the amount of paid time available to a teacher for preparation of lesson plans affects the teacher directly and is negotiable; a demand that such time be available during the academic portion of the day presents a policy question. Kenai Peninsula Borough v. Kenai Peninsula Ed., 572 P.2d 416 (Alaska, 1977). That court recognized `If teachers' unions are permitted to bargain on matters of educational policy, it is conceivable that through successive contracts the autonomy of the school boards could be severely eroded, and the effective control of educational policy shifted from the school boards to the teachers' unions." It quoted the following language from National Ed. Ass'n. of Shawnee Mission, Inc. v. Board of Ed., 212 Kan. 741, 512 P.2d 426 (1973): "The key, as we see it, is how direct the impact of an issue is on the well-being of the individual teacher, as opposed to its effect on the operation of the school system as a whole.` The court went on to say, `*** a matter is more susceptible to bargaining the more it deals with the economic interests of employees and the less it concerns professional goals and methods.' Put another way, the court explained that those items which are 'so closely connected with the economic well-being of the individual teacher' must be held negotiable.


"Only subject matters that are primarily related to wages, hours, or conditions of employment are mandatorily bargainable in Wisconsin. In Beloit Education Assoc. v. WERC, 73 Wis. 2d 43, 242 N.W.2d 231 (1976), the court said: `Some [courts] limit required bargaining to matters `directly' related to `wages, hours and conditions of employment.' Some make the test whether the subject `materially' affects the working conditions. `Commen[t]ators appear to agree that drawing the line or making the distinction is not easy'. In opting for the test `primarily related to wages or hours or conditions of employment' as being mandatorily bargainable, the court went on to say: `The dictionary defines `primarily' as meaning `fundamentally.' It is in this sense of the word that `primarily' is here used. What is fundamentally or basically or essentially a matter involving `wages, hours and conditions of employment' is, under the statute, a matter that is required to be bargained. The commission construed the statute to require mandatory bargaining as to (1) matters which are primarily related to `wages, hours and conditions of employment' and (2) the impact of the `establishment of educational policy' affecting the `wages, hours and conditions of employment.'"

203 Neb. at 832, 839-840, 842.

The Plaintiff alleges in its Petition and the Defendant admits in its Answer the following:

The Defendant sought to negotiate the following topics for Unit Members employed by the Board:

a.Contract preamble;


c.Recognition and description of the bargaining unit;

d.Academic work environment, services, facilities, including:

(1) Library facilities;

(2) Postal service;

(3) Research budget;

(4) Travel reimbursement;

e.Work load;

f.Limitation on television instruction;

g.Outside employment policy;

h.Academic freedom;


j.Incorporation by reference of the AAUP 1940 Statement of Principles on Academic Freedom and Tenure;

k.Criteria and procedure for making faculty appointments;

l.Criteria and procedure for termination of tenured faculty;

m.Criteria and procedure for termination of non-tenured faculty;

n.Criteria and procedure for promotion;

o.Criteria and procedure for the selection and compensation of department chairs;

p.Criteria and procedure for discontinuance of a program or department;

q.Criteria and procedure for reduction in force due to economic exigency;

r.Faculty participation in budgeting;

s.Nondiscrimination policy;

t. Teaching evaluations;

u.Criteria for assessment of Unit Members' performance;

v.Access to personnel files;

w.Leaves of absence, including;

(1) Sabbatical leave;

(2) Faculty assistance for doctoral studies;

(3) Personal leaves;

(4) Disability leave;

(5) Vacation leave;

x.Faculty compensation, including:

(1) Percentage of increase;

(2) Method of distribution;

(3) Salary floors;

(4) Summer school compensation;

(5) Overload pay;

(6) Promotion increments;

(7) Equity adjustments;

y.Fringe benefits, including;

(1) Long-term disability benefits;

(2) Health insurance;

(3) Optional group insurance;

(4) Liability protection;

(5) Retirement plan contributions;

(6) Insurance refunds;

(7) Tuition waivers;

(8) Use of University facilities and services;

(9) Rights of retired Unit Members;

(10) Early retirement;

z.Ratification and renegotiation;

aa.Meet and confer;

bb.Printing and distribution of the Agreement;

cc.Interest succession;

dd.Provision of information on unit employees to the UNO AAUP;

ee.Provision of permanent office space to the UNO AAUP;

ff.Access of UNO AAUP to University services and facilities;

gg.Release time for UNO AAUP officers and representatives to conduct Union business;

hh.Grievance procedures;

ii.Past practice clause.

