10 CIR 97 (1988)


Petitioner, |
Respondent. |


For the Petitioner: J. Murry Shaeffer

Attorney at Law

633 South 9th Street, Suite 302

Lincoln, NE 68508-2877

For the Respondent: Jill Gradwohl Schroeder

Assistant Attorney General

2115 State Capitol

Lincoln, NE 68509-4906

Before: Judges Kratz, Orr, and Mullin


Prior to the enactment of the State Employees Collective Bargaining Act (SECBA) in 1987 (Sec. 81-1369 to 81-1390, R.S. Supp., 1987), the State of Nebraska, through its Department of Correctional Services had reached agreement with Petitioner, the bargaining agent for the Uniformed Employees of the Department, and that the job title of Corrections Unit Supervisor I (USI) would be included in the rank and file bargaining unit represented by Petitioner for the fiscal year 1987-88. SECBA, enacted by the 1987 legislature with an effective date of April 9, 1987, changed the bargaining units for state employees from vertical to horizontal and inserted the USI's in the Supervisory Unit rather than the rank and file unit designated in SECBA as the Protective Services Bargaining Unit. On September 9, 1987, the Protective Services Bargaining Unit was certified by this Commission and that certified unit did not include the USI's. The parties (Petitioner and Respondent) then negotiated a collective bargaining agreement for the 1988-89 year. That agreement, in accord with the certification, did not include the USI's, but stipulated that the sole objection to their inclusion was "the provisions of SECBA." Petitioner now says, in its Petition herein for Amendment of Certified Bargaining Unit, that the exclusion of the USI's from the Protective Services Bargaining Unit was a mistake and asks this Commission to immediately amend that certified bargaining unit and include the USI's.

SECBA was based on a report to the legislature by Peter Pashler, entitled Nebraska State Government and Collective Bargaining (Pashler Report). The Pashler Report includes the following reference, at Section 81-1374(4), R.S. Supp., 1987, to an Appendix which establishes very specifically the bargaining units for state employees:

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.

The afore-described Appendix does not include USI's in the Protective Services Bargaining Unit. As we have mentioned, they were instead included in the Supervisory Unit. They got there through the following comprehensive process: (1) Peter Pashler, hired by the Legislature as an expert in the field of bargaining unit composition and designated "consultant', after examination of the assigned bargaining unit classifications, either specifically changed them from the Protective Services Bargaining Unit to the Supervisory Unit or at least approved of their placement there.1 (2) The State Department of Personnel, after an "in-depth examination of the bargaining units" delineated in the Pashler Report Appendix, left them in the Supervisory Unit.2 (3) The Petitioner, one of the "certified employee organizations," also after an "in-depth examination," left them in the Supervisory Unit.3 (4) The Labor Committee of the Legislature, after a public hearing, left them there, and finally, (5) The Legislature, after floor discussion, also left them there.4

Thus, the consultant (Pashler), the State Personnel Department, the Petitioner herein, and the Nebraska Legislature all decided, during the enactment of SECBA, that the USI's belonged in the Supervisory Bargaining Unit. Now, we are asked by the Petitioner to remove them immediately from the Supervisory Unit and put them in the Protective Services Bargaining Unit. The two interested parties (Petitioner and Respondent) seem to agree that the USI's don't belong where Pashler put them5 and the only question they submit to this tribunal at this time is when should they be reassigned. Petitioner says this change should be ordered immediately and Respondent says it must wait until the current collective bargaining agreement expires on June 30, 1989.

The problem with reassigning this classification right now is the second sentence of Section 81-1374(4), which says 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.

This Commission, although not able to fully understand the basis for this 24 month "locking in" proviso,6 has applied it strictly ( NAPE v. State of Nebraska , Case No. 717, decided September 15, 1988) and that's what we intend to do here. In NAPE , one party wanted to take out of the unit the employees it claimed were supervisors and in the instant case, one party wants to immediately put into the unit employees it claims are not supervisors. The following ruling in NAPE, where the issue was whether supervisors and confidential employees could be removed from the bargaining unit prior to the two years or certification requirements of Section 81-1374(4), applies here:

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.

If the statutory two year restriction applies in NAPE , it must also apply in the instant case. Therefore, the ruling here is that Section 81-1374(4) prohibits the USI's from being "reassigned" until April 9, 1989.

April 9, 1989, of course, is almost three months prior to the expiration date of the current agreement. We have previously stated that unit clarifications will only be effective for future contract years, City of Omaha v. Omaha Police Union, Local 101 , 7 CIR 248 (1984),7 and it would also serve no purpose to place them in the unit three months prior to the expiration of the existing collective bargaining agreement. Therefore, we hold that the USI's should become a part of the Protective Services Bargaining Unit for the contract year which will commence on July 1, 1989.

Entered December 5, 1988.

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1The record in this case doesn't show where they were originally "assigned", but page 19 of the Pashler Report says "...the consultant examined each of the job classifications assigned to the proposed bargaining unit and recommended changes." Also, page 2 of the Pashler Report says the "12 occupational horizontal units... have been scrutinized with great care " (emphasis supplied).

2Page 19 of the Pashler Report also 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.

3See footnote 2 above.

4The first sentence reference to the Pashler Report Appendix in Section 81-1374(4).

5If this constitutes a flaw in the Pashler Report, it is not the only one.

6The explanation in the Pashler Report (p. 20) says that "by locking in" the job classifications for 24 months, the employee organizations "would know with great certainty how such units were to be structured" and this would ease "transition problems", but if a job classification is listed incorrectly, it might be better to immediately correct it than to know with great certainty for 2 years that it is incorrect.

7In this case, the issue was whether the job classification of captain should be removed from the police bargaining unit. We said that "determinations herein will pertain to future negotiations in future contract years." In City Employees Association v. City of Lincoln and Lincoln City Employees Union (NAGE ) , 6 CIR (1982), the parties entered into contracts after the Petition for Clarification was filed, but the Commission still entered an order concerning the appropriate unit for all periods following the then current contract year.