11 CIR 32 (1990)


UNION NO. 1250, |
Petitioner, |
Respondent. |


For the Petitioner: Dalton W. Tietjen

Tietjen, Simon & Boyle

101 South 38th Street

Omaha, Nebraska 68131

For the Respondent: Laurice M. Margheim

115 West 5th Street

P.O. Box 633

Alliance, Nebraska 69301

Before: Judges Kratz, Cope, and Dawson


The issue here is the appropriate election/bargaining unit. The Petitioner, International Brotherhood of Electrical Workers, Local #1250, claims that the appropriate unit for purposes of conducting a representation election is as follows:

Apprentice Lineman, Billing Clerk, Line Foreman, Lineman, Office Receptionist.

Respondent, Panhandle Rural Electric Membership Association, claims the office receptionist and billing clerk should not be included in the same unit with the linemen. Of the 12 employees in the claimed appropriate unit, 10 are linemen and there is one secretary-receptionist1 and one billing clerk. The evidence consists of a brief stipulation and the job descriptions for linemen, secretary-receptionist and billing clerk.

Regarding the appropriate unit for voting in an election, Section 48-838(2), R.S. Supp. 1974, says this:

...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.

There is no established bargaining unit in the instant case, nor is there any evidence of any established employer labor relations policy. The presumption in favor of departmental size units is rebuttable2 and it has been rebutted here where you have one unit of outside employees who possess totally different skills and perform totally different tasks than another unit of clerical employees working on the inside.

With regard to Section 48-838(2), the Nebraska Supreme Court has said as follows:

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...(emphasis supplied) American Assn. of University Professors v. Board of Regents , 203 Neb. 628, 279 N.W. 2d 621 (1979).

In interpreting the Labor Management Relations Act (LMRA), the National Labor Relations Board (NLRB) also uses "community of interest" as its basic guideline for determining the appropriate unit.3 Therefore, the NLRB interpretation of what constitutes an appropriate bargaining unit under the LMRA would be applicable in determining what constitutes an appropriate bargaining unit under the Nebraska Court of Industrial Relations Act (CIRA).4 The following decisions of the NLRB establish the various factors used by that Board in determining an appropriate bargaining unit:

In New Orleans Board of Trade, Ltd. , 1962 CCH NLRB 11,941 (1962), the Board held that in resolving unit issues mutuality of interest in wages, hours, and working conditions is the prime determinate of whether a given group of employees constitute an appropriate unit. In Indiantown Printing, Inc. , 1968-1 CCH NLRB 22,053, 169 NLRB 150 (1968), the Board limited a bargaining unit to the composing room employees of a book printing plant because of separate supervision, absence of job interchange, and physical separation between the company's production departments. In Panda Terminals, Inc. , 1967 CCH NLRB 20,89997, 161 NLRB 1215 (1967), the Board held that clerical workers should not be included in a unit of freight dock workers because they possessed different skills and different supervision. In Laundry Owners Association of Greater Cincinnati , 123 NlRB 543 (1959), the Board excluded retail clerks from a production unit because of different duties and interests. In ACF Industries, Inc. , 1962 CCH NLRB 11,064, 136 NLRB 594 (1962), the Board excluded technicians from a production and maintenance unit because their skills, interests, work and nature of supervision were different. In Wright Plastic Products,Inc. , 1980 CCH NLRB 16,735, 247 NLRB 635 (1980), a secretary and accountant were excluded from a unit of production and maintenance employees because they worked in a separate office area and their duties were distinct and dissimilar from those in the production and maintenance unit. In NLRB v. Target Stores, Inc. , 80 LC 11,857, 547 Fed. 2d 421 (8th Circuit Court of Appeals) (1977), the Board and Court excluded clerical employees from a warehouse unit on the ground that there was a physical and functional separation. In Utility Appliance Corp ., 106 NLRB 398 (1953), the NLRB based its determination of an appropriate unit on the integrated nature of the operations of the employees and their close community of interest.

Thus, the NLRB has used all of the following factors in determining the appropriate bargaining unit: (1) mutuality of interest in wages, hours, and working conditions; (2) absence of job interchange, physical separation, and separate supervision; (3) skills of the employees; (4) difference in duties and interests; (5) physical and functional separation of employees; and (6) the integrated nature of the operations of the employees. The NLRB also uses extent of union organization,5 and desires of employees,6 in determining the appropriate bargaining unit.

The Commission of Industrial Relations has used many of these same factors,7 and the Nebraska Supreme court has also used similar factors, plus factors peculiar to the CIRA, such as a policy against fragmentation of units and the statutory mandate that the unit determination should not interfere with the proper functioning and operation of governmental service.8

The NLRB has traditionally separated office employees from field or warehouse employees. In International Manufacturing Co., Inc. , 1978-79 CCH NLRB 15,133, 238 NLRB 1361 (1978), the Board excluded sales workers from a unit of office clericals. In Panda Terminals, Inc., supra, the Board said clerical workers should not be included with freight dock workers. In Laundry Owners Association of Greater Cincinnati, supra, the Board removed retail clerks from a production unit. In Wright Plastic Products, Inc., supra, maintenance employees were determined to belong in a different bargaining unit than a secretary and an accountant. In Joske's Houston , 1978 CCH NLRB 18,865, 233 NLRB 31 (1977), clerical employees were excluded from a unit of warehouse employees.