From the inception of negotiations, the Board has repeatedly advised the UNO AAUP that at least the following enumerated topics were not properly negotiable for the reason that they are illegal, represent statutory or constitutional duties of the Board, or involve issues which are predominately matters of management prerogative and/or education policy:

a.Contract preamble;

b.Academic work environment, service, facilities, including:

(1) Library facilities;

(2) Postal service;

(3) Research budget;

(4) Nonauthorized travel reimbursement;

c.Work load;

d.Limitation on television instruction;

e.Outside employment policy;

f.Academic freedom;


h.Incorporation by reference of the AAUP 1940 Statement of Principles on Academic Freedom and Tenure;

i.Criteria and procedure for faculty appointments;

j.Criteria and procedure for termination of tenured faculty;

k.Criteria and procedure for termination of non-tenured faculty;

l.Criteria and procedure for promotion;

m.Criteria and procedure for selection of department chairs;

n.Criteria and procedure for discontinuance of a program or department;

o.Criteria and procedure for reduction in force due to economic exigency;

p.Faculty participation in budgeting;

q.Nondiscrimination policy;

r.Teaching evaluations;

s.Criteria for assessment of Unit Members' performance;

t.Sabbatical leave;

u.Method of salary distribution;

v.Equity adjustments;

w.Rights of retired Unit Members;

x.Early retirement;

y.Contract ratification and renegotiation;

z.Meet and confer;

aa.UNO AAUP access to University services and facilities;

bb.Release time for UNO AAUP officers and representatives to conduct Union business;

cc.Past practice clause.

The Plaintiff argues in its Post-Trial Brief that "the CIR lacks subject matter jurisdiction over topics which involve statutory duties, management prerogatives or foundational value judgments or which impact educational philosophy." Furthermore, the Plaintiff argues that "negotiability must be determined in light of the faculty's job duties and employment relationship." The Plaintiff points to the faculty's pervasive role in the making of policy decisions at the various levels within the institution. Public policy, according to the Plaintiff, would dictate a narrowing of the scope of negotiations to prevent educational policy decisions being made in a forum of collective negotiation from which the public is excluded. The Plaintiff also contends in its Post-Trial Brief that "in terms of specific noneconomic items relating to contract clauses and language which the Commission may find to be mandatorily bargainable in the instant case, it is submitted that the interests of the public and of the respective parties are best served by reserving these matters to bargaining."

The Defendant in its Post-Trial Brief argues that the Commission in determining which subjects are bargainable need only to consider whether the item has economic impact on the bargaining unit. The Defendant in its Post-Trial Brief also requests the Commission to order the Plaintiff to bargain as to all items, other than wage and fringe benefits, and "define clearly the areas which must be discussed and the proper limits of such discussion or bargaining."

The Commission stated in City of Omaha v. Omaha Police Union, Local 101 , 5 CIR 171, 206-207 (1981), the following alternatives it has with regard to a determination of conditions of employments under Section 48-818:

"With regard to these miscellaneous conditions of employment, we therefore have several alternatives: (1) If, in order to determine whether the condition is actually the prevalent condition in the compared to cities, it is necessary for us to have either the actual contract language of the specific condition of employment or more detailed and specific testimony as to what the condition provides, and that contract language or other description of the condition is not in evidence, we will refuse to make a determination under Section 48-818 covering that condition of employment. (2)If in the compared to cities the exact content of a condition of employment is clear from the total evidence, we will either enter an order as to that condition of employment, or find that Omaha's condition in this regard is less or greater than the prevalent and adjust the `overall compensation' accordingly. (3) If in the compared to cities we cannot determine the exact content of a condition of employment, but we can clearly determine that it is a prevalent condition, we will adjust the `overall compensation' to account for the fact that Omaha is below or above prevalent."

The testimony by UNO's Vice Chancellor for Academic Affairs was that each of the topics the Plaintiff found not negotiable involved questions that are influenced by fundamental educational value judgments and have an impact on the institution's educational philosophy. However, there was also testimony that these same items have an economic impact on the bargaining unit.

In order to apply the Metro Tech test to the matter at hand, the Commission must balance the competing interests by weighing the specific facts involved and examine the precise language of the negotiation demands. The testimony adduced does not provide us with sufficient specificity as to the competing interests involved nor is the Commission able to determine from the record the substance of the negotiation demands. In making findings and entering orders, the Commission's determinations must be supported by substantial evidence justifying the determination, made within its statutory authority, and not be arbitrary, capricious, or unreasonable. American Association of University Professors v. Board of Regents , 198 Neb. 243, 253 N.W.2d 1 (1977). The Commission finds that there is not substantial evidence to support a determination as to the negotiability of the issues in dispute.

