12 CIR 100 (1994)


LOCAL 61, |
Petitioner, |
v. | ORDER
Respondent. |


For the Petitioner: Dalton W. Tietjen

Tietjen, Simon & Boyle

200 Haymarket Square

808 P Street

Lincoln, NE 68508

For the Respondent: William A. Harding


Margaret E. Stine

800 Lincoln Square

121 South 13th Street

Lincoln, NE 68501-2028


The Nebraska Association of Public Employees/AFSCME Local 61 (hereinafter referred to as NAPE) filed a Petition in the Commission asking that an election be held to determine whether NAPE should be the exclusive bargaining representative of the full-time and regular employees of the Richardson County Roads/Highway Department, excluding supervisory, confidential, clerical and seasonal employees. Richardson County has asked the Commission to dismiss NAPE's Petition because NAPE represents certain Law Enforcement Employees of the State of Nebraska and the Nebraska Association of Correctional Employees. Richardson County asserts that civilian and law enforcement employees cannot be members of the same union and that law enforcement and "guard" employees cannot be affiliated with a union that represents "non-guard", civilian employees.

The parties have stipulated as follows:

(a) that the law enforcement employees represented by NAPE are all employees and classifications of the State of Nebraska, not Richardson County;

(b) that the law enforcement employees represented by NAPE are in what is known as the Protective Services Bargaining Unit of the State of Nebraska;

(c) that all of the employees in classifications contained in the Protective Services Bargaining Unit work at and involve work only at institutions of the State of Nebraska;

(d) that the employees and classifications contained in the Protective Services Bargaining Unit are not travelling law enforcement officers. That is, they are not traditional law enforcement positions such as state trooper, sheriff, or police officers; and

(e) that there are no Nebraska institutions located in Richardson County which employ any of the Protective Services Bargaining Unit positions or employees.

While the parties have not so stipulated, the Commission will assume that the employees in the Protective Services Bargaining Unit are guards.

The Commission notes that there appears to be no statutory authority for a "Motion to Dismiss." The Motion filed by the Respondent will be considered, instead, as a Motion for Summary Judgement.

This Commission has regularly applied a rule that guards should not be included in the same bargaining unit as non-guards and that the same union should not represent guards if it represents non-guards where the guard and non-guard employees work for the same employer. See Communication Workers of America, AFL-CIO vs. Hall County , Case No. 862; University Police Officers Association, Local 567 vs. University of Nebraska , 3 CIR 335; Retail and Professional Employees Union Local 1015 vs. Metropolitan Technical Community College Area , 3 CIR 512 (1978); Supervisory, Managerial, and Professional Employees Bargaining Association vs. City of Bellevue , 11 CIR 48 (1991); and CWA vs. County of Scottsbluff , 11 CIR 60 (1980). The underlying reasoning for separating guards from non-guards is the notion that a conflict of interest is created between guards and non-guards because of the guard's responsibility to protect the property and person of the employer. In the case now before us, the guard employees represented by NAPE are employed by the State of Nebraska. The roads and highway employees NAPE seeks to represent are employed by Richardson County. Indeed, it would appear that none of the guard employees represented by NAPE even work in Richardson County. Under these circumstances, there appears to be no conflict of interest that should prevent NAPE from representing the roads and highway employees of Richardson County. Respondent's Motion is overruled and an Order for an election shall be issued.

Entered April 27, 1994.