In a case similar to this one, Nebraska State Council of Local Unions No. 32, AFSCME v. County of Adams, supra , this Commission ruled that employees in the Adams County Road Department and employees in the adams county Court House belong in separate bargaining units. In making this ruling, the Commission relied on factors which also exist in the instant case. We said:

The duties of the employees in the court house differ significantly from those in the Roads Department. One group works inside doing stenographic, secretarial, and clerical work, while the other works outside with construction utensils and equipment. The skills involved in maintaining, repairing, and building roads are clearly and obviously different than those required for doing office work. There is no interchange of employees between the court house and the Roads Department, and these employees are located geographically two miles apart.

The same differences apply in the instant case where the work of the linemen is similar in nature to the work of a road construction crew and the secretary-receptionist and billing clerk perform work similar to the work performed by the employees in the Adams County Court House.

Applying the factors traditionally used in determining the appropriate bargaining unit to the facts of the instant case, we find as follows: (1) We have no evidence regarding the wages and hours of the linemen and the secretary-receptionist and billing clerk. The Petitioner has the burden of proof in this regard9 and has not shown a similarity in wages and hours. From the job descriptions, we can clearly see that the working conditions for the linemen are substantially different than the working conditions for the secretary-receptionist and the billing clerk. (2) There is also no evidence regarding job interchange between the two employees in the office and the linemen, but since the skills and duties of the two groups of employees are so substantially different, we can easily assume that they do not interchange jobs. (3) The job descriptions indicate that the two groups of employees have separate supervision. The linemen, according to item 4 of the job description, are supervised by a general foreman and the billing clerk and secretary-receptionist appear to be supervised by the manager, office manager, and operations supervisor or manager. (4) There is a physical separation between the employees. The linemen work out in the field in areas which can undoubtedly be several miles from the office where the billing clerk and the secretary-receptionist work. (5) The job descriptions show that the skills possessed by the linemen are totally different than the skills possessed by the two employees in the office. (6) The duties and interests of the linemen and the office employees are also different, and (7) there is no evidence to show an integration of operations between the employees in the office and the employees in the field.

All of the aforedescribed findings clearly show that there is no community of interest between the linemen and the two office employees. We therefore conclude that they should not be included in the same bargaining unit for the purpose of conducting a representation election and it is so Ordered.

The factors in favor of joining the linemen with the office employees in a single unit are not nearly sufficient to overcome the substantial differences heretofore described. The extent of unionization and desires of employees is not a controlling factor under the LMRA10 and we do not consider it controlling under the CIRA. The fact that our ruling will require two bargaining units, rather than one, may provide some hardship to the employer, but apparently the employer prefers it that way. Having two units to bargain with, instead of one, under the circumstances of this case where the community of interest is so divergent, does not interfere with the proper functioning and operation of governmental service, and our separating the two diverse employee units herein does not constitute the type of fragmentation of units that has been considered objectionable in past cases decided by this Commission.

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

Entered August 17, 1990.


1Although this employee is listed as "Office Receptionist" in the unit description, we refer to her hereafter as "secretary-receptionist," which is the way she is identified in her job description.

2 Nebraska Assn. of Public Employees v. State of Nebraska Department of Education , 3 CIR 374 (1978), Affirmed, 204 Neb. 165, 281 N.W. 2d 544 (1979).

3In Gorman's Basic Text on Labor Law , 1976, the author summarizes the NLRB criteria for unit determinations and concludes as follows (p. 69): "For these reasons, the Board in making its unit determinations seeks an employee group which is united by community of interest,..."

4See also, City of Grand Island v. American Federation of State, County & Municipal Employees, et. al. , 186 Neb. 711, 185 N.W. 2d 860 (1971), where the Nebraska Supreme Court ruled that NLRB unit determinations are helpful, but not controlling.

5 NLRB v. American Life and Accident Insurance Co. of Kentucky , 57 LC 12, 691 (CA-6; 1968); NLRB v. Southern Metal Service, Inc. , 87 LC 11, 647, 606 Fed. 2d 512 (CA-5; 1979)

6 Globe Machine and Stamping Co. , 3 NLRB 294 (1937).

7 Nebraska State Council, Local 32 v. City of Blair , 4 CIR 210 (1980); Nebraska State Council of Local Unions No. 21, AFSCME v. County of Adams , 5 CIR 401 (1982); Service Employees International Union, Local No. 226 v. Westside Community School District , 10 CIR 173 (1989).

8 Sheldon Station Employees Association v. NPPD , 202 Neb. 391, 275 N.W. 2d 816 (1979).

9 Nebraska State Patrol v. State Troopers Association of Nebraska , 9 CIR 37 (1987).

10In 1947, Congress changed the Labor Act with regard to the "extent of organization" criteria. It enacted Section 9(c)(5), which provides that "in determining whether a unit is appropriate for the purposes specified in subsection (b) the extent to which the employees have organized shall not be controlling."