The Defendant contends in its Post-Trial Brief that almost all of the topics it sought to negotiate are prevalent conditions of employment with respect to which the Commission should enter both a Section 48-818 wage order and a bargaining order under Section 48-816(1). Plaintiff argues that the Commission should not find controlling the modal practices of the institutions compared to because their negotiated agreements may include topics that are not mandatory bargaining subjects under Nebraska's law and are not subject to an order under Section 48-818.

The Commission does not have sufficient evidence before it to determine the actual content and scope of the proposed topics. Therefore, the Commission is without sufficient evidence to make a determination under section 48-818 as to these topics. See Omaha Police, supra . The Commission is now entering an Order under §48-818 as warranted by the evidence presented. The Petition initiating this action seeks a Section 48-818 determination as to wages and other conditions of employment. The Commission is directed under Section 48-813 to resolve the industrial dispute in an expedient manner. In addition to this statutory directive, public policy dictates that the industrial dispute be resolved as quickly as possible and takes priority over all other pending matters. School District of the City of Lincoln v. Lincoln Education Association , 6 CIR 352 (1982). Therefore, neither the evidentiary record nor the policy of the statutes supports the entry of a bargaining order at this time for the current year. With respect to collective bargaining in good faith, the parties should look to future years.



The §48-818 portion of this case came before the Commission to set wages, fringe benefits, and conditions of employment for the University of Nebraska at omaha, hereafter referred to as UNO, bargaining unit employees. This bargaining unit determination by an earlier case in the CIR, 3 CIR 457 (1978) and affirmed by the Supreme Court, 203 Neb. 628, 279 N.W.2d 621 (1979), consisted of:

"All full-time A-line faculty employed by the University of Nebraska at Omaha, including counsellors, librarians, and assistant instructors, but excluding intercollegiate athletic coaches and trainers, all persons holding rank of Associate or Assistant Dean or higher, as well as those specific individuals excluded by stipulation as having management duties."

UNO is part of the University of Nebraska system which also includes University of Nebraska at Lincoln, hereafter referred to as UNL, and the University of Nebraska Medical Center, hereafter referred to as UNMC. The UNO campus houses eight colleges. However, two of these colleges, Engineering and Home Economics, are administered through the UNL campus, both budgeting and personnel, and are not included in the bargaining unit. There is also a College of Continuing Studies which has no faculty assigned to it but rather borrows faculty from other colleges. It is not in the bargaining unit. This leaves five colleges in the bargaining unit which are the College of Arts and Sciences, College of Business Administration (CBA), College of Fine Arts, College of Education, and the College of Public Administration and Community Service (CPACS), and in addition there are bargaining unit members in the University division, which is a counselling division, and librarians who hold faculty rank.


The Commission will first examine the criteria used by both parties and will comment on a couple of them-research activity and geographical proximity.


The Defendant offered testimony as to how their committee used first a gross, and then a fine screening process of criteria to arrive at their chosen array of 16 allegedly comparable schools. The purpose of the gross screening process was to satisfy the 48-818 triad of similar job conditions, functions and skills and to eliminate the least comparable. The purpose of the fine screen was to correct baseline data, eliminate the least comparable, and to check the depth of match. Several criteria were chosen in the gross screening process to narrow the comparable institutions. Some of these same criteria were again applied in the fine screen processing and a few extra were added, so that there is some overlap. After the gross screening took place, the schools were visited to find out more about the institutions. Documents were gathered and faculty and administrators were interviewed and questionnaires partially completed. The purpose of these questionnaires and the visit in general was to note similarities and dissimilarities in job functions, skills and working conditions between the peer institution visited and UNO.

In total, the working conditions, job skills and job functions which the Defendant felt were important to use in determining a comparable array were the following:

1)Working Conditions - 4 year, public, enrollment, graduate studies, accreditations, faculty size, % Ph.D., library, classrooms, institutional structure, workload, role and mission, governance, leaves and promotion, tenure and reappointment policies;

2)Job Skills - discipline, degree and rank;

3)Job Functions - programs, accreditation, institutional structure, governance, workload, role and mission.

James Elsass, testifying for the Defendant as an expert institutional analyst, validated the Defendant's screening process. He found classification by discipline, degree and rank to be the common way to look at job skills within the academic labor market (XIII:31:14-16, 32:1-2). Furthermore, the information collected on the peer institution reports constitute working conditions which could be the basis to differentiate between institutions (XIII:29:5-7, 10-12). Elsass stated that the % of match in bargaining unit equivalents is a good way to further compare institutions and that a match above 70% would be appropriate (See Table 1, footnote (z), for the calculation of % of match).

