10 CIR 93 (1988)


Petitioner, |
Respondent. |


For the Petitioner: Ray Simon

Tietjen, Simon & Boyle

101 South 38th Street

Omaha, Nebraska 68131

For the Respondent: Jill Gradwohl Schroeder

Assistant Attorney General

2115 State Capitol

Lincoln, Nebraska 68509-4906

Before: Judges Kratz, Peetz, and Mullin


The Petitioner alleges that it has authorization cards from 47% of the employees in the bargaining unit and asks the Commission to conduct a secret ballot election among the employees in the unit. Respondent's answer claims that some of the employees listed in Petitioner's bargaining unit should be excluded because they are supervisors, as defined in Neb. Rev. Stat. 48-801(9) (Cum. Supp. 1986), and confidential employees. In response to this claim, Petitioner says this Commission, by virtue of Neb. Rev. Stat. 81-1374(4) (1987 Supp.), has no authority to alter the composition of the bargaining unit until after it is certified.

Section 81-1374(4) provides as follows:

. . . no job classification included within any bargaining unit shall be removed or reassigned from a unit until (a) two years after April 9, 1987, or (b) there is a certified exclusive collective bargaining agent for the unit, whichever occurs first.

Petitioner argues that this language clearly prohibits removal of supervisors and confidential employees from the unit for two years or until certification. Respondent contends that Section 81-1374 does not apply because this petition creates a new unit instead of a transition unit. Section 81-1374(1)(c), however, specifically provides a procedure for new units. It says that when"less than seventy per cent of the employees to be included in a bargaining unit prescribed in Section 81-1373 are represented by existing certified collective bargaining agents, representation of employees in the new bargaining unit shall be determined pursuant to procedures prescribed in Section 48-838 and any rules and regulations adopted and promulgated pursuant thereto..." Also, the term "transition" is used in this statute only to designate the change from vertical to horizontal bargaining units and we cannot believe, therefore, that the legislature's use of this word would prohibit us from applying the language of Section 81-1374(4) to the unit described in this case.

Respondent next contends that the words "job classification" refer only to an entire classification of employees; therefore, there is no restriction on the removal of individuals from a classification. This argument has some merit, particularly when you consider that Petitioner's interpretation, which prevents removal of individuals for two years or until certification, could produce rank and file bargaining units with supervisors and confidential employees in them. This would be contrary to a fundamental rule of this Commission, in its interpretation of the Nebraska Industrial Relations Act, and the National Labor Relations Board, in its interpretation of the Labor Management Relations Act.

We are concerned that if we prohibit removal of individual employees from the unit for two years or until certification, supervisory and confidential employees will be included in some rank and file units. While these confidential and supervisory employees could probably be removed after certification by a Petition for Clarification,1 we cannot, inasmuch as the voting is secret, invalidate their ballots. Thus, the votes of otherwise ineligible employees could conceivably make a difference in the outcome of the election. For example: if in this 800-member unit, the vote is 410 to 390 in favor of certification and the 182 claimed supervisors and confidential employees voted for the union by a margin in excess of the difference, then the union would have won the election, instead of losing it, solely by virtue of votes cast by employees who, under the rules of this Commission and the rules of the National Labor Relations Board, should not have been allowed to vote. And there can be no challenge of these 182 votes (thus making them identifiable by separating them from the others) because the unit cannot be changed until after certification.

However, the guideline and basis for the State Employees Collective Bargaining Act (SECBA) was the "Pashler Report" (officially entitled Nebraska State Government and Collective Bargaining) and a careful review of the Pashler Report illustrates that the supervisors and confidential employees were removed from the rank and file units in the enactment of SECBA. The 12 employee classifications listed in the Pashler Report, and incorporated into SECBA by virtue of the first sentence in Section 81-1374(4),2

include a classification for supervisors. According to this Report, there are 1522 supervisors and the Department of Personnel of the Respondent participated in the determination that these 1522 employees were supervisory employees. Page 19 of the Pashler Report includes the following:

At the request of this consultant, the Department of Personnel and the certified employee organizations conducted an in-depth examination of the bargaining units. The Department, with the use of appropriate software, developed the technology to rapidly define and redefine bargaining units. The Department proposed a number of bargaining unit structures which were distributed to interested parties and all the certified employee organizations. Those proposals were critiqued by officials in other states familiar with bargaining unit theory. Furthermore, the consultant examined each of the job classifications assigned to the proposed bargaining units and recommended changes. Over a period of many weeks, adjustments were made in the units in response to concerns expressed by the certified employee organizations.

Pashler furthermore (page 19) comments that "the parties have all been afforded ample opportunity to comment upon the appropriateness of specific job classifications."

If there are now 182 supervisory and confidential employees in the bargaining unit contested herein, as claimed by the Respondent, the Respondent's Department of Personnel should have removed them from the rank and file units during this pre-statutory "in-depth examination of bargaining units." Respondent was "afforded ample opportunity" to do this and if it didn't do it then, it should not be allowed to do it now.

Unlike the bargaining unit of supervisors,3 there is no provision for a separate unit of confidential employees. Supervisors are specifically mentioned in the Pashler Report,4 but there is no clear reference to confidential employees.5 Therefore,

while we know the supervisors were taken out of the rank and file units because they have their own job classification, we don't know, from anything in the Report, that the confidential employees were removed. However, in light of Pashler's description of the in-depth examination of the bargaining units, we must assume that they were.6 The concept that confidential employees should not be included in a unit with rank and file employees is very fundamental and we therefore cannot believe that Pashler included them in the various classifications listed in his appendix.

While the Pashler Report does not provide a crystal clear answer to the issue raised in this case, it is the document upon which SECBA is based and its language, along with the specific language of 81-1374(4), indicates to this Commission that the question of whether there are supervisory and/or confidential employees within these state employee rank and file bargaining units cannot be raised for two years or until after certification. We therefore deny Respondent's request for a hearing on the appropriateness of the unit and we hereby order that an election be scheduled for the bargaining unit delineated in the Petition filed herein.

All judges assigned to the panel in this case join in the entry of this Decision and Order.

Entered September 16, 1988.

1Rule 12 of the CIR allows parties to petition for unit clarification election.

2"The job classifications which compose each bargaining unit and, only for purposes of determining transition to new bargaining units as provided in this section, the number of employees within each job classification shall be found in the Appendix of the report entitled Nebraska State Government and Collective Bargaining, which report is on file with the Clerk of the Legislature on April 9, 1987."

3Supervisory units are allowed under State Law, but not under Federal Law.

4In addition to the job classification for supervisors in the index, the supervisors are also mentioned on page 20 of the Pashler Report, which says:

After a period of 24 months, amendments to units should be allowed so that new job classifications created within the 24-month period, challenges to supervisory status , or other adjustments that are necessary in the view of the Department of Personnel or certified employee organizations, could be sought. Such adjustments should be allowed sooner than 24 months if any employee organization is certified in any given occupational horizontal unit. Under no circumstances should challenges or unit adjustments delay the duty to bargain with any certified employee organization. Finally, the procedures for such challenge shall be those currently set forth in statute. (emphasis supplied)

5An asterisk in the appendix to the Pashler Report says "positions will be detemined on an individual basis for exclusion (confidentials, etc.)," but the report doesn't explain this reference, none of the briefs explain it, and we don't understand it.

6Confidential employees could, of course, be removed from the unit after certification by a Petition for Unit Clarification.