11 CIR 17 (1990)


Petitioner, |
Respondent. |


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

O'Connor & Associates

2433 South 130th Circle

Omaha, Nebraska 68144

For the Respondent: David M. Pedersen

Baird, Holm, McEachen,

Pedersen, Hamann & Strasheim

1500 Woodmen Tower

Omaha, Nebraska 68102

Before: Judges Cope, Orr, and Dawson


The Amended Petition of March 5, 1990, as amended at trial, states that the Petitioner (also referred to as SEIU) wishes to represent "all employees currently employed by the Omaha Public Schools in the following job classifications: Bus and Van Drivers and Bus and Van Aides, excluding those employees who are supervisors or guards." The Petitioner contends that the appropriate unit should include all employees regardless of the number of hours they work. The Respondent believes that only those employees who are working 30 hours or more per week should be included in the unit. Both parties agree that the classifications of bus driver, van driver, and aide can be included in the unit but disagree as to whether the unit should include those employees working less than 30 hours per week.


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..."

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).

The Supreme Court has also held that:

Before the statutory restrictions against undue fragmentation in the public employment area prescribed by Section 48-838(2), R.S. Supp.,1976, can be overcome, there must be strong evidence justifying the need and propriety of such additional division.

Sheldon Station Employee's Association v. Nebraska Public Power District , 202 Neb. 391, 275 N.W.2d 816(1979).


The Omaha Public School system currently employs 3l3 van drivers, 6l bus drivers, and 52 aides for a total of 426 employees. Of the 426 employees, 286 work 30 hours or more per week while 158 work less than 30 hours per week. The employees in this dispute transport various groups of children during the course of a day for various reasons. They transport handicapped children for Eastern Nebraska Human Services Agency, for preschool handicapped programs, medical transportation, etc. They transport high school racial balance transfer students and magnet school students but are not involved in the busing of students for integration purposes. They also transport many kindergarten students due to consolidation of schools.

The bus drivers are required to hold a state certificate as a school bus driver and must undergo approximately 40 hours of training in the operation of a school bus, operation of loading lights, and procedures of law, national, and state standards. Van drivers drive smaller vehicles than bus drivers and must have a state certificate as well but their training only takes about 20hours. The aides ride on the vehicles and assist with handicapped children. There is no state required training for aides but the district has implemented their own training program.

The Director of Transportation for the district testified that there was very little interchange between van and bus drivers and that most employees work a split shift. Usually once a driver is assigned a route, they keep that same route for the entire school year. The district guarantees four hours of pay per day for all employees. Some people who work less than 30 hours per week will occasionally work over 30 hours per week but there is not much transfer between these two groups. Most of the people who transfer are the standby employees who might work over 30 hours a week about 50% of the time in the winter months. There are 20 of these standby employees. All employees punch in on a time clock and report to, are trained and managed out of the same building. The Director of Transportation further testified that the employees who work less than 30 hours are different than the employees who work 30 or more hours. Those who work less than 30 hours are usually students and retired persons while those who work 30 or more hours tend to see the job more as a career. The turnover rate in the less than 30 hours group is 25.3% while the turnover rate in the over thirty hour group is 7.8%.

All of the employees in this dispute are classified as permanent part-time. None of them receive any fringe benefits. Regardless of the number of hours worked, the pay is basically the same, within a range, for each of the classifications. The Transportation Director testified that, initially, the number of students needing transportation was much smaller and all employees were hired to work less than 30 hours per week. As the years have gone by and new requirements have been added, there has been a substantial increase in the number of students requiring transportation and, therefore, the number of employees needed to transport those students. He indicated that there is presently a plan being devised to make some of the drivers full-time to accomodate the increasing demands placed on the department over the years. He further indicated that those employees going full-time will receive fringe benefits.

There was testimony adduced at trial that SEIU, Local 226 presently represents four other units of the Respondent's employees - the operations division, food service employees, office personnel, and paraprofessionals or aides. All of these units cover only full-time employees (those employees working 30 or more hours per week). Respondent's witness testified that there was basically no difference in salary in these other units between those covered by the contract and those that were considered part-time, less than 30 hours and not covered. However, the employees covered by the contract receive many fringe benefits which the under 30 hour employees do not. While the specific benefits may vary between the contracts, for the most part, covered employees receive health and life insurance, emergency leave, long-term disability, long service increments and some have paid holidays and paid sick leave. Furthermore, these employees are covered by a pension plan as statutorily mandated by Sections 79-1032 et. seq. of the Nebraska statutes which state that employees hired upon a full-time basis and with a work week of not less than 30 hours must be included in the pension plan. Excluding statutorily mandated social security, workers compensation and unemployment costs, which must be paid by the employer on behalf of all employees, there was testimony that the pension plan cost amounts to approximately 35-40% of the fringe benefit package cost incurred by the district under the contracts for these other units.