In arriving at their array, the Plaintiff used many of the same criteria that the Defendant used but also gathered information on % of tenured faculty, level of sponsored research, level of state appropriations, number and level of degrees granted, particularly the extent of doctoral degrees granted, geographical proximity, and schools where tenure is granted in the 7th year.

It would be impractical for the Commission to set forth in a table all of the relevant factors which both parties looked at but some of those factors are set forth in Table 1. Much of the information in this table was taken from the general reference exhibits, such as Barrons , because the Commission felt it important to look at information that could be found for all of the institutions and to use data for the same year if possible. The summary exhibits did not give information on all of the other party's array members. In the case of the Defendant's peer institution reports, data was not always collected for the informational questions listed on the report and in many cases when it was answered, the data covered different years.

Research Activity

It is clear from the evidence, that there is a strong emphasis on research at UNO. A large number of the UNO faculty, approximately 75% are either graduate members or graduate fellows of the graduate faculty and a large part of this 75% is in the bargaining unit. To become a graduate member at UNO, one must have demonstrated ability in the research area with published articles which means research. Members of the graduate faculty automatically get 3 hours of release time for research in most UNO colleges (XIV:20:21-25, 21:1-4). Margaret Gessaman, dean for graduate studies and research at UNO, testified that while it was theoretically possible for someone to get promoted, reappointed or tenured at UNO by having outstanding teaching and above average community service, her experience has shown her that it does not happen and that one must be at least above average in research (XVI:207:2-14).

The Defendant expended much effort in an attempt to show that UNO had a fairly extensive doctoral program. Likewise, Plaintiff offered substantial testimony that UNO was only accredited to the specialist level. Both parties offered evidence as to the importance and impact of the level of graduate programs.

According to Mr. Elsass, there is a difference in the nature of the job skills and job functions required depending upon whether the faculty are participating at the master's level or doctorate level. The higher the level of program, the more extensively detailed the research one is expected to engage in and required to demonstrate research skills and capability (XIII:78:4-17). Dr. Boss also testified that the highest degree offered would indicate the extent to which skills might be required and the degree to which research might be expected (VIII:13:22-25). Dr. Mosier also testified that highest degree granted would effect job skills required and job functions (X:96:24-25, 97:1-2). According to Ms. West, one would expect to find more release time for research at an institution which placed a greater emphasis on doctoral studies, therefore effecting working conditions as well (XIV:68:16-25).

The testimony reveals that there is not only a difference in the level of skills required and utilized at what has been referred to as a major doctoral-granting institution but also a difference in the institutions themselves. Plaintiffs expert, Mr. Minter, testified that doctoral programs impact the institution fiscally, causing higher salaries, more money in hardware requirements, greater library holdings, and financial assistance to students in the form of graduate student fellowships (XVII:165:7-25, 166:1-16). These doctoral programs impact other programs that are non-doctoral as well, i.e. the hiring of individuals and the development of curriculum in the other programs which are in cognate areas (a cognate course is one which a student might have to take in a department which differs from the one he is getting his degree in, i.e. a geography student might have to take an ecology course from the biology department).

There are several categorizing systems in use which distinguish between different types of universities. One such system was used by the AAUP itself and the results were published in a bulletin of the American Association of University Professors entitled Academe-The Annual Report on the Economic Status of the Profession, 1981-82, Special Issue, dated July-August 1982. The Commission asked that this document be marked as Exhibit A as both parties had referred to it extensively during the hearing. This classification scheme divides institutions of higher learning into 4 categories for the purpose of this report. Those categories were I, IIA, III, and IV. Only I and IIA are pertinent to this matter.A Category I school is an institution which offers the doctorate degree, and which conferred in the most recent three years an annual average of fifteen or more earned doctorates covering a minimum of three nonrelated disciplines. A Category IIA school is an institution which awards degrees above the baccalaureate or equivalent degree but which does not fall under Category I. Mr. Minter testified that there were three other schemes of classifying educational institutions by the Office of Education, Carnegie Commission, and National Center for Higher Education Management Systems. These schemes are becoming uniform and typically take into account the number of programs and degrees, the level of the degree, and the commitment to research in terms of dollars funded. All of these schemes would classify UNO as a comprehensive institution, in contrast to a major research, doctoral granting institution.

