10 CIR 173 (1989)


Petitioner, |
NO. 66, |
Respondent. |


For the Petitioner: Robert E. O'Connor, Jr.

Robert E. O'Connor & Associates

2437 S. 130th Circle

Omaha, NE 68l44

For the Respondent: Verne Moore, Jr.

Koley, Jessen, Daubman & Rupiper, P.C.

One Pacific Place, Suite 800

1125 South 103rd Street

Omaha, NE 68124


Before Judges: Orr, Mullin and Cope

The Amended Petition in this representation proceeding states that the Petitioner (also referred to as SEIU) wishes to represent certain employees of the Respondent (also referred to as Westside) in the following claimed appropriate bargaining unit:

All full-time employees currently employed by the Westside Community School District #66 in the following job classifications: Education Aides, Para Professionals, Teachers Aides, Special Ed Aides, Media Assistant, excluding those employees who are part time, supervisors, clerical or guards.

The Petitioner also claims in its Amended Petition that there are approximately 6l employees in this proposed unit.

This case is rather unique in that everyone employed in the above described unit, with the exception of one employee, works less than 8 hours per day - the rest of the employees work anywhere from 2 to 7.5 hours per day. The parties agree that persons who work less than 8 hours per day can be in the unit but have been unable to work out an agreement as to where the cutoff should be and have made this the sole issue in this case.

Respondent believes that no distinction can be made between any of these part-time employees as to their inclusion or exclusion and would therefore exclude no one. Petitioner's position at trial was to exclude those employees who work less than 30 hours per week but its Post-Trial Brief asked that excluded employees consist of those "employees who work less than five hours a day or twenty hours a week." and yet in another place in its brief asked that "employees working less than five hours per day should be excluded".


Section 48-838(2) states that:

...the commission shall also determine the appropriate unit for bargaining and for voting in the election, and in making such determination, the commission shall consider established bargaining units and established policies of the employer. It shall be presumed, in the case of governmental subdivisions such as municipalities, counties, power districts, or utility districts with no previous history of collective bargaining, that units of employees of less than departmental size shall not be appropriate.

In further explaining this section, the Supreme Court has said:

In American Assn. of University Professors v. Board of Regents, supra , we said: "The considerations set forth in section 48-838 (2), R.S. Supp., 1974, in regard to collective bargaining units of employees, are not exclusive; and the Court of Industrial Relations may consider additional factors in determining what bargaining unit of employees is appropriate.... A basic inquiry in bargaining unit determination is whether a community of interest exists among the employees which is sufficiently strong to warrant their inclusion in a single unit.... In determining whether a particular group of employees constitutes an appropriate bargaining unit where an employer operates a number of facilities, relevant factors include prior bargaining history; centralization of management, particularly in regard to labor relations; extent of employee interchange; degree of interdependence of autonomy of the facilities; differences or similarities in skills or functions of the employees; geographical location of the facilities in relation to each other; and possibility of over-fragmentation of bargaining units."

State Colleges Education Ass'n and Chadron State College Teaching Faculty Bargaining Unit v. Board of Trustees of the Nebraska State Colleges , 205 Neb. 107, 286 N.W.2d 433 (1979).

While the above is a synopsis of factors to look at in determining appropriate units, much of the above is not applicable in this instance or there is no evidence. The most important factor to consider in this case as fashioned by the parties at the trial and in their briefs is the community of interest.

The National Labor Relations Board criteria for determining the appropriate bargaining unit also includes consideration of mutuality of interest in wages, hours, and working conditions in addition to the duties and skills of the employees, the extent of union organization among the employees, and the desires of the employees. Columbus Firefighter Ass'n v. City of Columbus , 4 CIR 103 (1979). Rulings of the NLRB are a guidance to the Commission in its decisions where there is similar language between the Industrial Relations Act and the National Labor Relations Act.

Gorman's 1976 Labor Law , page 69, in referring to the National Labor Relations Board standards for determining appropriate units, says "the Board...seeks an employee group which is united by community of interest , and which neither embraces employees having a substantial conflict of economic interest nor omits employees sharing a unity of economic interest with other employees in the election or bargaining constituency."

Applying this type of reasoning to Columbus , the CIR found a substantial difference in wages, hours, working conditions, skills and duties between full-time, paid members of a fire department and volunteer members who received nothing except "dinners, dances and a constant keg of beer". It would be impossible for a single bargaining representative to represent both groups and we refused to include them in the same bargaining unit.

More on point is a case involving a determination of which part-time, seasonal and casual employees should be included in a city-wide unit of full-time employees. Nebraska State Council of Local Unions Number 32, AFSCME v. City of Blair , 4 CIR 210 (1980). Evidence as to job descriptions, length of service, method of compensation and fringe benefits was presented. Only part-time librarians were included because they received fringe benefits and worked year round as did the full-time employees. The seasonal and casual employees were not included because they did not receive fringe benefits, worked mostly during the summer months, did not have continuous contact or interchange with full-time employees and did not have mutuality of interest in wages, hours, working conditions, or duties.