The Petitioner contends that all of drivers and aides should be included in the unit because they have a close community of interest and because there is no reason to override the statutory presumption that a department wide unit is appropriate. The Petitioner points out that there is no dispute that all of these employees perform the same job duties and job functions. The Petitioner then cites a recent Commission decision in which the Commission found that all employees regardless of the number of hours worked share a community of interest. In Service Employees Int'l Union, Local No. 226 v. Westside Community School District No. 66 , 10 CIR 173 (1989), the Petitioner was seeking to represent only those employees who worked over either 20 or 30 hours per week and the Respondent contended that the appropriate unit consisted of all educational aides regardless of the number of hours worked. The Commission held that there was a community of interest shared by all of the employees as all but one worked less than eight hours a day and all shared similar job duties. The employees in Service Employees v. Westside, supra , did receive different benefits as far as leave provisions and fall under a different statutory pension plan in which a contributing member is defined as either a full-time regular employee (working 30 or more hours per week) or a part-time employee hired to work not less than 15 hours per week. Thus, those employees working less than 15 hours did not receive any pension benefit. However, the Commission found that the difference in benefits was not sufficient to overcome the presumption of a department wide unit.

The Petitioner in the present case elicited testimony that in dealing with the Omaha Public Schools and the organization of the other four units currently represented by the SEIU the only reason the union had not attempted to organize the other units to include the less than 30 hour employees as well was because they were told by various negotiating members from the School District that it was against the law to represent part-time people. It is not clear why this representation would have been made, or indeed it might have been misunderstood, but it appears that it might have stemmed from the pension statutes definition of a full-time employee and inclusion in the pension plan. In addition, the employees wishes are to include everyone in the unit regardless of hours worked.

Respondent contends that departmental size is not applicable here because Section 48-838(2) says that departmental size is appropriate in the absence of a prior bargaining history and the employer in this case has a prior bargaining history with this union which includes only those who work 30 hours of more per week. Also, Section 48-838(2) says that the commission shall consider established bargaining units and established policies of the employer. Petitioner points out that the purpose of the Commission is to promote industrial peace and that the parties prior practices, established bargaining units and their bargaining history have done just that. Respondent believes that to include people working less than 30 hours a week, who are not covered by a pension plan that amounts to 35-40% of the fringe benefit package, would lead to an unharmonious bargaining relationship. Furthermore, Respondent believes that there is no community of interest between the two groups because there is a much higher turnover rate in the under 30 hour group and a large share of them tend to be college students and retired persons who have a different interest in working than those who are 30 hours or more and tend to think of their job as more of a career.

In Service Employees Int'l Union, Local No. 226 v. Westside Community School District No. 66 , we said:

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 2l0 (l980). 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.

At l0 CIR 175-l76 (1989).

Based upon the evidence presented the Commission can not find strong justification for distinguishing between those employees who work over 30 hours and those that do not. All of these employees share a strong mutuality of interest in wages, hours, and working conditions. They are paid on the same wage scale and at the present time do not receive any fringe benefits, thus evidencing a strong unity of economic interest. The duties and skills of the employees are the same regardless of the number of hours worked and all of the employees work out of the same building sharing common supervision. The employees have also expressed a desire to have the SEIU represent all drivers and aides in one bargaining unit.

While the Respondent argues that the unit should only include full-time employees based on the established bargaining units and policies of the parties as evidenced by the other four units represented by the Petitioner, the Commission must be mindful that the parties agreed on the composition of the units in the other cases and that there is no specific bargaining history between the employer and this group of employees. The NLRB has found that "...bargaining history for one group of organized employees, although persuasive, should not invariably control the bargaining pattern for every other group of unorganized employees. Where the nature of their work is sufficiently different, the bargaining history or lack thereof of the very group of employees concerned should not, we believe, be ignored by giving binding effect to the pattern established by another group not directly involved." Joseph E. Seagram & Sons , 101 NLRB No. 37, 31 LRRM 1022 (1952). Whereas in the Seagram case the NLRB was faced with deciding between a single or multi-plant unit and we are faced with determining a bargaining unit based on hours worked, the principle is the same, and the Commission does not find the parties prior bargaining history to be controlling. Furthermore, the Commission does not find the history of the other organized units sufficient to overcome the presumption in favor of a department wide unit.

The Respondent also contends that a unit comprised of all drivers and aides will lead to an unharmonious bargaining relationship because some of the employees, if made full-time sometime in the future, shall be entitled to statutory pension benefits under Sections 79-1032 et. seq. of the Nebraska statutes. While the Commission may look at a difference in fringe benefits between employees when determining the appropriate unit , in the present case the testimony indicates that none of the employees in this group currently receive any benefits. Furthermore, a finding that all of the employees in the designated group should be included in the unit is in keeping with this Commission's findings in SEIU v. Westside Community School Dist., supra .

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

All employees currently employed by the Omaha Public Schools in the following job classifications: Bus and Van Drivers and Bus and Van Aides, excluding those employees who are supervisors, or guards.

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

Entered July 30, 1990.