The significance of the I v. IIA categories is that it is primarily an indication of the extent of doctoral emphasis at an institution and there is, according to Mr. Minter, a substantial statistical difference in the amount of funds that are spent on research at Category I schools which reflects through the whole institution because the doctoral programs need greater support through research, library, equipment, support personnel, and professional nonteaching personnel. There is a distinct difference in the distribution of research funds between Category I and IIA schools. Category I schools have approximately 21-22% of their budgets going to research while Category IIA schools have 1.5% going to research (XVII:159:19-24, 250:6-15).

UNO does have a joint doctoral program in psychology with UNL. However, this program is administered at UNL and only UNL is accredited at the doctoral level. The defendant made a valiant effort to establish UNO as a doctoral college; the evidence simply does not support that. UNO is a IIA school granting its highest degree at the specialist level. However, the Commission does take into account UNO's research emphasis when selecting compared to schools for the array.

The Commission believes that since the presence of research and the level at which it is conducted affects the job skills, functions and working conditions as well as the characteristics of the institutions themselves, it is necessary to eliminate all institutions from the array which are either strong doctoral schools (Category I) or which, on the other end of the spectrum, have little emphasis on research. This would eliminate Kent State, State University of New York at Binghamton, University of Toledo, University of Rhode Island, and Western Michigan, all of which have strong doctoral programs. The Commission also eliminates Central Connecticut State College (XIII:191:4-25, 192:1), St. Cloud State University (XV:191:14-25, 192:1-25), Towson State University (XIV:11:18-25, 12:1-2, 13:1-2, 101:3-23), and Youngstown State University (XI:47:3-17, 131:7-13) for the reason that the testimony reveals that there is very little research emphasis at these institutions.

After eliminating the above universities, we are left with a comparable array of the following IIA schools: Central Missouri State University, Cleveland State University, South Dakota State University, Southwest Missouri State University, University of Central Florida, University of New Orleans, University of Northern Iowa, University of Texas at El Paso, Western Illinois University and Wichita State University. The University of Northern Iowa and Wichita State University were the common schools of both parties. All of these schools are similar when the criteria in Table 1 are examined.

The Commission's initial impression from the testimony was that South Dakota State University should be excluded as a comparable because of its large agricultural offerings and its lack of a business college, though they do have economics faculty in the College of Agriculture and Biological Science. Upon further examination of Table 1 and the record, the Commission does not feel that South Dakota State should be excluded. The Commission chooses not to eliminate schools because they have a strong emphasis in a certain area. Were we to eliminate South Dakota State based on its broad agricultural offerings, we would also have to eliminate the University of Texas at El Paso for its extensive programs in international and Spanish studies and Central Florida for its heavy technological emphasis. The Commission feels that as long as institutions have at least a 70% match between bargaining unit equivalent areas, it does not matter what further programs a university might offer above and beyond UNO's offerings unless, of course, these programs make the institution substantially larger by increasing its number of students, degrees conferred, etc. If South Dakota State were eliminated based on its not having a Business College, many of the institutions would have to be eliminated because there are very few matches to UNO's CPACS. The Defendant offered testimony many times that the faculty in UNO's Business College cross over and teach other courses within the business area. South Dakota State's Economics Department faculty also cross over and teach a number of business area courses even though they may be related to agriculture. South Dakota State has a graduate program which is accredited at the doctorate level, which would require research emphasis. For these reasons, the Commission finds South Dakota State to be comparable.

Geographical Proximity

For this case, the Commission finds little merit in the Plaintiff s contention that geographical proximity should be given considerable weight in choosing comparable institutions. The testimony revealed that advertising and recruiting for faculty jobs within a university is done on a national basis. The Commission has ruled previously that similarity of work, skills and working conditions must sometimes outweigh geographic proximity. See International Brotherhood of Electrical Workers, Local Union #763, AFL-CIO v. Omaha Public Power District, 3 CIR 554 (1978); Omaha Police Union Local No. 1 v. City of Omaha, Nebraska, 3 CIR 8 (1975). It appears to the Commission that there are many other factors which determine faculty salaries which are far more important than the geographical location of the university. Mr. Elsass testified that, in his opinion, no model has been developed that adequately treats economic-geographic differences and he concluded that factor should not be included (XIII:48:19-25, 49:1-14). It is possible to perceive a situation where a faculty member could be actually paid more to take a job in what would commonly be referred to as an economically depressed area than a person going to a prestige university where he might take a cut in pay just for the honor of teaching there. When the labor pool for a particular type of job is national and not local, geographical proximity does not play an important role in determining salaries paid.