The aides hired by Westside perform a variety of tasks which are contingent upon who they are assigned to help and what that person requires them to do. Therefore, there are no specific job descriptions but rather a list of duties which most aides perform at least part of the time. An aide will be assigned and responsible to either a teacher, a group of teachers, or perhaps to the office. Most aides are assigned a room for the school year. Some aides switch off between helping out in the school's office and assisting a teacher in the classroom. Some of the duties which an aide might perform include grading papers, recess duty, lunch duty, working one-on-one with a student, etc. Special education aides perform similar duties as other aides but have to deal with children who are handicapped in some manner. There are no special educational requirements or training programs required to be a teacher's aide, except for special education aides who must attend in-services or health and attendance aides who are required to know CPR and first-aid.

The number of hours that aides work are allocated through the budget process. There are a certain number of aide hours allocated per school building which is determined mainly by enrollment. Each building principal then decides how many aides to hire to fill out the number of budgeted hours. To some extent, the desires of the employees for fewer hours is accommodated when possible. Two aides each work 3.25 hours and fill a 6.5 hour position but have exactly the same job. Many of these aides have had their hours reduced due to RIF's and probably started out as being six hour aides but then had their hours reduced (T61:10-15). If a building principal needs to reduce by six hours, he can decide whether to eliminate one person working six or reduce each of six people by one hour. Differences in hours worked can be explained by this and by the RIF's that have occurred in the school system.

Each aide is paid an hourly rate and pay is fairly uniform except for time in job or the special qualities that a teacher might have that the school needs. Raises are across the board (T52:11-25; 53:1-13). A letter contract (Exhibit 3) that aides receive for the next school year indicates that employees who work 20 hours or more per week on a regular basis receive three leave benefit days and that employees who work 15 or more hours must join the Nebraska retirement system.

Petitioner's witness, who led the organizing efforts for this group, testified that in all of the contracts he has been involved with the bargaining units include only those employees working 30 or more hours per week, anyone working less was considered a part-time employee and not includable. It was with this in mind, that he helped organize the employees at Westside. He testified that recently he has come to find out that this idea of a statutorily defined full-time employee comes from statutes dealing with pensions. Section 79-1032(4) Neb. Rev. Stat. (Reissue 1987) defines, for the purposes of membership in the Class V (Omaha Public Schools) retirement system, a full-time regular employee (not a teacher) as being one who works at least 30 hours per week. Westside is not a Class V school and the statute pertaining to Westside's retirement is Section 79-1501(12) which defines a non-teacher contributing member to the pension plan as either a full-time regular employee who works at least 30 hours per week or a part-time employee who is hired to work not less than l5 hours per week.

Based on the evidence, there is no distinguishing feature on which we can justify excluding any persons who work less than 8 hours per day. There is a great deal of overlap in job duties among the aides (T60:12-20). The only difference in benefits afforded between the part-time employees is the leave provisions because contribution to retirement is statutorily mandated. We find that such a difference is not substantial enough to overcome the community of interest which all part-time employees enjoy. While all other organizational efforts by SEIU, Local 226, may have included units of employees working 30 or more hours, this cutoff was based solely on pension plan statutes, which are not applicable to Westside. In fact, Petitioner's organizer testified that he had no problem with part-time people and that, in fact, he had written to all employees, including the two hour aides and told them that the union was willing to accept part-time educational aides(T11:16-23). Furthermore, there is no difference in pay level between a person who works two hours or one that works six other than that attributable to how long they have been employed and any special qualities the aide might possess.

The Commission therefore finds that the appropriate bargaining unit in this case is:

All full time and part-time employees currently employed by the Westside Community School District #66 in the following job classifications: Education Aides, Para Professionals, Teachers Aides, Special Ed Aides, Media Assistants, excluding those employees who are supervisors, clerical or guards.

With the determination of the appropriate bargaining unit, a showing of interest can now be determined. The Clerk shows that of the 65 authorization cards signed by employees in the above unit, 57 were dated within ninety days of the filing date, as provided by Rule 10B(3). In response to the Clerk's Advice and Direction to Employer filed April 17, 1989, Respondent filed on April 25, 1989 an alphabetized list of 169 employees in the above unit. Of the 57 timely signatures appearing on Petitioner's authorization cards, 50 also appeared on Respondent's list. Thus, a total of 50 out of a potential 169 employees, or 29.59%, have authorized Petitioner to represent them and have requested the Commission to conduct a certification election.

The Clerk has determined, based on the foregoing, that the Petitioner has not made the sufficient showing of interest required to entitle it to an election by the Commission pursuant to Rule l0F. This case is hereby dismissed.

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

Entered June 20, 1989.