It is clear from Defendant's Exhibit #62 (a chart presented to the Board of Regents by President Roskens for the purpose of adjusting the operating budget) that the Plaintiff looks well beyond the contiguous states for comparative purposes. The AAU land grant universities considered comparable by Plaintiff for this purpose were the University of Illinois (Champaign-Urbana), Iowa State University, University of Maryland, University of Minnesota at Twin Cities, University of Missouri, Ohio State University, Pennsylvania State University, Purdue University, and the University of Wisconsin at Madison. We are mindful that the wage adjustments were for the entire university system and not UNO alone; however, Lincoln and Omaha are in the same state and have the same contiguous states with large university systems.

Similarity of Work, Skills and Working Conditions

Most faculty members, like those at UNO, do not have job descriptions setting out their work, skills and working conditions. Faculty by and large are classified by discipline, degree, and rank.

The parties because of the nature of the work involved did not do a one-on-one match of faculty but aggregated the faculty in the common classes of discipline, degree, and rank. Given the testimony of the complexities in higher education, we find that the parties have sufficiently identified faculty that perform same or similar work exhibiting same or similar skills under the same or similar working conditions pursuant to the mandate of Section 48-818.


Matching Methods

Plaintiff's expert witness, Dr. Lauren Drees, presented four different methods of matching jobs. Method 1 matched faculty at the peer institution which had departments with exact or similar names to UNO's departments. This leaves many of the UNO faculty unmatched. Method 2 fills in the non-matched faculty with the overall average salary at the peer institution by rank. Method 3 is another method by which unmatched faculty salaries may be filled in, this time using the Beglan method which is a method of matching comparable departments. Method 4 matched jobs along the lines of discipline regardless of structure which can vary a great deal among universities. Some universities have colleges, some have schools, etc. Method 4 matched along discipline lines by looking at the catalogues, the course offerings and majors. The term "discipline" is almost synonymous with the term "department" and for the purpose of this case we use these terms interchangeably.

Defendant's method matched along the lines of discipline and rank as did Plaintiff's Method 4 by looking at the courses and areas actually being taught at the peer institution and matching them to UNO's similar disciplines in the bargaining unit.

Choosing to match the UNO departments with the same subject areas that are being taught at those peer institutions seems more accurate than Method 1, 2, or 3. Method 1 would miss matching some UNO departments that are actually being taught at the peer institution but under a different name. Methods 2 and 3 try to match unmatched faculty with an average or comparable department salary and Dr. Drees testified that attempting to match a significant number of unmatched UNO faculty could produce some large variations and inordinate results (V:73:22-25, 74:1). Method 4 and Defendant's method, which is essentially the same method, is the most accurate because it seeks to match faculty who are teaching similar subjects, regardless of the department name at the peer institution and, therefore, is the method which we choose to utilize.

Level of Compensation Establishment - Salaries

If the evidence supported an increase or decrease in compensation, then at what level should this adjustment be made? The Plaintiff argued that wage adjustments should be made at the institutional level by first calculating what the UNO faculty would be paid in the aggregate if they were employed at the peer institution and compensated at the peer institution's rates for the matched positions. Secondly, comparing this aggregate salary figure with the actual aggregate salary figure currently being paid at UNO for those same matched positions which would produce a differential. This procedure would be followed for each of the compared to institutions to produce a differential (either % or dollar). Then the midpoint of these differentials would be calculated and applied to the faculty at UNO, either on the basis of a % differential to all faculty or a dollar differential to be distributed. Also, Plaintiff sought to have any increase distributed on a merit basis.

While the Defendant acknowledges that there are several ways that the Commission could make wage adjustments, it preferred that wage adjustments be made on a department basis. This would be accomplished by taking the average of all the ranks within a department at all of the peer institutions, comparing that to the average salary being paid currently at UNO in that department, and applying the resulting differential to the UNO faculty in that department. The Defendant states that in this way, the present salary structure at UNO within a departmental level is not altered and each faculty's relative position within the department will remain unchanged.

Both parties agree that in a wage case involving university faculty, one will never be able to match faculty on an individual basis because no two faculty are alike in their job skills or in their job functions. Some of the many factors which influence salaries at an institution are age and experience, attainment of research grants, number and quality of published articles, the institution's and the faculty member's reputation, promotion criteria, discipline, sub-discipline, market at the time of entry, whether they are a department head, merit pay practices and effectiveness of their teaching and community service. Wide differences in pay can occur within the same sub-discipline and rank at the same institution based on these and other factors. The Plaintiff argues that it is not possible to control for all of these factors and if you do not control for them, then the differential which occurs in salaries will not indicate the pay policy of the institution for the same skills and working conditions but will reflect the differences between individuals and thus one should aggregate salaries at the highest level possible and apply that differential to diminish the impact of these variables not accounted for. The Defendant, on the other hand, argues that aggregating at the institutional level does not diminish the problem of individual differences but rather compounds them when you lump departments together because it gives greater extremes in high-low differences and striking an average wouldn't describe any of the faculty. Defendant believes that comparing by discipline and rank gives you a sufficiently tight group to produce a comparison. However, the Defendant's witness, Ms. Janet West, stated that she would prefer the aggregating to be at a higher level than department (XV:96:12-25, 97:1-8).

Both parties urged the Commission not to disturb the salary differential between ranks within departments. Generally this differential has evolved from past practice and administrative decision. The Commission has held many times that changes in salary structure are best achieved through collective bargaining, and that past practice should not be disturbed in the absence of substantial variances from the prevalent practice. See West Holt Faculty Association v. School District Number 25 of Holt County, Nebraska, 5 CIR 301 (1981); Omaha Association of Firefighters, Local 385 v. City of Omaha, Nebraska, 2 CIR 117,(1975), affd, 194 Neb. 436,231 N.W.2d 710 (1975).

Likewise, it appears to the Commission that we should not disturb the differential between departments for all of the above reasons and the following:

1. It is the prerogative of the Board of Regents to pursue its role and mission in whatever areas they may choose to excel,whether it be at the college or department level. As a hypothetical example, let's say that UNO has decided to put major emphasis in its Business College and to do this it pays higher salaries to attract more qualified faculty. If the peer institutions in the comparable array did not put this same emphasis in their Business College, the Commission could be in the position of downgrading the UNO Business College by requiring UNO to reduce pay for their Business faculty. Or we could just as likely be in the position of telling UNO that they have to put more emphasis by raising salaries in some other areas which they have chosen not to focus on. The Commission feels that these types of decisions are better left to the Board of Regents in determining the needs of the citizens of this state.

2. In some instances there simply are not enough matches to set salaries for some departments. There are no matches, for example, for Writer's Workshop, Fine Arts Press, Urban Studies and University Division, and very few matches for several of the departments in the College of Public Administration, Black Studies and the Library. Where there were matches, there were sometimes not enough faculty in the department to arrive at an unbiased average considering the wide salary variance within the same department.

3. Aggregating at the institutional level minimizes the effects of methodology differences and errors on the part of both parties, such as:

a. Differences in opinion as to the proper match between a UNO department and a peer institution.

b. The Plaintiff sometimes used a peer institution's average department salary as a match to more than one department, at UNO. The Defendant never used an average more than once.

c. The Plaintiff did not collect data for assistant instructors who are in the bargaining unit and whose salaries should have been surveyed and the South Dakota State data may have included coaches' salaries.

d. Diminishes the differences in the methodologies of the Plaintiff and the Defendant in the way they presented data for UNO's College of Business Administration. The Plaintiff matched UNO's individual program areas, such as accounting with accounting at the peer institution, etc. The Defendant did not match individual program areas but rather combined all of the business program areas into one average for each of the peer institutions and compared that to the average of the Business College faculty at UNO. Mr. Elsass testified that this method would be proper under the conditions (XIII:113:18-25, 114:1-10). It is possible for the Commission to change the Plaintiff s data into the Defendant's form but it would be difficult, if not impossible, for the Commission to desegregate the Defendant's data into separate program areas according to Ms. West (XV:106:18-25, 107:1-7).

In the education field, it is many times impossible to be absolute or exactly precise in making a wage comparison. However, the Commission has recognized this fact in the past and has set wages using averages when "precise comparisons of wages, work and skills are not practicable." Southeast Community College Faculty Association v. Southeast Community College, 6 CIR 380 (1983).

Salary vs. Budget Data

The Plaintiff's data was current salary information as of the beginning of the current academic year. Some of the Defendant's data was also salary information but some was budget data. Plaintiff objects to the use of budget data because it is possible that it does not include new hires (who could be paid more or less than the faculty they replaced), could include salary data for people who have died, terminated, retired, etc. While the Commission would prefer to use salary list data because it is more current, the Commission accepted budget data because of its accessibility. We understand that it is difficult if not practically impossible for the Defendant to obtain salary list information while budget data is a matter of public record and easily accessible. Where the Commission has a choice between budget and salary list data and where there are no overriding matters to consider, the Commission has chosen to use the salary list data. Therefore, in the case of the common school of Wichita State University, we choose to use the Plaintiff s data over the Defendant's because it is salary list data. However, in the case of the University of Northern Iowa (UNI), which is also a common school, and Western Illinois University, which is not a common school but which is one that the Plaintiff also gave us data on, the Commission chooses to use the Defendant's data because it includes stipends paid to department chairmen and the Plaintiff's data does not.

Other Conditions of Employment

The parties presented to the Commission a number of exhibits summarizing the fringe benefits offered to the Plaintiff's employees and at the institutions selected for comparison. Tables 2-9 summarize those exhibits offered and received in evidence.

The Commission in examining the record and comparing the fringe benefits provided by the Plaintiff, finds that the overall fringe benefit package offered by the Plaintiff is not inferior in comparison to the other fringe benefit packages of the institutions in the array. We, therefore, will not make any changes in the fringe benefits provided since based on the parties exhibits and expert testimony, the Commission finds the overall fringe benefit package at UNO to be comparable to the prevalent.

Section 48-818 provides that "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." This rule of overall compensation does not require an identity of benefits, but that the overall compensation be "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." These determinations must be made on the basis of the evidence introduced by the parties in the trial of the case. The determinations under Section 48-818, R.R.S. 1943, may, therefore, vary from case to case depending upon the evidence introduced by the parties.

Steps in Calculating % Differential

The calculations set out in Table 10 are a result of the Commission:

1)Using the Plaintiff s figures for the number of UNO faculty at each department and rank from Plaintiff s Exhibit 50E because it included new hires, faculty hired since the previous academic year, and the figures given to us by the Defendant did not. For the same reason, we use the Plaintiff s average salary figures for UNO faculty from Plaintiff's Exhibit 50E with the exception of the average salary figure for the instructor position in the Center for Applied Urban Research. The salary for this position on this exhibit is in error because it includes two lecturers who are not in the bargaining unit and who, therefore, should have been excluded. The correct salary for this position comes from Plaintiff's Exhibit 50D, p. 14 and is the salary which the Commission uses. The Commission also corrected the number of instructors at this rank and department to "l" in its calculations. This exhibit did not include assistant instructors of which there are six at UNO. However, there were no matches for this position in the data that the Commission used.

2)Determining the aggregate salary which would be paid at the peer institution for the matched UNO positions by multiplying the number of UNO faculty in each department at each rank times the average paid for the matched department and rank at the peer institution rate. These averages came from Plaintiffs Exhibit 60B and from Defendant's Exhibit 32 substituted. The salary averages in Plaintiff s Exhibit 60B at the instructor level have been corrected by the Plaintiff in Method 4 by leaving out the lecturers' salaries.

Since the Commission is using an aggregated average to compare to UNO's Business College, the program area averages for Plaintiff s Southwest Missouri State University, Central Missouri State University, and Wichita State University had to be converted into a weighted average. It was not necessary to find a weighted average for South Dakota State University since the only faculty they have in any business area is in economics and it is those averages that the Commission used. The calculations for determining the aggregated business average for the institutions where the Commission used the Plaintiff s data are given below. The number in parenthesis is the number of faculty at the peer institution.

3)Determining the aggregate salary paid to UNO faculty in the departments and ranks for the matched positions using the salary averages and the number of faculty at UNO from Plaintiff's Exhibit 50E, as corrected. These average salaries were multiplied by the number of UNO faculty and a total aggregate salary figure was obtained for UNO.

4)The aggregate salaries figured in (2) and (3) above are shown in Table 10 by institution and rank and in Table 11 by institution only. Table 11 is a computation of the data set out in Table 10. The total aggregate salary at UNO rates is subtracted from the total aggregate salary at the peer institution rates and divided by the aggregate salary at UNO rates to arrive at a 6.6% differential, meaning that UNO salaries are 6.6% -lower than the comparable.

Applying the statutory criteria of Section 48-818 to the evidence in this case, we find that the wages for the University of Nebraska at Omaha bargaining unit employees should be increased by 6.6% for each employee and that no other conditions of employment shall be changed.


1. That for the period July 1, 1982 through June 30, 1983, Plaintiff shall pay to each employee in the bargaining unit an additional amount of salary equal to 6.6% of the amount actually paid.

2. That all other conditions of employment shall remain unchanged for the period of July 1, 1982, to June 30, 1983.

3. That the payments required by this Order 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 June 7, 1983